§ LORD JOHN RUSSELL
Mr. Speaker, I rise, Sir, for leave to bring in two Bills of which I have given notice, namely, a Bill to improve the Administration of Justice in the Court of Chancery and the Judicial Committee of the Privy Council, and a Bill to regulate the Salaries of the Chief Justice of the Court of Queen's Bench and the Chief Justice of the Court of Common Pleas. Sir, with respect to the second measure, it is merely the reintroduction of a Bill brought forward last year for the purpose of enacting that the salary of the Chief Justice of the Queen's Bench shall be by law what it has for some time past been by custom, namely, 8,000l. a year, and that the salary of the Chief Justice of the Common Pleas, which is now 8,000l., shall henceforth be 7,000l. a year. The more important measure is the Bill for improving the Administration of Justice in the Court of Chancery and the Judicial Committee of the Privy Council. I am 704 not willing again to go over the ground which I travelled on a former occasion with respect to the Court of Chancery. I wish, however, to remind the House that certain propositions I then laid down obtained the general if not the unanimous assent of the House, while there were others to which some objection was taken. I stated, on the occasion referred to, my opinion that—looking to the amount of judicial business which pressed on the Lord Chancellor, in addition to the important political functions he has to discharge—it was desirable to adopt means to relieve him from part of his extensive duties. I stated that it was desirable to take this course for the sake of the public, because, as no man can do more than employ the whole of his faculties in his business, if more than that is required, the public must be losers in regard to the manner in which the Lord Chancellor is necessarily compelled to perform some of his numerous duties. I think I am correct in assuming that the House concurred with me in that view of the question. I also stated—for reasons which I gave—that I thought it desirable the Lord Chancellor should not be restricted merely to the discharge of his judicial functions, but should retain his political position and continue to exercise those functions, in connexion with the Executive Government, which has hitherto been the distinguishing feature and characteristic of his office. To that likewise the House, I think, was disposed to assent. I further declared my opinion that it was desirable the Lord Chancellor should remain Speaker of the House of Lords, and continue to preside over the House of Lords when it sits as the highest Court of Appeal known to the constitution. The House agreed with mo in that too. I then proposed—in order to relieve the Lord Chancellor from some part of his present labours—that other Judges should sit in the Court of Chancery, for the purpose either of assisting his Lordship or of carrying on the judicial business of the Court in his absence. I said that I thought the Master of the Rolls and one of the Puisne Judges of the Common Law Courts might discharge those functions. To that proposition some objection was made. It was urged, and not without justice, that it was impossible to obtain the assistance of the Master of the Rolls in the Court of Chancery without taking him from his own court, and thereby depriving the suitors and the public of the services which they are entitled to expect from him there. 705 Since obtaining leave to introduce the former Bill, I have endeavoured to collect the opinions of those most conversant with the subject. I have consulted some persons holding judicial situations, and some gentlemen of great experience in the Court of Chancery, besides other persons connected with the court and acquainted with its business. Among others, I received a letter from my lamented friend the late Lord Cottenham, whoso opinion it was of course desirable on every ground to have, and who was so entitled on every account to have his authority listened to upon such a subject, making objection, I must say, to the proposal which I made, and stating that he thought the measure should be directed rather to relieving the Lord Chancellor, than to relieving the Court of Chancery over which he presided. I have thought it far better, therefore, to submit the whole question to reconsideration than to persist in attempting to pass a Bill to which persons of so much authority have taken objection. I shall, therefore, state what I think can be done with respect to the providing assistance for the Lord Chancellor in his high functions. One method which might be taken, and which was originally much considered by the Government, and upon which indeed the Bill which Lord Cottenham introduced in 1836 was founded, is that of entirely separating the judicial functions of the Lord Chancellor in the Court of Chancery from the judicial functions of the Lord Chancellor in the House of Lords, and also from his political functions; in other words, that there should be a permanent Judge at the head of the Court of Chancery, and that the Lord Chancellor's duty should be limited to sitting in the House of Lords, presiding over that Court, and continuing in the exercise of his political functions. The objection made to that plan, and which I found was entertained by authorities to which I felt compelled to bow, was, that unless a Judge at some time or other, and during some part or other of his labours, was exercising judicial functions—if he was sitting merely as a court of appeal—he would not preserve that ability which he might have originally possessed to try and decide causes; and that, therefore, his decisions would not carry the same weight which the decisions of the Lord Chancellor at present do, or those of any person in a similar situation to the Lord Chancellor, sitting in the Court of Chancery, and at the same time exercising 706 the functions of a Judge of a Court of Appeal. This being an opinion to which I felt compelled to bow, and which rests upon the statements of many eminent men, beginning with the late Sir Samuel Romilly, and still held by persons well acquainted with the subject, I am not prepared to introduce a measure upon that principle. Another course would be—and which we proposed in the Bill which I obtained leave to introduce, and to which have been made