COURT OF CHANCERY.

HC Deb 12 February 1828 vol 18 cc315-39

Mr. M. A. Taylor

said, he rose to renew his entreaty to the House, that they would again take into their earnest consideration the present state of the Court of Chancery. He could assure them that in any statement he might have to make, he did not intend to exaggerate the existing evil. Although he believed that the motion could not be objected to by any individual, still he thought it was only fair to the House and to the country to state, not, however, at any length, his view of the subject, and thus to place before the House the real evils of this court and to point out the miseries which its suitors frequently endured—miseries not confined to days or months, but which often extended to years, —yes, to many years. Many of those suitors, to his own certain knowledge, were, in consequence of their having been kept in that court for years, either ruined in their circumstances or left to linger in a gaol. He thought it absolutely necessary to state to the House that for which he hoped every man would give him credit; namely, that he warred against no individual, that he had no personal hostility to any man who at present presided, or who had formerly presided, in that court. All he wished to attack was, the system; and he was convinced that the public felt with him as to the abuses of that court, which had increased, and gone on increasing, until the evil amounted to a denial of all justice. He knew very well that the member who brought forward to the notice of the House any material and real grievance in the administration of the law, had a great deal to contend with. He had reason to know that the evil was not assailed, but that the person exposing it was likely to be attacked. Some persons looked on it as quite horrible, to suppose for a moment that any individual had a right to meddle with an ancient system; and he recollected what had happened to himself some years ago, when in conjunction with an hon. friend of his, now no more, the late Mr. Ponsonby, who had been lord Chancellor of Ireland, he introduced a motion for an account of the fees taken in Chancery. He was then told by noble lords in the other House, that it was a horrible thing to institute such an inquiry. Many men thought it improper to interfere at all with an old system, sagaciously concluding, that because it was old it must necessarily be good. Another impediment was thrown in the way of those who desired reform, by the conduct of individuals who profited by the existing state of things; for they all knew that men did not like to give up great patronage and great emoluments. Patronage was, however, one thing, and emolument another; but if, by any act of his, or by any suggestion he might make, it appeared that the income of the lord Chancellor was likely not to prove sufficient, the public, he was sure, was not so niggardly as not to do the individual holding that office full justice.—There was another reason why this subject had been so long suffered to remain in its present unsettled state; and that was, because few people believed, that such an evil as that of the court of Chancery would ever come home to their own doors. They lulled themselves into perfect security on this point; but nothing could be more fallacious in principle or in practice than such an idea. No gentleman in that House could know how soon a bill in equity might be filed against him. He might be guardian to a minor; he might be an executor; he might be a creditor to any individual; and how long, being at the mercy of another, could a person so situated declare, with any degree of certainty, that he was not liable to be involved in a Chancery suit? Notwithstanding every exertion on his part—notwithstanding the most upright and open-hearted conduct—still he defied any man, situated as he had described, to know how long he might be able to escape such an infliction.

Before he began any part of this subject, be begged leave to state distinctly to the House, that though he knew and was aware that some orders had recently been made with respect to the practice of the court of Chancery, yet he would not therefore desist from his exertions to reform that court. He understood that yesterday in the court of Chancery the lord Chancellor had said, that a variety of new resolutions had been framed, and orders had been given, in pursuance of the report of the commission which had been formed, by the king's command, some years ago. He, however, was not to be lulled into security by any such proceeding. A similar attempt was made in 1812, by the late lord Chancellor; and when he (Mr. Taylor) then carried the question in the House of Commons, the Chancellor said, it was impossible for him to go on with the business. His lordship might have said so much earlier; for he had known the fact long before. If the lord Chancellor added eighty, ninety, or a hundred orders to his list, it would not satisfy him; because he was convinced, that those orders would not rectify the evils of which he complained. Such a proceeding might have the effect of bringing on a cause a month or a couple of months sooner; but it would not give to the suitor that extensive remedy which he ought to have; therefore he hoped he should not be considered pertinacious, when he stated to the House and the country, that he would persevere in his efforts, until he placed the suitor in the situation in which he ought to stand.

