§ The Attorney-General
wished to say a few words before the Speaker left the Chair. He regretted, that the other bill which had been sent down from the House of Lords had not passed into a law during the present Session. But from the lateness of the period, and the opposition therefore it had been thought more expedient to withdraw that bill, in order to introduce it at the commencement of next Session; he believed, that the bill now before the House would not meet with opposition from any quarter, not even from the right hon. Gentleman the Member for Ripon, who had thrown out such an alarming threat respecting the other bill. The object of this bill was to give to the Lord Chancellor, with the concurrence of the Master of the Rolls and the Vice-chancellor, the power of making rules and regulations in the 1305 practice of the Court of Chancery. He believed, that the Court of Chancery, the bar, and the solicitors, were almost unanimously of opinion, that such a length of time as now interposed between the setting down and the hearing of a cause was an enormous evil, which drove parties to an unequal compromise, and was in many instances a denial of justice. The only remedy for that evil was to add to the number of judges. This bill empowered the Lord Chancellor to do that which otherwise could only be done by an Act of Parliament, namely, make different arrangements for conducting the business of the equity courts. There were many things connected with the offices of the court which it would be desirable to correct, simplify, and improve. These, however, were matters of regulation, which he thought would be much better left to the judges, as those of the common law had been left, than made the subject of legislative enactment in detail. To enable the judges in equity to make those regulations was the object of this bill. He sincerely hoped, that it was only the precursor of still greater and more extensive improvements.
spoke to the following effect.* —I entirely agree with my hon. and learned Friend the Attorney-general, in regretting that the bill to which he has alluded, did not pass into law. I entirely agree with him, that few measures of greater importance to the public interests have ever been sent down to this House from the House of Lords. But I confess, that the speech of my hon. and learned Friend would have been more satisfactory to me, if, instead of confining himself to expressions of regret at the failure of that measure, he had explained the cause of it, and had told the House and the country what is hitherto a profound secret—a mystery apparently unknown even to the Ministers in the other House of Parliament—how it has happened, that a measure of such vast importance, so often promised, so long delayed—reaching this House, after so many years of hope deferred, has at length been so unceremoniously, and as it should seem, so causelessly abandoned. Is the Government ignorant of the difficulties which had been surmounted in the other House;* From a corrected Report, published by Stevens and Norton.1306 what sacrifices of personal and political feeling had been made to carry it; what exertions had been made by a most distinguished individual, possessing great influence there, to remove obstacles which nothing else could have overcome? I believe Lord Lyndhurst recommended the select committee for the very purpose of laying before Parliament a body of evidence which should convince all men of the necessity of abolishing the Equity branch of the Exchequer, and giving additional judicial power to the Court of Chancery—and after a most complete body of testimony had been produced — after, by means of it, opposition had been silenced—when no serious difficulties any longer remained, her Majesty's Ministers in this House, apparently in mere wantonness, threw up the bill. Surely some explanation is demanded why Ministers suffered themselves to be scared from a measure which they themselves admit to have been so important, by a mere shadow of opposition—a mere threat of a speech, not against the bill, but on matters connected with it, by my right hon. colleague. My right hon. colleague was perfectly consistent in his course. He had never expressed himself as being hostile to the bill itself—but he was of opinion that improvements in the appellate jurisdiction were as important as those provided by the late bill, or more so—he thought that measures for both objects ought to be connected together, and he entertained so little confidence in her Majesty's Ministers, that he thought if the additional judges were once granted, the necessary improvement in the appellate courts would never be accomplished. But the Government, of course, do not share these opinions—they consider that the two measures are entirely distinct and independent, and that the appointment of the additional judges, and the abolition of the Equity branch of the Court of Exchequer, will facilitate rather than impede other desirable alterations. Why, then, I ask again, was this bill thrown aside? Is a measure unworthy of the support of the Government, if it has only the recommendation of being of the utmost importance to the well-being of the people? Sir, I cannot think that the House ought to permit this bill to be recommitted without a much stricter examination of its objects and effect, of the evils which require correction, of the evils 1307 which it will leave untouched, and of those for which it will provide a remedy, than my hon. and learned Friend, the Attorney-general, has deemed to be necessary. It seems to me important to go into this detail, in order that this House and the public may form a correct opinion of what they have a right to expect from those to whom these extensive powers are proposed to be confided, so that those who are to exercise these powers, and those over whom they are to be exercised, may alike know, that the eyes of the people are upon them, and that a strict account will be required of the employment of powers so extensive. While this consideration will operate to exclude all bias of fear or favour in the discharge of his important trust, the hands of the Lord Chancellor will be strengthened by the conviction, that in dealing fearlessly with gross abuses, wherever they may be found, he may count upon the support of the House of Commons, and the concurrent opinion of all men of all parties in it. It is unnecessary to remark, that the two great evils of the Court of Chancery are expense and delay. Delay, indeed, is itself expense, with the addition of a thousand ills besides. But these evils have so commonly been treated as a mere topic of popular declamation—as a convenient ground of attack against a minister—that the real nature and causes of the evils, and the means by which they may be removed or alleviated, have scarcely ever, in this House, been investigated. But however dry or uninteresting the detail may be, there is no other mode of discussing usefully the best remedy for evils, which are felt by all to be of overwhelming magnitude; which all men, of all parties, are equally interested in correcting, and if they understood them, would, I believe, be equally anxious to correct. Sir, for this purpose it is necessary to distinguish between the delay and expense which arise from the want of sufficient judicial power in the courts, and those evils of the same kind which arise from other causes. The former class, the bill now before the House will leave entirely undiminished; the latter, by means of this measure, may be removed or lightened. I rejoice, Sir, to see that the hon. Member for Kilkenny is in the House, though I fear I must encroach upon his province, and point attention to abuses, which, though some of them appear upon 1308 returns which he has procured, seem to have somehow or other escaped his observation. I trust, Sir, that the hon. Gentleman's powers of vision are not dimmed by years, though they certainly have not exhibited the same lynx-like acuteness in the detection of abuses since his friends have come into office, which they displayed in the time of his opponents. Sir, it appears from the evidence taken by the House of Lords, that the average arrear of causes in the Court of Chancery is about 700, and that allowing twelve months for bringing a cause into a state for hearing, two years more are wasted before it can be heard. Perhaps most causes are heard twice; many, several times before they are finally disposed of. If any accounts are to be taken, or any inquiries made, the causes are at the first hearing referred to one of the masters of the Court, and after he has made his report, are again set down for hearing before the judge, and undergo another delay of two years. Though the expense attending this delay is the least of the evils which arise from it, even the expense well deserves attention. It is not merely that during this period, term fees are paid in each of the four terms in each year to all the clerks in court and solicitors employed, but occasions for applications by motion and petition are continually arising, and changes are constantly taking place which give rise to new suits. If a birth, or death, or sometimes if a marriage takes place, if a man makes an assignment or a mortgage of property, becomes lunatic, bankrupt, or insolvent, if any change or transmission of interest occurs, a new suit is the consequence. A most respectable and able solicitor, Mr. Field, who has devoted great time and attention to the subject, was examined before the Select Committee of the House of Lords, and he has also published a pamphlet on the offices and practice of Chancery, which deserves to be studied by all who take an interest in the subject. He has made a calculation of the expense arising from the delay in hearing in the Vice Chancellor's Court alone. The arrear there, at that time, was 515 causes, and he computes it at 20,000l. per annum, so that taking the average arrears in the three Courts at 700, nearly 30,000l. must be thrown away in each year, in pure loss, without the slightest advantage to any human being; and the suitors to 1309 this extent are taxed, not to secure to them any advantage, but to purchase heart-breaking anxiety, distress and ruin; and four or five years of this expense are thus inflicted on the suitors through mere deficiency of judicial power! Another of the modes in which this delay operates to defeat justice is in compelling parties to compromise their suits from inability to bring them to a decision. It appears from the evidence of Mr. Field, that out of 1366 adverse causes, not much more than 300 are set down to be heard, and less than 200 are actually heard—the rest are compromised or abandoned. It may be thought that a settlement by way of compromise may be no evil, but the contrary, and so it is when the compromise is fair. But observe how the delay affects the terms of compromise—I have a claim for 1000l. which can be recovered only in Chancery. The debtor knows that I cannot possibly obtain a decree in less than three years, that he may probably be able to delay the original hearing much longer; that if it depends upon an account to be taken, however simple, he can withhold payment for more than twice that time, and an unascertained balance carries no interest. He knows, therefore, that it is worth my while to take half my just demand, rather than to wait for eight or nine years it may be, and recover the whole amount at the expense of extra costs, which I may have to pay, to an amount perhaps equal to the difference. He offers me therefore, as a fair compromise, in lieu of a present value to which I am entitled, the value of a reversionary interest, and if I am wise I shall accept it. But the delay not only occasions the resistance to just demands, it sometimes prevents the abandonment of claims which are unjust. A man files a bill in which he finds that he must ultimately be defeated, and be charged with the costs of the suit; but he knows that the death of either party may save him from the payment, because a suit cannot be revived for costs alone, and he therefore protracts the suit by all possible means, and takes the chance of one party or the other dying in the long