HC Deb 27 March 1851 vol 115 cc685-711
LORD JOHN RUSSELL

Sir, I rise for the purpose of bringing before the House a most important subject, for leave to bring in a Bill for the better Administration of Justice in the Court of Chancery. If the proposal I have to make solely concerned the administration of justice, I certainly should have been disposed to ask those who are more familiar with the proceedings in our courts of justice, to undertake the task on which I now propose to enter. But feeling that the office of Lord Chancellor, and all that is connected with his functions, deeply affect the whole of the government and legislation of this country, I have undertaken this task myself, thinking it better that the whole views of the Government on this important subject should be stated to the House, than that our view should be solely confined to the present distribution of offices and functions in the Court of Chancery. In bringing this question before the House, I should first state the changes that have been made during and since 1812, when the Bill appointing a Vice-Chancellor was passed by Parliament. In 1811 it was found that the duties which were then performed by Lord Eldon were of so laborious a nature that, notwithstanding the known industry and learning of that eminent Judge, it was considered to be impossible that he could perform all his duties in the Court of Chancery, together with those ditties which belonged to him as the Supreme Judge of the House of Lords as a court of appeal. Lord Redesdale accordingly moved for the appointment of a Committee of the House of Lords on this subject, which resulted in the Bill to which I have referred. It is stated by Mr. Twiss, in the Life of Lord Eldon, that at that time the arrears in the Court of Chancery amounted to 276 causes, and that at the then rate of despatch it would require a period of twelve or thirteen years for the disposal of them, to say nothing of the further arrears which would have accumulated in the meantime. It was therefore decided that a new Judge should be appointed, under the title of Vice-Chancellor, to perform part of the duties of the Lord Chancellor. It was said at that time, and by no less eminent a man than Sir S. Romilly, that the appointment of a Vice-Chancellor was not necessary, and that the business then before the Court of Chancery was not much greater in amount than that which bad been before that Court in the time of Lord Hardwicke. Lord Cottenham, who made a statement on a subsequent occasion, said that Sir Samuel Romilly had been mistaken in that respect, and he showed by a return how much greater was the amount of business in the Court of Chancery then than it had been in the time of Lord Hardwicke; yet I rather think that there was very great foundation for the statement made by Sir Samuel Romilly, for I find in the report of what was stated by Lord Cottenham, that while he said, that from 1761 to 1765 the causes set down were on the average 411, and that they had increased from 1831 to 1835, taking an average of years, to 1,283, being more than three times as many; yet he states at the same time, that the causes set down from 1810 to 1812 were, on an average, no more than 540. [3 Hansard, xxxiii. 402.] It would, therefore, appear that there had been an enormous increase on the appointment of a Vice-Chancellor, and that there was at the time of the appointment a very great number of causes then waiting to be heard in the Court of Chancery. But I imagine the fact to have been that the delays which prevailed at that time in the Court of Chancery, and the inadequacy of the judicial strength of the Court, were the causes of many matters being withheld, which would have come before the Court if there had been a prospect of an early settlement of them, and in that way injustice was done to the suitors who would otherwise have appeared in court. Now, whilst from 1810 to 1812 the average number of causes set, down was 540, from 1823 to 1825 the average number was 945, and from 1833 to 1835 it was 1,301. It is evident, therefore, that the appointment of a Vice-Chancellor led to a very great increase in the business of the Court of Chancery, and that causes which would probably never have appeared there were brought into that Court in consequence of that appointment. I think it is nearly the same thing whether the number of causes brought into the Court cannot be decided owing to the arrear of business, or whether causes are not brought in from despair of being able to obtain a hearing for them. In either case there is a great evil to the subject, for there is a denial of that justice which it is the business of the State to see is done. Lord Cottenham stated at the same time that there was a very great increase in the number of peti- tions, and that they had increased from 1,487, the average of 1821 to 1823, to 2,817 in 1832 to 1835. On looking to some later returns which I have procured, from 1841 to 1851, I find that in the year ending November, 1843, the number of petitions were 2,715, nearly the number stated for 1833; but in 1849 they were 3,984, and, in 1850 they were 3,724, showing an enormous increase—an increase, however, I do not believe more than commensurate with the increase of other business before that Court. Upon looking at another return—I do not do-sire to go into the details—but, looking at the total amount of the matters brought into the Court of Chancery under the various heads familiar to all who belong to the learned profession, I find that in 1842 the total number of these matters was 7,325; in 1843, 6,873; in 1844, 7,639; the average being 7,279. In 1848, the number was 8,332; in 1849, 8,697; in 1850, 8,356; being an average of 8,456. There was thus an increase in these few years from 7,279, the average in 1844, to 8,456, the average in 1850, showing in another way that there has been a great increase in the business