§ Order for Second Reading read.
§ Motion made and Question proposed, "That the Bill be now read a Second Time."
§ MR. ROUNDELL PALMER
said, he did not rise upon that occasion to offer any objection to the second reading of this Bill, the introduction of which he had seen with very great satisfaction, because he believed it was an opinion almost uniformly entertained in the Court of Chancery that a very extensive system of reform, proceeding on such a principle as was incorporated in and attempted to be carried into effect by the present Bill, was absolutely necessary to restore efficiency and complete utility to the Court of Chancery both in England and Ireland, and for the purpose of clearing an institution in many respects amongst the most useful and important to the country of the very serious defects which made recourse to it so costly and difficult, that if those defects were not removed, justice in that very important department would be very soon in a degree of discredit which it could not be for the welfare of the country should be permitted to continue. He did not think that that was the most convenient stage to enter into a particular discussion of the details of this measure, and he should not then have intruded on the attention of the House but for the circumstance that he thought his hon. and learned Friend the Member for Coventry, who was then absent, had been greatly misunderstood—he had almost said misrepresented—not by his hon. and learned Friend the Solicitor General, but elsewhere, with reference to the part which he took on this subject some evenings ago. He believed it was perfectly well known to every one connected with the Court of Chancery in England, that his hon. and learned Friend was as anxious for the reform of the abuses that had crept into the administration of justice in that court—or he, should rather say, for the removal of the obstacles to justice that now existed there—as any person; and if it were supposed that his hon. and learned Friend was insensible to reform in that court, it was an impression most erroneous, and founded 864 on an entire misunderstanding of his views on the subject. The opinion of his hon. and learned Friend was much too valuable in that House, and elsewhere, to allow of its being misunderstood. In the Court of Chancery no authority was higher than that of his hon. and learned Friend; and if he were opposed to the principle of a measure of this description, it would indicate a very different state of feeling and opinion in that court from what really prevailed. The practitioners of that court were as nearly unanimous in favour of the principle on which he (Mr. Palmer) under-stood this measure to be founded as possible, and also that a measure founded on that principle should be applied to the Court of Chancery in England as well as in Ireland. The question was only as to the means or details by which that should be done; and he was quite sure his hon. and learned Friend the Solicitor General would be the first to say it was extremely desirable that those means and details should be maturely considered; and that there should be the fullest contribution of the advice of all persons capable of forming an opinion upon it to make the measure as perfect as possible. He would only add one word, and that was the circumstance that this Bill was introduced for Ireland only, and not for England. Upon that point he was willing to confide in the discretion of the Government. It was, no doubt, very important that there should not be a series of changes on this subject, and, therefore, if there were a fair opportunity of making an experiment of those parts of the measure which were uncertain in their operation, it might perhaps be desirable to make it in Ireland only, instead of in Ireland and England together.
§ MR. J. STUART
wished to state to those hon. Members who came from Ireland what this Bill was. He would take the liberty of asking them whether they knew what they were about to do in voting for this Bill? If he could show that its effect would be to increase the expense and delay of litigation, and to interfere with matters which ought not to be regulated by the direct interference of Parliament, although under its control, such a Bill ought not to be passed. From the feeling of the House, he thought it highly probable that his hon. and learned Friend the Solicitor General would succeed in carrying this Bill through the present stage; but he asked it of the fairness of Irish Members in that House, to apply their understandings to one 865 or two points which he should submit to their respectful consideration. The object of this Bill was entirely to remodel the course of practice and pleading in the Irish Court of Chancery. He did not think there were four men then in the House who knew much on the subject. This he said with all respect, hoping that those who were conversant with such matters would rightly understand what the Bill was. What he wished to submit to their consideration was this:—He conceived that the Lord Chancellor of Ireland was the individual answerable for the course of practice and pleading in his own court; that he held his office upon those terms of responsibility on which a great officer of State ought to hold his office; and that if there were great abuses in his court, as he (Mr. Stuart) believed there were, he was answerable, and was bound to rectify them. But the House was now invited to discharge those duties for him. He would ask the hon. and learned Solicitor General, or some hon. and learned Member who might support this Bill, why the Lord Chancellor of Ireland did not reform the course of practice and pleading in his court? Could any hon. Member show that without the interference of Parliament it could not be done? His hon. and learned Friend the Member for Plymouth, to his great surprise, had taken an entirely