The Attorney- General
rose to move for leave to bring in a bill for facilitating the Administration of Justice. In executing his task he would, he said, occupy but a small portion of time, because the measure he was about to ask leave to introduce had already been before the House, and was not likely to meet with serious opposition. This measure would be followed by others to improve the law, — for the appointing of localudges,— for the reformation of the ecclesiastical courts,— for amending the law with respect to bankrupts and insolvents, by bringing them under one jurisdiction, and for abolishing the Court of Review, which was, on all hands, admitted not to have answered the expectations originally formed respecting it. The present measure related merely to the administration of the law in the Courts of Equity— a branch of the law which was of very great importance, on account of the immense mass of property, real and personal, brought under its jurisdiction, and in the administration of which great delay was experienced, notwithstanding the high character and unwearied assiduity of the judges who presided in the Equity Courts. The great cause of this delay was the increased business thrown into those courts from the greatly increased population of the country, and from its still more increased wealth. With the enormous mass of property brought under the administration of the Equity Courts, it was impossible, 183 with the present judicial establishments, to get through the business. There had been hardly any addition to the judicial establishments of the country since the reign of Edward 1st, though the property to be administered had gone on constantly and rapidly increasing. He might mention that the funds in the Court of Chancery in 1802, amounted to 19,000,000l.; in 1812, to 28,000,000l.; and in 1839, to 41,000,000l. The Acts of Parliament which had been passed of late years respecting railways had very much contributed to increase the business of the Equity Courts, and the consequence was, that there were frequent and just complaints of the slow administration of justice to equity suitors. The arrears in the Court of Chancery were very great, amounting at present to between 1,200 and 1,300 causes. Between the time of a cause being set down for hearing, and it being heard, a period of not less than three years elapsed, and upon an average it was five years from the date of the beginning of a cause to its being first brought before the judge. When a cause was heard it might not be definitively disposed of, but would come on again for further directions, and this might happen repeatedly before the cause was finally determined. Between these hearings, there was a cycle of three years. The consequence of this procrastination was, great distress to individuals. Another evil, also,' resulting from such a state of things was the encouragement to fraud. Persons having property entrusted to them frequently set the law at defiance, presuming upon the inability of individuals to brave the expenses and anxieties of a Chancery suit. Compromises on unequal terms were matters of daily occurrence. The enormous amount of extra costs, arising from delays, constituted in itself a great grievance. Upon a moderate calculation, the term fees and other expenses, arising from delays, amounted to not less than 40,000l. per annum. It was, by some, ignorantly supposed that all this delay was advantageous to solicitors. No such thing; they were often the greatest sufferers, having to remain for years without reimbursement of the money they were obliged to expend. This being the case, what was to be done? Some alteration must be made. He first turned his attention to the Court of Exchequer. That was one of the tribunals by which the equity law was administered. That court, however, exercised double functions— those of common law and equity. Its common law decisions were sometimes less satisfactory, 184 from the absence of the Chief Baron, and as an equity court it had fallen into disrepute, notwithstanding the eminence of the judges who usually presided in it. One cause of this was, that the judge who sat in the Exchequer was obliged to attend the circuits, and the court, consequently, was closed from July to November. If an injunction were granted previously, there were no means of getting it dissolved during that period. Another evil consisted in there being no appeal from an interlocutory order of that court except to the House of Lords. For these reasons, he entirely concurred with those who framed the bill he was about to introduce in thinking that the equitable jurisdiction of the Exchequer Court ought to be abolished. This, to be sure, might be avoided by appointing another judge in that court, who would confine himself entirely to the equity business, and from whose decisions there should be an appeal to the Lord Chancellor. This, however, would only be appointing another Vice-Chancellor, under a different name. The first object, then; of the present bill was to abolish the equity jurisdiction of the Court of Exchequer. The next question to be considered was, what addition should be made to the judicial power of the Court of Chancery. If the equitable jurisdiction of the Court of Exchequer were abolished, it would be necessary to provide a substitute for it. Even during the existence of the equitable jurisdiction of the Court of Exchequer, it had been considered necessary to increase the judicial power of the Court of Chancery. In 1828, Lord Lyndhurst introduced a bill in the House of Lords, which passed through that Assembly, and was brought down to the Commons, to appoint an additional Vice-chancellor. It was a matter for regret that that measure did not pass the House of Commons. The public mind, however, was not then prepared for such a proposition, and it was only by degrees that it had become prepared to entertain it. If one judge was necessary then, two new judges could not be considered too many, when the equity department of the Court of Exchequer were abolished. No apprehension need be entertained, that new business would not be found for the additional judges. The House would be surprised to hear, that for sums under a 100l., no one ever thought of going into equity. In courts of common law, the case was entirely different. His learned Friends, who were present, would bear him out in his statement, that in three-fourths of the 185 causes tried at common law the damages were under 100l. No one but a madman would now go into equity to recover a debt of 100l. If there were at present a demand against a fraudulent executor, or partner, or any other person, against whom there was no remedy at common law, unless the amount were more than 100l., the practice of the Court of Chancery amounted to an entire denial of justice to the parties aggrieved. Indeed, under the bill introduced at the close of last