After all the flattering hopes which had been given, that this court should be amended, what had been done? In 1809, he drew the attention of the House to the mischief that was produced by the court of Chancery. The government was, of course, opposed to him, on account of lord Eldon, who formed a prominent part of the then administration. Lord Eldon himself declared, that if he (Mr. Taylor) succeeded in the views which he entertained on this subject, he would be no longer lord chancellor of England; that was, in other words, that if he succeeded in finding out the cause of the delay, lord Eldon would resign the great seal and retire. Now, he would show the inconsistency of that noble lord's conduct. He did not choose to go over all the facts; but whatever he did feel it necessary to I state, he had the papers by him to refer I to, in corroboration of his statement. In 1811, he succeeded in carrying the committee of inquiry. The committee accordingly sat, and reported the arrears. In 1812, the committee was renewed; but how? With an influx of men brought in by the late Mr. Perceval; several of them masters in Chancery; very good men in their way; but the last persons that ought I to be employed in such an inquiry. The consequence was, that sir Samuel Romilly found it impossible to proceed; and why? Because the committee was appointed to report on the delay, and to state the number of causes in arrear; but when he (Mr.; Taylor) called on them to examine into ' the cause of that delay, it was immediately said, "No, no: that sacred ground I must not be touched; the lord Chancellor must not be interfered with on that point." The consequence was, that he found himself in a minority of seven. He then applied to the House to give further instructions to the committee; but that was refused. The House divided on the proposition, which was this, "That it be a special instruction to the committee, to examine persons practising at the bar, as well I as solicitors, touching the causes of the delay in the court of Chancery." That proposition was lost. He had carried his first motion, for an inquiry; but then, said the minister, "You shall not inquire into I the causes of the delay." What, then, he asked, was the use of the committee? Sir Samuel Romilly, in consequence, said at once—" We must give the business up; "and he was not at all surprised at it. In 1819, he (Mr. Taylor) moved for an account of the effects of suitors in Chancery, which was granted. He then moved, "That this House, at an early period next session, do enter into a consideration of the proceedings in the court of Chancery." There he was left in a minority of fifty-two to fifty-six. Mr. John Williams afterwards, in 1823, moved for an inquiry into the state of the court of Chancery, which was negatived by one hundred and seventy-four to eighty-nine. In 1824, the motion was made and agreed to, praying that his majesty would be pleased to appoint a commission to inquire into the causes of the delay in the court of Chancery: and in 1826, the report of the commissioners was made. But, from that time to the present, not one vestige appeared of any thing, founded upon that report, having been done. Two bills had indeed been introduced, the one comprising much less than the other; but they had not been pressed forward. One of them was moved by the present lord Chancellor, who said that he would consult him (Mr. Taylor) on the subject; but from that hour to this the bill had been dropped, and the court remained just as it had been; and they were now told, that the bill was not to be renewed. In the debate of that bill it was clearly shown, that, except the payment of the salaries of the masters, the measure did nothing that could not be carried into effect by the order of the lord Chancellor. It had now slept for years; and what was the reason of this delay? Why, it was this:—the lord Chancellor, who, in 1826, thought that certain alterations ought to be made in the court by act of parliament, had changed his opinion, and did not now think it necessary. He well knew lord Eldon's merits, and his value: there was not, he believed, a greater lawyer; and if he had presided in the King's-bench, where three other judges must sit along with him, he had no doubt but that he would have given prompt decisions; but his time was employed in various ways. He was a political character, and when called on to attend in the Cabinet, off he immediately went from his court. He was convinced, that if lord Eldon, instead of doubting and delaying, had given his judgment on the first view of a case, that judgment would have been generally right: for no man had a more accurate insight into the law affecting property than he had. But, instead of deciding at once, cases were delayed until the nature of them was forgotten: years passed away, and the parties were ruined. Lord Eldon persuaded the House of Lords, and afterwards the House of Commons, that a vice Chancellor's court ought to be erected to lessen the business of the court of Chancery. To that measure he (Mr. Taylor) was not favourable. He was anxious to lighten the burthens of the court: of Chancery, by separating the bankruptcy cases from the equity jurisdiction. In endeavouring to effect that object, he had the assistance of one of the ablest men that ever sat in that House—the late Mr. Canning; and, though some had doubted it, he could confidently assert that he had also the assistance of the late sir Samuel Romilly. They both felt that the only way in which the court could be effectually relieved was by appointing a separate judge for the adjudication of bankrupt cases. Another plan was adopted to lessen the labours of the lord Chancellor, by causing the Speaker of the House of Lords to expedite the Scotch Appeals. This, it was supposed, would enable the lord Chancellor to devote three more clays in the week to the disposal of equity cases. Let the House mark the assistance which the late lord Chancellor had obtained. He had said, that he wanted no assistance; yet all the assistance which he (Mr. Taylor) had enumerated, that noble lord had himself procured.

He would now inquire what was the state of the Court, before lord Eldon had gained that assistance, and what was it at present? In 1811, when the committee of inquiry was granted, there stood on the Chancery paper one hundred and fourteen causes, there were forty further directions, and fifty-nine exceptions and demurrers; amounting in the whole to two hundred and thirteen. In 1827, with all this additional assistance, the numbers stood thus—there were three hundred and sixteen causes now in the Court, one hundred and forty-four exceptions, seventeen pleas and demurrers, forty-nine for re-hearing; so that instead of two hundred and thirteen cases standing over for further directions, &c, there were actually, notwithstanding all the additional assistance, five hundred and twenty-six causes. He therefore had a right to say, that the Court had really gained nothing by the alterations. After seventeen, eighteen, or nineteen, years of perseverance in endeavours to ameliorate the court of Chancery, the Court had not got one step forward. And why? Because the judge who sat there was a political judge, intimately connected with a party, and therefore it was impossible for him to attend to his judicial duties. Now, whatever his political opinions might be, he had an abhorence of a political judge; and he believed, from the bottom of his heart, that the business of the Chancery would never be carried on for the benefit of the suitors, without some court of equity being established by commission, having judges totally unconnected with politics, and in no way charged with the responsibility of advising the Crown. He could give a striking proof that the attention paid to political feeling greatly retarded the business of the court. Many years ago, when he practised at the bar, the great seal was put in commission; he believed for the last time. Lord Chief-justice Eyre, Mr. Justice Ashurst, and Mr. Justice Wilson, were the commissioners for the great seal, and the business went on with rapidity. The great seal was, after a time, handed to lord Loughborough, and his majesty inquired of the commissioners what business remained in the court. Lord Chief-justice Eyre answered, that if his majesty had ordered him to attend at half past three instead of two o'clock, there would not have been a cause to be disposed of in the court—neither a bankrupt petition, an exception, or a motion; but for want of time, the commissioners had been obliged to leave one. When lord Loughborough, then chief-justice of the Common Pleas, Mr. Baron Hotham, and sir W. Ashurst, were commissioners for keeping the great seal, there never was a cause that passed over one day, which was not decided the next morning. But when lord Loughborough became Chancellor, the business of the court fell into arrear. He therefore contended, that unless some additional power was given to the Court, by the appointment of one or two judges, between whom the business should be subdivided, or by the adoption of some other efficacious plan, it was quite impossible that the arrear of business could ever be overcome. He asked, then, whether, after the exertions of so many years, the public had gained or lost? He said decidedly, that the public had lost.

