COURT OF CHANCERY AND JUDICIAL COMMITTEE BILL. (Hansard, 3 July 1851)

HC Deb 03 July 1851 vol 118 cc147-74 147

§ Order for Committee read.

§ House in Committee; Mr. Bernal in the Chair.

§ Clause 1.

§ MR. JOHN STUART
said, this clause suggested some very important considerations. It was one to create a new court of appeal in the Court of Chancery; and it would, no doubt, materially alter the constitution of that Court. At present a suitor might appeal at once from the Vice-Chancellors' courts to the House of Lords, without any intermediate appeal to the Lord Chancellor's court; and as the Lord Chancellor was the Judge in either case, it would not matter much to the suitor which course he took. Nor did he see what would be the benefit to the suitor to appeal from the Vice-Chancellor to the two new Chancery Judges, when there might be a third appeal 148 to the House of Lords. All previous plans for reform had been, that two permanent Judges should be appointed to assist the House of Lords, so that the appeal business might be conducted in the absence of the Lord Chancellor of the Court of Chancery; and it was a question whether it would not be better that such a course should be adopted than the one proposed. Such a proceeding would be in harmony with a plan which was recommended by Sir Edward Sugden some years ago. At all events, the two Judges to whom he referred, would cost no more than the two proposed to be appointed by the Bill. The noble Lord (Lord John Russell) had referred to the privileges of the House of Lords, and had declared that he would not insist on the clause which referred to the judicial business of the House of Lords. It was not necessary that the Lord Chancellor should sit in the House of Lords when it was a Court of Appeal, because the Court of Appeal could sit with the Master of the Rolls presiding as deputy-speaker. The two new Judges might sit sometimes in the House of Lords, sometimes in the Privy Council, although he considered that somewhat anomalous, and sometimes in the Court. As the Bill would manifestly interfere with the appellate jurisdiction of the House Of Lords, it would surely have been desirable that it should have been originated in another place; although he admitted there was a great convenience in its origination in the House of Commons, for the noble Lord who had brought it forward felt it would be necessary to make some provision for the Judges to be appointed, and their Lordships could not have done that without interfering with the privileges of this House. All, therefore, that he (Mr. J. Stuart) wanted was, that there should be a fair time allowed for them to consider whether or not the primary functions of the new Judges should not be in the House of Lords instead of as proposed. He considered the Bill also defective in that it did not make any provision for new registrars. It was agreed on all hands that the amount of labour at present imposed on the registrars was more than they were able to discharge; and he had hoped that the noble Lord would have made arrangements for the appointment, not merely of such officers as ushers, train-bearers, secretaries, and the like, but of the more important officers, of whom he was speaking. As it was only his (Mr. J. Stuart's) wish to 149 make the Bill as perfect as possible, it would he his duty to propose a clause on the subject; but he well knew that no private Member could hope for success on such a question unless he had the sanction of the Government; and, therefore, he preferred calling the attention of the noble Lord to the subject. The number of registrars was fixed by the 5th Victoria, c. 5. There were five courts, namely, the three Vice-Chancellors', the Master of the Rolls', and the Lord Chancellor's, which required the attendance of these officers; and at present, each was alternately one day in court, and one day in his own office. The average number of courts sitting every day was four; but the appointment of the additional Judges would raise that average to five, and the registrar would only be able to attend in his office two days a week. In the present state of things no order of the Court could be drawn up and passed by the registrar in a shorter time than three weeks; and it was obvious that the delay caused by the sitting of the extra court would be much greater than the ratio of three to two, because the registrar who was one day in the court, and one day in his office, would have much greater facilities for the discharge of his duties than one who could only devote two days a week to his office attendance. The appointment of a new registrar would only be 1,250l. per annum, a sum not worthy of consideration compared with the advantages that would be derived by the public.

The ATTORNEY GENERAL
said, it was admitted on all hands that the business before the Court of Chancery was too much for the Lord Chancellor to discharge, in conjunction with the other highly important functions imposed upon him by his office. The question then was, in what way the Legislature could give the Lord Chancellor the assistance which he required in grappling with that amount of business? His hon. and learned Friend (Mr. J. Stuart) seemed to say that as an appeal lay direct to the House of Lords from the Vice-Chancellors, it was desirable to follow that course, and to force the appeal business from the Lord Chancellor to the House of Lords. He did not understand, however, whether, by this proposal, his hon. and learned Friend meant to get rid of the appellate jurisdiction of the Lord Chancellor in Chancery. It was quite clear that, as matters stood at present, the suitor preferred appealing to the 150 Lord Chancellor in the first instance, and if this preference continued, the court of appeal would still be choked up with business. Nothing therefore would be gained by adopting his hon. and learned Friend's proposal. Under the plan contained in the Bill, however, it was to be expected that the appeals in Chancery would be so much reduced that the two Judges of Appeal would have time to preside in the Judicial Committee of the Privy Council. At present an appeal lay in Chancery from a single Judge to another, and as, when a difference of opinion existed, it was only one man's opinion against another's, the suitor was consequently frequently desirous to try the chances of another appeal to the House of Lords. But when the appeal lay no longer from a single Judge to another, and the coust of appeal consisted of at least two Judges, the probability would be, that, except in cases of very great magnitude and importance, the suitor would be content with the decision of the Court of Chancery, and would not try his chances elsewhere. It must be remembered also that an appeal to the appellate jurisdiction of the Court of Chancery was less expensive than an appeal to the House of Lords. It was necessary, therefore, to make the appellate jurisdiction of the Court of Chancery as efficient as it possibly could be made, without driving the suitor to the House of Lords. With regard to an increase in the number of the registrars, that was not involved in the clause before the Committee, which merely related to the number of additional Judges to be appointed; but if it should turn out that the number of registrars was not sufficient, that was a matter to which he had no doubt due consideration would be given.

§ MR. FRESHFIELD
said, it was a matter of so much importance that the duty of the registrar should be well performed in court, as well as afterwards, that he hoped no niggardly considerations would stand in the way of a proper staff being kept on foot.

§ LORD JOHN RUSSELL
said, that, if it was found that a deficiency existed, there would be no objection to supply it.