Session, he was sure that great improvements in the masters' offices and other departments in Chancery would be made; and he was sure that in all cases of a fiduciary nature, a remedy would be afforded as satisfactory as that now given by the courts of common law; but this could not be effected without a considerable addition to the judicial strength, as he had already stated. On those grounds, he believed there would be no opposition to the appointment of two new Vice-Chancellors as proposed by the present bill. He might, perhaps, be blamed for not proposing a more extensive measure, particularly as the right hon. Gentleman, the Member for Ripon, had given notice of a bill for improving the appellate jurisdiction of the House of Lords and the judicial Committee of the Privy Council; but he thought it right to keep clear of all debateable ground, and he trusted that those measures would not be allowed to impede the present bill, which he desired should proceed with as little delay as possible. In 1835, the Government, with which he was connected, brought forward a measure which proposed that a chief judge should be created in Chancery, who should not be removeable with the Government, and that the attention of the Lord Chancellor should be confined to appeals and writs of error in the House of Lords, and in the Privy Council. That measure, however, did not meet with the approbation of the other House, and he was afraid that if the right hon. Member for Ripon proposed any such plan it would not be received with favour. The bill which he was now about to introduce would be a large instalment of legal reform, and as it would be sent back to the Lords in the same state in which it had been brought down from that House, there was no reason to doubt that it would receive the approbation of that Assembly. The bill would abolish the equitable jurisdiction of the Court of Exchequer, and appoint two new Vice-Chancellors. At a subsequent stage, it would be necessary to 186 introduce clauses respecting salaries and compensations. That was a subject which had better be reserved for the committee, and with the leave of the House he would abstain from entering upon it at the present time. It might, however, be satisfactory to the House to know that neither for salaries nor compensations would it be necessary to impose any burthen upon the country. There were funds belonging to the Courts of Exchequer and Chancery amply sufficient to defray all reasonable salaries, and all the compensations which would be necessary. He concluded by moving for leave to introduce "a Bill for facilitating the Administration of Justice."
§ Sir E. Sugden
had first a few words to say respecting the proposition of the noble Lord, which was expected by the House last year. If it had come on last year, it was his intention to endeavour to have it postponed; but the noble Lord showed his judgment in holding over the bill until now, although he had done so because he saw there was no chance of its passing last year without opposition. His right hon. and learned Friend seemed to think there ought to be no opposition to this motion for the appointment of two new judges; but he must inform the House that this proposition for two new judges involved a proposition for two new courts. They deceived themselves if they supposed that the two new judges would be added to the old court. Each judge must have a separate court, a separate bar, a separate suite of officers, and a separate place must be built. If there be a greater evil than a want of a proper judicial power to meet the exigiencies of a country it would be found in the existence of a greater number of courts of justice than the business of the country required. There could be no greater evil than the creation of courts of judicature which were really not wanted in a country. The hon. and learned Gentleman's proposition was, that one of the judges whom he proposed to appoint should be only temporary— that at a certain period his office should cease, and that the court should, in fact, no longer remain an effective court. But he would beg leave to ask the hon. and learned Gentleman had he reflected upon the great inconvenience of such a court of justice? If they created a new court of justice, they would also create a great body of lawyers to attend that court, and they would soon find that the supply would be fully equal to the demand. He would be found at all times ready to go to the whole extent of supporting any increase 187 of judicial power which the hon. and learned Member might propose, if the necessity for such increase had been clearly proved, however averse he might be, and though much he deprecated the creation of new courts. If a case of necessity could be proved to his satisfaction, he would never stand in opposition to it. But he felt so strongly the evils arising from the introduction of a court of justice not permanently wanted, that he felt himself bound to express his strong dissent from the proposition. The hon. and learned Gentleman had, he thought, made out but a very imperfect case to warrant such a measure as he had demanded. The returns moved for, and which the whole House would have in a day or two, would show that his hon. and learned Friend had greatly mistaken the circumstances attending the existing state of the law and the administration of justice in this country. That hon. and learned Gentleman had informed the House that there were arrears amounting to 1,200 or 1,300 cases at present waiting for judicial inquiry, but he begged leave to say, that the hon. and learned Gentleman had about doubled the actual number. The fact was this, that there were not one-half that number of cases in arrear. The hon. and learned Gentleman had also stated that there was very little chance of any case being at present decided within the term of three years from the time it was set down. Now he begged leave to inform that House that the Master of the Rolls had been for some time hearing and adjudicating upon cases, none of which had been set down before Easter Term 1840, which of course reduced the period from three years to six months. He of course acquitted the hon. and learned Member of any intention to mislead the House, but that hon. and learned Gentleman was altogether mistaken when he founded his proposal upon the statement with which he had favoured the House. He was not there to deny that great delay existed in the present judicial institutions of the country, but that delay was unavoidable under the existing state of things. It was hopeless, therefore, to expect that with their present number of judicial officers, they would have judges who would attend more punctually to their business. It was impossible judges could do more than they have done, and he thought it was but fair to assume that what the present judges were not able to accomplish, no other judges would be able