course of years through which he can extend the litigation. So it fares with causes actually instituted; but the greatest evil is the utter exclusion from relief of all parties, whose demands are not of large amount, or who are too poor to bear the expense of such protracted 1310 litigation. It is stated in the petition of the solicitors, which I had the honour to present this evening, that practically there is no remedy in the Court of Chancery if the sum to be recovered is less than 1000l.; that it is better for a smaller sum to submit to the loss rather than to incur the risk and expense of prosecuting the claim. Now let the House observe to what a vast number of cases a court of equity alone can afford relief. If you have a legacy to recover, a trustee to call to account, a partnership difference to adjust, a mercantile account to investigate, in all these cases, and a multitude of others, a court of law can give no redress, or no adequate redress; and yet to all but wealthy suitors the doors of a court of equity are closed. For the poor man, in all those cases in England, there is no justice. The extent, the enormous extent, of this mischief appears from contrasting on the one hand the number of bills filed in Lord Hardwicke's time, with those filed now; and on the other, the amount of the property under the care of the court in Lord Hardwicke's time and now. In 1750, the earliest year at which I have the returns, the number of bills filed was 1744; in 1839, it was 1750. Now, let it be recollected how prodigious has been the increase in population, in wealth, in commerce, in the complication, variety, and intricacy of transactions, out of which questions upon rights of property arise, during the last century; and still, there has been scarcely any increase in the number of suitors. Yet, so far from the arm of the Lord Chancellor having been shortened during this period, this court has gone on from year to year accommodating itself to the exigencies of society, and gradually extending its authority till it has absorbed within its jurisdiction nearly all the property in the kingdom. There is no considerable landed estate, which is not subject to trusts which courts of equity only can control. There is no personal estate in the disposition of which, on the death of the owner, difficulties arise, which can be administered except through this medium; and yet, the number of bills filed, is scarcely increased. How is it possible to account for this, except on the hypothesis that the enormous expense and delay of the court exclude all small suitors from justice. The different nature of the causes now and in Lord Hardwicke's time, may be judged of 1311 from the amount of the funds standing in the name of the Accountant-general at the two periods. In 1750, it was 1,665,160l. 18s. 4d. It is now above forty-one millions. And this is the personal property alone. The real property is perhaps much larger. There is in this court, complete justice for the rich—for the poor, there is none at all. Now, I ask, is this a state of things which ought to be permitted to continue for one single hour? Is a Government justified in permitting its continuance, merely to escape from a night's debate in the House of Commons? I put the question to those Members who think that matters, which affect the well-being of the people, ought to be of some account with their representatives, and that the due administration of justice is essential to that well-being. I ask them, whether these things, however inferior in importance to party questions, are not still of some moment, and whether, after devoting six months of eager debate to what interests ourselves, we ought not to allow as many hours to what interests the people? I put the question to those Ministers who told us in the King's Speech of 1836, that "the speedy and satisfactory administration of justice is the first and most sacred duty of the Sovereign." I repeat, that the country has a right to know the true reason why a measure, which was calculated to put an end to such grievances, was thrown overboard by the Ministers, as it at present appears, in mere indolence or caprice. Sir, it has been said, that the appointment of two additional judges would not have remedied all these evils, and unquestionably it would not; but the rejected measure contained also the provisions embodied in this bill, which are probably of still greater importance than the appointment of additional judges, or the alteration in the Court of Exchequer. Yet these, but for the energy of Lord Brougham, would have been equally lost to the country. I will venture, with the permission of the House, to offer some observations on the evils which appear to me to exist in the Court of Chancery, and to be capable of correction without the appointment of additional judges, or any alteration in the Court of Exchequer; in order that the House may judge how far the bill now before us is adequate to remove these evils, or how far it may be necessary for the House to arm the com- 1312 mittee with additional power to make it adequate to the purpose. To begin with that branch of the profession to which I myself belong, I think that much, both of expense and time, may be saved by some alteration in the practice with respect to counsel. At present, except orders of course, many of which perhaps might be dispensed with altogether, no order can be obtained from the court, though all parties consent to it, without the intervention of counsel. The consent orders thus obtained, are extremely numerous; more than half the petitions are of this character, and a considerable proportion of the motions. Now, it is not merely the expense of the fees to counsel which the client has to pay, but each counsel must have a brief, and when the parties are numerous, the costs become extremely heavy. Indeed the expense is much the same, whether the application is consented to or opposed, unless in case of opposition, there is a dispute about facts. Now it does appear to me, that in very many, if not in all of these cases, the appearance of counsel is unnecessary, and that the expense of their briefs and fees might be saved. I can see no objection to the order being made by the judge upon a petition addressed to him with the consent of the parties certified by their solicitors, upon whose instructions counsel, if they appear, must entirely rely. The necessary affidavits might be sent with the petition, and if, in any particular case, the judge thought it necessary, the attendance of the agents might be required. Another alteration in the rules with respect to counsel might also, as it appears to me, be adopted with advantage, and with great saving to the suitors both of time and money. On a trial in a court of law, only one counsel addresses the jury. In the argument of a point of law on a special case, only one counsel addresses the judges. In the privy council, the ultimate court of appeal from some of the domestic and all the colonial tribunals, where mixed cases of law and fact of the utmost complication and difficulty are decided, only two counsel are heard to the same point. In the House of Lords, the ultimate court of appeal from all other tribunals, including the Court of Chancery, the same rule is adopted, however numerous the parties may be. But in the inferior court, in the Court of Chancery itself, there is no limit to the number of counsel. Each party 1313 may be heard by his own counsel to each point, and he may be heard by as many as he thinks fit to retain. It sometimes happens that seven or eight gentlemen employed for different parties, address the court in succession on the same topics; and as no two probably have heard what has been said by those who have gone before them, the same facts, and the same arguments and authorities, are repeated again and again, exhausting alike the patience of the judge, and his time which belongs to the public. I can see no reason why this practice should continue; or why the same rule which is found useful in the superior courts, should not be adopted in the inferior. These may perhaps be thought trifling matters, but there are other improvements in the practice of the court by which far greater good may be effected. There are cases in which, singular as it may appear, by straining to an excess a principle, which is at the root of all justice, the most serious injustice is actually done. If there be one principle in the administration of law which would seem to require no qualification, it is the rule that no man's interest shall be affected without his being heard. And yet, as this rule is acted upon, it is the most fruitful perhaps, of all sources of expense and delay—of needless expense and delay. If a landed estate is to be dealt with in the Court of Chancery, all persons who have an interest in it must be brought into court before it can be touched. Now these persons are often extremely numerous. Take the most familiar case. A gentleman of landed property devises it by his will to trustees—he charges it with the payment of portions to his younger children, and legacies and annuities to his friends and servants, and subject to these encumbrances he gives it in trust for his eldest and other sons in succession, and their issue. There is no question about the sufficiency of the estate to satisfy all the charges a hundred times told, yet if the trusts of this will are to be executed by the Court of Chancery, all these persons, trustees, and cestui qui trusts, children, friends, and servants, must all be parties to the suit. But it not improbably happens that the children's portions are also in settlement, and if so, the trustees of their settlements, and the parties interested under them, husbands, wives, and children, must equally be parties. Nor is this all; if during the pen- 1314 dency of the suit any of these innumerable parties die, or children taking an interest are born, additional bills of revivor and supplement are necessary, till at last the record is so encumbered that any effectual progress in the suit becomes almost impracticable. Each party may employ a separate solicitor and counsel, and costs are accumulated to an extent which no moderate estate can bear. Now what is the cause assigned for this most ruinous practice? Why a principle in theory unimpeachable, that the interests of all these parties may be affected by the decision, and therefore they ought all to be heard. It is said, that the court cannot tell that the estate is more than sufficient to pay the charges, and that therefore a legatee of 20l. must be present at taking all the accounts in the master's office, by which the fund subject to his demand, and the amount of the charges upon that fund are to be ascertained, and that if a question arises on the construction of the will, he has the same right to be heard in defence of the fund on which his 20l. is charged as the owner of the estate itself subject to the charge, though the estate may be worth 20,000l. a-year. Yet it is very obvious that the legatee of 20l. might safely trust the defence of the estate to its owner, who cannot protect the 20,000l. a-year without protecting at the same time the 20l., and that the only real consequence of the rule to the favoured legatee is, that his whole 20l., and much more, is absorbed in the extra costs of the suit, which he has to pay. But what makes this rule the more unreasonable, is, that if the estate be held by a legal and not an equitable title (a distinction hardly intelligible to any persons but lawyers), and the question is tried at law, none of these parties can interfere; the title is defended by the party in possession, or asserted by the party claiming the possession, and they, and they alone, can be heard. Nay, in the Court of Chancery, if instead of real estate the property happens to be personalty, a totally different rule prevails. If a personal estate of a man who dies worth a million, if administered, the executors are considered sufficiently to represent the interests of all parties, creditors, legatees, and annuitants, and yet precisely the same argument might be used with respect to the doubt as to the sufficiency of the fund, and the