§ SIR DE LACY EVANS
wished to draw the attention of the Committee to a case which tended to show the excessive abuses which now existed in the Court of Chancery. To his own knowledge, a lady of considerable wealth (Miss Howard) invested the sum of 45,000l. in the hands of 151 trustees, one of whom was Mr. Mackinnon, the hon. Member for Lymington, in order to endow an asylum for twenty widows of officers in the Army and Navy, who were to receive 50l. per annum, in addition to a comfortable dwelling. The trustees immediately interested themselves to carry out her views, and just as they were about to settle upon a site for the asylum, a bill in Chancery was filed against Miss Howard by a pauper who had no earthly claim to the fund, or to any other. The consequence was, that the trustees were prevented from carrying out the charitable intentions of this lady, and the whole matter stood in abeyance until the Court of Chancery was enabled to interfere further. Miss Howard had written to the Lord Chancellor on the subject, but had received no answer, and the poor widows, who were next door to paupers, were unable to become the recipients of her bounty. This was one of those glaring cases of legalised imposture and robbery which loudly called for redress.

§ MR. JOHN STUART
said, he must remind the hon. and gallant Officer opposite that no such suit as that which he had stated could ever have been instituted without the sanction of the Attorney General; so that if it was one that ought never to have been allowed to have commenced, it was the Attorney General and not the Lord Chancellor who was blameable in the matter. He would further inform the hon. and gallant Officer, that if the suit was manifestly a vexatious and improper one, it was the party by whom it had been brought, and not the funds of the charity, that would have to bear the expenses of it.

§ MR. MACKINNON
said, he had heard what had been stated by the hon. and gallant Officer who had preceded him, and by the learned Gentleman who had just sat down. He could not agree with the latter in blaming either the Lord Chancellor or the Attorney General: it was the practice of the Court of Chancery that was to be corrected, not the parties who acted under it. His gallant Friend the Member for Westminster had correctly stated, as far as he went, the circumstances of the case; the other particulars were these: a lady, Miss Howard, had placed a considerable amount of property in trustees, of which he had the honour to be one in conjunction with a gallant Naval Officer, a noble Lord in the other House. Twenty houses for the same number of widows of Naval or 152 Military men and Clergymen—the former to have the preference—were to be erected for their occupation, rent and tax free, with an income of about 50l. a year. The trustees were preparing to make a selection for this bounty as directed, when a bill in Chancery was filed by a person, as a pauper, of the name of Goldsmid, who had not the remotest interest in the matter. On inquiring into the cause of this extraordinary proceeding, he was informed that it was a common practice for an attorney who wanted business to get a pauper to lend his name, file a bill against the parties connected with the charity, in which case, whether right or wrong, the party filing the bill was entitled by the Court of Chancery to have his expenses paid out of the fund. He (Mr. Mackinnon) had, from good authority, been informed that this was a common practice; he had the name before him of a solicitor who scoured the country in search of charitable bequests, filed a bill which came to nothing, but the party filing the bill, or rather the solicitor, had the costs paid out of the fund; by these means the party alluded to, had for several years in this manner made an income of 800l. a year and upwards. Now in the charity to which he was trustee, was it not a perversion of common sense and justice that the widows of twenty poor officers should be kept for years from the bounty intended, their funds diminished, and part of the bounty squandered between the attornies and lawyers on both sides? It was a disgrace that such a proceeding should be tolerated by the Court of Chancery in this country at this period.

The ATTORNEY GENERAL
was obliged to the hon. and learned Member for Newark (Mr. J. Stuart) for having referred to the observations of the hon. and gallant Member for Westminster (Sir De L. Evans), with regard to this benevolent lady. He was not Attorney General when the suit in question was intituted. He knew nothing of the circumstances of the case; but there seemed to be some misconception with respect to the course of proceedings in those cases which were conducted in the name of the Attorney General, though in reality prosecuted at the instance of some private individual. The usual course was, to insist upon security for costs being given, in case it should be determined that the suit was one which ought not to have been instituted. It could not be doubted that great good had been done by means of suits institut- 153 ed against the trustees of charitable estates, in some cases by parties seeking only their own individual gain. On the other hand, he was quite ready to admit that a great deal of abuse had been occasioned by the institution of suits by parties whose object was to get the costs paid out of the charity brought by them under the consideration of the court. He had endeavoured, as far as he could, to prevent the continuance of any such abuses; and in every case that had come before him, he had insisted on having a statement of the facts laid before him, in order that he might exercise his discretion as to whether the suit was one which ought in fairness to be instituted. Miss Howard, he understood, had written a letter to the Lord Chancellor—a very irregular proceeding; but if, instead of adopting that course, a communication had been made to him (the Attorney General), and he had thought the proceedings oppressive, he should certainly have taken care to see that they were arrested. The present discussion, however, was somewhat informal, and should have been raised when they were considering the principle of the Bill.

MR. ELLICE
trusted that the right hon. Baronet the Member for Ripon (Sir J. Graham), and the hon. Member for Ox-fordshire (Mr. Henley), who had been appointed on the Commission respecting the Court of Chancery, would not fail to take their full share in the deliberations of that Commission. He was satisfied that the public would place more confidence in the investigations of those two Commissioners, than they would in any inquiry before Commissioners simply belonging to the legal profession. It might have been desirable that one of the Masters in Chancery should have sat on the Commission, because they were necessarily fully conversant with the delays in that court, and the causes of them; however, he was satisfied to see that the two distinguished Members whom he had named had been appointed by the Government, and he earnestly trusted that they would generously undertake the discharge of such important duties for the public benefit.