to effect. His hon. and learned Friend had informed the House that in 1829, when he 188 was then an officer of the crown under the administration of the Duke of Wellington, a bill had been proposed for the establishment of a new judge, which proved the necessity that then existed for an additional judge. He admitted, of course, having been the advocate of such a measure then, but he thought that there was no greater necessity now than at that time, and he therefore could not see what case his hon. and learned Friend had made out for two additional judges being appointed. If that proposition had been assented to in 1829, and such an addition been then granted, there would not have been now any complaint made upon the great accumulation of business which it was admitted had at present increased. The hon. and learned Gentleman had also said that the Court of Review had not answered the expectations which had been entertained of it, and therefore he proposed that it should be abolished. With regard to this Court, he recollected being on the opposition side of the House when it was proposed to be created, and he thought it his duty to give it his most strenuous opposition, as he was then, as he is now, clearly of opinion that such a court would be useless and unnecessary. The question was this. He was of opinion that in 1830 an additional judge should be elected, and accordingly he submitted a proposition to that effect to the House. He was now of the same opinion, but if it could be shown to him and the House that there were two additional judges necessary, he would cheerfully acquiesce in the views of his hon. and learned Friend. He was as desirous as any man that the judicial institutions of the country should be in such a condition as to answer the exigencies of the times, but if he admitted the necessity for an addition to the judicial power of the country, he saw no reason why there should be two appointed. If, however, it were proved that two judges were necessary, why then let there be an increase of two. Notwithstanding his strong opposition to the creation of the Court of Review, and his efforts to prove the utter impossibility of such a court being a benefit to the country, that court was established and four judges were appointed to preside in it. It was since found to be most useless and ineffectual, for nine-tenths of the business had been struck out of it, never to rise again; the consequence of which was, that this court had been since found of no use whatever. Then the hon. and learned Gentleman, in arguing in favour of the election of two 189 more judges, said that there were a great many compromises now to what there had been before, and, consequently, if his proposal were agreed to, there would then be no necessity for compromise, and therefore there would be more causes to hear. Now, he would take it upon himself to assert that, with regard to the proceedings of the Court of Chancery generally, the hon. and learned Gentleman had committed a mistake in assuming that compromises to anything like the extent which he had stated had taken place. The practice of the court was to take the number of bills which were filed first, then they reckoned the number of cases set down for hearing, and finding that perhaps many have been withdrawn, it was supposed that in these there were compromises. There was no foundation for such a statement. He felt that he was perfectly competent to state the general circumstances connected with the hearing of causes in the Court of Chancery, and he had no hesitation in asserting that nothing was more rare than a compromise in that court after the bill was filed, unless for the best of all good reasons namely, the want of merits,—the case might not be a promising one. The practice in that court was carried on thus. A bill was filed, which was met by a demurrer or plea, which was a complete answer to it. Another large class of causes were cases of injunction, and that was done by motion, and when those turned out successful or otherwise, in the great majority of cases there was nothing more heard of them, and there was consequently an end of them. There was another large class of cases which this House was not aware of. Cases of this nature, where the general object of a man about to sue another was not to know whether he had a good right to take law proceedings or not, but having made up his mind to go to law, he was fully determined to carry his intentions into effect. His friends might perhaps endeavour to persuade him to desist, but having once got law into his head he answers them, "I will go to law, because I think I ought to do so, and go I will." Nothing could prevent such a person from indulging his fancy, and he accordingly consults his counsel, who informs him that he has no case to bring into a court, and that he would assuredly be beaten; but what does such a person say in reply, "That may be all very true, but I tell you that the defendant, my opponent, has certain papers in his possession, which he has admitted, and these will prove my case, so that I am 190 certain that if I file a bill against him he will prove my case." But his counsel would say to him, "Don't be deluded by such an idea, for if you file your bill an answer will be immediately put in to it, which would destroy all your hopes." This person, notwithstanding all this good advice, files his bill, the answer is put in, and he is compelled to suffer a dismissal with costs. This was a description of a large class of cases which never came to a hearing. His impression was, that any great additional number of judges would not aid to the doing away of these causes of complaint. It appeared that in'1839, down to Michaelmas Term 1840, the Lord Chancellor had heard seventy-nine bills, original cases, and twenty-two exceptions, which made altogether 101 original matters heard by the Lord Chancellor within this period. He had also heard during that time 130 appeals, making altogether 231 cases. In the Vice-Chancellor's Court, within the same period, there were, including short causes, motions, &c, about 439 cases heard. With regard to short causes great misapprehension existed, many persons supposed that they were not adverse ones, but all these short causes were generally adverse cases. They were styled short causes, because the pleadings connected with them were not of great length. Now, in those causes the judges were called upon to decide objections, which frequently involved the most important points of law, without the assistance which the bar generally afforded them. Since the long vacation up to Hilary Term which ended yesterday, a great portion of the arrears had been disposed of. The Lord Chancellor had heard 160 original causes, and twenty-two short causes, with a great number of appeals, &c.; the Vice-Chancellor had heard 190 short causes, &c, and the Master of the Rolls had heard