the objections to which I have alluded—another course would be to appoint a Vice-Chancellor or some other person holding a similar title, who should sit in the place of the Lord Chancellor when he is detained either by his political functions or by his judicial duties in the House of Lords. To this plan the objection occurs, that, although the name and authority of the Lord Chancellor carry such weight to his decisions that the Lord Chancellor may well sit alone, yet if we had a Judge of no higher authority or title than the Master of the Rolls or Vice-Chancellor, to whom the appeal was made from the decision of those Judges, that the opinion of one subordinate Judge against another would not satisfy either the public or the profession. There remains another plan, and one which I have had recommended to me by a great concurrence of opinion, and that of the highest authorities, and that is that two new Judges, to be styled "Judges of the Court of Appeal," should be appointed for the special purpose of sitting either at times with the Lord Chancellor, or, in his absence, of sitting together, to decide in cases which are to be reheard and appealed from the Master of the Rolls and the Vice-Chancellors. The only objection which I can see to such a proposal is, that it would greatly increase the amount of judicial force, and therefore impose a great amount of additional expense either on the country or on the suitors' fund. But, on the other hand, we have to consider that a very great benefit is sought and would undoubtedly be gained. I cannot avoid the opinion which I entertain, that, with the present duties of the Lord Chancellor, it is desirable that he should be able to obtain further aid in the exercise of the duties which he now performs in the Court of Chancery. In the first place, with respect to the judicial duties, the amount of property which is brought into the Court of Chancery, and the number of cases which are brought into that court and heard by the various Judges who sit in that court, have 707 gone on increasing from the time of the introduction of the Bill to appoint a Vice-Chancellor, in 1813 till now, to an enormous extent. I have here a return which has been made to the House of Lords with respect to the quantity of business done between the 2nd of November, 1850, and the 30th of May, 1851, both inclusive: It appears, that with respect to appeal motions and special motions, there were heard by the Lord Chancellor, 36; by the Master of the Rolls, 273; by Vice-Chancellor Knight Bruce, 878; by Vice-Chancellor Lord Cranworth, 679; and by Vice-Chancellor Turner (who has only been recently appointed), 21; the total being 1,887. Of petitions there were heard—by the Lord Chancellor, 16; by the Master of the Rolls, 333; by Vice-Chancellor Knight Bruce, 866; by Vice-Chancellor Lord Cranworth, 1,051; and by Vice-Chancellor Turner, 27; total, 2,293. Of cases of exceptions, further directions, further directions and exceptions, pleas, demurrers, and objections, there were heard by the Master of the Rolls, 96: by Vice-Chancellor Knight Bruce, 353; by Vice-Chancellor Lord Cranworth, 216; and by Vice-Chancellor Turner, 19; total, 684. Of appeals and re-hearings, there were heard by the Lord Chancellor, 17. Of claims, there were heard by the Master of the Rolls, 26; by Vice-Chancellor Knight Bruce, 267; by Vice-Chancellor Lord Cranworth, 80; and by Vice-Chancellor Turner, 16; total, 389. The total of all matters disposed of in the Court of Chancery in the period mentioned is 5,270. Now, this is an enormous amount of business, and it shows how much persons who are engaged in transactions regarding property are coming more and more to the Court of Chancery for the disposal of business of that description. It is quite true, as experience of late years has shown, that the Lord Chancellor, the Master of the Rolls, and the three Vice-Chancellors, can all attend their courts; and Lord Cottenham stated before his illness that there was quite sufficient business in every one of the courts, but not too much, if they were allowed to attend to it without interruption. It is quite evident, however, that if any of the Judges were seized with illness, from overwork or other causes, there would immediately be an arrear of business, the whole machinery would go out of order, and justice would not be done to suitors who go to the Court of Chancery. Now, this is a great evil; and I think that some effort, although it 708 may be somewhat costly, should be made, in order to prevent its occurring. Now, the way in which we propose to remedy the evil is, that while the Lord Chancellor is employed elsewhere—if he is sitting in the House of Lords, or attending any Bill in the House of Lords—the two Judges of the Court of Appeal should sit for him. In this way the business would not be interrupted. We propose, also, that in case of the illness of the Master of the Rolls, or of any of the Vice-Chancellors, the Lord Chancellor should have the power of calling upon one of the Judges of the Court of Appeal to sit in the Court of the Judge who is absent from illness, and to dispose of the business before it. I allude to such a case as that of Vice-Chancellor Wigram. No one would wish that an accomplished man like Sir James Wigram, fully competent to perform the duties imposed upon him, and fulfilling these duties to the satisfaction of every one, should resign either from conscientious motives or from public complaint in consequence of a disease or disorder which may be only of temporary duration. But at present he was compelled to retire from his Court, and there is no mode whatever of preventing arrears. Another Vice-Chancellor cannot take the place of the one who is away from illness, because his own Court is probably full of business, and he has no time to come to his aid, either to reduce that arrear or to prevent its accumulation. I think it, therefore, most desirable that one of the Judges of the Court of Appeal should in such case sit in the vacant court for three weeks or three months probably, in order to see whether the Judge who is absent from indisposition is likely again to resume his duties. The other question relates to the political functions of the Lord Chancellor; and I must say, that considering the general wish for a reform and improvement of