Before he stated his case, he wished to point out to the House a most extraordinary circumstance in the practice of that Court, with which a professional gentleman had furnished him. He did not introduce it as exemplifying the general practice of the Court; but to show, that, unless some assistance was given to the Court—unless power was given to the judge to repress improper acts,—gross abuses might be committed with impunity. He alluded to the case of "Brown and De Tastet," which was still going on. It was a very curious case, and showed how a suit might be drawn out, and how a bill might be amended almost to the end of time. This was a suit which was to be heard on petition. The original bill was amended, and re-amended, and supplementarily amended, and re-amended, and again supplementarily amended. Now, he did not say that such practice formed the general rule of the court, but it proved how easily abuses might be committed. In 1816, an action connected with this case was commenced, and, in consequence of the witnesses being abroad, it was attended with considerable delay. In 1819, the trial was stayed, to the great indignation of the defendant's attorney, who declared that his client ought not to be so treated; that he cared not for the order of the lord Chancellor; that he would keep the business in court for ten years; that it never should be finished during his life, or until his opponent was ruined. In 1819 a bill was filed, containing five hundred and sixty-six folios; on the 27th of October following, the plaintiff obtained an order to amend that bill; in November following, the bill was amended, with six hundred and two folios; on the 10th of November an answer was put in; in December an order was obtained to amend the answer; on the 4th of December, a second answer of four hundred and thirty-five folios was filed; on the 26th of December, a supplemental bill was filed. Not less than ten thousand, four hundred and ninety-seven folios were drawn up in the course of two years. On the 22nd of April 1821, the Vice-chancellor said he would go on with the case and decide it. In July, 1821, a supplemental bill was filed. In 1824 another supplemental bill was filed;—and by whom?—by a living being? No by a dead man. Why was this admitted? Because it was some time before the other party knew whether the individual was living or dead. The attorney, however, took advantage of the circumstance, and said, "Though Mr. Da Costa be dead, yet he shall live in my bill." When it was found out that this gentleman was dead, the bill was taken off the file of course. "Ay," said the defendant, "but I have another resource: there was a commission—I will revive it, and put it on the file in the name of the assignees." There it stood till the fraud was discovered. Such was the proceeding in this cause during the last ten years; and yet the attorney was not struck off the rolls of the court!

When such a state of things existed, what use was there, after seventeen or eighteen years' consideration, to come down to the House with eighteen or nineteen resolutions, and to say to the suitors; "Oh, we will give you a little relief that will jog your cause on a month or so." But he must say, that such relief availed nothing; since it would not effectually correct the evils engendered by the practice of the Court. Gentlemen might suppose that when a cause was heard, there was an end of it. But the hearing was, in fact, only the beginning of the business. The Chancellor sent the cause to the Master to examine it; and when it came from him, it was set down for hearing, and there it might remain for months and months. When the present Master of the Rolls was Vice-chancellor, he saw the difficulty of getting through the business, and he hastened the proceedings. But, with all his despatch, he found, after he had sat for eighteen or nineteen months, that there was a great arrear of causes for further direction, after coming from the Master's office.

The hon. and learned gentleman then adverted to the inconvenience, nay, to the positive evil, —which legatees were subjected to, under the present practice of the court of Chancery. A testator dying, might leave to his wife and children a certain sum charged on his estate. Now if the executor happened to be a litigious man, he might prevent the legacies from being paid for seven years after he got possession of the property. This was a case of common occurrence. In cases where there was an immense property concerned, the Master would sometimes make a separate report; and if he did this, the Chancellor acting upon that report, would grant a proper maintenance: but, if the Master did not make a separate report, the widow and the children might remain without a sixpence for seven years. In cases where a man left legacies chargeable upon his personal estate, several years must, of necessity, elapse before the legatees could obtain them, if the executors thought proper to throw obstacles in their way. And when all this was said, what sort of answer did they get? Why, they were told that it was the course of the court! But why was it the course of the court? Only for this reason—because when causes were ready for hearing there was not a sufficient number of judges to hear them.