different view of this Bill from his hon. and learned Friend the Member for Coventry, who spoke the other night, and whose character he had risen to defend from misapprehension. He had described his hon. and learned Friend as a man of high authority in the Court of Chancery, and he was justified in doing so. They knew his hon. and learned Friend to be an honourable and independent man, and he had stated in that House reasons hitherto unanswered, why this Bill should not pass into a law. He wished to ask the noble Lord at the head of the Government, and hon. and learned Members who ought to give the House some sufficient reason for legislating in a way in which that House had never legislated before, why they were in that House to settle rules of practice for the Court of Chancery in Ireland? His hon. and learned Friend the Member for Plymouth hoped that something would be done to improve the Court of Chancery in England as well as in Ireland. He hoped so too, because he knew there were grievances; but he expected the reform of the Court of Chancery in England to proceed from that high 866 authority who was bound by his office to do his duty, and was armed with full authority by Parliament for that purpose—the Lord High Chancellor. Let hon. Members look at the first clause of this Bill. It was a sweeping enactment to substitute a mode of proceeding by petition instead of proceeding by bill. How many hon. Members then in the House were acquainted with the details of such proceedings, or knew the difference between a petition and a bill in Chancery? and yet he saw an array of hon. Members summoned by the Government to support them in passing this Bill. But if they were to enter on the consideration of this Bill, he was prepared to show, in a manner consistent with the intelligence of any man of common sense, why this proposal to substitute petitions for bills was an entire mistake. First of all, however, he must protest against that House assuming cognizance of any such question; and he addressed himself to those Members of the Government who were laymen, but whose duty it was to attend as well to the Court of Chancery, as one of the great institutions of the country, as to any other institution which they were bound to preserve and put into a perfect state. He contended that the Lord Chancellor had the power of doing all that any man could say was useful in this Bill. If he were right in that proposition, what followed? If they took the work of the Lord Chancellor of Ireland out of his hands—if they assumed as the House of Commons to pass these minute regulations on points of practice, and course of pleading, which it was his duty to make, did they not deprive his office of all that responsibility which alone could give to it its dignity and public utility? Upon that ground alone he felt it his duty to move that this Bill should be read a second time that day six months, however small the number of Members who would vote with him. He was aware that his hon. and learned Friend the Member for Coventry proposed to bring in a measure with reference to the Court of Chancery in England. When they came to deal with that measure it would be time enough to consider its scope. But if it was to give the Lord Chancellor greater power than he now had to rectify abuses in his court, he should be ready to support it, when he knew that such power was really wanting. But why had we hitherto had no measure of the kind in England? Because we had at the head of the Court of 867 Chancery in England a learned Judge, who, however much he (Mr. Stuart) might differ from him on political matters in many points, he would say was a Judge to whom the public owed the greatest obligations; who was possessed of great talents and great learning; who had discharged the functions of his office—he (Mr. Stuart) spoke of his judicial functions, not of his political, to which he (Mr. Stuart) took great exception—in a manner that had made him pre-eminent; who had restored to the Court of Chancery that degree of dignity and importance which he (Mr. Stuart) grieved to say had been previously somewhat impaired, and created that confidence in his learning and integrity in administering the duties of his office, which made every member of his bar concur in saying he was eminently fitted to preside over the court which he so much adorned. He (Mr. Stuart) was happy to hear testimony, when it could be borne with truth, to the merits of any individual Member of a Government, however he might be opposed to the general policy of that Government; but, having mentioned his opinion of the capacity of the Lord Chancellor of England, he asked what was the House to infer from it with reference to such a Bill as this being-brought in for the Court of Chancery in Ireland? The Lord Chancellor of England had never sought the assistance of the Legislature. He knew he had the power to rectify the proceedings of his court, and that any regulations he made would be received with respect and confidence, and that if they failed in their operation, he would, from the knowledge of his good intention, restore confidence, and have the vigour and power to make such further reforms as might be necessary. No Bill was introduced for the English Court of Chancery because none was necessary. Why was there one necessary for Ireland? Parliament had lately been legislating for Ireland, and for the landed property of that country in particular, without the slightest success. Year after year Bills had been brought in, founded doubtless on just complaints regarding the Court of Chancery; but hitherto those measures had proved signal failures. [Mr. KEOGH: No, no!] An hon. and learned Member behind him would except the Bill passed last Session for facilitating the sale of encumbered estates, but he would advise that hon. and learned Gentleman not to halloo till he was out