interest of every legatee to see that the accounts of the estate are properly taken in the master's office, 1315 which, with respect to land, is thought to require the presence of all these different parties. Nay, if the land, instead of being held in fee simple, is held for 1000 years, then it is personal estate, and is sufficiently represented by the executor. Now, under wills the same person is most commonly both trustee and executor. Whatever be the amount of the property —however enormous—if it be leasehold, one defendant is sufficient, if there be an acre of freehold a hundred other parties become necessary. Surely, there is no sense nor convenience in acting upon rules so opposite, in cases substantially the same; and I can see no sufficient reason why the trustee in such cases should not be deemed to represent the real estate, as completely as the executor represents the personalty. In cases where there is no trustee, some other arrangement would be necessary; but in all cases of this description, I have little doubt that a most important reduction may be made in the number of parties, and that the expense and delay of such suits may be diminished to a very small part of its present amount. The same principle—the apprehension of affecting the interest of parties in their absence—has introduced another, and, perhaps, still more crying evil, the endless multiplication of useless references to the master. The rule upon this subject is unfortunately applied indifferently both to real and personal property. A legacy is given to a class—for instance to the children of John Thompson—John Thompson and his wife are before the court, and say we have six children, neither more nor less. The six children are present, and say here we are, all brothers and sisters, and we have no other brothers and sisters. The executor or trustee is present, and says I have known the family all my life, there are six children, neither more nor less. A witness, or half-a-dozen witnesses, swear to the same thing—but all in vain. The judge is incredulous—he says, I must have this matter inquired into by the master; and forthwith the cause is despatched to Southampton Buildings. Here the point being one about which there is neither doubt nor dispute, about which all parties are agreed except the judge—the inquiry occupies a comparatively short time—perhaps not above twelve months—particularly if the parties are fortunate enough, to get into the office of my hon. and learned Friend opposite, 1316 the Member for Galway. The master having looked into the evidence which was before the court, and probably none other, is, of course, satisfied that John Thompson has six children, and no more; and upon his report the court is satisfied also. But the cause is to be set down again in the paper, and must wait its turn, and at the end of another two years, if fortunately no change happens in the interval to John Thompson's family, his six children obtain their rights; having waited three years, and paid the expense of an inquiry and a double hearing, without the slightest advantage to anybody. This practice of referring matters to the master without sufficient cause, is carried to a most mischievous extent in a multitude of other cases, and has strong recommendations to a judge, who is more desirous of the credit of dispatching business than scrupulous about the mode in which it is disposed of. A cause is got rid of for the day, it disappears out of the paper; it counts amongst the "causes heard and otherwise disposed of," and swells the return of business done by the court. But it is a most false credit, acquired, not by dispatching business, but delaying it; by denying justice, instead of administering it. The rules, however, having been established, no individual judge, however much he may feel the grievance, considers himself at liberty to depart from them. Sir, by alterations on these points—by reducing the number of counsel, the number of parties, and the number of references to the master—I venture to think that most important savings may be made, both of time and of costs, and yet these are but a few of the instances in which the practice of the court, may, in my humble opinion, be usefully reformed. But having trespassed so long on the attention of the House with these details, and having still to trouble them with matters connected with the officers of the court of still more importance, I dare not dwell longer on a subject so technical as this. With respect to the officers of the court, some returns have very recently been laid before the House—which often asked for, but long withheld, have at length been obtained by the perseverance of the hon. and learned Member for Cockermouth. The return which I hold in my hand bears the name of Mr. Aglionby. These returns, I confess, have filled me with astonishment, 1317 and, I think, will occasion some surprise to the House. There are certain ancient officers of the court called Six Clerks, who formerly acted as solicitors, and by whom, in that character, all the business of the court was transacted. To assist them in performing these duties, they had a certain number of sworn clerks, once sixty, now, I believe, reduced to twenty-five. They were, in truth, the only solicitors recognized by the courts, and, accordingly, to this hour, every party in a cause in Chancery is obliged to appoint one of the sworn clerks as his clerk in court, or nominally as his agent, to represent him through the progress of the suit. But so entirely is the real office of these gentlemen, both six clerks and sworn clerks, changed, that their duties now consist, as far as I can discover, of what I am about to describe to the House. The duty of the six clerks consists in signing their names on the records—the bills and answers, pleas and demurrers which are filed. If a six clerk is for the plaintiff, he signs his name on the bill—if for the defendant, on the answer—but as the form is purely useless, and serves no purpose of authentication, or any other, it is thought unnecessary for more than one six clerk to attend the office at a time; and whoever is in attendance signs all the records for all the plaintiffs and all the defendants, signing his own name for the party for whom he is nominally concerned, and the name of one of the other six clerks (per procuration, as it would be termed in mercantile phrase), for the opponent party. For this useless ceremony, it appears that these gentlemen received, during the last year, in the shape of fees alone (in addition to other emoluments, to which I shall afterwards advert), a net sum of 1,122l. 10s. each. Such being the duties of the six clerks, the proper duties of the sworn clerks would seem to be still less.Si minus esse potest quam quod nihil esse videmus,As far as I can understand the matter, the only duty which the sworn clerks have to perform as properly belonging to their office, is to receive and transmit to the solicitors all notices from time to time given in the course of a cause. If a solicitor and his opponent reside in the same street at Mile-end, the simple course would seem to be, to serve the notice at 1318 Mile-end but this the court does not allow. The notice must be sent up from Mile-end to the clerk in court, in Chancery-lane, in order that the clerk in court may return it in due course of post, to the solicitor at Mile-end. And for duties such as these, with the addition of one to which I will advert, not properly belonging to their office, what does the House suppose is the gross amount of fees received by these officers, and paid by the unfortunate suitors? The return of the last year makes the amount no less than 59,967l. 6s. 9d. Of this sum,8,205l. 4s. 6d. is stated to be accounted for to the six clerks, and to constitute the amount of fees paid to them, to which I have already alluded. The remainder, after deducting 363l. 15s. 1d. staled to be paid "to the bag-bearer and others," is retained by the sworn clerks. Now how are these fees constituted? The statement of these details will show at once the enormity and iniquity of the tax which is thus levied on the suitor. The sum of 27,197l. 11s. 3d. appears to arise from copy money—from the charges for copying all the bills, answers, &c. which are filed, those copies being the only copies which the court will recognize. Now the actual expense of making copies was computed some years ago, on occasion of certain alterations which were made in the masters' offices. It was then thought that 1½d. a folio was a fair charge to be allowed, and it appears from the masters' returns, also laid before the House during the present Session, that out of this sum the masters' clerks make a clear profit, varying from 300l. to between 600l. and 700l. a year. It must, therefore, be considered, to say the least of it, a liberal allowance, But what is charged for the same thing in the six clerks' office? Not 1½d. but 10d. a folio; 10d. for every folio of ninety words, which may be copied for 1½d. and leave a large profit! Of this sum of 10d., I believe 3d. is paid to the six clerk, and out of the 7d. the clerk in court pays the actual expense of making the copy, which, I suppose, is about 1d. and the rest appears to be all profit. Another source of the enormous income of this office consists of term fees. These, in the last year, were in number 42,999. The amount in money is not stated, but, I believe, the fees are 6s. 8d. each, and if so, they would give a sum of 14,333l. These sums, as far as I can learn, are not paid for any duty, real or 1319 nominal, but become due to the clerk in court, in each of the four terms in the year in which any step is taken in the cause. In addition to this, term fees (I believe of much larger amount) become due in each term to the solicitors, and I request the House to observe how strongly this tells upon the expenses arising out of the years of delay, which are at present occasioned to the suitor by the want of judges to hear the arrear of causes. I rejoice to see that the noble Lord, the Secretary of the Colonies has returned to the House. He will have an opportunity of judging, from this instance alone, of the enormous evil inflicted on the public by the rejection of the late bill, and I persuade myself that he has returned to the House in order to disclose to us a secret, at present, as it should seem, not revealed even to his colleagues, but reserved, I trust, for this House, why, when such evils were to be remedied, and the remedy was offered, he refused the benefit of it to the people. I have no disposition to offer any compliment to the noble Lord, but I must say that I regret that he left the Home Office before this question arose. I believe that he has a real desire to improve the institutions of the country, and I cannot think that if he had known the real state of the case, he would have incurred the responsibility of rejecting the late bill. The remaining item in this astounding return, is 8,994l. 10s. received for taxation of costs. Now this business, I believe, is actually done, and the amount fairly earned. But the whimsical part of the case is, that the only duty which the clerks in court really perform, is that which ought to be, and to appearance actually is, performed by the masters. It is to them, as my hon. and learned Friend, the Member for Galway, will satisfy the House, that all bills of costs are referred for taxation. It is by them that on all their reports, the costs appear to have been actually taxed, so that of the vast amount received by these officers, about 9,000l. a-year appears to be paid for doing the business of other people, and the rest for doing nothing or next to nothing. Now, I beg not to be understood as casting the slightest imputation or reflection upon any of these gentlemen, either six clerks or sworn clerks; they are not open to any; they only do nothing, because they have nothing to do; they have very excellent places, which they are quite right to keep, 1320 as long as the Legislature will allow it, and they act in no other manner than any Gentleman in this House would act in the same circumstances. But is this system one which should be endured? We have heard complaints