COURT OF CHANCERY.

HC Deb 15 February 1839 vol 45 cc499-505

Mr. Blewitt

then rose to move for "Returns of the number of bills filed in her Majesty's High Court of Chancery in the years 1835, 1836, 1837, and 1831; of the number of answers filed in the several years of 1750 to 1754, inclusive; also, for the several years 1760 to 1764, inclusive; also, for the several years 1770 to 1774, inclusive; also, for the several years 1780 to 1784, inclusive; also, for the several years 1800 to 1804, inclusive; also for the year 1808, and each succeeding year to the 31st day of December, 1838; also, of the total number of folios contained in the bills, and of the total number of folios contained in the answers filed in each of the years above specified. From the said Court, of the number of causes, exceptions, and further directions, pleas, and demurrers set down to be heard in and for the years 1836, 1837, and 1838, and the number of decrees and orders made on the hearing of the same, of the number of causes, exceptions, further directions, pleas, and demurrers ready for hearing on the first day of each term, and also at the close of the sittings after each term, in each of the above years, of the number of re hearings, and appeals before the Lord Chancellor set down in each of the same years, and standing for hearing on the first day of each term, and also on the last day of the sittings after each term, in each of the above years, specifying when the first five of such re hearings and appeals (except such as appear to have been called on and adjourned), had been set down at each of such times, Of the number of cause petitions presented and answered by the Lord, Chancellor in each of the said years 1836, 1837, and 1838. Of the number of petitions answered and set down for hearing at the Rolls." He had understood from the Attorney-General, that this motion would not be opposed, but neither the Attorney-General nor Solicitor-General were in their places.

Mr. Pemberton

was sorry that neither the Attorney-General nor the Solicitor-General were present, as they would have been better able than he could be to inform the House as to the subject of these returns. He would only observe, that the returns moved for by the Solicitor-General in 1836 were returns of the Bills, but not the answers; and he must say he could not discover the probability of the usefulness of the answers, while to make them out would cause great labour on the part of the officers of the courts, and be attended with very considerable expense. But he rose principally to inquire of the noble Lord whether the Government had it in contemplation to lay before the House in the course of the present Session any measure for the improvement of the administration of justice in the courts of Chancery and higher tribunals of the country. With respect to the state of business in the courts of Chancery, he believed that, except on one occasion, when, owing to the absence from illness, of one of the judges, his court was wholly shut up, there never was a larger amount of arrears in those courts than at present. He believed there were, at that moment, not less than 700 causes set down for hearing. He believed that during the last term not one single case, standing on what is called the general paper, in the Vice Chancellor's court, came on to be heard. The number of causes on the general paper in the Rolls Court, disposed of during the same period, was one and-a-half. Was this owing to the noble Judge who presided in that court? He felt the utmost confidence that it was not. No man could exhibit greater assiduity in the discharge of his duties; no man could more completely confine himself to doing that which he thinks is substantial justice, than his noble Friend. It remained to be asked, then, what was the remedy? The remedies hitherto tried had turned out anything but remedies. It would be in the recollection of many hon. Members present, with what a loud obloquy it was customary for some persons to assail the late Lord Eldon when presiding in Chancery, on the ground of his indecision and delay of justice. Now let the House consider that the business of that Court was not divided then; Lord Eldon had to bear the whole weight of the business in bankruptcy, which, as well as other business, had since been removed from the Court. In short, the business at that time was at least double its present amount. Yet now, although as far as he was aware, the ordinary business of the court had not increased to any considerable degree above what it was when Lord Eldon discharged it, with the additions he had referred to, the amount of arrears was greater than ever it was when Lord Eldon held the seals, and when he was daily abused for delays of justice. If it was the intention of the Government, as he hoped it was, to introduce a measure on the subject this Session, he trusted they would abolish altogether that miserable abortion of a court, which had become quite a bye word in the profession; the Court of Review, in which four judges had been appointed with large salaries, to do the business which the Lord Chancellor had formerly accomplished in a month or so, with all the Chancery business in addition. Then, again, with respect to the Exchequer Court, which, as the House were aware, was partially a court of Chancery, that is, a court for the administration of business in equity; how was justice administered? By judges who had not practised in equity; and by a bar who did not attend regularly. In fact it was a kind of bastard court, and certainly did not give satisfaction to the country. There was another court, that of the judicial committee of the Privy Council, which he believed had not worked well. It was, in his mind, a great objection to that court, that it should be presided over by a judge who was not filling any judicial station or fettered with any judicial responsibilities and obligations; it was an objection, too, that as the amount of business before the court was too trifling to secure the attendance of a regular bar, its sittings were in some degree dependent upon the possibility of obtaining the attendance of counsel. These were objections not undeserving of consideration, when it was remembered that this was a court of ultimate appeal. In the House of Lords, again, he believed there never before were more judgments in arrear than at present. Having repeatedly, Session after Session, given notice of a motion on this subject, he was determined not to neglect that opportunity without calling the attention of the House to these enormous evils. It was his intention of speedily bringing some plan of reform before the House.