of the wood. Perhaps the hon. and 868 learned Gentleman would inform the House how many estates had been sold under the Commission. When the Bill was before the House last year, he (Mr. Stuart) said that it provided for the appointment of three Commissioners to do the duty of the Lord Chaneellor of Ireland; and he said so still. He had not the honour of knowing the Irish Lord Chancellor—he was not sure that he even knew his name; but whoever he happened to be, he was one of the most fortunate of mankind. Last year he succeeded in persuading the House to appoint a Commission, at the expense of English as well as Irish pockets, to perform duties which he ought to discharge himself; and now, here was another Bill introduced to relieve him from further trouble and responsibility. We had encumbered estates in England, and they were sold, without giving rise to any complaint, under the jurisdiction and management of the Lord Chancellor of England. Why was not the same thing done in Ireland? It might have been expected that the hon. and learned Solicitor General for Ireland, who sat opposite, would have availed himself of the proposed second reading of the present Bill to make an exposition of the horrible abuses which were said to exist in the practice of the Court of Chancery of Ireland, and proposed to be remedied by this Bill. If the Lord Chancellor of Ireland would discharge his duty, one half of the legislation which was going on would be unnecessary. Complaints were constantly made against receivers in Ireland; but those were in fact complaints against the Lord Chancellor, whose officers those receivers were, appointed by him, and entirely under his control. When Sir E. Sugden was Lord Chancellor of Ireland, there were comparatively few of these complaints against receivers. This Bill had been evidently prepared by the Irish Lord Chancellor, in conjunction with the Irish Solicitor General; and he (Mr. Stuart) thought that hon. and learned Gentleman, and not the Solicitor General for England, ought to conduct this Bill through the House, and explain why it was necessary, and what was its nature.
§ MR. STUART
The hon. and learned Gentleman was a Member of the House when the second reading was moved. Did any Member of the Opposition then come forward and say that it was necessary 869 to have a Bill to facilitate the sale of encumbered estates by reason of abuses in the Court of Chancery? But his objections to the measure augmented when he came to look at its provisions. The great scope of the Bill was to alter the mode of pleading in the Irish Court of Chancery from bill and answer to petition. This was not a new matter. In 1812 the hon. and learned Solicitor General's honoured father introduced a Bill to give the Court of Chancery in England a limited jurisdiction by way of petition—it was limited to cases of charities. The experience of the past must guide us as to the future. If he could be satisfied that the present Bill would shorten the way to justice and diminish expense, he would go as far as any man in endeavouring to pass it into a law. But what did he find with respect to the Act of 1812? As long as the jurisdiction by petition was limited to charity cases, its operation was eminently beneficial; but when Sir Thomas Plumer extended it to the celebrated Ludlow case, in which the controversy turned on title to land, the result was most unfortunate. Sir Thomas Plumer made what he believed to be a sound order on the petition presented in that case; but an appeal was entered in the House of Lords, and after ten years had been lost, and thousands of pounds expended, this order was reversed, and the case commenced afresh in the old form of a bill and answer. That was a case parallel to many which might be expected to occur under the operation of the present Bill, should it ever become law. The measure would effect no saving of time or expense, but, on the contrary, would increase litigation, and add to the profits of lawyers. Now this was the sort of proceeding which this Act intended to authorise. [Mr. COCKBURN: Hear, hear!] The hon. and learned Member for Southampton might think ten years of litigation a very good thing, and so it was—for lawyers. Every one who thought that an advantage, would support this Bill, but he was not one of those persons. These schemes for accelerating the pace of justice did not always fulfil the expectations of their projectors. For instance, he understood that the Commission appointed under the Encumbered Estates Bill had not yet sold a single acre; but all the proceedings in the respective cases were going on, and the estates were being eaten up by double sets of costs, for almost every encumbered estate in Ireland was before the Court of Chancery, and devoured 870 by the double costs of those two tribunals. From an announcement recently made that the proceeding in sixteen causes before the Irish Court of Chancery had been stopped, he feared that the estates had, in those cases, been swallowed up by the costs. There was no mode of proceeding so unsatisfactory as that of commencing by petition, when important disputes were to be decided; for it rendered it necessary for the parties to enter into a contest of affidavits at enormous length and enormous expense, and without ever fairly joining issue on the rent question. The first question, he repeated, was whether they were or were not about to execute duties which properly devolved on the Lord Chancellor of Ireland? and if they were to interfere, he would ask the hon. and learned Solicitor General for Ireland whether the Lord Chancellor for Ireland had framed the Bill, or to what extent he approved of it, so that on the subsequent stages they might be better able to decide how far their interposition was required. In the meantime he begged to move that the Bill be read a second time on that day six months.