within the same time twenty-four original causes and twenty-seven short causes, and further directions, &c. He was happy to see that there were very few judgments indeed: and he might say, that all the appeals before the Lord Chancellor had been heard. He did not suppose that there were more than 100 cases in arrear in the Rolls' Court, and he had no doubt that the whole would be heard by Easter Term, if they appointed an additional judge. Indeed he anticipated that there would be no arrear of business by the end of Easter Term. In the Lord Chancellor's Court and the Vice Chancellor's Court there was an arrear of only about 395 cases. So that instead of so large a number as 1,300 or 191 1,400 cases having accumulated, as the hon. and learned Gentleman had stated, there were only about 550 cases, including causes, &c. He was then fully persuaded that the appointment of one more additional judge would very soon get through this arrear of business, for they had the Lord Chancellor, the Vice-Chancellor, and the Master of the Rolls hearing original causes. They would have three judges sitting to hear those causes, and a portion of the Lord Chancellor's time would be dedicated to the new business. He had then formed the opinion that the arrears would be soon cleared up. He had indeed heard, from a very competent authority to speak upon such a subject, that such had been the frequency of railway motions in these courts, that the whole time of one court of equity had been constantly occupied in hearing them. Now, as to the arrear of causes unheard in those courts, he was satisfied there was some mistake or misunderstanding for he had been positively assured by the Vice-Chancellor, that there really was no arrear of causes in the Vice-Chancellor's Court, and that all motions in that court, all petitions had been heard; and there was not even any judgments in arrear. A great deal of time, too, had been taken up in business not likely to employ much time in future— namely, in charity cases, including foundation schools, and endowed institutions, which, in consequence of the passing of the Municipal Corporations Reform Bill, had been under the consideration of the court continually for some time past, and had occupied much of the attention of courts of equity. He thought he could safely assume that the business in arrear in these courts did not amount to one-half of what the hon. and learned Attorney-General had assumed it to be. He had, in consequence of this reduction in the estimate of cases in arrear by the hon. the Attorney-General, come to the conclusion that one additional judge would be fully competent to the proposed duty, instead of two such judges as proposed by this bill. However, as the Government had so framed their bill that there should be two judges, they no doubt would persevere in that part of their plan, and he should take the measure as he found it. In the state of doubt the House as yet was as to the propriety of there being one judge or two, he should remind them that it would be better not to be over zealous in their legislating upon this subject, and do too much. He believed it was Dean Swift who once said to his cook, "Take away that beef and do it a 192 little less— it is too much done." Of course she answered that she was not able. "Then," said he, "should not that teach you to do the meat a little less at first, because you could do it a little more." Now, might not that, however homely, be applied to the subject of these courts. So he would apprise the House that it would be easy if they found one judge not sufficient to do the business in arrear to add another; but if they appointed two they must be prepared to incur the whole expense of two courts. — whether two were necessary or not. The double appointment would prove injurious to the profession, and the administration of justice in the country, if they were to have a court with all its officers and necessary expenditure, but without causes— a bar attached to the court without briefs, and solicitors without business. Unless he should at a future stage of the proceedings hear this proposition supported upon grounds more satisfactory and convincing he should feel it to be his duty to move an amendment in committee upon the bill, limiting the appointment to a single additional judge instead of two; and though open to conviction he would say that the hon. the Attorney-General must clearly make out his case before he could acquiesce in the plan for appointing two new judges, and as a consequence, two new courts. Now, as to the constitution of the additional court of equity, and the judges appointed to preside in it, he would just remark that the creation of a new equity court, and the appointment of the Vice-Chancellor to preside over it, had been occasioned by a very general complaint against the procrastination of business at that time in the existing equity courts, and as it was admitted there was much to be done, by the judge who was an eminent Chancery barrister, a salary was annexed to the situation of 6,000l. a-year. Considering this judge was to sit in judgment upon causes of great importance, and take upon himself the duties of the Lord Chancellor, so far it was only proper he should have a high salary proportioned to the dignity of his station in the profession. He had heard that it was intended by the provisions of this bill to reduce the salary of this efficient judge to 2,000l. a year. Now he must say that the duties of this judge were so heavy and onerous, that it would not be worth any competent equity barrister's while, to retain the seal on the reduced salary. He should, therefore, strongly recommend, that the salary should not be lowered. If the appointment of a new judge took place, he should also say 193 give such judge a salary fully adequate to the sacrifice he must make in respect to income, and fully proportionate to the duties of the station he would have to fill; and if the appointment were made, as it ought to be made, out of that class of barristers who were equity lawyers, competent to the task, he was satisfied the proposed salary was, taking it at 5,000l. or 6,000l. a-year, not too great. There was another part of the measure to which he entertained a serious objection; it was to that part which proposed that these two judges should be dependent as judges upon the Lord Chancellor. This, he thought, would be extremely injudicious. Each judge, whether there were two new judges or one, ought to be altogether independent, in his court, of the Lord Chancellor. The trust already reposed in that great officer of the Crown, was the highest that ever had, he believed, been confided to an individual. The Lord Chancellor had, at present, the power to alter and remodel everything in the management of his court, to reform anything he conceived to be an abuse, and make new regulations from time to time if he