He did not wish to trouble the House unnecessarily with details, but there was another case to which he must call their attention. He was afraid he was tiresome, but it was necessary for him to display clearly the broad ground upon which he felt himself justified in coming to the determination which he begged now once more to declare; namely, that he never would leave this question until he had seen justice done. The case to which he had to call the attention of the House was the case of "Green and Jackson," which arose out of money having been left to certain charities, contrary to the statute of Mortmain. The question was of the most plain and simple nature, yet it was still in court, and he would show that no decision could be got even upon this simple question, until the year 1830. He desired the Mouse perfectly to understand that he had resources from which he was able to derive information upon the subject on which he was now speaking. He begged the House not to suppose that he, who had left the bar five and thirty years, depended upon his own information, or upon his own researches. No; he had resources; they were men of high repute and standing in the court of which he was speaking. To name them would be a sufficient guarantee for the accuracy of his statements; but that, he believed, would not be very regular in that place. The very facts, however, which he stated, or at least many of them, had been mentioned to lord Lyndhurst himself by these very gentlemen. The case to which he was just alluding was this:—John Chapman, by his will dated the 7th of February, 1816, gave certain gifts and legacies to different charities, which, as he had before observed, were clearly void. The heir at law and next of kin filed a bill, in 1819, to have it declared, that the gifts and legacies were void. The defendants—the trustees of the charities—put in their answers in 1820; and very soon after —that was in the same year—the trustees and executors, who had the funds in their hands, put in their answer also. In the same year, also, the bill was amended, by making other defendants parties, who speedily put in their answers. In November, 1820, subpoenas to rejoin were served; and in the beginning of 1821, the cause was set down. In December, 1821, the cause was heard, and it was referred to the Master to inquire who was the heir-at-law, and who were the next of kin of the testator. The Master reported, that the plaintiff's were such heir-at-law and next of kin. The cause was then heard for the first time, on further directions, in 1823; and it was again referred to the Master to take an account of the property in dispute. On the 25th of August, 1824, the Master made his report as to the amount of the property. On the 21st of January, 1825, the cause was ordered to be set down for further directions. On the 11th of December, 1826, twenty-three months after the cause was in a condition to be heard a second time on further directions, the Vice-chancellor again referred it to the Master, to inquire what children of the testator's half-nephews were living, and who were the representatives of such as were dead; his honour being of opinion, that he could not decide in their absence. At this present time, that is to say, in February, 1828, the Master was still occupied in prosecuting this inquiry. Now, supposing that the cause should be set down again in June, it would not be until May, 1830—nearly ten years from the time when the cause was first set down to be heard—that the cause could be finally determined. Ten years, then, had been wasted upon a question in which there was no difficulty whatever—which might have been decided in less than an hour—which the merest driveller at the bar could have entertained no doubt upon. In this case it appeared, that no blame could be thrown upon the solicitors. Six years of the delay was solely attributable to the Court not being able to hear causes quickly in its several stages; and this the Court about which they had had a report.

He had read the report through, and he would say, that a greater tissue of nonsense was never before strung together. Nay, every body agreed that such was its character. Nobody could help laughing at it; and he was only surprised that any set of men could have brought themselves to put it forth. And when he had said this before many very excellent men in the profession—and he could assure the House that with such persons he had frequently conversed upon the subject—they did not attempt to deny it. No; they agreed with him, and all they could say upon the matter was, "Yes, but you know the Chancellor was there—the Chancellor was in the commission." Certainly he knew the Chancellor was there; and he would ask why he was allowed to be there? It was perfectly clear, perfectly notorious, how they had marshalled their men in that coin-mission,—how they had fixed cautiously upon particular men, and excluded others with equal caution. He did not mean to say that the name of such an humble individual as himself was of sufficient importance to attract the notice and attention of his majesty's government; but then he must remind the House, that in other cases it had always been customary to include the persons with whom the subject originated. He, however, who had been the means of having the commission appointed, was left out. He was very well aware why they had left him out. They knew, that if he had been among them, he would have unravelled the whole question; while, as it was, the Chancellor had no one to say to him, "This evidence is not correct, —this statement is not true." He did not blame those who did not adopt the course which he should have adopted; but he would tell what he knew to be the reason for the omission of his name in the coin-mission. No doubt they said, "We won't have that plaguy, troublesome, litigious fellow, Michael Angelo Taylor among us." Mr. Williams, then? "No: Mr.' Williams makes very clever speeches,—is a very stirring man; but he, too, will unravel the whole business,—we must not have him among us." And who had they after all? Why, there was, for instance, Mr. Robert Smith, a very able man, no doubt; and a man, too, who had the misfortune to sit on the opposition side of the House as long as he had. He had practised in India, if he was not mistaken; but then he knew no more about the practice of a court of Equity, than he (Mr. Taylor) did of commanding a fleet of twenty sail of the line. Then there was Dr. Lushington, a civil lawyer, and a very able man, but who knew nothing about the court of Chancery. Indeed, his hon. and learned friend must have had all the business to learn, when he found himself placed in such a situation. Then there was lord Eldon. His lordship sat there like an humble private individual, and every body knew what he wanted, and what his opinion of the whole commission was. He begged to say most explicitly and distinctly—for he did not wish to be misunderstood—that the whole object, in the selection and appointment of that commission was, that no blame should be laid upon the Chancellor for delay [cheers.] He thought that if that great judge had decided according to the means he possessed, a considerable portion of the grievances now complained of would never have existed.