said, that his hon. and learned Friend had contended that this House could not, or at any rate ought not, to interfere by legislation, because the Lord Chancellor of Ireland had power to make orders which would have the same effect as the enactments of the Bill. He (Mr. Headlam) contended that the Lord Chancellor of Ireland had no power to make such order. And he further argued that even if the Lord Chancellor of Ireland had such power, still it was no reason why the House should not legislate upon the subject. For it was quite clear that no such power had been exercised, and no such orders had been made, nor was there the least reason to suppose that such orders would be made without the interference of the Legislature. Consequently, as the Lord Chancellor of Ireland had power to make such orders, it was no reason why the House ought not to proceed with the Bill; but the least investigation of the Bill would satisfy the House that the Lord Chancellor could not thus proceed by order; for instance, by the 15th Section it was provided that in certain cases the orders of the Masters in Chancery should have the effect of orders of the Court. Now it was quite out of the question to contend that the Lord Chancellor could, without the assistance of the Legialature, 871 give such authorities to the Masters, or delegate to another the powers vested in him by the constitution. The Bill of Sir S. Romilly, so far from being open to the animadversions of his hon. Friend, was one of great utility; and although it had been construed with great jealousy, and there had been several decisions upon it most materially confining its operations, still it had materially reduced the expenses in many proceedings, so that the inference to be deduced from that measure was in favour of the present Bill; and his hon. Friend was not happy in quoting it as an argument against similar measures, being adopted hereafter. The fact was, that the Bill now before the House is closely directed to the great defects of the Court of Chancery, which are—first, the expensive and voluminous proceedings before a cause is at issue; secondly, the additional great mass of documents that accumulate, after a cause is at issue, under a system which requires all evidence to be in writing; and, thirdly, the manner in which, when a cause is ready for a decree, references are made to the Masters of the Court. Hon. Members know that a reference to a Select Committee is often identical with a decision to shelve a matter before the House. How would business be conducted if all matters before the House were referred to Select Committees to report upon before decision was ever adopted? This Bill provides a remedy for the first of these evils, namely, the length of modern pleadings, by enabling the parties to proceed upon petition. It abolishes the necessity for documentary evidence, by enabling evidence to be taken vivâ voce; and, lastly, and what was really the most important part of the Bill, it prevented the necessity of a cause being bandied backwards and forwards between the Court and the Master, by enabling the Master to make orders having the effect of orders of the Court; and by enabling simple matters, such as the administration of the estates of deceased persons, to be at once referred to the Master. This was somewhat on the principle of the Joint Stock Companies Winding-up Act, which had been the means of doing justice in cases of great difficulty, and â fortiori, would be effectual in matters so much more simple in their nature. In conclusion, he (Mr. Headlam), without pledging himself to all the details of the measure, expressed a strong opinion that it would tend to make the Court of Chancery an institution more suited to the 872 spirit of the age, and the wants of modern society..
§ MR. KEOGH
said, that as the hon. and learned Member for Newark had flung his challenges very boldly about the House, and was rather imprudent and discourteous in asserting that there were not four men in the House who understood the subject, especially when he recollected that the hon. and learned Attorney General for England, the hon. and learned Member who introduced the Bill, the hon. and learned Solicitor General for Ireland, the hon. and learned Member for Coventry, the hon. and learned Member for Plymouth, the hon. and learned Member for Southampton, and the hon. and learned Member for Newark himself, were all present. He believed that the anticipations of the hon. and learned Member were unfounded. He had asked the House had the Encumbered Estates Bill effected their object, and made several lively remarks upon a single estate not having been sold as yet under its provisions. He (Mr. Keogh) would ask the hon. and learned Member, however, how long had that Bill been in operation? Why, only four months. What would have taken place if a bill in Chancery had been filed for the same period. Why, the hon. and learned Gentleman must be perfectly well aware, if he filed a bill in one of the simplest causes, four years, and not four months, should elapse before a sale could be effected. He (Mr. Keogh) knew of a suit where the bill was filed in the year 1794, in which the estates were not sold yet. Suppose a bill were filed in the Court of Chancery in England, what time would it take? [Mr. STUART: Six weeks.] In Ireland it would take two months. If the plaintiff chooses to amend his bill, two months more. If a single party in the suit dies, there must be a bill of revivor filed. He happened to be attending professionally before the Commissioners for the Sale of Encumbered Estates. It was necessary to produce a certificate from the Court of Chancery showing the state of the case. The extent of the Bill was twenty-three skins of parchment, and there was a supplemental bill of seventy-two skins. There were sixty or seventy defendants in that suit, but there was one circumstance worthy the attention of the hon. and learned Member for Newark, that the same counsel who signed the original bill, signed also twenty-five answers of the defendants. No English lawyer in that House could, and certainly no English layman could at all 873 estimate the enormity of the evil inflicted by so expensive and tedious a proceeding upon a poor country like Ireland. Such costly and cumbrous machinery was bad enough in England, but in Ireland its evils were quadrupled. There could, therefore, be few greater boons to that country than a measure which would render Chancery suits of shorter duration and less expensive. The hon. and learned Member for Newark urged another objection against the Encumbered Estates Bill—namely, that it had not stopped suits in Chancery; but he answered himself in the same breath, for he said he