COURT OF CHANCERY. (Hansard, 16 May 1834)

§ Mr. Lynch

rose to bring forward a Motion which referred to the administration of justice in the Court of Chancery. The evils of that court, long as they had been complained of, still continued to exist. The measures which had been taken to remedy them had failed. The great delay, and the great expense in its processes, still continued. There was delay in the setting down of the cause; there was delay in the master's office; and there was delay in the course of hearing. The machinery of the court was imperfect, and therefore the whole system went wrong. His object was, to discover a remedy for it, and, by so doing, to benefit the suitors of the Court in which he had the honour to practise. Why should he introduce any comparison between the present Lord Chancellor and his predecessors? How should he better his case by showing that the present Lord Chancellor had heard more appeals than Lord Eldon, and that Lord Eldon had heard more original causes and bankrupt petitions than the present Lord Chancellor? Such a statement would only show that evils prevailed; indeed, they were of very long standing and continuance; they had been complained of in the reign of Henry 8th; they continued to the present times, and were complained of now. They had baffled the skill and penetration of Lord Keeper Cromwell; and he was afraid, that they would baffle the skill and penetration of Lord Brougham. The Legislature had interfered in the year 1813, and to remedy the evils so long complained of, had appointed a Vice-Chancellor. If there were any necessity for the appointment of any additional Judge at that time in Chancery, there was the same necessity existing at present. 1140 The amount of causes in arrear, in the Court of Chancery in 1814, was 214; at the commencement of the present term it was 308. After the passing of the Vice Chancellor's Bill, Lord Chancellor Eldon ceased to hear original causes; so, too, had the present Lord Chancellor. The amount of arrears in the House of Lords of English and Irish appeals and causes, was nearly as great now as it was in 1815. Then it was 57: now it was 49. The arrear of Appeals in the House of Lords was now nearly as great as in 1813, the diminution being only two. There was no arrear of business at present in the Rolls' Court. If it were asked how it happened that there was so great an arrear in the Vice-Chancellor's Court, and not in the Rolls, he replied, that the Master of the Rolls did not hear motions or pleas, on demurrers, but the Vice-Chancellor was burthened with business of that kind, consequently it could not be expected that the latter should be able to keep so clear of arrears. The Lord Chancellor had heard 230 appeals since he came into office. In one year, 1831–2, he disposed of 119, but, in 1832–3, he heard only 34; it being impossible to continue the exertions which he made in the former year. The number of appeals that stood for decision when the noble and learned Lord came into office, was 101; but he had reduced the arrear to something under fifty. The arrear of English and Irish appeals was of long standing, for the House of Lords was now only hearing appeals that had been set down four or five years ago. The learned Gentleman proceeded to instance various appeals which had remained unheard for periods varying from three to five years. Among other cases, he mentioned that of "The King, v. Roe." Mr. Roe was found guilty on an indictment,—he moved an arrest of judgment, and obtained a writ of error. He was imprisoned pending that proceeding, for a space of three or four years. Such a case of hardship could not have occurred if the cause had been heard within a reasonable time. A great mistake had been committed in 1813, when, instead of appointing a Vice-Chancellor, as was then done, Parliament should have erected an effective Court of Appeal. The professed object of creating the Vice Chancellor's Court, was to enable the Lord Chancellor to sit in the House of Lords, but the measure had a contrary effect, and kept the 1141 Chancellor in his own Court, to hear appeals from the Vice-Chancellor's decisions. Besides, parties were enabled to bring on their causes by motions in the Court of Chancery. By both these operations, the Lord Chancellor was detained in the Court of Chancery instead of being able to hear appeals in the Lords. In 1824, a Committee was appointed to consider the subject of the Court of Chancery, but it was limited in its inquiries, which only extended to the consideration of what part of the Chancellor's jurisdiction could be taken from him with advantage, and what alterations could be made in the Court. A report was made, and Lord Lyndhurst, who was then Attorney-General, brought in a Bill founded upon it, with a view to carry into effect the proposed improvements; but the measure was not proceeded with. When Lord Lyndhurst received the seals, he effected the object of the Bill by orders framed for that