For his own part, he was not very much inclined to give counsel to the House. That was an office which he had no wish ever to take upon him: but, on the present occasion, if they would allow him, he would give them a little counsel, and he did it without hesitation, because it originated with an illustrious individual whose authority was always listened to with respect. The great man to whom he alluded was lord chancellor Bacon, who, though unfortunately not the purest and most upright of men, was possessed of learning, talents, and discernment, rarely equalled, and perhaps never surpassed. In the times in which lord Bacon lived it was the custom for the king, when he delivered the great seal into the hands of the person whom he had fixed upon to hold it, to add a charge, which consisted of some words of caution and advice. When the lord chancellor, or lord keeper, took his seat upon the bench, he was accompanied, as was the habit now, by many of the nobility, and persons filling high situations. When king James delivered to sir Francis Bacon the great seal, he gave him four cautions; and the lord keeper in his speech, on taking his seat in the court of Chancery, accompanied by several distinguished personages, alluded to some points well worthy the attention of the House. Non meus hic sermo. The lord keeper spoke thus:—"The king's charge, which is my lantern, rested upon four heads:—1st, That I should contain the jurisdiction of the Court within its true and due limits, without swelling or excess." He could have wished that other chancellors had paid attention to this advice of "containing the jurisdiction of the court within due limits, without swelling or excess. If they had, the public would not, in all probability, have heard so much of opera-houses and theatres in the court of Chancery. The lord keeper went on—2nd, "That I should retrench all unnecessary delays, that the subject might find that he did enjoy the same remedy against the fainting of the soul, and the consumption of the estate, which was speedy justice— Bis dat, qui cito dat." True it was, that speedy justice was every thing, and a great pity it was that that did not appear to be the maxim of every one. Many persons had come to him since he had first taken up the question of the court of Chancery, and stated to him the nature of their cases and the hardships they had experienced from delay—from those "unnecessary delays" which it was his object to retrench. But these persons, when they mentioned their cases to him, had at the same time begged of him not to mention their names, lest they should suffer in consequence the displeasure of the Court. He had not mentioned their names, but he had searched out and inquired into their cases, and found that they had almost invariably truly stated them to him. In the gaols of the country—in the ruin of many individuals—of whole families—they had abundant instances of the "fainting of the soul" for want of the remedy which the lord keeper had so well described. Speedy justice was all that he asked for, and if the commission had been appointed to inquire into the wrongs inflicted upon the suitors of the court of Chancery, instead of the purpose for which it was appointed, speedy justice would have been obtained. The third head to which the lord keeper alluded was this—"That justice might pass with as easy a charge as might be; and that these same brambles that grow about justice, of needless charge and expense, and all manner of exactions, might be rooted out so far as might be." Did justice now pass at an easy charge? Look at the cost of proceedings in the court of Chancery, as it was at present constituted. The lord keeper continued—"These commands are righteous, and, as I may term them, sacred." Speaking afterwards of speedy justice, he says, "it rests much upon myself and much upon others. For myself, I am resolved that my decree shall come speedily, if not instantly, after the hearing—and my signed decree, speedily upon my decree being pronounced; for fresh justice is the sweetest."—For the fourth and last point of the king's commandment, "for the cutting off unnecessary charge upon the subject, a great portion of it is fulfilled in the precedent article, for it is the length of suits that doth multiply charges chiefly."

This was advice which it would indeed be wise to follow: these were resolves which it would have been well if lord Bacon and every succeeding chancellor, had put into execution. He must beg of the House not to look upon this as a party question. It was no such thing: it was perfectly unconnected with party. Let the House only look at the state of the public feeling upon this question, and then ask themselves if it had any thing to do with party. When he had used this argument it had been said, "then why are not petitions presented to the House?" If he chose, he could load the table with petitions. The reason he had not done so was this. He had been told that it would not be fair to take such a course, and therefore he disdained to take what might be called an unfair advantage. He had said, "let the public, then, judge for themselves," and so he said still; but he felt it right to state publicly in his place, that if he had not more assistance given him upon I this question—which he again said he; never would leave—than he had received for the last seventeen years, the public must, come forward, and tell the House, in language which could not be misunderstood, what their feeling on the subject was. He must again remind the House of the words of lord Bacon.—"As to speedy justice it rests much upon myself." His resolution, too, respecting his decree, could not be too frequently or too strongly impressed upon the minds of judges. There were numerous instances to show the danger and cruelty of not entertaining, or of not adhering to (which was the same thing), his resolution. Many cases in the court of Chancery had lain over three or four years for judgment. The maxim, that "fresh justice was the sweetest," seemed to have been for some time totally exploded from the court of Chancery. He must, however, call upon the leading minister in that House to consider this question seriously and attentively—to look into it himself; to judge of it himself, by the evidence which he may be able to collect, and to tell him (Mr. Taylor) whether his view was not correct. He had every confidence in that right hon. gentleman, and he did, therefore, earnestly call upon him to examine and to judge for himself; not to take the opinion of the law-officers or even of the lord Chancellor, but to be guided by his own judgment, and to be influenced by nothing but what he saw to be true. This was no time for trifling measures. They were already paying dearly enough for living in a free country. For his own part, he did not care how dearly, but this he would say, give him what he had a right to demand—give him justice—give him speedy justice [cheers]. He had no wish to speak in any thing but terms of respect of the government; but he could not help declaring, that that government did not act honestly by the country, if it refused this. A few resolutions were of no use: they would effect nothing. The court must be cleansed by proper and efficient means, and the wrongs must not be trifled with by a voluminous report, which was waste paper, or worse than waste paper—the greatest mockery he ever beheld, " Nulli negabimus, nulli differemus, nulli vendemus justitiam vel rectum." Let the House recollect these words, and say if this Magna Charta was not violated most grossly by the present system of the court of Chancery. He said that justice was denied, and that this was the grossest case that had ever been brought before that House. Ruin had been the result of this system in many cases; and yet it was still endeavoured to uphold it. He had read several pamphlets upon the subject. They were of a most, extraordinary kind. The men must have been in the moon when they wrote them. They told him, that people must wait two or three years, and that there was no hardship in such delay. It was unnecessary to reply to such nonsense.