§ SIR GEORGE STRICKLAND
thought that the Court of Chancery, as at present constituted, was the greatest evil that ever existed in any civilised country. The appointment of these two additional Judges would, no doubt, aid the Lord Chancellor materially in getting rid of the appeals which came before him; but the great 154 grievances of which the people complained were the excessive delay, expense, and total denial of justice in cases which never reached appeal. To attempt to persuade the people that these two additional Judges would remove any of the grievances with respect to cases not brought by way of appeal before the Lord Chancellor, was throwing dust in the people's eyes. There had been an attempt by the Chancery lawyers, who had taken part in this discussion, to make the Masters in Chancery the scapegoats of the grievances which were complained of. He was not going to defend the Masters; nobody did that; but was it unjust to load them with a greater quantity of odium than they merited? It had been the fashion to talk of making a thorough reform in Chancery, by sweeping away the Masters' Offices, and appointing a Judge, who should dispose in open court of the work confided to them. But it was not in the Masters' Offices that the greatest delay took place, for it was well known that may suits were from ten to twenty years before they reached those Offices. One of the great grievances of which the public had to complain was, that in cases in which the claim did not exceed 500l., it was ruinous to commence a suit in Chancery for its recovery. There were many instances in which the results of proceedings for such amounts were nothing but delays, costs, and heartbreaking, and ultimately the union workhouse. He firmly believed that these two additional Judges were not wanted; and in support of that opinion he would refer to the opinions expressed by the right hon. and learned Master of the Rolls and the Solicitor General, in the debates which had taken place some time ago on the subject of Chancery reform. In those debates the House was expressly told that there were several instances in which all the arrears of appeal cases had been worked off by the Lord Chancellor. It was quite notorious that Lord Brougham worked off all the arrears, and that he did in addition to performing all the ordinary duties attached to the Lord Chancellor's office. The House was also told that Lord Cottenham worked off the arrears of appeal cases; and, but for his illness, there would now be no arrears in the Lord Chancellor's Court. If, instead of saddling the public with the expense of these two additional Judges, some measure had been introduced which would compel the Lord Chancellor to retire when his health became too feeble 155 to permit him to discharge his duties, the public good would have been better promoted. Forty years ago, Michael Angelo Taylor brought repeatedly before the House the delays and abuses of the Court of Chancery, and all the answer which he could obtain was, "Nobody but Chancery lawyers can reform the Court of Chancery; if you put any laymen on a Commission appointed to inquire into the subject, they will first have to learn their lessons on Chancery proceedings, and after all a reform of the Court of Chancery must be left to the lawyers." "Leave the matter to us," said the lawyers of that day, "and we will remedy these abuses." Well, the matter had been left to the lawyers, and not one single step had they taken to redress the grievances of which the public complained. Up to this moment the course of proceedings in Chancery was such, that cases were often before the court twenty years before they reached the Master's Office, where they might linger another five or ten years. It was a delusion to represent that the Masters were overworked. He believed that one of their chief duties was to sign hour-warrants, for the purpose of putting costs into the pockets of the London solicitors. Hour after hour, and year after year, were the suits postponed until at length the unfortunate suitors were ruined by costs. That was what was called "British justice."

§ SIR JAMES GRAHAM
said, he would not have risen to trouble the Committee, but for the complimentary remarks which the hon. Gentleman opposite (Mr. Ellice) had made in allusion to any trifling service that he might be able to render on the Commission which had been referred to. Certainly the noble Lord at the head of the Government had done him the honour of naming him to be added to that Commission. He had stated to the noble Lord that any service which he could render should cheerfully be given; but that his attendance could not be constant, and he feared his knowledge of the subject was very inadequate. If the noble Lord, notwithstanding, thought he could render any service to the public by being placed on that Commission, his services should be freely at his disposal, and the same tiling he was sure he might say equally of his hon. Friend the Member for Oxfordshire. [Mr. HENLEY: Hear, hear!] As they were about to inquire, it would be highly improper to pass an immature judgment; but he must thank the noble Lord for this 156 second Bill upon the subject, which he regarded as a great improvement upon the first which had been introduced. At the same time, however, he must say that his feeling was very strong that they were beginning their amendments at the top of the building instead of at the bottom. His belief was, that it was important they should commence at the very foundation of the system. They had glanced the other night at the Masters' Offices, and no one, so far as he was aware, was prepared to defend them as at present constituted; but they had not turned attention to the Examiner's Office, which required a great amount of improvement. In fact, in the present age, he did not believe there was any other example of a civilised country taking evidence in such a manner as it was taken in Chancery. He had fears with respect to this Bill, identical with those which, after an experience of twenty years, would, he thought, be rightly expressed in the language used by Sir Samual Romilly, respecting the appointment of Vice-Chancellors, when he said that the appointment of subordinate assistants to the Lord Chancellor would be attended with this fatal consequence—that the character of the office would be degraded, and never again would England see such a man holding the Great Seal as a Somers, a Camden, and a Hardwicke. The Bill was attended also with this serious danger and inconvenience, that the office of Lord Chancellor would henceforth be primarily political, and secondarily, judicial; whereas in his opinion it ought to be, primarily judicial, and secondarily political. He was quite aware that there was a choice of difficulties in this matter. The office was overloaded at the present moment from accidental circumstances, which had created a large arrear; but he was of opinion that a man really pre-eminent in his profession, enjoying the health necessary for the full and vigorous discharge of his duty, was still competent to perform the whole duty of the Lord Chancellor of England. It had been done, even in recent times; and he could not help thinking that it would be the greatest misfortune to the law of England if they were to provide, either on account of the arrears, the competency of the Vice-Chancellors, or from any other cause, that it should he possible for any Government at any time to choose as their Lord Chancellor a man of second-rate ability. That would be the greatest misfortune which could befall the law of this country. At 157 the same time, he was aware of the difficulty in steering a middle course. He could not say that he was opposed to this measure; but, entertaining apprehensions with respect to it, such as he did, he thought it his duty to state them to the Committee. He certainly did consider that this appellate tribunal, viewed abstractedly, would be an efficient tribunal, and would exercise its functions of a varied kind with advantage to the public. It would create a very great aid to the Judicial Committee of Privy Council—a most important tribunal, considering the extent and growing importance of our colonies. Arrears, by this tribunal sitting constantly, would soon be reduced. The effect of a prompt appeal would be to diminish the number of appeals; but his fear was that when the arrear paper should be reduced, there would not be sufficient work both for this tribunal and for the Lord Chancellor himself. Then, if that were so, the danger was inevitable of a degradation of the standard of the men who would be really competent to be the Chancellors of England; and they knew well that reducing the standard diminished the exertions by which men arose to that standard; and they could not degrade the capacity for the office of Lord Chancellor without diminishing the efforts of the young men of the Bar of England. It would be the greatest calamity for this country if the present Bill should unhappily unintentionally produce that effect. He was not prepared, on the whole, to take upon himself the responsibility of offering any objection to the further progress of the measure; but he did honestly entertain doubts, and, entertaining them, he could not conceal them from the Committee. He begged again to thank the noble Lord (Lord John Russell) for the mark of confidence which he had placed in him by recommending him to the Crown to serve upon the Commission, and to assure the Committee that he would, to the best of his ability, give any little assistance in his power to further reforms in the Court of Chancery. At the same time, nothing would have induced him to serve upon that Commission, but his unbounded confidence in the members of it—the right hon. and learned Master of the Rolls, the hon. and learned Solicitor General, the hon. and learned Member for Aylesbury (Mr. Bethell), and, indeed, all of them—who were men of such learning, and of reputation so honestly gained by competition in their profession, that he con- 158 sidered that circumstance alone, independently of having been recommended by the noble Lord, made it a great honour to sit upon that Commission.