Lord J. Russell

certainly had no conception, till about a quarter of an hour before, that there was to be any question to arise with respect to the court of Chancery that evening, because, certainly if he had thought so, if his hon. and learned had bean present, he should have taken pains to inform himself more particularly as to the exact state of the question. It had been frequently a matter of deliberation and consideration what steps should be taken, and when they should be taken, with respect to the court of Chancery. But, as the hon. and learned Gentleman had said, there had been a measure mooted by the Lord Chancellor, which, as he said, had entirely failed in the House of Lords, and failed because there was a total difference of opinion amongst those who were aware what the evil was, as to what should be the proper remedy for that evil. He remembered when this subject had been under consideration, at the time when the present Lord Chancellor had been appointed, he was anxious to learn, as he was sure all the Members of the Government were, what were the measures which would be most satisfactory in the profession, and the hon. and learned Gentleman and himself had conferred as to those measures of reform which would be useful; but when, after that consideration of the various opinions and suggestions of learned persons in the profession, the Lord Chancellor had proposed a bill founded upon the best opinion which he and those who acted with him could give on this subject, it was found that there was the widest difference of opinion; and be believed the Lord Chancellor proposed a measure which the hon. and learned Gentleman would call a half measure on this subject, which certainly went to remedy certain evils in the Court of Chancery, going to diminish the number of appeals; because, if he recollected aright, one of the provisions was, a party might appeal to either the Lord Chancellor or the House of Lords, but having done so, he was not afterwards to be at liberty to appeal to the House of Lords. That was one of the provisions to diminish the number of appeals; but, there were various other provisions to provide for the despatch of business in the Court of Chancery. But when this question came to be discussed, there was the widest difference of opinion. The noble and learned Lord Langdale stated, that such an office as that of the present Lord Chancellor should be abolished altogether; that there should be no such person as a political judge sitting in the Cabinet; that on the contrary, there should be one person placed at the head of the Court of Equity, let them call him by what title they liked; and another person sitting in the Cabinet without judicial functions, but only as the adviser, as it were, of all measures of legislation to be introduced from time to time by the Government. That was a total and absolute change of the institutions of this country so far as the office of Lord Chancellor was concerned. Lord Lyndhurst, who was another great authority on this subject—and certainly none more deserving to be listened to—was of a totally different opinion: that noble Lord thought the measure of the Lord Chancellor went too far, and he was rather for increasing the number of the judges in the Court of Chancery than for making an additional court, or two additional courts, he did not remember exactly which. Lord Lyndhurst was for keeping the institution as it was, with some provision which he recommended for facilitating the administration of the law. When there was this great difference of opinion amongst the most learned persons, and amongst those most competent to give an opinion on the subject, the natural conclusion was, that any measure must fail that might be brought forward, and it became for some time totally hopeless to introduce any measure on the subject; and therefore whenever the subject had been under deliberation, it had been generally agreed by the Lord Chancellor and his colleagues that a measure of improvement might very well be framed, but one that could be carried was not one of which they had very sanguine hopes that it would be useful. Ministers had always had a wish to bring in some measure on the subject, but rather waited for some favourable opening by which improvement was likely to be successfully carried in Parliament, rather than bring in any measure which would be at once met with a va- riety of opinions, some wishing to differ one way and some another, but all agreeing in condemning the particular measure brought forward. He was happy to find, that the hon. and learned Gentleman had found that it was not necessary to conjoin with his condemnation of the system any censure of the noble and learned persons who presided in the Court of Chancery. He believed on his own part that if any one were to say, that the present Lord Chancellor was not qualified by legal knowledge—that he was not qualified by his perception of the various points of law, and was not qualified by habits of decision to fill the office of Lord Chancellor, he believed such an opinion would be at once contradicted by the unanimous voice of the bar. He believed the hon. and learned gentlemen who sat in that court would be of that opinion. His condemnation was not, therefore intended to advance others to the disparagement of the persons who now filled those offices. He did think that when the hon. and learned Member had the returns, it would be found that the hon. and learned Gentleman had somewhat diminished the quantity of business which, as he said, was now to be daily performed. The hon. and learned Gentleman had referred to attacks made on Lord Eldon when he had the sole business of the court, but at that time the business was less than half that which now had to be performed. Of course he yielded to the authority of the learned Gentleman if he said it was not so; but that learned Gentleman would hardly deny, that from 1809 to 1810, at the time when Lord Eldon was acting without a Vice-Chancellor—[Mr. Pemberton.—"to 1813"]—to 1813—he thought since that time the business of the Lord Chancellor had very greatly increased, at least that certainly was his present impression on the subject. [Mr. Blewitt: it was so.] He thought that much information might be given by the Solicitor-General without going to the expense of those returns. If it were not absolutely necessary that the motion should be made that night, perhaps the hon. Gentleman would reconsider the terms of the motion, and perhaps he might move it in a rather less cumbrous form. He had no doubt that he had very imperfectly answered the hon. and learned Gentleman, but he was unprepared for the discussion, and his learned Colleagues not being in the House, he could not take the advantage of their counsel.

Mr. Blewitt

said, that the three years before the appointment of the Vice-Chancellor the average number of causes amounted to 540; in the years 1834 and 1835 they amounted to 1,300.

With regard to moving for the return of the number of folios, he believed, that if that return was got, it would prove that the pleadings had increased in length and prolixity. Every pleading was charged according to the number of folios, and therefore in making the returns there was nothing to do, but add up the amount of charges to get the return.

Motion agreed to.