He was afraid that he had already tired the House; but his desire to remedy the present system had led him to trespass longer upon their attention than he had at first intended. He would add little more than a statement of the papers which he was desirous of having produced. If he were asked, what specific remedy he had to propose, he should reply that that was a question to be considered hereafter. The simple question he had to ask was this, —Was the present state of the court of Chancery such as the country would tolerate? If it be not,—and it would be found that it was not,—then they were sacrificing the interests of the public to the personal aggrandizement of a few individuals. He was free to confess that in his opinion, the separation of the jurisdiction in bankruptcy from the great seal would go very considerably towards removing much of the present grievances. The jurisdiction in bankruptcy was not originally attached to the great seal, but belonged to the lords of the Treasury. It did not now pass with the great seal, but was superadded to it by the statute. What objection, then, could there be to separate it from the great seal? He would only just state, that in 1811, when he moved for a committee to inquire into the causes of the delays of the court, of Chancery, there were two hundred and odd bankrupt petitions in the court, and that now there were nearly five hundred. In the last return he had received they were stated at four hundred and fifty. Many of these petitions took up no less than three or four days each; so that the judges had really not time enough to get through the business before them. His hon. and learned friend (Mr. Brougham) had, in the speech which he had lately made, and to the eloquence and research of which the House had listened with so much delight, alluded to the disparity between the business of the court and the number of the judges, and showed what excellent results might be expected from a more just division of labour. And it was by the same process of reasoning that he (Mr. Taylor) had become convinced, that his notion with respect to the jurisdiction in bankruptcy was well founded. It was founded upon the conviction, that there was too much business for the present number of judges to get through. If a judge were appointed for matters connected with bankruptcy, that class of business would be much better done, and the judge might also take other business, which would greatly relieve the court. But he was not partial to any particular mode of reform; only let there be some reform. Let the government take the matter in hand seriously and diligently. They had much better means of information than he could possibly have: they had the advantage of the advice and experience of the law officers; and if his humble assistance would be of any service, it should always be at their command. But let it be per fectly understood, that if the government did not take it up, he should continue his exertions. He never would give this subject up, because he was sure that he stood upon ground from which no man could expel him: because he was sure that he rested upon a prop which no man could take from under him [cheers]. If he divided only with five or with three, still he would divide. The number should not discourage him; and he now moved for the production of these papers, because he was determined to show to the House and to the country what the real state of this court was, and thus leave them no hope either of turning their backs upon the question or of avoiding it by half measures and insufficient remedies, whose only end was to amuse and pacify, and not to put an end to an evil than which he knew of no greater. He had to beg pardon for having trespassed so long upon the House, and would conclude by moving, for "An account of the numbers of re-hearings and appeals; of the number of causes; of the number of pleas and demurrers; and of the number of bankrupt petitions before the judges of the court of Chancery, on the 1st day of Hilary term, 1828."

The Solicitor-General

said, he saw no possible objection to the motion. Indeed, without the most detailed information it would be impossible to give any correct opinion upon the matter.