of the Court of Chancery. Sir, upon looking through the returns in detail, I find (as I could easily show, but that it would delay the House unnecessarily) that in the year 1848 the Court of Chancery seems to have been fully adequate to its functions, though the Lord Chancellor, the Master of the Rolls, and the three Vice-Chancellors appear to have been fully employed; and at the same time I find that the number of causes left for hearing at the end of the term were not more than would probably be disposed of in the next term, and not more than had been so disposed of in several successive years. But in looking through the returns for the years 1849 and 1850, we may observe how essential it is that the Court of Chancery not only should have an adequate number of Judges, but that the Judges should be in a state of health and strength adequate to the performance of all their functions. For I find that in Easter term, 1849, until Trinity term, 1850, Lord Cottenham, being unable to attend in the Court of Chancery from illness, immediately a considerable arrear arose, and the number of causes waiting to be heard was very considerably increased. However I will now refer to the quantity of business there was before the different Courts of Chancery on the first day of Michaelmas term, 1850, and the first day of Hilary term, 1851. At that time there were only two Vice-Chancellors, the operation of the Act which was passed for the appointment of two additional Vice-Chancellors having provided that upon the resignation of the junior Vice-Chancellor no other person should be appointed. I find that on the first day of Michaelmas term the total number of appeals, motions, petitions, demurrers, pleas, exceptions, and causes before the Lord Chancellor, was 80; before the Master of the Rolls, 90; before "Vice-Chancellor Knight Bruce, 392; before Vice-Chancellor Lord Cranworth, 173: total, 735. At the commencement of Hilary term, 1851, there were before the Lord Chancellor, 106; the Master of the Rolls, 135; Vice-Chancellor Knight Bruce, 532; Lord Cranworth, 242: total, 1,016. This accumulation of business has been partly owing, no doubt, to certain Acts of Parliament lately passed, especially that as to the winding-up of railway companies; and this is a temporary accumulation which, when the judicial strength is increased by the appointment of another Vice-Chancellor, according to a Bill now before the House, which meets with general approbation, will be greatly diminished. It is not, therefore, to that subject I wish to call the attention of the House; but I thought it desirable that the House should see what has been generally the progress of judicial business in the Court of Chancery, that they may judge a little of the very great importance of any change made in that court. Sir, the progress of society and the complicated state of property in this country have led more and more to bring-within the control of that court a great amount of property, and many most intricate causes, so that it is of the utmost importance to the whole nation that there should be justice administered in that important court. I now come, Sir, to notice the nature of the office of Lord Chancellor, who is at the head of this great court, and has other most important duties to perform. The Lord Chancellor is, in the first place, at the head of the Court of Chancery; and although it now seldoms happens that he hears original Motions, yet the daily business of the Court of Chancery is under his superintendence, and the appeals and hearings from the other Judges are brought before him for rehearing. He likewise is the Judge who presides in the House of Lords when that House sits as the great Court of Appeal. He has also various administrative functions belonging to him, which are specially attached to the Great Seal, He is a Member of the Cabinet likewise, and as such is consulted on all political questions that come before the Government, but more especially these which have relation either to the constitution, to the amendment of the law, or to the enforcement of the law when there arises any question upon its enforcement, lie has other functions. He is, for instance, the adviser of the Royal Family in cases of doubt and difficulty involving their interests. His position is very high in consequence of all these functions. Now, Sir, I think it is right to state both the advantages and the disadvantages which appear to arise from this union of functions in the Lord Chancellor. In the first place, I think it is a great advantage that the Government of the country should have the aid and the authority, in matters of law and general policy, of a person who has risen by his talents at the bar to a place of the greatest eminence, and whose opinion upon matters of law must be of great weight—and who adding to that the authority attached to his high office, must be of the greatest advantage to the Executive Government of the country. It appears to me, if possible, of still greater importance that the person holding the office of Lord Chancellor should preside in the House of Lords, and that he should there be the ultimate Judge of Appeals, so that thereby the House of Lords should have this security—that being the great Court of Appeal in this country, they have to preside over their decisions a man as to whose great capacity and authority there cannot be any doubt. There is a further advantage in this constitution of the office of Lord Chancellor. It is an office which has been always reckoned the great prize of the profession; and thereby, while the Chancellor sits at the head of the House of Lords to declare, in the name of that House, their judgments to the country—it is something to say, that it is an eminence which is to be reached by talent from the humblest station, by men who, having devoted their labours in the early part of their lives to the study of the profession