of sinecures—of pensions. The hon. Member for Kilkenny, has often descanted upon them. Has he looked at these returns? Has he observed the sums which individuals in this office receive for duties such as I have described? —gentlemen highly respectable undoubtedly, but with no claim of any sort or kind on the profession or the public. The gross amount of one gentleman's return, I perceive, is, for the last year, 8,130l. 8s. 6d.; of another 9,645l. 6s. 8d.; of a third, 10,879l. 3s. 10d. This last return, after paying every expense, would leave, as I calculate it, a clear sinecure of above 7,000l. per annum—more than the salary of any Cabinet Minister! half as much again as the pension of a Lord Chancellor. Yet, as if in this office the Legislature took a pride in augmenting sinecures instead of reducing them, observe what has happened with respect to the six clerks. In 1832, some alteration being made in their fees by the establishment of a bankruptcy court, they obtained, as compensation allowed under the act from the Lords of the Treasury, 52l. per annum each for life. But in 1833 another act was passed for abolishing fines and recoveries, and substituting in their stead deeds enrolled in Chancery. This act, it appears, put into the pocket of each six clerk, by means of fees paid for doing nothing, a considerable addition to their incomes arising from fees on enrolments; the amount of the addition does not appear. The total amount of fees paid to each six clerk for enrolments in the last year was 527l. 10s., and in the preceding year545l. and yet they are receiving compensation for a loss to the extent of 52l. while their income has been thus most improperly, and, I believe, on the part of the Legislature, most unintentionally, increased. It does seem to me, that the whole of these offices, with their enormous profits, ought to be altogether swept away, making, of course, to the fortunate holders, a fair compensation. I now come to an office of a different description, which, I confess, I approach with reluctance—I mean the Masters' Office. I have the honour to be personally acquainted, more or less, with all those gentlemen, and with many 1321 of them, am fortunate enough to be on terms of friendship and intimacy. Speaking of them generally, I sincerely believe that more amiable, or honourable, or conscientious men do not exist, and several of them are very excellent lawyers; and yet it is impossible to deny, that it is against their office more than any other that the opinion of the profession is directed. According to that opinion—Umbrarum hic locus est—somni noctisque spooræ.The system appears to be contrived to damp all energy. Which of the ordinary motives to exertion is left to operate on the minds of the masters? Secluded in the recesses of their dark chambers— exempt from the control or inspection of the judges—relieved from the competition of the bar—independent of the opinion of the solicitors, and their proceedings totally unknown to the public—acquiring no credit by diligence or ability—incurring; neither loss nor censure by indolence or inattention—with nothing to hope and nothing to fear—can any men be placed in circumstances so unfavourable to exertion? Can it be expected that they should themselves perform the irksome duty of unremitting attention to subjects the most unattractive, or rigidly discharge the duty, perhaps still more irksome, of stimulating and compelling to constant activity the parties who attend them—the solicitors and their clerks—all affected, more or less, by the genius loci? This control over the practitioners before them, is perhaps more material than any thing else in order to prevent the delays in the office. I know not whether, under the present system, the masters possess the power of control—certainly it is not exercised. The course of proceeding is described by Mr. Field, who very fairly attributes to his own brethren, the solicitors and their clerks, the principal share of the blame. He tells us, that they attend the master or his clerk (who really does the greater part of the business), when they have nothing else to do; that any excuse is sufficient for neglecting to attend a warrant; that it is considered a want of courtesy for a solicitor to insist upon any thing like strictness in such matters; that three or four warrants are often taken out before any one is attended, the clerks settle it amongst themselves, and the master does not interfere. What is the effect of this? Why, that which might be done 1322 in an hour, occupies weeks, and the business of weeks is protracted through years. It appears from the same authority (Mr. Field's pamphlet) that warrants can only be obtained at an interval of several days —that there are only about 180 days in each year on which warrants are made returnable, and that a warrant is generally an appointment for half an hour only. Let any merchant or man of business consider how soon a long and intricate account, extending through a series of years, is likely to be settled by such a course of proceeding, by the devotion to it of half an hour or an hour at a time at intervals of days—weeks—months; when, probably, at each succeeding meeting, what passed at the last is forgotten, or denied, or disputed. It is rather to be wondered at, that, with such a system, accounts are ever taken—difficult inquiries as to facts ever answered—than that matters of this kind only emerge after a lapse of years, from the offices in which they have so long slumbered, and that many of them sleep there the sleep of death, and never emerge at all. In the absence of all other control over the masters, the Legislature has provided that they shall make returns to the Lord Chancellor of the days of their attendance at their offices, and the number of hours of each day's attendance. These returns, as I understand it, are made out from a register kept by their clerks, in which are entered the days of their attendance, and the earliest and latest warrant on each day which is attended before them. I say nothing of the delicacy of this mode of dealing with gentlemen in quasi judicial situations, or of the position in which it may place them with regard to the clerks in their office. But it is obviously quite inefficient for its purpose. The master may be absent from his office during the whole interval between the first warrant and the last; the return leaves it quite uncertain whether the master is in his chambers or in the public office—or, if in chambers, how he is employed there. I hold in my hand an abstract of these returns for the last two years, which has been laid before the House during the present Session. There appears to be a great difference between the degree of labour which the different masters devote to the performance of their duties, at least, if it is to be measured by their hours of attendance. The lowest return for the year 1839, is "176 days, 1323 and the average number of hours per day, nearly three and three quarters." The highest return, that of my hon. and learned Friend opposite, the Member for Galway, is "211 days, and six and a quarter hours on an average per day," rather more than double the other. Now, without detracting from the credit due to my hon. and learned Friend, I cannot help thinking, that the superiority of his attendance may, perhaps, in some degree be attributed to his having a seat here; and it is a counterpoise to considerable inconveniences which have sometimes appeared to me to attend the sitting of Masters in Chancery in this House. No man would like to face in the House of Commons a very unsatisfactory return. But is a system, a fit one to be maintained, which places the diligent and the indolent in precisely the same situation, and leaves it entirely at the discretion of the individual, without check or control, to devote just as much, or just as little time and attention as he pleases to his duties, even though his office should be choked with business? But, Sir, I have no hesitation in saying, that in my opinion, much more time ought to be given to the public by these offices than is allowed by the present arrangements. They ought to be kept open many more days. Instead of closing whenever the court is closed, and sometimes sooner; they ought, in my opinion, to open sooner, and close later. The time which may be employed in court by a judge in equity, furnishes no criterion at all of that which may fairly be required from a master in chambers. It is said, that the average attendance of the masters is about five hours, and that some of them attend as many days at chambers as the Master of the Rolls and the Vice Chancellor sit in court. Supposing that to be so, still there is no sort of comparison between the labours of the judges and the masters. The whole time of the judge, during his sitting, is bestowed entirely upon his business. His attention can never be diverted or relaxed for an instant, and the fatigue of this unremitting application of the faculties for five hours a day, is said to be as much as almost any mind can, for a continuance, undergo. The judge's labours, so far from terminating with his sitting in court, often become then only more severe. Questions are constantly pending before him for decision on the 1324 most complicated and difficult subjects both of fact and of law—questions often of enormous value in point of property, upon which the wealth or ruin of families depends, attended with the most painful sense of responsibility to the judge, and requiring the utmost exertion of all his diligence and mental powers to enable him to arrive at a correct determination. In order to do his duty properly, he may, perhaps, be obliged to bestow as much time upon a case out of court as in it. But the master's duties are of a totally different character; the far greater part consist of matters which require no mental effort at all—involve no doubt or difficulty—so much, indeed, is this the case, that a large proportion of the reports is, I believe, prepared by the master's clerks. I cannot see why the public should not expect from the masters the same exertions which the class from whom they are usually taken—the equity draftsmen— are compelled to make to secure the same income. I know something of Chancery drawing, and I will engage to say that no man can make by it 2,500l. a-year, without a very different expenditure of time and labour from that which is described in any of these returns. The early closing of their offices is of the utmost inconvenience to the suitors. The Court of Chancery is about to rise next Saturday—I must take the liberty of saying, in my humble opinion, a great deal too early, considering the mass of pressing business which will be left undisposed of; —but even of those orders which will be made many will remain inoperative, because they involve references to the master in order to give them effect; and the masters will cease to attend their offices as soon as the court rises, or sooner. It does appear to me that nothing can ever be done effectually to expedite the business of the Court of Chancery, till a complete alteration is made in the whole system of the masters' offices. It should seem, that in former times the obstruction was rather in the offices than in the court itself. We know that as early as the time of Swift and Pope the delays and expenses of this court were the subject of satire. Gulliver, I think, tells us that amongst other subjects on which he was examined by the King of Brobdignag, his majesty made inquiry about the Court of Chancery. "Now," says Gulliver, "I happened to be particularly well qualified 1325 to give his majesty information upon this point, ray father having been totally ruined by a suit, in which, after twenty years litigation, he had obtained a decree in his favour with costs." Yet at this time there was no great delay in the judges of the court, few causes appear to have been then in arrear, and the delay must have been elsewhere. Sir, I should be sorry that the present masters, for whom I entertain sincere respect, should take amiss what I have felt it my duty to say of their offices. I make no complaint of them personally, but of the system,—for which they