was horrified at reading in a newspaper that sixteen Chancery suits had been stopped by it. He accused the House of supporting a measure without understanding it. For his (Mr. Keogh's) own part, he could truly say he had taken pains to understand it; and if the hon. and learned Gentleman carried the provisions of the Bill in his memory, he must know that the moment the order of sale was pronounced under the Encumbered Estates Bill, that moment the Commissioners must, by the very wording of the Act, send a notification of the fact to the Lord Chancellor, who would immediately cause all proceedings in his court to be stopped. He believed the hon. and learned Solicitor General would agree with him in this statement. [The SOLICITOR GENERAL: Hear, hear!] The hon. and learned Member asked why did not the Lord Chancellor of Ireland reform his own court? The hon. and learned Gentleman had not treated the Lord Chancellor of Ireland well. The hon. and learned Gentleman said, he did not even know the name of that learned person; but they who came from Ireland were bound to know the names of the past and the present Chancellors, and Chancellors who were to be. But although the Lord Chancellor of Ireland laboured under the disadvantage of being unknown to the hon. and learned Member for Newark, he had yet the consolation of knowing that he was esteemed and respected by the members of his own profession, and that he had secured the confidence and goodwill of all parties in Ireland. He (Mr. Keogh) had not the honour of enjoying the confidence of that distinguished functionary, but he believed there was nobody who knew him that did not respect him. The hon. and learned Gentleman asked why the Irish Lord Chancellor did not reform his court. He (Mr. Keogh) would endeavour to give an answer. He remembered sitting in 874 company with the right hon. Baronet the Member for Ripon, upon a Committee appointed to inquire into this very subject of Chancery reforms. He remembered also before that Committee a gentleman was examined, whose name the hon. and learned Member for Newark would probably know—Sir Edward Sugden, and that, on Sir Edward Sugden being asked why those changes and reforms had not been introduced by him, he replied that he had made great reforms in particular branches of the Irish Court of Chancery, but there were certain other and more important reforms which he could not properly attempt, and which he doubted his authority to carry into operation, for many of those practices which it was desirable to reform had been long established, and had, in a manner, been sanctioned by custom, and had been conformed to by the profession for a long course of years. The hon. and learned Gentleman said that the grossest abuses existed in the Court of Chancery in England; and, indeed, the moment this measure was introduced, English barristers vied with one another in declaring the necessity of reform. Now, he asked the hon. and learned Gentleman why, if the Lord Chancellors of England had the power to reform (and surely they had as much power as the Lord Chancellors of Ireland), why, he repeated, the English Lord Chancellor had not reformed those abuses? The hon. and learned Gentleman said there were not even four lawyers in the House who understood the Bill, although this Parliament contained a greater number of barristers (if not lawyers) than any within the memory of man. Well, but the hon. and learned Member for Coventry seemed to think legislation for those abuses was requisite, for he gave notice of his intention to bring in a Bill to suppress them. If the Lord Chancellor could per se remedy them, where was the need of the interference of the hon. and learned Member for Coventry? The hon. and learned Gentleman said, that if the Bill lessened the time of the suit, or diminished the expenditure—if it made law cheap and accessible, he would support it. How could the hon. and learned Member doubt that it would have these effects, if indeed he had himself perused the Bill? For, in the first place, it proposed that a simple petition might be filed by a party, briefly stating his rights; that the opposing party might thereupon put in his answer, and annex interrogatories to his petition. But there was 875 a new and a great ingredient introduced into this Bill—one that had been often desired by the most eminent Judges, and one the absence of which was constantly felt in courts of equity, namely, that evidence might be taken vivâ voce. The hon. and learned Gentleman seemed to forget another provision in this Bill—a most valuable provision, namely, that persons who wished to enter into tedious and expensive litigation, and who objected to proceedings under the Act, must give security for the costs incurred in such proceedings. That was a wise and a salutary provision, for in Ireland many estates were encumbered beyond their value. The defendant clung to the soil, and determined upon getting as much as he could out of it, knowing that in reality it was no longer his own. But by the litigiousness and delay which he caused, the honest creditor was put to great expense, which he could never be reimbursed in consequence of the needy circumstances of the defendant. The provisions, too, of the 12th Clause were most important. They were—With respect to the administration of the estate of a deceased person—with respect to the foreclosure and redemption of mortgages—with respect to the appointment of new trustees—with respect to the appointment of guardians and the allowance of maintenance to infants—and with respect to such other branches of the said jurisdiction as the Lord Chancellor of Ireland, with the assistance of the Master of the Rolls in Ireland, by any general order to be made as hereinafter provided, shall from time to time direct to be within the scope of this Act, the Court may, on the application of petitioners, and on the production of such affidavit or verification as aforesaid, by order made in a summary way, and without notice to any other parties, unless the Court see fit to direct any such notice to be given, refer the said petition to the Master in Ordinary of the said court in rotation, either generally or with such special directions with reference thereto as to the Court may seem fit.He believed the hon. and learned Solicitor General had no reason to regret the introduction of the Bill to Ireland—he believed it was calculated to do much good—he felt convinced that the majority of Irish Members, as well as the majority of the Irish people, felt grateful for its provisions; and for his own part, after a careful consideration of its provisions, he felt bound to tender his thanks to the hon. and learned Solicitor General for bringing it in.