Mr. Fergusson

thought, the public were much indebted to his hon. friend, the member for Durham, for his persevering efforts to call the attention of parliament to the defects and abuses of the court of Chancery, with a view to their remedy; but he confessed, that he was not prepared to give his assent, from any thing he had heard either upon that or a former occasion, to the main project of his hon. friend, and which he held forth as a cure for the evils of which he complained; namely, the separation of the jurisdiction in bankruptcy, from the great seal. From the vast importance of the cases decided in bankruptcy, involving the most, difficult questions of law and equity, and on which interest of the greatest magnitude to the commercial world depended, he (Mr. F.) was convinced, that they never would be satisfied with the decision, in such cases of any but the highest authority; and although in this department of bankruptcy as well as others, the lord Chancel lor might require aid and assistance which he has not now, he (Mr. F.) was disposed to think, that the final judgment in cases of bankruptcy could not safely be taken out of the hands of the lord Chancellor and transferred to any judge or court of inferior jurisdiction or authority.—No man was more convinced than himself, that the court of Chancery, as at present constituted, was unequal to the despatch of the immense and daily increasing business, which poured in upon it, and with which it was oppressed. His hon. friend had shewn the number of cases of all description snow depending in Chancery, compared with those which were depending in 1811. They were as five hundred and twenty-six to two hundred and thirteen, notwithstanding the assistance, which had been derived from the appointment of a Vice-chancellor in 1812. This did not certainly give all the information which the House might require, as to the causes which operated in producing the present state of business in the court of Chancery; for by not shewing the length of time during which those causes had been depending, it could not be said what part of the accumulation might have been occasioned by delay in deciding, and what part of it by the increase of litigation. He believed, that a great part; of it would be found to have arisen from the latter cause; and that, even, supposing that the appointment of the Vice-chancellor, at the time when it was first made, might be considered to have been sufficient to afford the relief then required, he believed it would be found, that further aid was required at the present time, and that three judges in Chancery were wholly insufficient to despatch the business of that court, and that a fourth judge would be required, with original jurisdiction, not with a jurisdiction derivative merely from the will of the lord Chancellor, and by reference from him, such as the jurisdiction of the Vice-chancellor; a defect which, in respect of the Vice-chancellor, was intended to be remedied by the bill introduced by the present lord Chancellor when Master of the Rolls, during the last session of parliament, and which bill as well as the labour of the Commission on which it was founded, had met with so little mercy from the hon. member for Durham. He agreed with his hon. friend, that that bill did not do all that was required; but he could not agree with him that it did nothing, or that it did nothing but what the lord Chancellor might have done by order in his court. It did some things no doubt, which it was nearly ludicrous to call in the assistance of King, Lords and Commons to do: for instance, to compel the examiner, in taking down the depositions of witnesses to leave out the words this deponent saith, or "the deponent further saith," and to use in their stead the pronoun, "I" giving the evidence, as the witness did, in the first and not in the third person; an order which the lord Chancellor might certainly have given to his clerks without the sanction of the legislature.—But many of the provisions of the bill, as well in respect of the order therein proposed to be made as of its enacting clauses, could not have been carried into effect, or made law, without the authority of parliament. He would instance the change proposed to be made in the writs of subpoena, in the jurisdiction of the Vice-chancellor, and in the power proposed to be given to the courts of law to issue commissions for the examination of witnesses, in cases where otherwise recourse must have been had to a bill in equity to obtain such a commission. In respect to the bill which had been introduced into the House by the present lord Chancellor, he could testify that, if that bill had not been carried through the House, it was not the fault of that noble person, who attended very assiduously in order to carry it through its different stages in that House, and who delayed the second reading of the bill from time to time, not for his own convenience, but to accommodate professional gentlemen, whose avocations, particularly their calls on the circuits would have prevented them from giving their attendance on that occasion.—The bill did not, however, in his (Mr. F's.) opinion, go far enough. It did not even go so far as the suggestions of the commissioners would have warranted; those commissioners, whose labours had been held so cheap by the hon. member for Durham, but which he could not view altogether in the same light with his hon. friend.—He considered their labours to have been most meritorious, and their suggestions of the greatest practical utility.—If they did not go further than they did, let it be recollected, that they were limited in their inquiry by the terms of their commission. But will it be said, that they have suggested nothing whereby the expense and delay of Chancery proceedings may be lessened usefully and beneficially to the suitor of the court? Take for instance the means suggested by the commissioners, and adopted in the bill, of compelling a plaintiff to proceed in the suit or to have his bill dismissed.—By the present practice, after a defendant has fully answered the plaintiff's bill, he cannot move to have it dismissed for want of precaution, although the plaintiff shall not have taken a step in the cause for a period of nearly three quarters of a year,—and when such motion is made, and the plaintiff is obliged to undertake to speed the cause, he satisfies this undertaking for speed, by filing his replication, which gives him about three quarters of a year more, without in the least advancing the progress of the cause; and it is only upon the second motion to dismiss the bill that the plaintiff, after a delay of a year and a half, must undertake to" speed the cause with effect," that is to proceed in his cause with due diligence. The commissioners have proposed that there should be but one order, that is, "to speed the cause with effect" thus saving expense to both parties, and to the defendant a vexatious delay of a year and a half in a single stage of the proceedings of a Chancery suit. By this and other alterations proposed by the commissioners, particularly in respect of appeals, it was not too much to say, that besides the great expense that would be saved to the parties, four or five years of the delay with which a vexatious litigant can now harass and oppress his adversary in any suit, would be prevented.—The suggestion of the commissioners, that there should be but one appeal from the decision of the Master of the Rolls or the Vice-chancellor; that is, to the lord Chancellor or to the House of Lords at the option of the appellant, is a most important one. It was not adopted in the bill, but it was understood that the matter of appeals was to form the subject of another bill to be introduced into the House of Lords, the proper place certainly for originating a measure in which their own appellate jurisdiction was so directly concerned.—It was understood, that the present lord Chancellor was now occupied in framing such orders as could be part of his own authority, with a view to remedy; the evils complained of. There was no person so much interested in reforming the abuses of his court as the lord Chancellor himself; and he (Mr. F.) believed, that that noble person was sincere and honest in his intention to effect that reform. —But the aid of the legislature will no doubt be required to carry that intention fully into effect; and he could not believe, as his hon. friend did, that the intention to have recourse to legislative interference, has been abandoned.—Whatever cannot be done by the authority of the lord Chancellor must be effected (and much will remain to be effected) by legislative enactment.— In revising the constitution of the court of Chancery it might be well worth considering, whether the functions of the lord high Chancellor of England would not be most beneficially, and indeed almost necessarily, exercised as a judge of appeal, an additional judge being added for the transacting of the ordinary business of the court.—He (Mr. F.) took the opportunity of expressing his satisfaction at the declaration which had been lately made by the lord Chancellor, that he would himself hear the appeals from Scotland.—Nothing could be more unsatisfactory, than the manner in which those cases had been disposed of in the last session of parliament. —If there was one object more than another, which was essential to secure in the constitution of the court of appeal in the last resort, it was uniformity of decision.— But how could this be secured, when the law was to be expounded one day by the lord Chancellor, another by the lord Chief Baron, and a third by the Master of the Rolls;—all excellent judges, but judges who might differ in their opinions and in their judgments, where it was essential that there should be but one opinion and one judgment. He knew, that this mode of deciding appeals from Scotland had given great dissatisfaction in that country; not from any doubt of the learning and ability of any of the judges whom he had mentioned, but from the uncertainty, which must necessarily exist in respect to the decision of these separate judges, each deciding in the last resort; two of them, without having it in their power to give a single reason in support of a judgment, theirs in every thing but power, and which might go to reverse the unanimous decision of the judges of Scotland, who might in vain seek for the arguments on which that reversal was founded.—Thanks was due from the profession of the law, and from the public of Scotland, to the lord Chancellor, who had declared his intention to put an end to this unsatisfactory and not very decorous mode of proceeding.—Of that noble lord he (Mr. F.) would say, that various and important and laborious as were the duties which he had to discharge, he knew of no person who had a mind and understanding more equal to grasp the whole range of the duties, and to master and overcome the difficulties that attended them. No individual, perhaps, ever brought to the discharge of those duties more useful faculties.—Acute and penetrating, he is remarkable for the patience and attention with which he listens to the statements and arguments which are submitted to him.—Perhaps no one has more the talent of separating the material and important points, from those which are immaterial and extraneous, and of thus arriving at a prompt and correct judgment founded on the real and substantial merits of the case.—He (Mr. F.) had little doubt that his hon. friend, the member for Durham, would see reasons to be satisfied with the conduct of that noble and learned lord, in respect to the question in which that hon. member felt so much interest that the result of the labours in which the lord Chancellor is now engaged with a view to a reform in the proceedings of the court of Chancery would be such as to call forth the praise and approbation of his hon. friend.