§ MR. AGLIONBY
said, though the discussion was a divergence from the matter before the Committee, he thought it would he of great public utility. The country was much indebted to the noble Lord (Lord John Russell) for proposing the Commission, and for adding to it the names of Sir James Graham and Mr. Henley, than whom no two men in that House would be more useful. He believed that within recent years the proceedings in the Masters' Offices had been very much improved. The great objection was that their proceedings were not open to the public, and that their hours of attendance were few. But abuses did not exist in the Masters' Offices alone. It sometimes occurred that the lessee had a dispute with the receiver, and not wishing to depend on his own judgment, he might wish to take his case before the Master. Now, he could not do that without first going into the Court of Chancery and obtaining a copy of all the proceedings in that court, as also serving notice on all the solicitors engaged in the case. That was an instance of a serious grievance; and many others might be cited. He believed that the only way of cleaning out this Augean stable would be by transferring a good deal of the business from the Courts of Chancery to the County Courts.

§ MR. HENLEY
said, he felt deeply the honour conferred on him by the appointment to this Commission, and could assure the Committee that, as far as his limited time would permit, he would be glad to devote it to the carrying out of the object in view. He fully agreed in the observations of the right hon. Baronet the Member for Ripon (Sir James Graham); and he then would take the liberty of asking the hon. and learned Solicitor General whether or not it was intended by this Bill to confer on the new Judges any original jurisdiction? The first clause referred to the Court as merely one of appeal; but subsequent clauses left the suspicion open that an original jurisdiction was intended to be given, because, if it were intended to give these new Judges an original as well as an appellate jurisdiction, and so to make them a kind of second Lord Chancellor, it would have a very great tendency to enable political Lord Chancellors to he appointed who had not those high 159 judicial abilities which it was so desirable for a Lord Chancellor to possess.

The SOLICITOR GENERAL
said, that the fourth Clause of the Bill, which transferred the whole jurisdiction of the Lord Chancellor to these new Judges, would undoubtedly give them original jurisdiction. It was thought that there could be no objection to their having that power, should a case of necessity arise; or should all the appeals be disposed of—a case which was not likely to occur. The Clause enabled the Lord Chancellor to direct them to sit during the temporary absence from illness or unavoidable causes, of one of the Vice-Chancellors; and special provision was made for hearing appeals in such cases.

§ MR. HUME
believed that the abolition of hour-warrants in the Masters' Offices would remove a great deal of the evils of the Chancery system. Why should it not be the duty of the Masters to sit from, say nine o'clock in the morning, till at least the time that the Courts rose, and proceed from day to day with one cause until it was finished? He was informed that the Lord Chancellor had full power already to effect a reform of that nature in the Masters' Offices; why, then, was it not effected at once?

§ LORD JOHN RUSSELL
There has been this great change made in the Masters' Offices, instead of the hour-warrant system, the plan has been adopted of permitting the causes to proceed one after the other. [Mr. HUME: In all cases?] My hon. Friend will see that the order in which the causes are taken in the Masters' Offices is now published in the newspapers. The causes are now taken regularly in their order. That plan has been adopted with, I will not say entire satisfaction, because I believe there still exist difficulties with regard to the hearing of some of these causes. The matter is difficult and very complicated, and I do not think that we ought to expect the first plan to succeed, without the necessity of making further amendment. The Lord Chancellor pays much attention to these subjects and I feel confident he will be quite ready to adopt any improvement that may be made. I will say one word, and one word only, as to what has been said by my right hon. Friend the Member for Ripon (Sir J. Graham) with respect to the office of Lord Chancellor. I certainly should have given very great weight to the objection which he has made, if it were not the very au- 160 thority which he himself has quoted. It is well known that when the proposal to appoint a Vice-Chancellor was brought before Parliament in 1811, it was stated by Sir Samuel Romilly that, if that appointment were made, you could not expect men of great legal eminence to be appointed Lord Chancellors. That office, he said, would become one which would be given to followers of the Government, and not to men distinguished for their legal acquirements. I think the prediction of Sir Samuel Romilly in that respect has been entirely falsified. But another thing which Sir Samuel Romilly said—namely, that the Lord Chancellor would not hear original causes, but would have his time entirely occupied by appeals, has been fully justified by the event. But I think no one that considers who has held the Great Seal since the days in which Lord Eldon received it, will deny that the very ablest men in the profession of the law have been appointed to that office. I do not think that this Bill will make any alteration in that respect. The Lord Chancellor will still have to sit in the Court of Chancery; he will still have to decide some of the most difficult and important cases which can come before any Judge; he will still have to preside in the House of Lords; and he will still remain a person to whose authority his colleagues will bow on occasions in which mixed questions of law and politics may come under the decision of the Government. I think, therefore, on the one hand, that it will be to the interest of any Government to procure the abilities of the ablest, of the very first man at the Bar, to fill the office of Lord Chancellor; and I think, on the other, that we do retain so much dignity in this high position that it will continue to be such an office as a man of the highest abilities at the Bar may very well accept. I do not think the present plan open to the objections which were urged against the Bill brought into the House of Lords by the late Master of the Rolls, Lord Langdale; and I think it is of the utmost importance that the Lord Chancellor should have more time to devote to the great question of law reform, for such questions require great attention, not only to their principle, their scope and object, but also in matters of detail; and I have found that the Lord Chancellor, from the press of his business in his own court, and from a conscientious feeling to discharge his duty in the causes which came before him, could not find time, whatever 161 might be his zeal, ability and learning, to accomplish all the duties which properly belong to the office of Lord Chancellor, and also to attend to those matters of legal reform. I think this Bill will give great facilities in that respect. The hon. Member for Preston (Sir G. Strickland) said the Bill only touched a part of the evils attached to the present system; and my right hon. Friend (Sir J. Graham) said that we ought to begin reform not at the top but at the foundation of the building. But I will remind my right hon. Friend that in laying foundations it is desirable to have an architect able to devote his time to see that they are properly laid. By means of this Bill we shall have an architect with time at his disposal. The misfortune is, that at present there is no person who is at once competent and willing, with time at his command, to lay those foundations. I trust, therefore, that great advantage will follow from the working of this Bill.