are not responsible; and I trust they will feel that it is only by a full exposure of the evils of that system, that we can hope to see such improvements made in it as will make the offices themselves infinitely more useful to the public, and, therefore, at the same time more honourable, and I doubt not more agreeable to the holders. Sure I am, that until this is done, the masters will never occupy in public opinion the station which they would then fairly claim. Sure I am, that unless the most searching inquiry is made into the existing evils in the present system of the Court of Chancery, in whatever quarter they may be found, that scandal and opprobrium will never be removed from the court, which all connected with it must be anxious to shake off. In the long statement with which I have troubled the House, I have pointed out some of those matters which, I apprehend, may require correction, and which by this bill as it stands, or as on recommitment it may be made, the Lord Chancellor will be empowered to correct. Whether any additional judicial power should be given by it, I leave to the consideration of those who have the charge of it. To introducing into the present bill any alteration in the Court of Exchequer, or any provision for a permanent new judge, I, for one, under existing circumstances should object. However desirable those measures may be in themselves, they could not, in my opinion, after what has passed, be properly proposed again during the present Session. But without any such alteration, I think infinite good may be done by this bill. The powers to be given to the Lord Chancellor will be necessarily most extensive—all but legislative— and I trust they will be as fairly exercised as they are liberally bestowed. The responsibility 1326 will be commensurate with the powers. Their exercise will be watched by the House with constitutional jealousy, but by me, at least, without apprehension or suspicion. The Lord Chancellor will have the assistance of most able and zealous coadjutors, and the support of public opinion. However strongly opposed to him as a politician, I have never refused to bear my humble testimony to his merits as a judge; and I have no hesitation in saying, that if he applies to the discharge of the duties to be confided to him by this Bill, the same temper and firmness, the same ability and knowledge of his subject which he exhibits in his judicial capacity, he will establish a juster, and, therefore, a more lasting claim to the respect and gratitude of his countrymen, than it has been in the power of any Judge, within living memory, to acquire. He will remove all the abuses which this Bill will place within his reach, and he will leave to his colleagues in this House, who abandoned the larger measure, and to this House which has sanctioned the abandonment, the shame of continuing those grievances which that larger measure alone could have redressed.
§ Lord J. Russell
expressed his admiration of the knowledge of the subject displayed by the hon. and learned Gentleman who had just sat down, and the judicious and skilful manner in which he had dealt with his materials. He had always been impressed with a deep sense of the difficulty of effecting any reform in the Court of Chancery. He had always considered that subject the peculiar domain of the gentlemen who practised there, and who were so much engaged in the defence of the whole system, that any attempt at its reformation would be hopeless. Any person attempting to introduce a measure of Chancery reform, might be a year or two years engaged in the task, and if at length he proposed his remedies in that House, he might be convicted of gross ignorance on some part of the subject by some learned gentlemen who had devoted his whole life to the practice of the court. It was, therefore, with double pleasure that he had heard the hon. and learned Gentleman, whose standing in the Court of Chancery was exceedingly high —no man stood higher—stating in their full enormity the abuses which existed in it. Whatever might be the hon. and learned Gentleman's opinion with regard 1327 to the abandonment of the bill, he could not help feeling very grateful to him for the exposition which he had made to the House. With respect to that bill, which he had last week stated his intention to withdraw, he was not aware that the appointment of the two additional judges contemplated in it would put an end to the existing sinecures of the six clerks, and the other iniquities to which the hon. and learned Gentleman had alluded. That bill proposed no direct remedy upon this subject. What was the history of this bill? It was introduced in the Lords early in the session. On the 7th of April its second reading was adjourned sine die. Their Lordships then appointed a committee, which sat for a considerable time; and on the 16th of July the bill was read a third time, and sent down to that House. It was a bill affecting a court with respect to which there were various opinions, which was connected with the highest court in the realm—the Court of Appeals in the other House, and with the high office of Lord Chancellor, partaking of a political as well as a judicial character. On the 16th of July it came down to the House of Commons. Many Members, thinking that the chief business of the session was then over, were preparing to leave town; others had left it previously. Having thus occupied the Lords from the month of April to the middle of July, if, notwithstanding, it were the unanimous opinion of the House of Commons that a remedy should be immediately applied, he should cordially support his hon. and learned Friend, the Attorney-general, who was ready to proceed with the bill. But that was not the case. A right hon. Gentleman fully qualified to discuss all the intricacies and difficulties of the subject (Sir E. Sugden) had immediately asked whether the bill would be proceeded with, and upon receiving an answer in the affirmative, gave notice of a motion that "it was the duty of the House, in the first place, to provide for the more satisfactory administration of justice in the House of Lords and Privy Council." In this motion the right hon. Gentleman would no doubt have received a very extensive support, and had the motion been successful, it would have at once put an end to the bill. His (Lord J. Russell's) reply to the right hon. Gentleman was, that there being many other bills of importance to send up to the Lords, he could not pro- 1328 ceed with it before the 30th of July. The right hon. Gentleman then stated, that if the bill came on for discussion, he should think himself justified in taking advantage of all the forms of the House to prevent it from passing into a law. He said, that he hoped the right hon. Gentleman would not take that course, on which the right hon. Gentleman intimated that he would. If under such circumstances he had proceeded, he must have postponed several other important bills, and it would probably have been finally passed with great difficulty. The question of compensation to the officers of the Court of Exchequer was a question to be considered and dealt with on its own merits. In reference to the remarks which the hon. Gentleman had made on the subject of the withdrawal of the bill, he begged to say that the reproach had hitherto been, that they had hurried over the public business at the end of the session, and introduced bills at too late a period. But the reproach was now the other way. Whatever blame might be thrown on the Government, he hailed with pleasure this symptom of an anxiety for reforms on the other side, and whenever they felt anxious to manifest their desire to promote reforms they would not find him backward in assisting them. He did not think it advisable at present to do more than say, that the present bill empowered the Lord Chancellor to amend the regulations of his court. An excellent opportunity would thus be afforded next session of appointing additional judges with the advantage of an improved system. He would not disguise his opinion that he thought the present constitution of the Court of Chancery most unsatisfactory. It was impossible that the public could be satisfied, so long as this court was without judges constantly bound to attend. According to the present arrangement, counsel were engaged, and all other expenses incurred, but the judge, having some engagement elsewhere, did not come to the court, and the parties were involved in all these expenses and loss of time for no other reason than that no one was bound to come. When this was the case with regard to the judicial committee of the Privy Council, that the sitting of the judge was a matter of mere chance and caprice, he certainly thought that it, was a discreditable, if not a disgraceful, state of the great courts of this empire, With regard to the bill intro- 1329 duced by the Lord Chancellor, three or' four years since, for disconnecting the civil and political functions of the Lord Chancellor, and for the appointment of a permanent judge, considering the immense importance of the functions of the Court of Chancery, the immense benefit which it rendered to persons possessing property throughout this kingdom, the vast control which it exercised over the monied interests of the country, it did appear to him to be the common sense of the subject that there should be, as in the Queen's Bench and Common Pleas, a permanent judge at its head. Let them take into consideration the high personal character of the present Lord Chancellor, and remember how, by the vole upon the Jamaica question last year, they might have lost his high legal and judicial qualities for no reason whatever but the fact of a political change. He should say the same thing of a person of opposite politics; and he begged to ask, whether this was not a misfortune, and a fault in the constitution. They had had an unfortunate example in the case of Lord Hardwicke, a very great judge, perfectly able to deal with all legal questions, but on political questions, opposed to the colleagues with whom he acted, and continually labouring to thwart and overthrow them. That was a misfortune to the politics of the country. It was plain that they could not satisfactorily combine these two characters. They must have either a straightforward, unflinching man, or one who would go between both political parties, and thus strive to maintain his position as the highest legal functionary in connection with two or three successive Governments. He considered this to be a fault both legally and politically. The remedy for it he would not then enter into, for it was a question of the greatest difficulty. To deprive the Administration of an individual of the highest legal authority, who would give to it the weight of his authority, was in itself a great mischief; but to get rid of that mischief was, he repeated, a matter of great difficulty, and when this question came to be debated, was one which could not be overlooked. He had, therefore, come to this conclusion—that, though he was glad that the House of Lords had at last agreed to apply a remey to some of the evils of the Court of Chancery, he had still greater reason to be glad that 1330 the hon. and learned Gentleman opposite had pointed out other considerations, which must make Parliament determined to carry still further its reforms on this subject, He therefore thought, that he had not acted wrongly in proposing that the former bill on this subject should be relinquished now, in order to be introduced in a more extensive shape in the next Session of Parliament. In that shape, he would introduce the subject at the earliest period next Session; and he thought that then the House would have an opportunity, of which it ought to avail itself, to consider seriously all the questions connected with it. If the hon. and learned Gentleman's Colleague (Sir E. Sugden) would then move for a committee of inquiry, though he had resisted such inquiry this Session from a persuasion that it was merely proposed as a measure of delay, he would not object to it, considering, as he did, that it was intimately connected with matters which required the immediate consideration of Parliament.