the law, it is desirable that the Lord Chancellor, holding as he does the highest position connected with the law, and master as he must be of the practice of the various courts, should be enabled to give his mature and deliberate attention to subjects of this kind. I think this desirable, because on the one hand it is a great misfortune to the country that a really useful and desirable reform should be postponed, because the Lord Chancellor has not had time to mature a measure for the improvement of the law; and because, on the other hand, it is a great misfortune I that there should be ill-considered and ill- 709 digested legislation on such a subject, which in a few years would he found not to produce the benefits which were expected. On both grounds, therefore, I think it most desirable that the Lord Chancellor should be able to give his time to such subjects. I have found, however, both in the case of the late Lord Cottenham and in the case of the present Lord Chancellor, that, with every desire on their part to attend to such subjects, they have been unable to do so. There have sometimes, for instance, been Committees of the House of Lords sitting on important subjects for the amendment and alteration of the law—on the questions of the Bankruptcy Laws, County Courts, and the like—and they found themselves unable to attend them, feeling, and rightly feeling, that their first duty to the public was to attend with care and diligence to the judicial functions of the Court of Chancery. On this subject, likewise, I would say that, if it is desirable that the Lord Chancellor should be connected with political affairs—if it is not considered advisable to sever that connexion altogether—it is desirable that he should be able to give his mind fully and deliberately to the political questions that come before him. For these reasons, therefore, I think it desirable that the House should adopt the proposition which I am now about to make, that I should obtain leave to bring in a Bill to establish two new Judges of the Court of Chancery, to be called the Judges of the Court of Appeal, who shall have the functions to which I have alluded. With respect to the financial view of the case, I don't think the burden will be exceedingly heavy on the public, because I propose, as I stated on a former occasion, that the Lord Chancellor shall in future, instead of 14,000l. a year, receive only 10,000l., with a retiring pension the same as now—thereby saving 4,000l. a year; and that the Master of the Rolls, who has hitherto received 7,000l. a year, should in future receive only 6,000l., thereby saving another 1,000l., making in all 5,000l. a year less than has been till lately the cost of the offices of the Lord Chancellor and the Master of the Bolls. With respect to the new Judges, I propose that they should be put upon the same footing as to salary as the Master of the Rolls, namely, that they should each have 6,000l. a year. There would thereby be, on the one hand, an increase of expense of 12,000l. a year, and on the other a saving of 5,000l. a year, which will make the 710 amount to be derived from the suitors' fund 7,000l. a year. I must say I contemplate great advantage from this arrangement, if adopted by Parliament. I certainly should expect that both the Court of Chancery and the general business of the country would be benefited by relieving the Lord Chancellor from some part of his present duties. The House will see that in my present proposal, as in my former one, I do not propose in any way to diminish the dignity of the office of Lord Chancellor, and that I do not desire to change his character and functions. I shall leave him as a political Judge connected with the Executive Government to preside in the House of Lords, and I shall also leave him to sit in the Court of Chancery to carry on the ordinary business of the Court. But I certainly think that in the present state of circumstances, considering how much the business has increased, it is impossible that the Lord Chancellor can, with benefit to the public, undertake the whole of the duties he has hitherto performed. If this plan is carried into effect, it will likewise enable me to make a change which I think will be beneficial with respect to the Judicial Committee of the Privy Council. There has been on various occasions very considerable difficulty in obtaining a sufficient number of Judges to attend that Court. It is provided by the Act of Parliament that four Judges shall be a quorum in the Judicial Committee. It has sometimes been a difficult matter to get four Judges to make up a quorum; and I know that an hon. and learned Gentleman opposite once complained that in order to obtain a quorum, and to enable that Court to proceed with the administration of justice, the Master of the Rolls was obliged to leave his own court, and to postpone the cases which came before him there. There is another thing that I should mention with respect to the Judicial Committee. It is provided that the Puisne Judges of the Common Law Courts, who are Members of the Privy Council, may sit in the Judicial Committee, and this provision has often been carried into effect. But at the same time there is an objection to this—not a serious or grave objection, but still an objection—that the Crown should select one of the Puisne Judges, and give him a rank and a dignity not belonging to the other Judges. It occasions questions of dignity and precedence, which it is desirable to avoid among persons occupying positions on the judicial bench. What I propose 711 therefore is, that there should be two new Judges of the Court of Appeal, who should at the same time be Privy Councillors and Members of the Judicial Committee; and that three instead of four Judges should he a quorum. In this way it would not be difficult to obtain a sufficient number of Members to attend the Judicial Committee. In this case too, as in the other, I do not propose to alter the constitution of the Court, which has worked most usefully. All that I propose is, that it should be enabled to proceed with greater facility in the performance of its present functions. I beg therefore to move that leave be given to bring in a Bill to improve the administration of justice in the Court of Chancery and the Judicial Committee of the Privy-Council.