purpose, and the result was, to expedite the hearing of causes. But Lord Lyndhurst fell into the error of his predecessors, and, instead of endeavouring to create an effective Court of Appeal, he endeavoured to increase the existing powers of the Court of Chancery. To effect this object, he brought in a Bill which passed the House of Lords, but went no further than a second reading in the Commons. Next year a similar Bill was brought into the House of Commons by Sir E. Sugden, and read a second time, when it was opposed by the present Lord Chancellor, and some gentlemen who now sat on the Ministerial side of the House. The ground of opposition was, that further inquiry ought to precede legislation, and the result was, that the Bill was lost. Lord Brougham succeeded to the seals in Michaelmas term, 1829, and the expectations of the profession and the public were raised to a high pitch with respect to Chancery reform. The noble and learned Lord did not fall into the error of his predecessors as to the appointment of an additional Judge, but he committed the error of constituting a new court for the superintendence of cases of bankruptcy; being persuaded that the great panacea for all the evils complained of, consisted in the separation of the bankruptcy jurisdiction from the duties of the Chancellor. Acting upon this impression, Lord Brougham brought in a Bill, which passed the House of Lords, and came down to 1142 the Commons during the excitement of the Reform Bill; by that measure, which finally passed into a law, the Court of Review was created. He did not hesitate to say, that that Court had altogether failed to accomplish the objects for which it was intended. The public had no confidence in the Court, and, consequently, it was without business. The want of business, however, was partly owing to the better footing on which commissioners of bankrupts were put. Nothing could work better, and the improvement was entirely attributable to the present Chancellor. The subject to which he wished to call the attention of the House, related to the manner in which the arrear of the appellate jurisdiction of the House of Lords could be best disposed of. If the Lord Chancellor devoted his time to hearing appeals in the House of Lords, he must neglect the business of the Court of Chancery; and, vice versâ, it would take the noble and learned Lord 100 days to get rid of the Lords' appeals. The only practicable remedy for the inconvenience consisted in separating the duties of the Lord Chancellor sitting in the House of Lords, from the other duties of the office, which were to be discharged in the Court of Chancery. He might be told, that he was infringing the prerogative of the Crown in making such a proposition; but he denied, that the proposed change interfered with that prerogative. All that was intended was, that the Crown should not assign to a person duties which no man could perform. The Crown's prerogative would remain untouched: in the event of his plan being adopted, his Majesty might still raise the humblest individual in the profession to the office of Chancellor,—the only difference being, that, the Chancellor would then have an opportunity of discharging his duties, which was not now possible. To talk of the House of Lords as being a satisfactory Court of Appeal, was a mockery; the system pursued there produced delay, expense, and dissatisfaction. With respect to English appeals, the House of Lords was a Court of Appeal from the Lord Chancellor, sitting in his chair in the Court of Chancery, to the Lord Chancellor sitting on the Woolsack in the House of Lords. As regarded Irish appeals, the case was not much better: causes could not be proceeded with in the absence of the Irish Chancellor, who could only give his attendance at the expense 1143 of the suitors in his own Court. Scotch appeals were to be made before an individual who probably did not understand a syllable of Scotch law, and would require to have a dictionary by his side to enable him to understand the legal terms made use of. From August to March, not a single appeal could be heard in the Lords. If the Chancellor gave up his time to the Lords' appeals, the business of the Court of Chancery would be neglected; if, on the other hand, he confined himself to his own Court, arrears would accumulate in the House of Lords, and next year Scotch appeals of two years' standing, and English and Irish of five and six, would remain to be decided on. He asked the House to separate the inconsistent functions of the Lord Chancellor. Let the Chancellor sit in the House of Lords as in a Court of Appeal, but let him not sit there alone—let him be attended by four of the best lawyers that could be found—an equity lawyer, a common law lawyer, a Scotch lawyer, and a civil law lawyer, and let appeals be brought before that Court from England, Ireland, Scotland, and the colonies. It would be said, he was making more Judges—very true; but he was willing to abolish the