thought necessary. Of the extent of his patronage hardly any one in that House could be ignorant. The House should recollect that the course with this great functionary was to send a great many cases to be examined in the offices of the masters of the Court of Chancery. Now, what must be the effect in those offices of crowding them with additional business from the newly-created courts, as must be the case should the two judges in equity proposed by this bill be appointed? In his opinion, those offices would be quite blocked up, and great injury would be done to the administration of justice throughout the country. It was now the imperative duty of the House, with the assistance of those competent to give advice on the subject, to reform the constitution of the masters in Chancery, and the offices over which the masters presided. They displayed, it must be admitted, a want of energy and alacrity in the discharge of their duty, which might be attributed, in a good degree, to their being withdrawn from the public eye. He confessed he should hold the appointment of additional judges in equity as altogether valueless, unless the master's offices, without loss of time, were reformed and improved; and he trusted these small courts, would, like others, be open, not in theory, but in practice, to the inspection and presence of the public. At present the de- 194 lays in these departments often amounted to an entire and absolute denial of justice. To render the equity jurisdiction complete, it was then, in his opinion, necessary— first, that these offices should be remodelled and improved; and, secondly, the constitution of the courts of equity should be so improved, that the business of appeals should not be materially increased, notwithstanding the addition proposed to the number of equity courts. The lower courts must be improved, but the higher courts must be improved also. Nothing was the subject of greater complaints than the composition of our Courts of Appeal, but if that part of the system were now open to objection, how much greater would be the objection, when they were going to create two new courts of appeal? The composition of the House of Lords as a Court of Appeal was a great anomaly. It owed its establishment to a train of unforeseen circumstances; its jurisdiction was denied in late times by that House, in the strongest terms, and to the extent of committing persons who sought its protection; and though it was ultimately established, they were content to leave their authority in the state they found it. What could be more absurd than that the decrees of a judge who was competent to the performance of his task, should be reversed by a body of Peers, who were entirely ignorant of every matter relating to the administration of the law? Had this practically been the case, the glaring absurdity of the practice would have rendered it intolerable: but the great body of the Peers acquiesced in the decision of the Lord Chancellor; and he was, in fact, the sole judge of appeals in the House of Lords. Was it not, therefore, a most alarming circumstance, that the whole of the appeal business of the empire, might by some of the changes to which that high office was constantly liable, be made dependent on the judgment of a person who might be utterly unable to form a judgment upon the different cases, not because he was deficient in knowledge of the law, not because he was not endowed with the highest qualities which could adorn such a functionary, but solely because he had been accustomed to direct his attention to a different branch of legal inquiry and practice from that of the equity courts, and therefore his mind was unprepared to enter upon a consideration of such subjects. The House of Lords certainly had the power to call in the common law judges, but only to obtain their advice in cases of 195 difficulty. But no assistance could be required from the equity judges unless they were Peers, and as such had a right to be present. All appeals, then, from the Court of Chancery must be appeals to the Lord Chancellor himself. This, of itself, was a most alarming fact. If a judge in the court below was called on to re-hear a cause, as that cause would not be carried to another tribunal he might change his opinion without any impugning of his judgment, as other circumstances might have been brought to his knowledge; but in a case of appeal from his judgment to a superior court, unless it was a case of some obvious slip, it would be contrary to human nature, to expect that he should reverse his own decision. His authority being impugned before his Peers, he had every motive and every feeling to affirm his own decision. He was, in fact, to all intents and purposes, a party in the cause. If a judge had a pecuniary interest in a cause, he was not permitted to sit in judgment on it; and whilst character and high station were of any value— whilst self-love was an actuating motive in the human breast, the Lord Chancellor, sitting as the Judge of Appeal in the House of Lords would have a much stronger motive than any pecuniary one could possibly be to affirm his own decision. The ancient Grecian had appealed from Philip drunk to Philip sober; but appeals from the Court of Chancery to the House of Lords, were appeals from Philip sober to Philip drunk— appeals from a judge uninfluenced by any motive, with all his passions slumbering, to the same judge, actuated by the strongest possible motives, the passion of self-love, to support his own previous judgment. Such a system could not long be allowed to continue, and he knew, that no one deprecated it more than the present Lord Chancellor himself. The reason why he went so much into detail upon this branch of the subject was, that he might show the House what the general feeling of the country was with respect to the system now in force, and which could not continue much longer, but must inevitably be reformed; and so strongly was the necessity for this reform felt, that no professional man would conscientiously recommend an appeal to be carried to the House of Lords from the Lord Chancellor's decision, if it appeared at all probable that the same individual would preside in the House of Lords at the moment when such appeal should come on for hearing. He had, on a former oc- 196 casion, when dwelling upon this topic, repeatedly told the House that it was hopeless to expect so much from human nature, as that a judge would pronounce in the court of appeal a decree in the very teeth of his own decision in the lower court, or to suppose that any additional arguments, however convincing, could have the effect of making him willing to reverse his own judgment. In fact, the situation of such a judge was so painful and so anomalous, that every functionary would sedulously seek to be relieved from all possibility of being placed in a similar one. But he was aware it might be