§ MR. J. STUART
thought that the House would perceive an illustration of the remark of the noble Lord at the head of the Government, in reference to the dangers of ill-digested and ill-considered legislation, in the proceedings of that day. When they remembered that the noble Lord in the early part of the Session introduced a measure, and stated opinions, on this question essentially differing from the measure now introduced, and the opinions now expressed, they would see a new warning of the importance of not dealing with such a question without due consideration. And, as they had now arrived at a period of the Session when the indispensable business of the county was pressing heavily upon them, and when the Government were driven to the necessity of asking the House to grant them the Thursday, he thought it a matter of serious doubt whether a question of this importance should be introduced at such a time, or, being introduced, whether there was the slightest hope of seeing it passed before the termination of this Session. There were special reasons why he doubted the propriety of the course taken by the noble Lord. The Court of Chancery was at the present moment, and had been for the last twelve months, in a peculiar and extraordinary condition. The noble Lord had spoken of the immense pressure of business in Chancery. This was admitted on all hands; but the inquiry ought to be made how far that pressure had been artificially created by the accidental circumstances which had placed the court in its new and strange situation. The Court of Chancery consisted of the Lord Chancellor, the Master of the Rolls, and three Vice-Chancellors; 712 and it was a very remarkable circumstance that of these Judges only one had, at this moment, held his office more than twelve months. The Lord Chancellor himself had not been twelve months in office. Vice-Chancellor Turner had not held his office twelve weeks—nay, hardly twelve days. The Master of the Rolls was not a Judge of two months' standing at the present moment. It would surely be conceded that, in order to appreciate the capacity of the court as now constituted to deal with the business, a little time should be given to the learned and excellent persons who were the Judges to become familiar with the practices of the court, and to allow them to get into the habit of transacting its business, which to some of them must be very new. It might also be conceded that a little time was necessary in order to enable other persons, having business in the court, to accommodate themselves to the practices and manners of the Judges. In such a state of affairs, ought they not to wait a little before they ventured to legislate? The Bill might be brought in and printed, and its details explained; but it was obvious that there would be no time to discuss it properly, or, with any deliberation, to pass it into a law during the present Session. Their premises were, in other respects, incomplete. The noble Lord had read a return, presented to the other House, being a statement of the amount of business transacted in the Court of Chancery within a certain period. That return was, no doubt, perfectly correct as to the figures; but how much of all this was made tip of formal motions and proceedings, which took no time whatever to dispose of? He believed, an enormous proportion; and therefore, the return was little more than useless until the formal motions were separated from the business of real importance and difficulty. Unless the return were analysed in this way, it would be practically useless. He had had a Motion on the paper in reference to this subject, which he had been most anxious to bring on, but which, in consequence of the arrangement entered into by the House that evening, he feared he would be unable to introduce. He had wanted to show how this increase in the business of the Court of Chancery had been occasioned. For the last three or four years in particular, but he might say for the last twelve years, Session after Session, the Legislature had been throwing1 on the Court of Chancery a species of busi- 713 ness utterly foreign to the purposes for which that court really existed as an institution of the country, the Court of Chancery being all this time overloaded with its own proper business. And before they proceeded to alter the constitution of that court, in appellate jurisdiction or in the ordinary jurisdiction, by increasing the amount of judicial force, it was well deserving of consideration whether a great portion of that business which was the cause of the pressure complained of could not be more advantageously and conveniently disposed of before some other tribunals. They had existing tribunals the Judges of which had been heard to complain of an absence of business. Before they appointed new Judges, ought they not to ascertain if the labour of the existing Judges was properly distributed? He was far from saying that after consideration given to that topic, it might not be proper or necessary to appoint two Judges to be called Judges of Appeal, according to something like the scheme proposed by the noble Lord; but the House ought to see its way clearly, and not proceed to establish those Judges at once. But the House was in this difficulty on the subject, that at that period of the Session there was no time to hear a Motion brought forward by an humble Member like himself. It was only the other night he ventured, between twelve and one o'clock, to bring on a discussion on a Motion referring to the existing Com-mission to inquire into the proceedings before the Court of Chancery, but he was told it was then too late to discuss so important a subject in the absence of the Master of the Rolls; and the right hon. Baronet at the head of the Home Department was kind enough to offer him, if he consented to adjourn the debate, the choice of another night for its renewal. He unfortunately chose last Monday night, when there was no House. He referred to that for the purpose of satisfying the House that at that period of the Session it was too late to press the House to discussions on a subject so important as the present with any hope of carrying any useful measure before the prorogation. The Bill, as explained by the noble Lord, was far too important to be treated in an off-hand way. The Bill was new to the noble Lord; it was still newer to the House. Undoubtedly he (Mr. Stuart) should make no objection to the Bill being brought in. But he did beseech the noble Lord to consider well the importance—the overwhelming importance 714 of the subject; and not hastily to press a measure which this Session it would be utterly impossible properly to discuss and deliberate upon.
§ MR. BETHELL
regarded this Bill for altering the constitution of the Court of Chancery, so far as to supply the Court with additional judicial power commensurate with the wants of the people and with the wisdom exhibited in recent acts of committing to that Court a further portion of the judicial business of the country, as a first instalment of the reform which had been long needed. On the latter point, of the increase of business, he differed from his hon. and learned Friend who had just spoken, for he thought that the Court of Chancery, if adequately supplied with judicial power, would be found, more than any other tribunal, adapted to the administration of justice in a manner required by the intelligence and growing necessities of the people. He, however, repeated that the present Bill was but an instalment of the reform that was wanted; and his hon. and learned Friend would probably be happy to learn that there was another Bill, cither on the table or about to be laid there, which would, in another way, facilitate the administration of justice in the Court of Chancery, by relieving the Master's office from the great pressure now upon it, impeding its functions, and contributing to delay. He earnestly hoped that the House would not agree with the hon. and learned Gentleman, that now, not yet the middle of June, it was too late to enter into the discussion of this important measure. That was a difficulty conceived in the true spirit of Chancery delay. He was sorry that the