§ Mr. Hume
said, that in the whole course of his Parliamentary experience, he had never heard two speeches which had given him greater satisfaction than the speech of the hon. and learned Gentleman opposite, and the speech of the noble Lord. He should have been glad had this bill been carried during the present Session, but he considered, that the pledge of the noble Lord, that he would carry it in the next Session, was eminently satisfactory. He hoped, that the noble Lord would redeem that pledge, and let the public have the benefit as soon as possible of the reforms which he had promised. He was still of the same opinion which he had declared in the committee, namely, that the office of the six clerks ought to be abolished, and he was sorry that he had not had sufficient weight with the noble Lord to get that proposition carried into effect.
§ Mr. Lynch
said,* considering the situation I have the honour of holding, I trust the House will, even at this late hour of the night, and this late period of the Session, bear with me for a very short time. We must all regret, that the opportunity was not afforded to my hon. and learned Friend of delivering the speech he has just made, upon going into com-* From a corrected report.1331 mittee upon the bill that has been withdrawn, a more fitting occasion than the present upon going into committee on a bill giving us only an instalment of those benefits intended by the Lord Chancellor, and the other House of Parliament, to be conferred on the suitors and the public at large. I concur in every regret expressed by my hon. and learned Friend at the withdrawal of that bill, I concur in everything he has said respecting its great importance and unquestionable utility, I concur in every thing he has so well and so eloquently said respecting the mischievous effects of the great and unpardonable delays in the Court of Chancery, and of the great and extended misery and ruin produced by those delays, I entirely agree with him, that the judicial power is greatly insufficient, and with him I can only account, by these delays and their mischievous consequences, for the no great increase (if any) of the number of bills yearly filed since the time of Lord Hardwicke, notwithstanding the great increase of the population, the immense increase of the national wealth, the large addition to the national debt, the great creation of leasehold and other personal property, all of which must be administered by means of trusts, the creation and great varieties of different sorts of property in the same land, and the greater complication and intricacy which must ensue there from. But when my hon. and learned Friend throws the whole blame of the withdrawing of the bill on Ministers, I differ from him; I think they are to blame, and greatly to blame, but not wholly, I think my right hon. Friend, the late Lord Chancellor of Ireland, must come in for a share of the blame arising from the withdrawal of the bill. For, what is the history of this matter? The bill was read a second time in the House of Lords on the 11th of May, it did not come down to this House until the 16th of July. I do not mean to say, that the intermediate time was unprofitably spent, on the contrary, during that interval, the most satisfactory, the most convincing evidence has been put upon record establishing the great want of judicial power. It was read a first time on the 16th of July, and the second reading was fixed by the noble Lord, the Secretary for the Colonies on the 20th, and on that day my hon. and learned Friend, the Attorney-general, was about to propose the second reading to 1332 the House, thinking that no opposition would be offered, and that as the urgency of the case had dissipated all party feelings in the other House, so here also the same feeling would be permitted to prevail, and that the bill would pass through its stages with perfect unanimity, until he was stopped by the threatened opposition of my right hon. Friend, whereupon the second reading was fixed for the Monday following. On the Friday, however, my right hon. Friend asked the noble Lord when, with certainty, the bill would be read a second time, on which occasion the noble Lord stated, that he had intended that it should have been read a second time on the day before, or, at all events, on the Monday following, until he found it was to be opposed, that being so, and as it was a bill of great importance, and would take up much time in discussion, and as the bill had passed the Lords, it would be better to proceed on Monday with the bills that were to go up to the House of Lords, and to take the Administration of Justice Bill on the Thursday, when it would come on early in the evening. When my right hon. Friend declared, that he would feel himself bound to give the bill every opposition that the regulations and forms of the House would entitle or enable him to give, I confess I did not expect such a declaration from my right hon. Friend, and feeling the greatest interest in the passing of the measure, I was at such declaration greatly grieved, for what was my impression, and the impression of the noble Lord, but that my right hon. Friend, taking a lesson out of the book of my hon. and learned Friend, the Member for Dubliu, and following his example, and the plan adopted by him last year respecting the Bank of Ireland Charter Bill, would follow the same course, and, by frequent adjournments, prevent the passing of the bill? The noble Lord had a right to act on that impression, but where the noble Lord is to blame, is, first, that he did not at all events try the question with my right hon. Friend, and secondly, when he was told by my right hon. Friend, that although he expressed himself otherwise, and too strongly, yet that he never meant to oppose the bill substantially, but to make the measure more perfect, the noble Lord ought then to have proceeded with the bill, and not have persisted in its withdrawal; no valid reason can be offered for his not so doing, and 1333 when he talks of the difficulties respecting the compensation clauses, it appears to me that he much exaggerates these difficulties. In reference to one individual in particular, however averse I might be, under the circumstances, to give compensation, if at the same time I could secure the passing of the bill thereby, and was told so by the noble Lord, and thereby prevent the heart-burnings and misery of six or nine months' longer delay to the unfortunate suitors, I would give that price without hesitation, and glad, I am confident, the poor suitors would be to contribute for that object. The noble Lord gave us no option, but withdrew the bill. Where my right hon. Friend is to blame, and much to blame, is, in not informing the noble Lord in time of his change of intention, or that his original object and meaning was not understood. And I think he was much to blame in making the reformation and alteration in the Apellate Court a sine qua non to the passing of the bill then before the House. It was an independent measure, and was necessary to be passed with or without reform in the appellate jurisdiction. Reform and alter your Appellate Courts, still that measure must have passed. Pass that measure, and you would not interfere with or retard the reformation in the Appellate Courts; so far from so doing, you would render the passing of such a measure more strongly and more loudly called for. When I say my right hon. Friend is to be blamed, I would be doing him the greatest injustice if I did not add, that his ultimate object, although ill-timed, was most praiseworthy, and his motives were the most pure; his anxiety to have a good Court of Appeal induced him so to act, but in supporting the bill that has been unfortunately withdrawn, he might have taken the opportunity of insisting upon the other more extensive and called-for reforms, as my hon. and learned Friend opposite has done this evening. I rejoice to find the case of the appellate jurisdiction in such able hands as those of my right hon. Friend. I rejoice to find that cause supported by such high authority, and that the plan which, perhaps rashly for a man in my then situation, a mere humble advocate at the bar, I submitted to this House in 1834, does not very much differ from that proposed by my right hon. Friend. As for myself, my opinion is unchanged, that the extensive evils of the Court of Chancery and Appellate Court, 1334 will never be effectually remedied until you separate the political character of the Lord Chancellor from his judicial,—until you separate his duties as Speaker and Judge of Appeals in the House of Lords, from his duties as Chief Judge of the Court of Chancery. The onerous and multifarious duties of the Lord Chancellor are such, that no one man can perform them with credit to himself or satisfaction to the public. The present possessor of the Great Seal feels this so much, although for years we have not had a Lord Chancellor that has given greater satisfaction, yet he lost no time in preparing a measure whereby he separated those duties,—I mean the duties as Judge of the Appellate Court and Speaker of the House of Lords from his duties in the Court of Chancery. The Lords refused their assent to that measure. If my right hon. Friend were present, I would take the liberty of asking him what expectation he had of their agreeing to his proposition now. I confess I am at a loss to discover upon what grounds it was the Lords refused their assent to that measure, particularly when I find a Committee of their own House reported, in 1823, that "There is now a manifest impossibility that any person holding the Great Seal can find the time which is required for the business of the Court of Chancery and the House of Lords, and all the other great and arduous duties of his high office;" and the more particularly when we consider the duties of the Lord Chancellor. He is a Cabinet Minister, and must attend Cabinet Councils; he is a Privy Councillor, and is bound to attend the Privy Council on all great occasions; he has to give his advice to the Secretary of the Home Department; he is Speaker of the House of Lords; he is a Judge of Appeals in that House; he has to attend the proceedings in all peerage cases; he has to peruse all patents and treaties signed by the queen; he has the care of idiots and lunatics; he has the disposition of Church patronage, and the appointment and superintendence of the magistracy. In addition to all this, he has to preside as chief judge in the Court of Chancery. Is it possible for any human being to get through all these grave and multifarious labours efficiently? Can any one man in the present state of things discharge all these duties? Separate, therefore, these duties; lessen these labours. With every 1335 argument adduced by my hon. and learned Friend in support of the withdrawn bill I entirely concur. It would be not only a waste of time, but it would be wrong in me to attempt to say anything at this moment in addition to what he has so ably said. I