urged against this mode of viewing the subject, that there were other persons sitting in the House of Lords, who, from their having formerly held the office of Lord Chancellor, were consequently well qualified to assist in judging appeals, and even to counteract any undue bias which might be betrayed by the Lord Chancellor in favour of his own decrees. He, however, could assure the House that as far as his own opinion was concerned, founded upon experience, he thought that nothing was so dangerous to the interests of justice as that persons sitting in the House of Lords, in their capacity as Peers, in their ordinary garb, divested of all the attributes and responsibilities of legal functionaries, should interfere actively in the decision of appeals. A person so circumstanced could never be considered to act under any responsibility as to the mode in which he exercised this most important office. He was not like a regular judge, clothed in all the authority of his office; it was not an act of duty that such persons performed, for no such duty was imposed upon them, and there was nothing he so much objected to as such a mode of deciding an appeal, although there would probably be no man whom he would be more desirous to accept as judge in his suit, if the same individual were to pronounce his decision in the regular exercise of his functions. He would remind the House also of the arrears of judgments in appeal cases in the House of Lords, as shown by the returns which he had moved for during two preceding Sessions of Parliament. At the end of 1839 there was an arrear of seventeen cases which had been duly heard before the House, and which were waiting for judgment, and at the end of the previous Session there were sixteen similar cases. Last year there had been an arrear of forty-two cases, all of which had been disposed of except three. This system was 197 highly disadvantageous to the suitor, and it arose solely from the complicated nature of the Chancellor's duties. The proposition which he had to make for the purpose of obviating these evils was a very simple one. He did not consider it was right to leave all the heavy business of hearing and deciding on the appeals to the House of Lords upon the shoulders of the Lord Chancellor. Nor, as he had already intimated, did he consider it right that an appeal from the decision of the Lord Chancellor should be judged by the same individual, sitting in his capacity as president of the High Court of Appeals in the Upper House. Such a proceeding amounted, in his opinion, to a denial of justice. It was not his desire to add to or diminish from the influence of the House of Peers. Looking at that House politically as well as in its judicial capacity, he was not disposed to do any thing by which either could be impaired. He looked upon its exercise of the highest judicial functions in the realm to be essential to the maintenance of its dignity. But he was prepared to give the Lord Chancellor the highest order of assistance that it was possible to give. He would not disturb the present jurisdiction of the House; he would leave it as at present; but he would appoint two equity judges, giving them the same name as was conferred upon similar persons in the bill proposed by Lord Langdale, or he would style them the Lords' Assistants to the House of Lords, in cases of appeals. If such functionaries should be Peers, they would of course have a voice in the decision of the cases, but if they were not Peers they should have no voices, but at all times sit there as judges, give their opinions and act as such, and of course in all cases possess the weight and authority of that high office. Such an addition to the judicial establishment of the House of Lords as that which he proposed would at once have the effect of doing away with all the anomalies at present complained of; and he conceived the decisions of the Upper House would greatly increase in weight and authority. He would, moreover, add to the power at present enjoyed by the House of Lords, of calling in the common law judges to aid them in their deliberations, by giving that House the faculty of calling in the equity judges also; nor did he suppose that such a power would be objected to by the House of Commons. It could not be forgotten that many attempts had been made to improve the pre- 198 sent system, and that some had emanated from the House of Peers itself, but even that House had as yet been unable to adopt any plan that had been proposed, He, in the year 1830, had himself proposed a plan for the creation of what he had called a Court of Equity Exchequer, to be composed of the Lord Chancellor, a new judge to be appointed, the Vice-Chancellor, and the Lord Chief Baron; but that plan was not persisted in. In the year 1833 Lord Brougham laid on the Table of the other House of Parliament a bill to appoint a chief judge in equity, and to reserve to the Lord Chancellor all his political functions, his judicial character in the House of Lords, and all his legal patronage. That bill was not approved of, and consequently dropped. In 1835, Lord Brougham brought forward a new plan more objectionable than its predecessor, by which it was proposed to refer all matters of appeal to the Judicial Committee of the Privy Council. In 1839, the question was fully debated in the House of Lords, when the plans submitted by the present Lord Chancellor and Master of the Rolls came under consideration. The Lord Chancellor's plan was like that of 1833, which had been proposed by Lord Brougham, with the further provision that the new chief judge in equity should be the permanent president of the Judicial Committee of the Privy Council. That plan had, however, not been approved of by the House of Lords, and was rejected. In the plan of Lord Langdale he could not entirely concur, although he had the greatest respect for the authority and opinions of that noble and learned Judge. All these plans, therefore, having in some measure failed, he would now submit to the House the remainder of his proposals. His plan would add nothing to the House of Lords, nor would it take anything away. He would take away no part of the jurisdiction of the House of Lords, nor would he add to it; but he would endeavour, as far as it was in his power, to amend and improve it. The remaining part of his plan had reference to the Privy Council, which, as at present constituted, was liable to the most serious objection. In that body there was no fixed judges, the time of its sittings was uncertain, and no one could be sure of the same judges sitting to hear the whole of an appeal. He deprecated delay as much as any one in the administration of justice, but he equally deprecated too hasty a decision; and the Privy Council, as it stood at 199 present, might, perhaps, be liable to that objection. There was no court which had to decide upon' more important or more