hon. and learned Gentleman should have thrown out a taunt against the noble Lord, because the present measure appeared to be somewhat different from the one previously introduced; and the hon. and learned Member also spoke of "hasty legislation." For his own part he did not know what other course the noble Lord could have adopted more fitting for the purpose, or more calculated to result in a scheme in which all parties should agree, than the one he had announced. The noble Lord had sketched out a scheme, and submitted it for general consideration; and he thought there were many Members of the House, besides the hon. and learned Member for Newark, who knew also that it had been submitted to a large body of men well qualified by their experience to form an opinion upon it; and the result 715 was, that the collective opinions of those Gentlemen having been submitted to the noble Lord at the head of the Government, the noble Lord had framed the measure which was about to be introduced to the consideration of the House. He did not know that any course could have boon adopted more likely to lead to what the hon. and learned Member called well-considered legislation than this. They were now about to have a measure laid before them that would accomplish a point of great importance. As the Court of Chancery was at present constituted, it was impossible for the courts of the first instance in that large tribunal to go on with their business if they allowed the appellate tribunal to remain loaded, as was the head of that Court and the head of the House of Lords, with the weight of political and judicial duties. The appellate tribunal was undoubtedly a great, obstruction to the whole course of Chancery business; and not only that, but the whole administration of justice was materially impeded by the present state of that tribunal, because it was impossible for it to dispose of business with any regularity so long as the Lord Chancellor was taken away from it to attend in the House of Lords, and in fact to give a little bit of his time first in one place and then in another. He would just give the House one example out of many he was acquainted with, of the evils which resulted from this system. In the year 1847 an important appeal was brought forward, and the House of Lords were earnestly entreated to allow the further hearing of it to stand over till the next Session. The Lord Chancellor declined to accede to this proposal, saying that he must hear the appeal then, in order that he might be able to devote a portion of the long vacation to the consideration of the case, with a view to its decision in the ensuing Session. That suit involved half a million of money, and the expense of getting up the hearing itself involved an outlay of no less than between 5,000l. and 6,000l. But the Session of 1848 rolled away, and also that of 1849. The Session of 1850 passed away too, without seeing the decision of the case; and now the lamented death of the late Lord Chancellor had obliged the parties to begin again, and the time and money spent were absolutely wasted. Was not that a denial of justice? The delay originated from this circumstance, that as soon as the Michaelmas term arrived, the Lord Chancellor, 716 instead of having time to consider the important points argued in the case—of the magnitude of which the House might have some idea when he stated that his brief was as large as a volume of the Encyclopœdia Britannica—was involved in the duties of his own court, and found it impossible to bestow proper consideration on the appeal he considered the noble Lord's present proposition of value, not only because it was important that there should be a permanent court of appeal, and the Lord Chancellor should he enabled to attend to his duties in the House of Lords and in the Cabinet, hut because there should be an appeal in Chancery no longer from one single mind to another single mind, but to a plurality of minds, in order that the suitors might be satisfied with the ultimate decision, for at present the appellant, if the decision was against him, went away in a discontented state of mind, attributing the result to mere chance, and thinking that had the Judges occupied different positions the judgment would have been in his favour, and then followed lamentations over the uncertainty of the law. Even if a division of opinion should arise among the appellate Judges, there would remain the judgment of two minds, and it would no longer be an appeal from one single mind to another single mind. That he regarded as a most valuable improvement in the administration of justice; for he had known instances of appeal having been made to depend upon an accidental impression on the mind of the Judge of the appellate tribunal. Another and more important point would he gained by the noble Lord's measure. For a country so advanced in intelligence and science as this, it was disgraceful to observe the position in which judicial jurisdiction now stood. Parties might get a little, bit of justice in one court, and another small bit in another, and the unfortunate suitor was often obliged to go through the territories of all; and it was frequently of the greatest difficulty to settle within whose jurisdiction what he wanted fell. A great portion of the time of Judges was also spent in endeavouring to spell out the sense of Acts passed by the Legislature. All this arose from there being in this country no head of the law—no responsible person to control the composition of Acts of Parliament, or to fulfil the functions of Minister of Justice. But now, if they relieved the Lord Chancellor, he would be able to attend to all his duties in the 717 House of Lords during the Parliamentary year, and in the Cabinet as law adviser of the Government; and would also, he (Mr. Bethell) trusted, be able to discharge something like a part of those duties which would belong to him as head of the law and as the great Minister of Justice. He hoped eventually that the evils of the existing system, and of the mode of legislation, would he abolished. As matters stood, a great part of the time of the Judges was occupied in discovering and explaining the meaning of the extraordinary passages which occurred in the Acts passed by Parliament; this, he hoped, would be put an end to. He hoped the House would not listen to the suggestion that there was not abundance of time in the present Session to consider the Bill; and, though the Session would not be remarkable, he feared, for any great public benefit conferred, yet if this portion of Chancery reform were adopted, he should think that they had not met in vain.
§ MR. WALPOLE
was not inclined to carry on a discussion on so large a subject upon the mere Motion for leave to introduce a Bill, and would therefore forbear from now adverting to some of the topics mentioned by his hon. and learned Friend who had just resumed his seat. Without going into details in respect to the Bill of the noble Lord (Lord John Russell), he expressed his opinion that it was entitled to the approbation of the House and of the country. The first point contemplated by the Bill would be that all the inferior Courts of Chancery—the Courts of the Master of the Rolls and of the Vice-Chancellors, would be sitting constantly and hearing causes without interruption, thereby keeping down arrears; the second, that there would be a permanent Court of Appeal sitting in the Court of Chancery, thus preventing the evils of delay, which chiefly, if not entirely, arose from the impossibility of the Lord Chancellor attending to appeals both in Chancery and in the House of Lords; and the third, that the Lord Chancellor, instead of being entirely removed from the Court of Chancery, and debarred from maintaining a proper familiarity with the law, would be, by occasional attendance there, keeping up a knowledge of the practice and business of the Court, while he would likewise be able to attend to the business of the House of Lords and of the Cabinet. If the measure were so worked out in detail as to affect those three objects, it would be a great improve- 718 ment on the present system of Chancery jurisdiction, and would have his cordial support.