§ MR. J. EVANS
thought it would be desirable to have an architect who would lay the foundation for legal reform; and to whose hands could that important task be confided with more safety than to the Lord Chancellor? Everybody who knew the energy and perseverance of the present Chancellor felt that he would be able to cope with the task. One seeming objection to the present Bill was, that the decision of the Lord Chancellor might be overruled by his two assistant Judges of the Court of Appeal. On the other hand, if these two Judges were sitting alone, there might be a division of opinion between them, and in that case no decision would be come to. These objections might possibly be rectified, and, if not, they might be disregarded in consideration of the great advantages which would be attained by the Bill. He did not see why business could not be taken directly to the Masters' Offices, without its being necessary previously to make a merely formal application to the Court of Chancery.

§ Clause agreed to; as were also the Clauses 2 to 6 inclusive.

§ Clause 7.

§ MR. HENLEY
said, that provision had been made for the case of the two Judges of Appeal being divided in opinion when exercising an appellate jurisdiction; but he did not see that any provision had been made in the event of a similar case arising when they were exercising au original jurisdiction.

162

§ MR. BETHELL
said, that he thought these Judges would sit separately while exercising an original jurisdiction; for if they sat together it would be a singular contrast to the other Courts of Chancery.

The SOLICITOR GENERAL
said, they had only power to sit separately in case of the illness or accidental absence of one of the Vice-Chancellors. Should they dispose of all the appeals, they would then have an original jurisdiction, which they would exercise together, and if they should then unfortunately be divided in opinion, there must be a rehearing of the cause. Should they be divided while sitting on appeal without the Lord Chancellor, the decision of the court below would remain undisturbed, unless the Lord Chancellor chose to exercise the power given by the Bill, and to order the cause to be reheard before the full court.

§ MR. JOHN STUART
feared that as great inconvenience would arise from two Judges sitting together to hear original Motions as from two Judges sitting together at Nisi Prius.

§ MR. BETHELL
said, that he thought great mischief would arise from giving the Lord Chancellor power to order the rehearing of an appeal upon which the two Judges sitting alone had been divided in opinion, inasmuch as it would give rise to endless proceedings. First, there would be the hearing before the two Judges of the Court of Appeal; next, the application to the Lord Chancellor to order the rehearing, which would involve the consideration of the merits of the case; and then, if that was successful, there would be the rehearing before the full court. He thought it would be much better to give the full court the power of rehearing only such cases as the two Judges who had heard them should order to be brought before it.

§ LORD JOHN RUSSELL
said, that the two Judges who had differed with respect to the merits of a cause, might also differ with respect to the propriety of having it reheard before the full court; and upon the whole he thought it better to let the Bill stand as it was.

§ Clause agreed to; as were also the three following Clauses.

§ Clause 11.

The SOLICITOR GENERAL
proposed to add at the end of the clause the following words:— That in all cases where the concurrence, advice, or consent of the Master of the Rolls, and of the Vice-Chancellors, or either of them, shall be 163 requisite for the making of rules or orders, the concurrence, advice, or consent of the Judges appointed by this Act may he substituted for the concurrence, advice, or consent of the Master of the Rolls or Vice-Chancellors.

§ MR. BETHELL
said, that much mischief had arisen from the necessity of resorting to so many sources of jurisdiction. By this practice suits were multiplied, and it became necessary to do twice or thrice that which might be more conveniently done once if the courts had not been divided under so many different heads. He proposed therefore to omit that part of the clause which prohibited, not only the Court of Appeal, but the Vice-Chancellors, from exercising the ordinary jurisdiction of the Lord Chancellor in lunacy. He should, by making the alteration he proposed, enable the Lord Chancellor during the Parliamentary year to attend to the House of Lords and the Judicial Council—arenas amply sufficient for all his powers; for if the Lord Chancellor had to hear, in the Court of Chancery, ordinary cases in lunacy, he would be taken away from his more important duties at this period of the year. It would also be very inconvenient to have a hearing suspended while the Lord Chancellor was engaged elsewhere, and therefore it was desirable that those lunacy cases should be heard by the Judges to whom he had referred.

The SOLICITOR GENERAL
said, the Bill was originally framed with the view of transferring the jurisdiction in lunacy to the Court of Appeal; but it was found that such a proceeding would militate against the authority of the Crown, because the Crown could by Sign Manual commit such jurisdiction to whomsoever it chose. This Clause, therefore, provided that no interference should take place with the powers and duties of the Lord Chancellor, as having the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind. The ordinary jurisdiction of the Lord Chancellor was transferred by Clause 4; but as to jurisdiction given by the Sign Manual, it would be improper to deal with that by Bill; the transference, in that case, must be made by the Crown.

§ MR. BETHELL
would suggest the insertion of the following words:—"That it shall not affect the powers, authorities, and duties of the Lord Chancellor, by virtue of any appointment by Sign Manual from the Crown." If his hon. and learned Friend agreed to the proposition he made, 164 the ordinary jurisdiction would no longer be confined to the Lord Chancellor, but would be imparted to all the Judges, and they would be able at all times to meet the convenience of suitors.

The SOLICITOR GENERAL
had not the least objection to the alteration proposed by his hon. and learned Friend. By the 4th section, all jurisdiction was conferred on the appellant court; but it was a sweeping proposition to ask them to confer that jurisdiction upon all the Vice-Chancellors and Master of the Rolls, and it required time for consideration.

§ Clause, as amended, agreed to; as were Clauses 12 and 13.

§ Clause 14, by which it is proposed that three members of the Judicial Committee of the Privy Council shall form a quorum.

§ MR. BETHELL
objected to the clause, on the ground that the Lord President of the Council might be one of the three. The Lord President was not usually a lawyer, and, considering what very important appeals came before the Judicial Committee, it would hardly seem correct that they should be decided by less than three lawyers.