varied questions, embracing every sort of law. Questions in the Judicial Committee had to be decided by the civil law of this country, by the Dutch law, the Spanish law, by the laws of the East, by the old Norman law, and by the different laws existing in our various colonies; yet, in that court, where such important, varied, and complicated questions had to be tried and decided, there was no fixed judge, no head of the court, nor were there any fixed hours of sitting. Even when the judges could attend it was impossible to know beforehand when they were to sit, and the consequence too often was, that no cases were ready or in a state to be brought on. When a case was ready they had often to send to Westminster-hall to beg the attendance of a judge to make a court, and much delay and disappointment was the result. During last year there were only eighteen days of sitting, while the appeals to be tried were of the greatest importance, involving property to a very large amount. In short, the Judicial Committee of the Privy Council, as at present constituted, sat in a manner which was disapproved of by the whole bar. Taking this view of the matter, he proposed, in order to have a regular court in the Privy Council, and an appointed head, as well as regular and fixed sittings, that the two judges whom he proposed as assistants to the Lord Chancellor should, when they were net occupied in the House of Lords, sit in the Judicial Committee of the Privy Council; and, if that plan were adopted, there would be sufficient time to decide on all the appeals which came before them. He would further propose, when those judges sat alone, and when any difference of opinion on any point arose between them, that the matter in dispute should stand over to be heard and decided by the Lord Chancellor. Such was the outline of the bill which he proposed to ask leave to introduce, not in opposition to the bill of his hon. and learned Friend, but in addition to that part of it which provided for the appointment of two additional judges. He had only one other observation to make. If the House of Lords and the Judicial Committee of the Privy Council were to be made really available for the administration of justice, it was necessary that the proceedings should be differently conducted from the manner in which they were conducted at present. 200 He thought it was necessary in the House of Lords to remove the clerks from the table, so as to have the judge immediately before the bar, and without anything to interrupt his view of those who were pleading before him. In the Judicial Committee the judges ought also to be in the face of the bar, and he thought a long table ought to be used instead of a round one. These, no doubt, were minor matters, but he was inclined to think that there was more importance to be attached to the form of a court than most persons were willing to allow. He should offer no I factious opposition to the bill proposed by his hon. and learned Friend, but, on the contrary, he should give him all the assistance in his power. When his hon. and learned Friend obtained leave to bring in his bill, he (Sir E. Sugden) should then move for leave to introduce his bill, so as to have both bills before the House at once, and so as to enable hon. Members to decide upon their merits.
§ Mr. Lynch
said, he would draw the attention of the right hon. Gentleman opposite, to the evidence which had some time ago been laid before that House, with respect to the business of the Court of Chancery. By that it appeared, that out of 1,068 causes instituted in that court, 300 only had been set down for hearing, and out of those 300, only 180 had been actually heard in one year. What would the right hon. Baronet say about the disposition of the other 120 causes then remaining? It could hardly be contended for but that some of those, nay, the greater number of these, were causes of compromise. Thus, the right of the client was turned often into a right of reversion, and not a right of possession. He contended, that these 120 causes alone would be quite sufficient for a single additional judge to dispose of in each term. There was at that moment a large arrear of causes in the Court of Chancery. Under all the circumstances, he thought there had been established sufficient grounds for the appointment of an additional judge. The right hon. Gentleman opposite himself had stated that the arrear of causes at present in the Rolls Court alone amounted to 455. He thought it might even be estimated at 500, and that that would be nearer the mark. He would ask his right hon. and learned Friend what had been the standing of that arrear? They had been told the arrears of the 201 Rolls' Court, but not that of the Vice-Chancellor's Court. His right hon. and learned Friend might have told them that the arrears of causes were standing over in the Vice-Chancellor's Court for three or four years. Was he then to be told that they were to have only one judge? When his right hon. and learned Friend, in 1830, had himself proposed to increase the number of judges, the business was not so heavy as now. He did not now think of lbs transfer of the business of the Court of Exchequer to the Court of Chancery. His right hon. Friend admitted that the present judges were overworked; that they could not do more than they were doing; yet his plan would have the effect of throwing; additional business into the Court of Chancery. Now, one of the great evils in that court of which he had to complain was the great delay which took place in it. If the judges were pressed upon in the manner which his right hon. and learned Friend said, they should have some way of getting rid of the great quantity of business thrown upon them, and how did they do that but by referring to the masters many things which they ought to decide themselves, and thus in a manner creating a number of new judges themselves. There was another great evil arising out of this want of sufficient judicial power to which he should allude, and that was, that the judges were often obliged to give their decisions in such a hasty manner, that the registrars could not take down their judgments with sufficient correctness, and the consequence of this was, that motions had frequently to be made in the court to rectify any inaccuracy that might occur. Then there was always an increasing number of motions and applications to be made, arising out of the very causes before the court. Money was to be drawn out, or it was to be lodged in court; or parties were dying, or marriage settlements were required to be made, bankruptcies or insolvencies were taking place; and all these created expense and additional delay. Now, when all these things were taken into fair consideration, it was impossible for any one to contend that two additional judges were not necessary. It had been said, that the arrear of business was decreasing at