of the law, have stood to such advantage amongst their competitors, that it may truly be said of them, that, by their talents and their abilities, they have earned their eminent position. It is one of the many institutions of this country, by which that which is the most aristocratic body in this country is connected with these who, having no original advantage of birth, and no original advantages of fortune, have attained by their merits to the eminence they enjoy. Now, I will state shortly what I consider some of the disadvantages attending this union of offices. The chief disadvantage, I think, is, that these functions are so weighty; that the attendance in the Court of Chancery to give judgment on matters of the highest importance is of itself so great a labour to the mind and body of that functionary, with the task of presiding in the House of Lords, and the attention that must necessarily be paid to great questions of State which come before the Cabinet—these functions are so many and so weighty, that it seems scarcely possible that any one man should be found adequate to perform the whole. Another disadvantage is, that, according' to the constitution, while the Executive Government of the day have the advantage of the advice and assistance of the Lord Chancellor, he must be one whose general political opinions agree with theirs; and, therefore, when a change of Government happens, the country loses the benefit of his accumulated experience, and the weight of his decision in the Court of Chancery. These considerations, Sir, placed before the country, and weighed by men of various minds and dispositions, have, from time to time, produced plans by which it appeared to them, that the great advantages I have mentioned might be secured in another way, and that the disadvantages might be obviated by some different arrangement of our machinery in the Court of Chancery, in the House of Lords, or in the administration of justice. The first plan which I shall mention which has been proposed for this purpose comes forward propounded with all the ability and clearness of statement which peculiarly belongs to its framer, Lord Lang-dale. He proposes that there shall be a permanent Judge in the Court of Chancery, not changing with the Administration of the day. He likewise proposes that there shall be a Lord President sitting in the House of Lords, who shall likewise be a permanent Judge. And he proposes, further, that there shall be an officer called the Keeper of the Great Seal, or Minister of Justice, who shall belong to the Administration of the day, and whose whole care and attention shall be directed to the correcting and advising on such changes of law as the Government or individual Members may from time to time propose. Now, Sir, it appears to me that, however plausible such a proposition may be, and however it may agree with our views of theoretical separation between the political and judicial function, I cannot think that, in practice, such a plan would be likely to be beneficial. First, I cannot think that this separation of the political and judicial functions is, in itself, a well-founded or an important objection. It is well founded (though there are precedents to the contrary), and that, notwithstanding these precedents of Lord Mansfield and Lord Ellenborough, as to Judges who preside in criminal jurisprudence; but with regard to the Judge who presides over courts which relate to the disposition of property, I cannot well conceive cases likely to arise in practice to sway the opinion of the Judges. In the course of the debates on this subject, in 1836, it was observed on this point, I think, by Lord Abinger, that, among the decisions looked to with respect, were these of a Judge whose freedom on political subjects no one will doubt—Judge Jeffries. Lord Abinger stated, that, notwithstanding his reputation as a politician, his decisions as to matters of property have always been regarded with respect by the profession. Without, however, referring to such extreme cases as Lord Chancellor Jeffries, from the time of the Revolution there have been many eminent men in the highest seats, and in great authority, deciding cases of property, many of them very warm politicians—and none of them more decided a politician than Lord Hardwicke—yet, notwithstanding their political feelings, I cannot find one of whom it is said that he decided cases in the Court of Chancery with reference to the politics of the parties interested. Therefore, if there is really no reason why a political Chancellor should not decide questions of property, and if, in fact, we have found that, from the Revolution there has been no practical evil in the union of the offices, I think it is a proposition which, however plausible, we had better disregard. I then come, Sir, to the practical inconvenience of the plans thus proposed. The Lord Chancellor would be appointed to a permanent office, and no doubt would discharge his duties with ability and impartiality, and, as the presiding Judge in the House of Lords, would probably have great weight in the body. But when we come to that which I have stated as so useful and so advantageous, namely, that there should be a person of great authority assisting the deliberations of the Government, and taking part in these deliberations in the House of Lords which concern amendments of the law, or any constitutional question, I think the plan would fail. First, in order to obtain a person of first-rate eminence at the bar to take a station so precarious as that of becoming the mere political adviser of the Administration of the day, we should be obliged to give a very high salary and high retiring allowance; and I cannot but perceive, that there would be very soon (even if the House of Commons were disposed, in the first instance, to grant that salary) complaints on that score; and it would be said, "Why should a person