Court of Review, and that inconvenient Court the Judicial Committee of the Privy Council, which, while it professed to be a Court of Appeal, was at the same time a Court of original Jurisdiction. He would have the Chancellor to sit in the House of Lords accompanied by those four Judges, and to sit, not at intervals, but during the whole judicial year; he would have a distinct Bar for the Lords, and would suggest, that the costs of appeals should be placed on a different footing from the present. With respect to the Court of Chancery, look at those periods when the Great Seal was placed in Commission, and it would be seen that the business of the Court had never been more efficiently done than at such times. He contended that the public money would not be ill-bestowed in paying four Judges of Appeal, and relieving the Lord Chancellor altogether from the duties assigned to him in the Court of Chancery. The Lord Chancellor had now to sit as Chief Judge of Equity in his own Court—he was obliged to attend the Privy Council—to be present at Cabinet meetings—to consider the Recorder's Reports—to look over various documents specially 1144 on the part of the Crown—to sit in the House of Lords on Appeals, and to act as Speaker of that House. Was it possible for any human being to perform all those duties satisfactorily? He thought not, and would, therefore, separate the functions of the Chancellor which were to be executed in the Court of Chancery from the duties assigned to him as Speaker and Judge of Appeals in the Lords. It might be necessary to consider whether or not there ought to be an intermediate Court of Appeal, and whether the Court should consist of one Judge or of more than one. He objected to such a Court being composed of the Judges of other Courts, and thought that an intermediate Court of Appeal ought to have distinct and separate Judges. But if the Committee should be of opinion that there was no necessity for such a Court, it might be well to consider whether the appointment of another Judge in the Court of Chancery would be necessary. He had stated the present arrear of business in the Court of Chancery, and referred to the exertions of the Vice-Chancellor, and the Master of the Rolls to discharge the duties assigned to them. He proposed, that the bankruptcy business should be restored to the Court of Chancery, and on that ground it would be necessary to have another Judge in Chancery, but the Committee could consider that point. There was an immense delay in Chancery between the period when causes were ready for hearing and the actual hearing. In the Courts of Common Law, a man who commenced his action in Easter Term might obtain judgment in Trinity Term; but the interval between the commencement and conclusion of a cause in the Court of Chancery was infinitely greater. Some of the delay might be unavoidable from the construction of the Court and the nature of the proceedings, but much of it was capable of being remedied. He did not mean to say, that a waggon and a buggy could be got to move with equal speed; but when the waggon was once put in motion he wished it to proceed without unnecessary stoppages. The suspense, delay, and expense occasioned by the present system were excessive; bills of revivor and supplemental revivor were occasioned by the decease of parties during a protracted suit. He knew of a case in which there were twelve different bills of revivor and supplemental revivor; and by all these cir- 1145 cumstances the cost was greatly augmented. If the Parliament, however, with a view to expedite business separated the Chancery jurisdiction, they must confer increased power in order to effect that object, and appoint an additional Judge. Then, again, there was an immense quantity of litigation which arose from decrees not being taken down by the Registrar, but by Counsel, and he, therefore, should recommend, that the Judges should be required to deliver the minutes to the Registrars to be copied, in order to prevent disputes, and save time and money. Since by the Bill of last year, the Registrars and Clerks had been put upon fixed salaries, instead of being remunerated by fees, the principal inducement to labour was taken away, and the consequence was, that the business in the Registrar's Office was at one moment in a state of stagnation for a day or two, until an individual, to whose benevolent interference suitors were greatly indebted, came forward and took on himself the burthen of paying Stationers' Clerks, if necessary, in order that business might go on. The same objection applied to salarying the Masters in Chancery; no doubt those gentlemen would do their duty for the sake of their own characters, but their clerks would not make extraordinary exertions, and work eighteen or nineteen hours a-day as formerly, when they were remunerated for their labour by fees. Such a thing could not be expected, and the result would be less despatch and expedition in getting through business.