§ MR. COCKBURN
said, the hon. and learned Member for Newark had been pleased to direct one or two sarcastic observations towards him, as though his particular branch of practice did not render him conversant 876 with the proceedings of the Court of Chancery. He certainly did not profess to any profound knowledge of the mysteries of that court, but still he knew quite enough to enable him to see through the utter futility of the hon. and learned Gentleman's objections to the proposed measure. As his hon. and learned Friend had said no two lawyers agreed as to the merits of this Bill, he had ventured to express his dissent, although he did not practise in the Court of Chancery. His general professional knowledge, however, of matters in Chancery enabled him to form a judgment on this subject, and he felt bound to say that he had never heard a weaker case than that of his hon. and learned Friend. He had never in his life heard such a case as the hon. and learned Gentleman had attempted to put forward against this Bill. It put him in mind of an old and memorable saying of a celebrated nobleman—Earl Chatham—which, though uttered long ago, appeared applicable to the present day—that if you were to introduce a measure to shake the British constitution to its centre, the lawyer would remain quiet in his cabinet; but if you attempted to shake one of the cobwebs in Westminster-hall, the whole body of lawyers would rush out to its defence. For himself, he believed that this measure was calculated to work a most salutary reform in the proceedings of the Court of Chancery in Ireland; and when the hon. and learned Gentleman observed that it had not been thought necessary to introduce any such measure for England, he could only say that as he had no doubt these measures would be found to work most advantageously in Ireland in providing the facilities for the transfer of land which the exigencies of that country required, and as he was satisfied that they were only one degree less necessary in this country, he trusted that the time was not far distant when similar measures should be introduced here. What were the arguments of the hon. and learned Member for Newark? He commenced by saying that they were encroaching on the jurisdiction of the Lord Chancellor of Ireland, that legal functionary having the power and jurisdiction to regulate the proceedings of his court, so as to make them most consistent with the interests of the suitors; but when the hon. and learned Gentleman stated that, and at the same time added that the Lord Chancellor had not so interfered, that was, in his (Mr. Cockburn's) opinion reason enough for Parliament to interfere. Were 877 they to wait until the judicial authorities reformed the court and its procedure? If so they might wait for ever. It was enough then for him that the Lord Chancellor had not interfered; but he said more, that the Lord Chancellor would have been wrong in interfering. In matters of petty and minute detail, no doubt it was the duty of the Lord Chancellor to reform his court; but when they came to deal with the essential principles of procedure, he denied that the Judge had any right to discharge the functions of the Legislature. Nothing could he more mischievous than such a course; and he said, therefore, that the Lord Chancellor would have acted with a very unwise discretion, and in his (Mr. Cockburn's) I judgment, most unconstitutionally, if he had attempted to introduce the reforms I which this Bill proposed. But, more than that, he contended, so cumbrous were the proceedings, so voluminous were the pleadings, so various and incessant were the opportunities for delay, so numerous were the interruptions which might be interposed by the death of old parties, or the introduction of new parties to the suit, or by the chicanery of an astute practitioner, that the Judges had quite enough to do to discharge their judicial duties without interfering with the functions of the Legislature. The hon. and learned Gentleman's remarks, therefore, appeared to him (Mr. Cockburn) to convey a very unjust and ungenerous attack upon the Lord Chancellor. The hon. and learned Gentleman must have heard complaints of delay in the English Court of Chancery and in the Masters' Offices; and he must know also that, in his own time, new Judges had been added to that court to enable them to get through their work. The hon. and learned Gentleman further said, that the machinery of the Bill was such, that after much delay the parties might eventually be driven to adopt the course of practice at present pursued; but that was not so, because the Act gave the Lord Chancellor the power to decide what was the proper procedure to be adopted in each particular case. It seemed to him, therefore, that the attacks which the hon. and learned Gentleman had made upon this Bill, fell altogether to the ground. Before he sat down, he wished, as a member of the legal profession, to express his unbounded acknowledgments and grateful thanks to his hon. and learned Friend the Solicitor General for having taken the course he had in introducing these legal measures to the House. It was most gratifying 878 to the public, and he was sure he might add to the legal profession also, with a very few exceptions, to see that distinguished Member—distinguished in position, distinguished by his office, distinguished by his great learning and eminent talents, taking the course he was adopting; and it was more gratifying to them all to think that these legal reforms, of which they all felt the necessity, were proposed by the son of his great and honoured father, who was the first to introduce the great question of legal reform into the legislation of the country. It was most gratifying to think that the son was treading in the father's steps, and that he was likely to add to the lustre, honour, and renown of the name of Romilly.