bogged leave, as one of the unlearned of the community, to thank, his noble Friend (Lord John Russell) for at last commencing in earnest this great work of Chancery reform. He had heard with the greatest satisfaction not only the proposition of the noble Lord, but also the announcement of the hon. and learned Member for Aylesbury (Mr. Bethell), that there was to be introduced simultaneously with this a Bill to reform that greatest of all Chancery abuses, the state of the Masters' Offices. He had been some time a patient in those offices. He had listened with great pleasure to the advice of his physicians, but he had not yet heard from them how they were to deliver him from that slough of despair from which no suitor involved in any considerable cause in Chancery could ever hope to be delivered during his natural life. In the Committee on Official Salaries last yean he asked a witness of the greatest character and authority, Mr. Pemberton Leigh, whether he had not frequently known cases which had been in the Masters' Offices ten, twenty, or thirty years, until the parties had all died, and whether then they had not been further delayed until the new parties who had succeeded to the former interests had also in their turn departed, and whether he did not think that those cases which had been so many years in the Masters' Offices might not by a simple reform of the machinery of those offices have been disposed of in as many weeks; and the answer he received from Mr. Pemberton Leigh was that he had no hesitation in saying that matters might be disposed of in the shorter period he had mentioned. He could not understand why in the Masters' Offices they should not adopt the practice followed in other courts of this country with respect to a most important part of their business.—namely, simply take accounts as between individuals. In the Admiralty Courts, probably the most complicated accounts had been taken in matters of prize during the war. In that court the Judge referred the accounts to a merchant on each side, and the Master of the Court sat de die in diem until the account was concluded. He had asked the right hon. Gentleman who presided over that court now, whether the same practice could not be applied to the Court of Chancery; and he said there would not 719 be the least difficulty about it. In the Scotch courts there was no difficulty in taking the accounts. Great as had been the reform which that House, to the benefit of the public had effected within the last fifteen or twenty years, the greatest abuse, and that under which the public suffered the most, was this Court of Chancery; it was a disgrace to the times in which we live; and he hoped that now the noble Lord would take up the question in earnest, and would be as successful in conferring on the public benefit by a great reform on this subject as he had already been by the reforms he had hitherto promoted and carried into effect.
§ MR. HORSMAN
said, he understood the noble Lord (Lord John Russell) to propose some reduction of the salaries of two of the present Judges of the Court of Chancery. Now, he had always thought that with respect to the reduction of expenditure there was none of so questionable a nature as that which regarded the salaries of hardworking public servants; but more especially did be consider the reduction of the salaries of our Judges as the most questionable of all departments in which that principle could be applied.
§ MR. ROUNDELL PALMER
could not deny himself the pleasure of saying that it appeared to him the House and the country ought to acknowledge very gratefully the great candour with which this subject had been dealt by the noble Lord. No criticism could be less well founded than that this measure was brought forward without due consideration. It had been in contemplation for more than a year; the necessity of it had been felt for a longer period, and at the early part of the Session the noble Lord had brought forward a measure which appeared to him to be a favourable one. The present plan, however, united a greater number of advantages than the former or any other; for, at an additional expense of 7,000l. only to the country or the suitors, it relieved the three Courts of Appeal, and made them all efficient—all being at that moment interrupted. It would have been very difficult to have conceived a cheaper mode of conferring so great a benefit. Nor should it be supposed that the benefit would be wholly confined to the increased efficiency of the Courts of Appeal, because the causes in those courts retarded the business in the other courts, in which further proceedings had to be taken.
§ MR. HENLEY
had no doubt of there 720 being a call from all parties in the country for some measure of this kind, and a call so strong that it would not be competent for any Government to resist it. Yet be could not fail to observe that in dealing with a small part of this subject—for it was but a small part that was touched by the Bill—the noble Lord had within a short time formed two opinions. He would not, however, press that point at present. He only wished that the noble Lord himself had made the statement which had been made by the hon. and learned Member for Aylesbury (Mr. Bethell), because he believed that the country would have been better satisfied to have heard from the Government that it was their intention to go somewhat further by a reform of the Masters' offices. There was nothing in the speech of the noble Lord (Lord John Russell) to indicate such an intention; and the hon. and learned Member for Aylesbury had not informed the House whether it was a measure of his own, or whether he announced it on the part of the Government, but he had stated distinctly that such a measure was about to be brought in. The public at large, he believed, felt more interested in the reform of the Master's office than in the arrears of business which happened to exist in the Court of Chancery, and which had been increased by the illness of more than one of the Judges. He hoped the Government would deal with this difficulty of the Master's office, for it had been dragging most slowly on, while what the country wanted was action. All that the country wanted was that the Government should place their shoulders to the wheel, and endeavour to abate that which was an intolerable nuisance. Once let a man get into the Master's office, and no human being could venture to predicate when he would get out again. He could not see why accounts in the Court of Chancery could not be wound up in the same way as in the Bankruptcy Courts. At the same time he hoped that this measure would not be the means of stopping other measures of importance.