§ MR. JOHN STUART
did not think a plurality of Judges was always necessary for the formation of an efficient and good tribunal. It would be recollected, that when Sir William Grant was sitting alone, he transacted the business in the most efficient manner. He believed that any person attending before the Privy Council when Sir William Grant sat there alone, and compared the mode of doing business with the way in which it had been done by the Judicial Committee, would admit that the increase of the number of Judges had created in no degree an improvement in the mode of conducting the business there. It might be well, perhaps, to have more than one; but why they should have four he could not see, and he hoped the Government would not consent to withdraw the clause.

The SOLICITOR GENERAL
said, that if there was any court which, more than another, had given satisfaction, it was the new Court of Judicial Committee of Privy Council. The hon. and learned Member for Aylesbury (Mr. Bethell) objected to the clause, because the Lord President of the Council might be one of the quorum; but he (the Solicitor General) did not think it was the practice of the Lord President generally to attend. He 165 thought the remedy proposed by his hon. and learned Friend was worse than the disease.

§ MR. ROUNDELL PALMER
thought, that, if they agreed to the clause, it would be found on many occasions that the court would be constituted with difficulty, and, when constituted, would not consist of judicial members. The colonies looked very much to that Court, as did also the people in India; and if a judgment at Calcutta were reversed, perhaps by one or two Judges who might not possibly stand as high in public estimation as other Judges, it would create dissatisfaction, and such an occurrence ought to be avoided. They should guard, therefore, against the quorum being composed of any other but professional members.

§ LORD JOHN RUSSELL
said, that great difficulty had been found in making a quorum, and the consequence was, it often occurred that the Judicial Committee could not meet when it was desirable they should meet. They proposed by this Bill to do two things to remedy the inconvenience—one was, that three should be a quorum instead of four, and the other was, to provide that two Judges, not heretofore members of the Judicial Committee, should be members of it. He had no objection to any proviso by which care would be taken that those three members should be members of the legal profession. The Lord President attended very seldom.

§ MR. BETHELL
proposed to introduce these words—"Exclusive of the Lord President," thereby ensuring the attendance of three professional Members.

§ Amendment adopted.

§ Clause, as amended, agreed to. Clause 15 withdrawn. Clause 16 agreed to.

§ Clause 17.

The SOLICITOR GENERAL
said, the object of the clause was to make the salary of the Lord Chancellor 10,000l. a year, including his salary as Speaker of the House of Lords, and that the sum he was to draw from the suitors' fund, including the sum paid to him as Speaker of the House of Lords, should not in the whole exceed the 10,000l.

§ SIR HENRY WILLOUGHBY
thought it was not right that any portion of the salary of so high a functionary as the Lord Chancellor should be paid out of the suitors' fund, and he thought the more simple they made the payment of such functionaries the better.

166

§ Clause 18.

The SOLICITOR GENERAL
proposed an addition to the clause providing for the appointment and the payment of the salaries of the secretary, trainbearer, and usher of each of the new Judges. The secretary was generally a member of the Bar, who was to assist the Judge in referring to cases as to the points at issue in the cause before him. The usher was an officer whose principal duty was to act as clerk to the Judge, and do all the writing for him. The trainbearer's duties were more in the nature of a servant in Westminster Hall, and a messenger in carrying public papers and messages. It had been found that all those officers were necessary. The salary of the secretary of the late Master of the Rolls was 1,000l. a year; but the secretary of the present Master of the Rolls had only 500l. a year. Previously the secretary of the Vice-Chancellor of England received 500l. a year; but the Secretaries of the present Vice-Chancellors received only 300l. a year. Now, although each of the persons to be appointed under the Bill would have higher and more important duties, still it was proposed that their secretaries should not receive 500l. a year, as had been given to the secretary of the Vice-Chancellor of England, or so little as was given to the secretaries of the present Vice-Chancellors, but that a medium course should be pursued, and that the sum should be fixed at 400l. a year. It as proposed to give the usher 250l. a year, and to give to each of the trainbearers 100l. a year. When Vice-Chancellor Turner's Act was passed, it was found that the salary of the court-keepers of the other Vice-Chancellors was only 40l. a year, but that of the court-keeper of Vice-Chancellor Turner was fixed at 80l., and it was proposed to raise the salaries of the other courtkeepers of the Vice-Chancellors to the same amount.

§ MR. AGLIONBY
was prepared to accept the statement of the hon. and learned Gentleman, that a secretary, usher, and trainbearer were necessary for each of the new Judges; and if these officers were necessary for the performance of the duties, the salaries were by no means exorbitant. He (Mr. Aglionby), however, wished to call the attention of the Committee to the manner in which the Judges were to he paid, and the fund whence their salaries were to be derived. He begged to ask whether the suitors' fund was the best fund on which to place the new 167 Judges? He said nothing of the old; but if public policy required the appointment of new Judges, those Judges ought to be paid by the country, and not by the suitors in court. He understood that there were two funds, one derived from the accumulation of interest of moneys placed out in the name of the Accountant General for the benefit and better security of suitors. That was the suitors' fund. The suitors' fee-fund, on the other hand, was raised expressly under the rule of the Court of Chancery. He was told those funds amounted to 200,000l. a year. Out of the suitors' fund were paid the Judges; out of the suitors' fee fund, the expenses of officers of court, and certain compensations. Parliament had delegated to certain persons connected with the Court of Chancery, instead of the Treasury, as usual, the power of fixing certain compensations. The consequence had been, that an enormous amount of the property of the suitors had been wasted. The Committee would he surprised to hear what was the expenditure, as shown by a return of which printed copies had just been delivered. What would be thought when he stated that, since 1842, up to the 25th of November, 1850, the salaries paid to some of the officers who were continued in employment, for salaries and compensation, amounted to no less than 589,000l. From another return it appeared that during the same period the total sum paid to the late sworn clerks appointed taxing masters was, for salary 58,108l. 13s. 8d., for compensation 152,978l. 0s. 3d., making a total of 211,086l. 13s. 11d. To pay the salaries and compensations 74,000l. a year was taken out of the suitors' fee fund. It had been calculated by an actuary that one of the clerks would receive, including the amount to be paid for seven years after death, 174,000l. He did not mention names, for his statement was made without any wish to reflect on individuals; and so little had he any desire of the kind, that he had moved for returns in some cases under which the statements were to be made, with reference not to the names of the parties, but to letters of the alphabet. It was true that these compensations were paid out of the suitors' fee fund; and it might be said that paying the Judge from the suitors' fund would be a relief; but if the Judges were paid out of the Consolidated Fund, there would be an enormous amount of the suitors' fund which would be fairly applicable to payment of compen- 168 sations; so that the suitors would be relieved from a charge to which otherwise they would be liable for years to come. He wished to ask whether it was proper to charge an additional sum on the suitors' fund, instead of seeking the relief of the suitors' fee fund to that extent?