The SOLICITOR GENERAL
would trespass on the House only for a few minutes, whilst he addressed himself to one or two observations which fell from the hon. and learned Member for Newark, although they had been already sufficiently answered by the hon. and learned Member for Athlone, and his hon. and learned Friend who had just sat down. It was impossible that the hon. and learned Gentleman could think that the provisions of this Bill could be carried into effect by the Lord Chancellor of Ireland without a statute. If he meant, indeed, that such reforms as he thought expedient could be carried out without a statute, he might be correct; but he (the Solicitor General) feared that such reforms would be very slender. To state, however, that that which was proposed to be done by this Bill could be effected by any Lord Chancellor without a statute, was a proposition which, he ventured to say, the hon. and learned Gentleman did not intend seriously to assert upon his responsibility as a lawyer. The hon. and learned Gentleman had thought fit—he would not say to make a direct attack upon the Lord Chancellor of Ireland—but indirectly he had said that which he was sure, if he had been a little better acquainted with the system of the law in that country, and the way in which it was administered by the Lord Chancellor, he would have been the last man to say. The hon. and learned Member for Athlone had fully replied to that observation, and he (the Solicitor General) felt that he should only be doing an injustice to the Lord Chancellor of Ireland if he thought it necessary to add his feeble voice to what had been already said. The hon. and learned Member for Newark had been 879 very sparing in his observations respecting the defects which he had found in the Bill, the only objection being that the proceeding was by petition. The hon. and learned Gentleman said it was objectionable that the suit was to be defended by affidavit, and said that the defendant could not put his defence properly upon affidavit, though he could upon answer. He stated, also, that this was a matter which was not properly cognizable by that House, but that it should be referred to a Select Committee, and then he thought that, by using the legal phrase, "answer," he threw a sort of mystical blind over the House through which they could not penetrate. Now, he (the Solicitor General) asked confidently, what was the difference between "answer" and "affidavit?" An answer was nothing more nor less than a statement on oath of the defence the party made to the Bill, together with a specific answer to every question put by the Bill, so that they only differed in this—that the one omitted all that was surplusage and unnecessary in the other. In all other respects they were identically the same. He must warn the House, if they attempted legal reforms that they must not allow lawyer after lawyer to get up, and tell them that they were not capable of understanding the subject. The House might depend upon it, if they could not reduce a legal proposition to the plain principles of common sense, comprehensible to persons of ordinary intelligence and understanding, the defect was that it was a technical system invented for the creation of costs, and not to promote the due administration of justice. His hon. and learned Friend had quoted a most unfortunate instance for the proposition which he intended to put forward—he referred to an Act of Parliament brought in and passed through that House by one to whom he (the Solicitor General) was bound by every pious tie, and he stated that that had been productive of evil, because when it went up to the highest tribunal in this country it was found inadequate for the purpose for which it was intended. Sir T. Plummer, a most cautious and active judge, understanding that Act of Parliament in the way in which it was intended, considered that the rights of parties coming before him might be well understood on petition and affidavit. That matter was referred to the House of Lords, and it so happened that Lords Eldon and Redesdale refused to go into the question of merits, but said, it was necessary for 880 the parties to go over the whole again by bill and answer; whereas if this Act had been in operation it would have been impossible for them so to have decided, but they must have gone on with the case on its merits. Why was it that this Act was introduced if the court could have proceeded with those cases by petition? Why was it that petitions had been introduced by statute after statute in that House, unless it were that without the authority of Parliament the court had not the means of allowing those matters to be brought before it by petition. Those particular instances showed that the House had made the experiment in cases of this description, and that in a great variety of cases petition was a safe, simple, and speedy mode of determining upon the rights of parties. He should not detain the House further, except to say one word in reply to the hon. and learned Members for Newark and Coventry, who had thought fit to say that he was not really responsible for this Bill, and had suggested that possibly some amount of labour and business which he had to perform had relieved him of