also pass by what he has said respecting the hearing of counsel, respecting parties, and the difference made between real and personal estate in this respect, the form of pleading, the constant recourse to references to the masters; 1st, because I very much concur with him in these remarks, and, 2ndly, because I think they are subjects much better to be submitted to the Lord Chancellor or a commission than to this House. In respect of the six clerks, the reduction to the number of two is already provided for by that important and excellent measure of Lord Brougham's, passed in 1833. I fully, however, concur with my hon. and learned Friend in the absurdity of an oversight in another Act of Parliament passed in the same year, I mean the Fines and Recoveries Act, whereby the income of these offices is very greatly increased; and what makes the absurdity greater, is, that the duty to be performed (not a very arduous duty I admit) is performed by the masters or commissioners, but nothing, or nearly nothing, is done by the six clerks. It is clear that the law, in this respect, should be altered. Neither was Lord Brougham unmindful of the sixty clerks; I believe I may say it was his intention to have introduced a measure respecting them. I agree with my hon. and learned Friend, that such offices may be dispensed with, due and adequate compensation being given to the present holders. I do not see why there should be a different mode of service of notices and orders in suits in equity from that in actions at law; but that is not the opinion of many. The late Lord Redesdale, a great legal authority, thought the maintenance of these officers essential to the good working of causes. My hon. and learned Friend says, that these officers are only occupied in the taxation of costs, and which, strictly speaking, ought to be performed by the masters. He is perfectly correct in that remark, and the sooner the taxation of costs is transferred to proper and efficient taxing officers the better. Now, as to the observations which my hon. and learned Friend has thought proper to make respecting the masters, and 1336 which has been the cause of my addressing the House on this occasion. He complains of the delays in the masters' offices; if he had made a little more inquiry—if he had not entirely forgotten what must have occurred to himself whilst practising at the outer bar—if he had consulted a little more diligently the book on which he so much relies for his facts, I mean the pamphlet of Mr. Field, he would have found that the delay is not imputable to the masters, but to the solicitors; and this is the evidence of a solicitor himself. And when I say the blame is imputable to the solicitors, let me not be understood as finding fault with them indiscriminately. In many cases, they are waiting for instructions from their clients in the country; in others, they are waiting to see the issue of a proposed compromise or arrangement; in others, perhaps, stopped for want of funds, money not being furnished by their clients. And let me here correct a very common error, that delays are advantageous to solicitors. I believe they are most detrimental, not only by the prevention of a greater influx of business, but by means of solicitors being kept out of their money; for I believe, in many chancery suits, a solicitor will be better paid by his having money laid out at 51. per cent, interest. Delays are frequently caused also by the non-attendance of barristers. There is scarcely an attendance by a barrister that is strictly given on the first appointment; but are the barristers to blame? No such thing; they are detained in court, or by appointments with other masters; and I state these things, first, to show that the delays are not to be imputed to the masters, and next, to show that indulgence must occasionally be given by the masters to both barristers and solicitors. My hon. and learned Friend complains of the manner in which causes are proceeded with before the masters, of the secresy of the sittings, of the number of days they attend, and of the hours they attend. I entirely concur with him that continuity of proceeding is most desirable, but it is not always attainable, partly owing to the nature of the cause itself (for in the midst of a cause it may be necessary to let it stand over for other evidence), and partly owing to the engagements of solicitors. If the whole day should be occupied with the hearing of a cause, great injury may arise 1337 in other cases, but, when attainable, I agree that it is most desirable, A remarkable instance of this sort occurred last year in my office. In the Bury St. Edmund's case, well known to my hon. and learned Friend, a decree was pronounced by the Master of the Rolls, directing, among other things, an account to be taken of the charity estates; it so happened that there were seventy or eighty different charities all vested in the corporation of that town, or some portion of the corporation, and who were the accounting parties, and therefore seventy or eighty different accounts were to be taken; the parties, upon my requiring such accounts to be taken, despairing that it would be possible, within any reasonable time, to get through such a mass, first endeavoured to put such a construction on the decree as would not render it necessary to take an account farther back than the execution of a deed in 1810; but finding my view of the case confirmed by the Master of the Rolls, they threw up their hands in dismay. My answer was, "Do as I desire you during the vacation" (it was about this time last year); "come to me in November; I will give a whole week, and six hours each day of that week."— They attended in November; they proceeded for two days, six hours each day, and the matter was gone through in the middle of the third day. If proceeded with in the ordinary way of warrants, the taking of the different seventy or eighty accounts would have taken a year or more; so far in favour of continuity of proceedings. But see what has happened. After the taking of these accounts, it was necessary that a survey should be had of all the charity estates, which I ordered to be taken; from that day to this I have seen nothing of the parties, except in an interlocutory matter, the appointment of trustees.—Can this delay be imputable to the master? I have no doubt that, upon being questioned, the solicitor will have some plausible reason for the delay. There is no master in the buildings who is not perfectly alive to the advantages of continuity of proceeding, and who, as far as in him lies, does not carry into effect such continuity; but, until directed by a higher and competent authority—until the master is directed not to proceed with a cause until he finishes the preceding one, he cannot, he ought not, to do more than he does at present. Of the propriety, of the 1338 fitness, of the justice of such an order, much, I think, may be said. It requires grave and serious consideration; much, very much, in my opinion, ought and must be left to the management of the master. Then, as to the secresy of the sittings; surely my hon. and learned Friend must know (as the fact is) that our sittings are not secret; they are open to the public, and as much open as the courts themselves. I admit they are not as accessible, and the matters transacted there do not in general attract public attention; but that is not the fault of the masters. The master sits at a table, and the parties are around him stating their cases as practical men rather than orators; but if it should be thought beneficial that a change should be made in this respect, that the master's room should be made more accessible to the public, that the forms of the court should be more adopted, I can vouch for the masters that they will interpose no difficulty nor make any objections. I, however, very much doubt the expediency of such a measure; I very much doubt its utility, and I have great fears of this mischief arising from it, that solicitors and their clerks, instead of getting through their business as they do now practically and to the purpose, will then become makers of speeches, and address themselves more to the audience than to the master, if audience they should have; and even without an audience, the very forms of a court will induce them to imitate the addresses and statements of the barristers. Mr. Field himself, from whose book my hon. and learned Friend has so much borrowed, (good authority, I fully admit, on this point,) the great advocate for this alteration in the masters' sittings, winds up all his observations on this point by saying, that, "after all, perhaps the business is much better gone through and disposed of than if the forms of a court were more used;" but to satisfy the call made by the public, and which my hon. and learned Friend seems to have taken up, let trial be made. I only hope that the masters and the suitors will not thereby be deprived of the excellent method in which business is now transacted by solicitors and their clerks. And here I must observe the great satisfaction I have felt, ever since I have sat as master, at the manner in which business is generally conducted and carried on by them. Now, as to the hours of business; my hon. and 1339 learned Friend has referred to one particular return made under peculiar circumstances; he ought to have stated the general average, and which appears to be nearly five hours a day to each master. I have the authority of the Colleague of my hon. and learned Friend, that no judge ought to be called upon, with advantage to the public, to sit beyond five hours in the day; but my hon. and learned Friend says, that the time of the judge is much occupied out of court in preparing for court; he must know that the master is also so occupied; there is no day passes that I am not occupied from one hour to two hours at least out of office-hours in reading my papers for the next day and looking at points of law. And then, in respect of the number of days, I agree with my hon. and learned Friend, that the master should sit every day the court sits; but I do not see what use their sitting at other times would answer. And my hon. and learned Friend may be assured, that if they continued their sittings until Christmas next, there would then be the same bustle and hurry as there is generally at this time of the year; and surely my hon. and learned Friend ought to know, that the masters, after the last seal, have no power whatever of compelling attendances upon warrants. I think the practice most absurd and mischievous. I have, with the other masters, adopted every means we could to put a stop to such a practice. I have suggested in the proper quarter that an alteration should be made, and I have no doubt it will be made. As to the hours, it is well known that solicitors cannot, except under very pressing circumstances, attend upon the masters, but from eleven to four o'clock. They are occupied in the earlier hours in the morning in reading their letters, and making