present,— that it was not, in fact, as great as it had been last Trinity Term. Now that decrease in the arrears arose from the fact, that the Lord Chancellor had been enabled to hear 202 original causes since and during last Michaelmas Term; but he would venture to assert, that his Lordship would not be able to hear an original cause until next Trinity Term, and so the arrear must be as great, if not greater, next Trinity Term than it was last. The Vice-Chancellor had only been able to hear forty-seven causes during the year, in consequence of the great number of motions which had come before him. The immense number of railways proposed to be made of late years had been one great cause of an immense number of motions, in junctions, and several other proceedings in the Court of Chancery, and he was told that a great number more of railway bills were likely to be brought in during the present Session, which would, of course, increase considerably the business in the court. If they looked back to the historical authorities, and examined into the demand for judicial power which existed so far back as the time of Lord Hardwicke, it would seem that one judge and a half, if he might say so, or even two judges, were occupied by the business of the court then fully. Both the Master of the Rolls and the Lord Chancellor had been fully occupied in hearing original causes. In their time the average number of petitions in the year had been about 400, and the number of original causes 370. At present there were, in every year, about 2,700 petitions. If it was necessary to have one judge and a half, or two judges, then he had no hesitation whatever in saying, that they ought to have four judges now. His right hon. Friend complained of the number of judgments left in arrear by the present Lord Chancellor, notwithstanding his great labour, and his assiduous exertions. He complained that the Lord Chancellor had left in arrear sixteen judgments in the House of Lords, and twenty-three in the Court of Chancery. But how would the right hon. Gentleman remedy the evil? By separating the onerous duties at present attaching to the office of Lord Chancellor? No; he would retain the political character, and the judicial functions combined in one person, but proposed to give the Lord Chancellor two assistants in the House of Lords, who were to be present when he was able so to abstract himself from the Court of Chancery, and from his political duties, as to attend as a judge in appeal. The duties would never be efficiently performed until two regular assist- 203 ants were given in the Court of Chancery, and the political functions of the Lord Chancellor were separated from his judicial duties. Would his right hon. Friend bring forward that plan, or would he support it in the House? If not, his proposition would in no way remedy the evil. His right hon. Friend had very properly remarked upon the inutility of appeals from the Lord Chancellor in the Court of Chancery to the Lord Chancellor in the House of Lords; but he would remind his right hon. Friend ofacase—"Wright v; Atkins"—in which the Lord Chancellor had changed his opinion upon having assistance there. Now what he recommended was, that the assistance in the Court of Chancery should be regular and permanent, not casual; without that nothing effectual could be done either for the suitor or the court. These were the observations which he thought it his duty to submit to the House on the present occasion, reserving to himself full power of moving at a future time any amendments upon his right hon. Friend's proposition, as he should think proper to submit, and giving full support to the bill of his hon. and learned Friend the Attorney-General, which he thought necessary, whether his right hon. Friend's bill passed or not.
The Attorney General
, in reply, said, that the vast number of causes in arrear was of much less importance than the period which elapsed between the setting down and the hearing of a cause; with respect to which, the accuracy of his statement could not be controverted. It was satisfactorily proved, before the Lords' Committee last Session of Parliament, that by increasing this period the arrear of causes would be diminished instead of being increased, from people in despair abstaining from filing bills, and from deaths, insolvencies, and compromises before a hearing could take place. Extend the period to fifty years, and you would have no arrear at all, as there would then be a universal, as there is now a partial, denial of justice. He maintained the necessity of two new judges, and thought it not improbable that the exigencies of justice might soon require a greater number. It had not been disputed that in the numerous cases of an equitable demand under 100l., there is no practical remedy, and it was not pretended that such a reproach was permanently to be affixed to the administration of justice in this country. 204 Railway controversies instead of being at an end, as was supposed by his right hon. and learned Friend, he believed were only beginning. With respect to the hearing of appeals in the House of Lords, he had probably had more experience than any other man at the bar, and he must say, that the system though liable to theoretical objections, upon the whole had worked well, and had given satisfaction to the public. He had pleaded in the House of Lords often before Lord Eldon, Lord Lyndhurst, Lord Brougham, and Lord Cottenham, and with the assistance they commanded, he must say, that their decisions, whether affirming or reversing, left no just cause of complaint to the suitors. Whether in case of reversal or affirmance, reasons were uniformly given, showing that the presiding judge had minutely attended to the case, and the arguments on both sides. He was bound to say, that the judicial functions of the House of Lords had been satisfactorily exercised. He admitted, that something must soon be done to improve the judicial committee of the Privy Council. The voluntary principle did not answer for a court of justice, and instead of sending round Westminster Hall (often in vain), to solicit the attendance of judges at the Privy Council, a judge or judges must be appointed, whose principal duty it would be to attend there at stated periods. He was much afraid, however, that the Lords assistants of his right hon. and learned Friend, would never take places either in the House of Lords or in the Privy Council. At the same time, he should offer no opposition to the bringing in of the bill, and should be glad to lend his assistance in furthering the laudable object which it had in view.
§ Leave was given to bring in the bill for facilitating the administration of justice. (No. 1.)
§ On the motion of Sir E. Sugden, leave was also given to bring in his bill for Facilitating the Administration of Justice in the House of Lords and the Privy Council. (No. 2.)