his responsibility. Now, he begged to disclaim anything of that sort. Whatever might be the business he had to do, he considered that that was no excuse whatever, and he considered that he was fully responsible for every Bill on which his name appeared; and if there were any defects in the Bill, on him the blame ought properly to fall, and not on any other person whatsoever. The hon. and learned Gentleman had also asked whether the Bill had been introduced with the sanction of the Lord Chancellor of Ireland. In reply to that question, he had to state that he should not have ventured to introduce to the House, or to his colleagues, a Bill upon this subject which had not been previously submitted both to the Lord Chancellor and the Master of the Rolls. Though he did not mean to say that every expression in the Bill met with their sanction, or that it was by any means perfect, yet he did say that the principles and object of the Bill had had the sanction of those learned and eminent Judges. He begged it to be understood distinctly, that in the attack this Bill made on the practice and proceedings of the Court of Chancery, he made no attack whatever upon the principles and law administered by that court. That there were some defects that might be removed by statute, he did not deny; but he did say that no person could be acquainted with 881 the system of law administered by that court, especially that which compelled people to fulfil to the full extent the duties of the trusts imposed upon them, and the manner in which it regarded agreements and arrangements between people of the same family, without feeling that it administered not only a great system of civil law, but also a very high and pure system of morality, and that it would act most beneficially upon the interests of society if that system were much more extensively diffused, and were generally acted upon. But it cast a slur and disparagement upon the name of Chancery, and the doctrines of high morality and purity which proceeded from it were supposed to be injurious, because they came from that place from which, unfortunately, no suitor scarcely ever came during his lifetime, and which never afforded its protection to the suitor unless accompanied by a heavy penalty upon his fortune. Though he felt there were many things in the Bill which might be improved, he entreated the House to sanction its principle; and, in the meantime, he would take every means in his power to render it more effective, and to carry it into complete operation, for the removal of all ambiguity, and any doubt or difficulty, with respect to the intention of its provisions. He trusted that the House would now proceed with the second reading, and he would postpone the Committee until such a time as should enable him to receive and consider any suggestions with which he might be favoured.
§ MR. WALPOLE
agreed that some reform—and an extensive reform—was required in the Court of Chancery both in England and Ireland, and he should give his hearty support to measures for carrying out that reform. He begged to suggest, however, to the hon. and learned Gentleman the Solicitor General that he should refer this Bill to a Select Committee, for the purpose of putting it into the proper shape for carrying out the object which everybody had in view. It was of the utmost importance that all the provisions should be most carefully examined, and that, in his opinion, could only be satisfactorily done in a Select Committee.
The SOLICITOR GENERAL
could not consent to the request of his hon. and learned Friend. He knew what the effect of submitting a measure to a Select Committee was. He would endeavour to adopt, as far as he could, every practicable suggestion; and he would gladly communicate 882 with any one who should favour him with suggestions on the subject; but he could not consent to refer the matter to a Select Committee.
§ MR. TURNER
very much regretted that the hon. and learned Gentleman would not refer the Bill to a Select Committee; for had he done, so, he should have had no hesitation in voting with him. Under the circumstances in which he was placed on the present occasion—unable, on the one hand, to agree to the second reading of the Bill, from a full conviction that it could not be carried out; and unable, on the other hand, to agree to the proposition of his hon. and learned Friend the Member for Newark, he should decline voting on either side. He assured the House, that, so far from having any desire to defeat the Bill, any time or sacrifice which he could make to obviate the delay and expense of the Court of Chancery, should be readily given.
§ MR. STUART
, in reply, said, he would not put the House to the trouble of a division, and his reason for not doing so was this, that there was a clause in the Bill (the 28th) which gave full power to the Lord Chancellor to make all the necessary alterations, and he intended, when the Bill was in Committee, to move that it should consist of that clause only. He, therefore, begged to withdraw the Amendment on the present occasion.
§ Question, "That the word 'now' stand part of the Question," put, and agreed to.
§ Main Question put, and agreed to.
§ Bill read 2o, and committed for Friday, 1st March.