arrangements for the day; and in later hours they are again occupied with letters for the post, and preparing for the next day. But my hon. and learned Friend says, that there is a great pressure and arrear, and delay of business; that there is an actual choaking up in our offices: all I can say, is, that I know there is no such arrear or delay or choaking up in my office, and that I am not aware and I do not believe that there is any such in any other office. I know that, by the time my office closes, there will not be a single matter left undisposed of or unfinished where the solicitors would attend to it. Mr. 1340 Field, himself, admits, that with the master himself there is no delay. And whilst my hon. and learned Friend undervalues the services of the masters, he ought to reflect, that, whilst there is more substantial business done in our courts of equity in the course of the year than in all the other courts at Westminster Hall, two thirds of that business are transacted in the masters' offices. As to the romantic allusion of my hon. and learned Friend, of the masters reading the newspaper or a novel, he could hardly be serious; and I feel confident he intended it merely as a figure of speech, as a flourish which an orator can hardly ever avoid where it falls in his way. If a warrant should not be attended, if an interval should arise between the attendance on warrants, the master has plenty of occupation in reading over and preparing his reports, and in signing them. For my hon. and learned Friend is grealy mistaken when he says, their reports are prepared by the chief clerk and not by the masters themselves; true it is, that the statement and technical part is so prepared; but I will speak for myself, and, in so doing, may also for all the other masters, that there is no master who does not prepare or settle his own finding, and peruse the whole of the report. It is not, I conceive, the duty of the master to do more, but that of the chief clerk; and the master's time must be, and is much better occupied in other and more difficult matters. And now, as to attendances and their enforcement; I wish the masters had more power; but how that is to be effected with safety or utility is a matter of grave consideration. Whom will you mulct with costs, or punish for non-attendance? Not the suitor, for he may be perfectly innocent; the solicitor,—will you gain your point thereby? My hon. and learned Friend says, and so does Mr. Field (a solicitor himself), that solicitors will not attend sometimes, out of courtesy to each other; will they not extend that courtesy as to costs, and keep a regular account between each other for non-attendance, and set off one against the other? All this, as I have already said, requires consideration, and much, very much, depends upon proper management, and the master's seizing the proper moment to compel attendances and continuity of warrants. My hon. and learned Friend then says, referring no doubt, to the nature of our sittings, that 1341 the masters have nothing to hope, nothing to fear, nothing to influence their conduct. Nothing to fear ! Will he not allow something for conscientious feelings, and a sense of duty? Will he not give some credit to men of education, men who have at the bar obtained considerable business and acquired high station? If such credit cannot be given to men who now perform the office of masters; if a sense of duty be not sufficient to influence them, they ought never, in my opinion, to have been appointed to that high situation: for let my hon. and learned Friend consider it as he will, let him compare the duties of the masters and their salaries, and measure them with the labour and remuneration of a draftsman at the bar, the office of master must always be considered one of the most important of judicial appointments. As for the observation respecting the influence which my sitting in Parliament has upon my conduct, I think it might have been spared. I do not think the Bar or the public would judge of me so harshly, and to the Bar and public I appeal. My hon. and learned Friend next says, we are independent of the Lord Chancellor. Except as to our appointments, not more so than we were; and I should be sorry we were. My hon. and learned Friend says, that under the former practice, the Lord Chancellor might have sent or not, as he thought proper, reference to the Masters; and as their emoluments then depended upon fees, and not salary, the Masters were then entirely dependent upon the Lord Chancellor. But does my hon. and learned Friend mean to say, that the Lord Chancellor ever did exclude a Master from his share of references, or that he ought to do so? If circumstances should arise to justify such exclusion, surely the same circumstances would and ought, to cause the removal altogether of such Master. I think the change of remuneration from fees to salary a change for the better; it is one of those salutary reforms for which we are indebted to Lord Brougham; and equally beneficial, as it appears tome, is the change of appointment from the Lord Chancellor to the Prime Minister; for thereby you render the whole Cabinet responsible for the appointment, whilst at the same time you secure the approval of the Lord Chancellor; for it cannot be supposed that the Prime Minister would ever appoint any one that was not approved of by the Lord Chancellor. If ever 1342 a Minister should do so, I do not hesitate to say, that he would greatly fail in his duty to the public, and act contrary to the intention of the framers of the Act and the Legislature, which I have no doubt was to place the appointment of the masters in the same situation and on the same footing as that of the other judges. When my hon. and learned Friend says the masters have nothing to hope, does he forget the promotion and advancement of masters Thompson and Alexander to the high judicial situation of chief Baron? My hon. and learned Friend and the House may be assured, that they will not find more ardent or zealous supporters or coadjutors in the cause of reform of the Court and the Masters' offices than the masters themselves. I beg pardon for having so long trespassed on the kindness and attention of the House; I feel that I have been desultory and tedious, but my excuse must be, that I was not aware that my hon. and learned Friend was about to make any observations respecting the masters, which have been the occasion of my rising at all; or that he was going to do anything more than complain of the withdrawal of the bill. With him, before I sit down, I must again express my regret at that withdrawal: but though that bill has been withdrawn, great good has been attained; great advance has been made this Session; the most irresistible evidence has been placed upon record; unanimity has been secured; emulation between parties has been created. Lord Lyndhurst, always a reformer of the abuses of the court, has become a convert to and zealous supporter of the appointment of two more judges, and the increase of the judicial power. I must here take this opportunity of expressing with others our sense of obligation to his Lordship. My hon. and learned Friend has joined our ranks as a reformer; he is most welcome even at this eleventh hour; and he has by his speech of this evening rendered the cause the most important services, which I am ready to acknowledge, although I complain of his observations respecting the masters, which I consider unmerited and uncalled for, and were by me most unexpected. My right hon. Friend, his colleague, has declared himself favourable to, nay, he has insisted upon, still greater and more extensive reforms. The noble Lord, the Secretary for the Colonies, has expressed an opinion, that next Session, not only should the bill, now un- 1343 happily withdrawn, pass, but there ought to be an investigation respecting the Apellate Court, independently of the question of the supply of judicial power. All this must inspire us with hope and well grounded assurance that ere long the Court of Chancery and the Appellate Court will be put on such a footing as to secure to the suitor a satisfactory administration of justice, without delay and disappointment. What a triumph to those who have been long exerting themselves in the good cause, to the present Master of the Rolls, and others, amongst whom, I trust, I may rank myself as an humble but constant and ardent labourer in and out of Parliament.
§ House went into Committee on the bill.
§ On the words "and also in the form and mode of filing bills, answers, &c," in the first clause being read,
wished to ask whether this clause would empower the Chancellor and judges to make orders dispensing with bills and answers, or at least with answers in common suits, for payment of debts and legacies, and other simple cases.
§ The Attorney-General
There is a subsequent clause authorising the Lord Chancellor and the judges generally to make rules and orders as to the form and mode of proceeding to obtain relief, and to alter, control, and regulate the business of the several offices of the court. Under these powers the judges might, as he conceived, in such cases, if they should think it expedient, dispense with bills and answers altogether, and substitute a petition, or some simple mode of proceeding.
§ On the words "and of making and delivering copies of pleadings and other proceedings" being read.
stated, that he doubted whether the judges would act upon this part of the bill, and that part which authorised them to direct payment into the "Suitors' Fee Fund" of the copy money now received by any of the officers for their own use, inasmuch as this could not be done effectually without very largely interfering with the emoluments of the six clerks and clerks in court; he wished to know how this was.
§ Mr. James Stewart
stated, that to meet this difficulty, he had prepared a clause for allowing compensation to the officers whose emoluments might be affected under this act, which he would propose when this bill was gone through.
§ On the clauses being gone through,
proposed the addition of his clause for compensation "to the officers who might be affected by the provisions of the act." He staled, that he conceived that the bill would be ineffectual without it, inasmuch as the operation of the act, if properly and effectually carried out, would deprive the six clerks and clerks in court of a large proportion of their fees, and it was impossible to expect that the judges would do this unless some means were afforded to the officers for obtaining a fair compensation.
stated, that the clause proposed would, in his opinion, be a very useful one. He understood that several of the clerks in court had paid large sums of money for their places: He thought it therefore, reasonable that such a clause should be added.
The Attorney General
agreed that this was a very necessary clause, and would facilitate the carrying out the bill in a complete and effectual manner.
§ Clause agreed to.
§ House resumed, report to be received.