The SOLICITOR GENERAL
said, the hon. Member for Oxfordshire appeared not to have exactly understood the nature of the Bill originally introduced by the noble Lord at the head of the Government, as compared with the present measure. This Bill was not in principle different from that which the noble Lord introduced at an earlier period of the Session. The former attempted to remedy the evil felt from the 721 want of power in the appellate part of the jurisdiction of the Court of Chancery, by introducing two Judges from the other Courts to assist the Lord Chancellor, one being taken from a Court of Common Law, the other from a Court of primary jurisdiction in Chancery. But the defect of that measure was, that the Court of Chancery, by no means too strong as to its judicial force, would have been deprived of one of its Judges of primary jurisdiction, the Master of the Rolls, although the Court of Appeal would have been benefited. This Bill, however, would afford that benefit without depriving the Court in question of its primary jurisdiction. With respect to what had been stated by his hon. and learned Friend the Member for Newark (Mr. J. Stuart), as to there being no immediate necessity for legislation on this subject, because the arrears were mainly due to the business which had been brought to the Court in consequence of recent legislative measures, such as the Winding-up Act, and other measures of that description, he begged to call attention to this single fact:—By reference to a Return of all the business despatched by the Court of Chancery in 1841, when the two additional Vice-Chancellors were appointed to take a share of its primary jurisdiction, the number of causes disposed of had gradually increased, and in the year 1849 by no fewer than 1,300 causes, yet the arrears had been greatly diminished as compared with 1841: just before the introduction of any business from the Winding-up Acts, therefore, they would find that there had been a gradual steady increase of business for several years past; in 1841, 7,300 matters were disposed of; in 1849 the number was 8,600. There was this additional fact as to the labours thrown on the Lord Chancellor. Lord Cottenham, with his great powers and energies, doing all he could to promote the hearing of appeals in Chancery, was enabled, he feared at the great sacrifice of his health, to bring down the arrears of appeals from fifty or sixty, which used to be the average number at the beginning of Michaelmas Term, to eighteen. [Mr. J. STUART: And at one time he had heard all the appeals, and heard some original causes besides.] But his health began to decline, and in the next year, instead of the number being eighteen, it increased to thirty-three; and when the noble and learned Lord resigned, the number of appeals on the list was eighty, a number which the present Lord Chancellor, if he worked as 722 hard as Lord Cottenham, could not dispose of for a year and a half, even supposing there was not one additional appeal. When the hon. and learned Member for Newark recommended the House to wait another year, he ought to recollect that many widows and orphans were kept in a state of the greatest misery and suspense by the delay of their causes at the present moment, and there could not be a greater grievance than a continuance of that state of things. As to the Masters' offices, he thought the hon. Member for Oxfordshire (Mr. Henley) had misunderstood the remark of his hon. and learned Friend the Member for Aylesbury (Mr. Bethell); for the Bill to which that hon. and learned Gentleman referred was already on the table of the House, having come down from the Upper House, and was a Bill to extend the jurisdiction of the County Courts, by enabling the Judges of those Courts and Commissioners of Bankrupts to take such references as the Lord Chancellor might send to them from the Court of Chancery. That, no doubt, would afford great relief to the Masters' Offices in causes where accounts were to be taken of a not very complicated nature. At the same time, the measure now brought in by the noble Lord (Lord John Russell) was by no means to be considered as the termination of Chancery reform. There was a Commission sitting at that moment considering the subject of the reform of the Court of Chancery in all its branches, and he trusted that by next Session it would have made such a report as would enable the House to consider a complete system of reform as to the Masters' Offices, and other branches which this measure did not embrace. The right hon. Gentleman the late Member for Coventry (Sir George Turner), who now so ably filled the office of one of the Vice-Chancellors, had sketched out a Bill for the purpose, but had been obliged to postpone it. That right hon. Gentleman, however, as well as the Master of the Rolls, was a member of the Commission, and he had no doubt that great advantage would he derived from their assistance. He (the Solicitor General) was also a member of it, and he should most anxiously concur in doing all in his power to effect such a reform of the Court of Chancery, that the court should no longer be considered a blot on the administration of justice in this country. But the first step to an effectual reform of the Court, was to relieve the Lord Chancellor 723 from the present state of his duty. The Lord Chancellor was, and must be, the head of the Court of Chancery—the person whom they must be most anxious to consult in all Chancery reform; but at the present time it was impossible to get the mind of any Lord Chancellor fairly devoted to the subject. From the moment he was in office he had not time to give to the subject, and therefore, by taking this step, in relieving the Lord Chancellor, he (the Solicitor General) believed that not only would it confer on the country the benefits which had been mentioned, but would also give an efficient aid to carry into full and complete effect the various reforms that were suggested.
§ MR. STUART
begged to say, that he had been misunderstood by the hon. and learned Solicitor General. He (Mr. Stuart) had not in the observations he had made confined himself to the Winding-up Act, but had alluded to those Acts passed within the last twelve years in reference to joint-stock companies, and in particular to the disputes between railway shareholders and directors generally, which had occupied so much time in the Masters' offices.
said, in explanation, that he hoped nothing which had fallen from him, in reference to the Masters' offices, would be considered as attaching blame to the Masters themselves for not getting through their business, for he believed that that business was so heavy as to render it an impossibility for them, or for any body of men, satisfactorily to discharge. With reference to the Bill which had come from the other House, he did not think that it would afford any remedy.
§ SIR HENRY WILLOUGHBY
trusted that the hon. and learned Attorney General would be able to give them the assurance that the question of fees in the Court of Chancery would be taken into consideration. It was gratifying to see all the gentlemen of the long robe who had been practising in the Court of Chancery so desirous to see reform carried out. The public, however, desired that the cost and the duration of suits should be immediately redressed by some legislative proceeding.