Mr. Secretary Peel

was of opinion, that, it was desirable to postpone any discussion of the question, until the papers moved for by the hon. and learned gentleman had been produced. So far was the lord Chancellor from having abandoned the principle of the bill which he had introduced into that House, that it was his intention to issue forty or fifty orders founded on the recommendations of the commission. In his (Mr. Peel's) opinion, it was better to look forward to future amelioration, than to revive the discussions to which the report of the commission had given rise. He certainly, however, could not think that the composition of that commission had been objectionable, because there were persons belonging to it, who were unconnected with the court of Chancery. Had it been otherwise, he was persuaded that an objection would have been made to the constitution of the commission, and that, the usefulness of having persons upon it who were embarrassed by no professional prepossessions would have been warmly urged. There was one matter of great importance in the hon. gentle- man's speech on which he would not at present touch; namely, the expediency of divesting the lord Chancellor of all political character, and of confining himself to his duties as an equity judge. Whether it was not desirable that there should be in the cabinet an officer of great judicial importance; and if desirable, whether it would be advantageous that that officer should be of a lower rank than the lord Chancellor, were questions on which he would not then touch. Nor would he say a word on the subject of separating the bankruptcy from the Chancery jurisdiction. The confession of the hon. gentleman with respect to the complication of the business imposed upon the lord Chancellor, and the impossibility that any one man could satisfactorily get through it, would at least serve to acquit his noble and learned friend by whom that high situation had lately been held of the charges which had been brought against, him. It now appeared, even by the admission of the hon. mover himself, that the delays which had taken place in the court of Chancery were not matters of personal charge against his noble and learned friend; but might be justly accounted for by circumstances which were entirely beyond his control. He mentioned this in justice to one to whom justice had hitherto not been done.

Mr. G. Bankes

denied that the business of the court of Chancery was increasing, at the present moment, in the degree which had been represented. He protested, too, against, the separation of the bankruptcy business from the Chancellor's jurisdiction. The questions arising in bankruptcy were so nice, and of so much importance, that they required that the attention of the first judge in the country should be directed to them.

Mr. M. A. Taylor

, in reply, said that his statements as to the business of the Court had been taken from the papers of the judges themselves. His observations as to the present lord Chancellor were not intended in the slightest degree to impugn that learned lord's professional character; but the fact, was, that he was not an equity lawyer; and that there had been fewer appeals in his time, because people saw no advantage in appealing from the Vice-chancellor or the Master of the Rolls, who were highly conversant with equity practice, to a judge. As to the observations of the right hon. Secretary, he had been assured by lord Eldon himself that that learn ed lord never considered his observations in a personal light, but directed solely against the faults incident to the Chancery system.

The motion was agreed to.