The SOLICITOR GENERAL
said, he thought the proposal of the hon. Gentleman would be anything but a relief to the suitors, and would fix a heavy charge upon them. The suitors' fund might be called the bankers' profit of the Court of Chancery, as the money arose from the loose cash of the court, and on which there was no interest paid to the parties. The interest of the investments made by the Court of Chancery formed the fund. This seemed a very legitimate fund, and was that which the Committee had recommended in preference to the fee fund. It was a very different question whether the salaries should not be paid out of the Consolidated Fund. But he did not see how anything could be better than to take this fund, on which no one had any claim. He would not enter into the compensation to the six clerks, but with reference to the fee fund, the Committee ought to know that the charges upon that fund continued to diminish. By a recent order of the Lord Chancellor the charges had been diminished by about 20,000l. a year. Lord Cottenham and Lord Lyndhurst had also made orders reducing the fees. When the Commission had given its attention to this subject, he did not doubt there would be a farther reduction, particularly as the right hon. Baronet the Member for Ripon (Sir J. Graham) and the hon. Member for Oxfordshire (Mr. Henley) were added to it. When he formerly opposed making an increase in the member of the Commission, he was not aware that these two hon. Members were proposed to be added to it.

§ SIR HENRY WILLOUGHBY
said, the suitors in the Court of Chancery derived no benefit from the diminution alluded to by the hon. and learned Solicitor General. In 1846 the funds was 207,000l., in 1847 it was 106,000l., in 1848 it was 204,000l., and last year it was 270,000l. How stood the surplus at that moment he should like to know, and what was the amount of the principal? The public, he maintained, derived no benefit from it. He believed they derived no benefit from it, and he would believe the information which he had received on the subject before that of all the 169 Judges, for he did not believe that any Judge had ever paid costs.

The SOLICITOR GENERAL
said, the hon. Gentleman did not understand what the suitors' fund really was. He appeared to think that it was in the nature of unclaimed dividends, but that was not so. It was a fund of the surplus cash paid into court, and the interest of which was applied to the public service. With regard to the amount of the fund, be could not speak precisely; but he believed that last year there was a surplus arising from it of 45,000l. after payment of all charges. He now proposed to place on that fund 14,000l. to which this Bill related.

§ MR. HUME
said, his objection to the making of these payments out of the suitors' fund instead of out of the Consolidated Fund was, that it served as a cloak to cover a variety of charges which the House and the country knew nothing about. It was of the utmost importance that that House should know the particulars of all moneys that were paid for the support of the public establishments. But by charging nearly 100,000l. a year on the suitors' fund and the suitors' fee fund for the payment of salaries to Judges and other officers, the public were kept in ignorance of what really were those charges. They were acting inconsistently, because, with regard to unclaimed dividends at the Bank of England, they were ordered to be paid into the Exchequer, and if ever the money should be called for, the Exchequer held itself ready to pay that money back. But quite a different course was pursued with regard to the suitors' fund. That fund consisted of stock amounting to not less than 3,525,000l., which produced a dividend of 103,398l. a year. Now, out of this sum the salaries of the Lord Chancellor, the Vice-Chancellors, the Masters in Chancery, the Accountant General, and others, amounting to 40,000l.; and the salaries of the clerks to the Lord Chancellor and the Vice-Chancellors, and other officers belonging to the Court of Chancery, formed an additional charge, making a net payment of 67,500l. out of this fund, leaving a surplus, not of 45,000l., but of between 35,000l. and 36,000l. a year remaining still invested for the benefit of the suitors. He complained of these partial payments of our judicial establishment out of this fund, and regarded such payments as a fraud on the public. It was a great neglect of duty on the part of the Chancellor of the Exchequer not to take this money 170 into account. But as regarded the fee fund, there was a question connected with it of a still more serious nature. The Committee had recommended that all fees in Chancery should be abolished as soon as the charges upon the fee fund should have been done away with. With that view he would have an account taken of those fees, and the amount should be brought into the public accounts, which should, however, be kept separate, together with an account of whatever might form a charge upon those fees. Bad as was the Bill of Lord Lyndhurst in imposing those charges, still, as the thing was done by Act of Parliament, he could not recommend a breach of faith by the abolition of such charges; he hoped, however, that Bill would act as a warning to the House never again to leave to a lawyer to effect a settlement of any pensions (of which the charges in question mainly consisted), but to require the Treasury to do that business. The fees received last year amounted to 150,146l., and the whole amount of charge on that sum was 39,927l. The House would be fully warranted in reducing the fees to such a sum as would be only sufficient to pay the charges upon the fund. He trusted no new charge would be imposed on the fee fund; and, since the Government would not bring the particulars of the charges on the suitors' fund before the House, he should object to any further charge being imposed upon that fund. He would submit to the noble Lord (Lord John Russell) that he should at once make a beginning by paying the salaries of these new Chancery Judges out of the Consolidated Fund.

MR. VERNON SMITH
was not altogether convinced of the necessity of the appointments of secretary, usher, and trainbearer. The very fact of a train-bearer at this time of day was fraught with ridicule. Again, he wished to have it explained why these two new Judges were to have salaries of 6,000l. a year each, while the Puisne Judges, who had to go the circuits, had only 5,000l. a year. They had been told to look forward to a Chancery Commission. They had had Chancery Commissions already, but he was not aware that any very beneficial results had arisen from them. It was, however, in the nature of man to hope; he therefore would still hope that good might come even from a Chancery Commission. But he should have been better pleased if 171 there had been a majority instead of a minority of laymen on that Commission.