The ATTORNEY GENERAL
could not agree with the right hon. Member for Coventry (Mr. Ellice) as to the utter inutility of the measure to which the hon. and learned Member for Aylesbury (Mr. Bethell had referred regarding the Masters' offices, because the practical effect of that 724 Bill would be to relieve the Masters' offices to the extent of almost all the country business. There was nothing in the machinery of the Masters' offices which rendered them incompetent to the discharge of the functions which devolved on them; but they were so overlaid with business that they could not get through it, so that if they could be relieved of the country business, as proposed by the County Court Extension Act, it was quite clear that great benefit would ensue. He was glad to see that, on the part of the profession, there existed a most laudable anxiety to render their best assistance in the carrying out of those legal reforms which it was so desirable should be effected. It was most satisfactory to know that the proposed constitution of the Appellate Court had met with the unanimous approbation of the profession. The hon. and learned Member for Newark (Mr. J. Stuart), however, suggested that there should he delay in the matter till the ensuing Session. The hon. and learned Member had not one single objection to make to the details of the noble Lord's Bill. It would have been very strange if he had, for when the noble Lord had brought forward his former Bill (which was the same in principle as the present, only that it did not increase the judicial power of the Court of Chancery, but proposed to make the best use of existing materials), the hon. and learned Member had made some objections, and now every one of those objections had been met. And yet the hon. and learned Member was the only man in that House to stand up and ask for delay. He hoped and trusted the hon. and learned Member would divest his mind of all idea of throwing any obstacles in the way of the passing of this Bill. Let him, on the contrary, give his best assistance in rendering the measure as perfect as possible, for no man was more competent to do so, either by knowledge, learning, or experience. Let the hon. and learned Member put forward no suggestions for delay.
§ MR. HUME
hoped the House would give due consideration to the Bill, but admit of no delay. He concurred in all that had been said as to the necessity of reform in the Court of Chancery. Much as he had said on the subject of the taxation of the country, he believed that the Court of Chancery, what with its enormous expense and its monstrous delay, had taxed 725 the country to the full amount of the national debt. The present Bill was the first step, and a very material one, towards the reformation of the grievous abuse under which the country had so long laboured. In reference to the remark of the hon. and learned Attorney General, that the Masters' offices would be relieved of the country suits, he (Mr. Hume) begged to ask what was to become of the town suits? Provision of some sort ought to be made that they might be expeditiously got through. The machinery of the Masters' offices was not so perfect as the hon. and learned Gentleman seemed to think. The present system of hearing part of a case, and then adjourning it, was not, in his estimation, attended with beneficial results. The Masters on taking up a case should dispose of it before they interfered with any other. This would save much trouble, annoyance, inconvenience, delay, and expense; and he trusted that the noble Lord at the head of the Government would see the propriety of adopting some provision of the kind to which he was referring. Whatever additional expenditure for salaries might be requisite, would be money excellently bestowed; and, for that matter, with the progressive reduction of business in the Common Law Courts, some of the Judges of those courts might very well be spared for other jurisdiction.
The ATTORNEY GENERAL
had been misunderstood by the hon. Member for Montrose (Mr. Hume) if he supposed that he conceived the machinery of the Masters' offices to be perfect. All he had meant to say was that the present judicial staff of these offices would be sufficient, provided they were relieved from the country business.
§ MR. J. EVANS
was of opinion that the evils and mischiefs of the Court of Chancery were not to be attributed to mal-practices in the Masters' offices in particular, but must be regarded as the results of a thoroughly bad and corrupt system, and which, unless they were reformed by the present Bill, the measure would be of little or no service. He would take occasion to express his opinion of the Bill when it had reached a more advanced stage, and would for the present content himself with observing, that the fact of the measure having obtained the full concurrence of all the most eminent practitioners of the Chancery Bar was not, perhaps, the best recommendation that could be required for it.
§ MR. MULLINGS
thought that it was 726 of the highest importance that the number of affidavits, now required in the course of a Chancery suit, should be curtailed, and that some new regulations should be introduced with respect to the passing of accounts. Why should not accounts be wound up in Chancery upon the same principle as in bankruptcy? The process was simplified and accelerated in the latter case by examining the bankrupt himself; and why, upon an analogous principle, should not the parties in a Chancery suit be examined? Masters and Judges of County Courts ought to be empowered to examine the parties themselves, as well as witnesses, in open court, upon matters of account, otherwise the mischiefs of the present system would be permanent and irremediable, and the present Bill would prove a failure. With respect to the County Courts Extension Bill, be feared that it would be necessary to modify many of its provisions in order to make it work well.
The ATTORNEY GENERAL
said, that the clauses of the Bill referred to had been materially altered, and he hoped that, as they now stood, they would meet the approbation of the hon. Member (Mr. Mullings).
§ LORD JOHN RUSSELL
was exceedingly gratified with the reception which the measure he had announced had met with from hon. and learned Members on both sides of the House. With reference to other reforms of the Court of Chancery, it was by no means a logical conclusion, that because this particular measure went to remedy one particular set of evils, there were not other reforms which it was desirable to effect, and which should be effected in the Court of Chancery. He had had frequent communications with the late Lord Cottenham on the subject of the; Masters' offices; and some of the rules issued by that noble and learned Lord bad had special reference to a reform of the system in those offices. The subject, however, was one involving considerable difficulty, and requiring the most careful consideration. The Bill which had been introduced from the other House of Parliament would, if carried, be attended with considerable benefit. He was, however, disposed to think that much further amendment was requisite.
§ Leave given.
§ Bill ordered to be brought in by Lord John Russell, Mr. Attorney General, and Mr. Solicitor General.