§ LORD JOHN RUSSELL
With regard to the appointment of a trainbearer, I believe that person is employed as a messenger, and to discharge the ordinary duties of a person attending on the Judges. With respect to the salaries, it appeared to the Government that if they appointed two Judges who were to sit as a court of appeal, and whose decision was to overrule that of the other Judges of the Court of Chancery, it would be desirable that a somewhat larger salary should be given to them than to the Puisne Judges. The Government have given a salary which would he insufficient for a Chief Justice of the Court of Common Pleas, or a Chief Baron, but which is considered sufficient for Judges who are to form a Court of Appeal in the Court of Chancery. With regard to the observation of the hon. Member for Montrose (Mr. Hume), I am not disposed to contest that which he laid down, that it would be desirable that the salaries of the Judges of the different courts should be paid out of the Consolidated Fund, that the public might see the whole particulars of those payments; and I confess I do not see any sufficient reason why that should not be done. But I do not think there is any use in applying that principle to this particular case. I think it is a measure of a more general nature than to be adopted in reference to these two appointments only.

§ SIR JAMES GRAHAM
said, that what had just fallen from his noble Friend had given him most unqualified satisfaction. He did not believe any arrangement, upon the whole, would be more conducive to the public good, or more satisfactory to that House, than that which his noble Friend had just advanced. Because, although there was a distinction between the suitors' fee fund and the suitors' fund, yet it had always appeared to him that the better application of the suitors' fund would be to aid the suitors' fee fund in the diminution of the costs of the establishment. But, while they kept a perpetual charge on the suitors' fund, any reduction of the suitors' fee fund was practically impossible. If that were the ultimate object, it would be injudicious to impose any further charge on the suitors' fund. He was as rigid an economist as his right hon. Friend (Mr. V. Smith); still he did think, if they had these two judicial officers, whose Chancery knowledge ought to be equal to that of the 172 Lord Chancellor himself, and whose powers would very nearly approach those of that high judicial, functionary—if this new tribunal invested them with those high powers—he thought that the office of those Judges should be looked up to as the object of promotion by members of high professional attainments. Having to exercise a thorough jurisdiction over all the other tribunals of the Court of Chancery, and sometimes possibly having to reverse the decisions of the Master of the Rolls himself, it was obvious that these persons must be taken from the very foremost ranks of the profession. They could not exercise a worse economy than to insufficiently pay officers of high judicial rank. Upon the whole, he did not think 6,000l too high a sum for the discharge of functions of so delicate and important a nature. With regard to the charge upon the suitors' fund, he thought this measure would impose a very considerable increase of charge. As there was nothing like a beginning in these matters, it was worth consideration, while appointing these two Judges, whether their salaries ought not to be placed on the Consolidated Fund. Something had been said by the hon. Member for Montrose of the mystery hanging over the suitors' fund. Unfortunately there was the same objection to the Consolidated Fund. But he thought that public discussion ought not to be applied to the payment of judicial offices, as it would make them too dependent upon the caprice and will of an assembly. He, however, thought they ought to be paid out of the Consolidated Fund. He must ask the right hon. Chancellor of the Exchequer what had become of the Bill with respect to the payment of the officers of the Court of Chancery who were now paid out of the suitors' fund? He (Sir J. Graham) was of opinion that the recommendations of the Committee on that subject ought forthwith to be attended to; and that, if the Government were to bring the measure forward this Session, it would not only pass, but it would greatly redound to their honour.

§ LORD JOHN RUSSELL
said, he had conversed more than once with his noble Friend the Lord Chancellor on the subject of the Bill to which his right hon. Friend had alluded, and that noble and learned Lord was himself of opinion that great changes ought to take place with regard to the salaries of the officers connected with the Court of Chancery; but the noble and learned Lord expressed a doubt whether it 173 was advisable, when a Commission was sitting to examine into the nature of the jurisdiction and practice of the court, that he (Lord J. Russell) should meddle with the salaries of these officers until it was ascertained what duties were to be attached to each. It was therefore a question of time, whether it was desirable to remodel the offices, and then effect new arrangements with regard to their duties, or whether the whole system of the Court of Chancery should be examined and arranged, and the question of salaries taken at the same time.

§ MR. HENLEY
was glad to hear that the noble Lord did not object to shifting all these payments to the Consolidated Fund, which would be a much more advantageous arrangement for the public.

§ MR. HUME
said, the Committee last year recommended that the Vice-Chancellors should receive only 5,000l. a year, and he thought that sum was sufficient for these officers.

§ LORD JOHN RUSSELL
said, that the proposal to give the Vice-Chancellors only 5,000l. a year had been adopted. But this was an office of greater importance; and if there were a Vice-Chancellor whom the Government and the public thought it would be desirable to have as a Judge of a court of appeal, there should be some premium to offer as an inducement to accept that office.

§ MR. HUME
wished to know if any arrangement had been made with regard to the salary of the Puisne Judges hereafter to be appointed. He agreed with the right hon. Baronet the Member for Ripon (Sir J. Graham), that it would not be desirable to make the salaries of the Judges a subject of discussion in this House from year to year. But we ought to know what was in future to be the salaries of Puisne Judges.

§ LORD JOHN RUSSELL
My hon. Friend is not, perhaps, aware that the salaries of the Puisne Judges are 5,000l., and the Committee last year did not propose any reduction in that salary.

§ SIR HENRY WILLOUGHBY
said, that Clause 18 of the Bill provided for a salary of 6,000l., upon the addition of which to the charge already on the fund, would leave an outside margin of 30,000l.

§ MR. HUME
hoped that it was not intended to give to the members of the new court the power to appoint officers.

The SOLICITOR GENERAL
replied that there was no power in the new court 174 to appoint any other officers except a secretary, an usher, and a trainbearer.

§ It was then arranged that the salaries should be as follows:—Secretary, 400l.; usher, 200l.; trainbearer, 100l.

§ Clause agreed to.

§ Clause 19.

§ SIR JAMES GRAHAM
said, that there appeared to be no provision in the Bill against the Appellate Judges being Members of the House of Commons; but he presumed that it was not the intention of the Government that they should be eligible to seats in that House.

§ LORD JOHN RUSSELL
said, under the Act of Anne, this being a new office, the Judge could not be entitled to a seat in Parliament.

The SOLICITOR GENERAL
then proposed an additional clause, which had been suggested by the hon. and learned Member for Newark (Mr. J. Stuart), and of which he entirely approved, being in effect that the Lord Chancellor should have power to appoint another registrar, if it should be found necessary to do so.

§ Clause agreed to.

§ Preamble agreed to.

§ House resumed; Committee report progress.