whose functions are after all merely political, and who is nothing more than the political adviser of the Government, have a much greater salary and retiring allowance than are allotted to any other political Member of the Administration?" and I do not think that such a large salary and allowance could be maintained. Then, if that were so, you would soon find that the offices of Lord Chancellor, of Lord President of the House of Lords, and of the three great Judges presiding in the Common Law Courts, would be more sought after than this precarious station of Lord Keeper or Minister of Justice; and you would, in fact, be liable to have a man inferior to these who were sitting in these high judicial stations appointed to this office; and when he was the adviser of the Government we should he liable to have the decisions of the Government, taken by his advice, overthrown by the superior weight and authority of these men, more eminent at the bar. If, then, that be so, I do not see why this large provision should be made, nor why the Home Secretary, sitting in this House, should not be competent to perform all the duties which it is supposed could be performed by the so called Minister of Justice. As to one duty which it is supposed would be performed by the Minister of Justice, from my experience I should say that no such officer is required to perform the duty—I mean the duty of superintending Bills, seeing that their language was consistent, &c, and that no error has crept into our legislation. I should say that, as the legislation of the country must be settled by both Houses of Parliament, one of which is a numerous body, and the other is not only numerous but sent here by popular election—those Bills which are passed must not only be of such a nature as to satisfy the acute minds of the legal profession, but convey the sense and meaning of the two Houses of Parliament. And with respect to the "advantage" which it is said would be derived from the language in which Acts were passed, I think that great lawyers who have even most intelligent views as to the amendment of the law, when they come to carry their views into effect, do not carry them into effect much better or so well as these who have devoted their whole time to the framing of laws, and who have been practically engaged in the work of preparing Bills afterwards passed. In short, I believe that the Minister of Justice would probably, instead of drawing the Bills himself, trust to such men us the gentleman who assisted me in the Reform Bill (Mr. Gregson), or the gentleman who so ably assists my right hon. Friend (Mr. Coulson)—such men as have paid constant attention to the drawing of Bills. I should be afraid, therefore, that if this plan were adopted you would be parting with that which has been a great advantage to the country, and which you have had ever since the Revolution—the having acting in your Executive Government, and at the same time presiding in the House of Lords, a man of most eminent legal authority, taken from these who have had greatest success at the bar. I think that the Executive Government would sink in weight, and that your judicial system would likewise decline, and that you would obtain no equivalent advantage. I cannot, therefore, recommend to the House to adopt that plan (however ably recommended) of a division of the Chancellorship into three offices.

There is another plan which has been much considered, and which does not go to the length of that which I have stated, but is at the same time a considerable alteration. I mean the plan of having a permanent Judge in the Court of Chancery, and separating the Lord Chancellor altogether from any duties in the Court of Chancery, but preserving him in the office, and, with the title of Lord Chancellor, making him Appellate Judge in the House of Lords. I think that plan has great advantages over the one I have just mentioned. It preserves to the Executive Government a person of great authority and weight in legal matters. At the same time, I must say, that on consulting the debate which took place upon the subject, and referring to the statements of Lord Lyudhurst and the authorities he quotes, Sir S. Romilly, Lord Redesdale, and others, I think that there is a very general and nearly unanimous opinion in the profession, that the Judge who sits merely in a Court of Appeal would not have that weight and authority, and would not be so capable of acting as a Judge as one who sat in constant practice in the Courts with large ordinary jurisdiction. I find this opinion stated over and over again in the debates of 1836; and I find Sir S. Romilly quoted thus:— If of the three Judges who are to preside in equity two have the law kept constantly in their mind by regular attendance in Court, and the third only refreshes his memory by looking back into text-books and precedents, just so as to enable him to decide a dozen or two of causes in the year which might be brought before him upon appeal—it is obvious that this effect must be produced—that the appeal will be from a Judge having perfect mastery of the law, to one who has but an imperfect recollection of it. I find, Sir, that the House decided by 94 to 29 against the Bill; showing that the House of Lords were entirely adverse to the adoption of that plan.

There have been other schemes deserving of attention, as that of Sir Edward Sugden, whose plan was an immediate Court of Appeal, to consist of the several Judges, as the Vice-Chancellors. One objection to that plan appears fatal to it—that by depriving the several Courts of Chancery of their heads to form this Court of Appeal, the action of these courts would be paralysed—much of the time they should give to causes in their own courts would be consumed in the Court of Appeal, and their strength greatly diminished. At the same time, there is a statement of Sir E. Sugden, which was made before a Committee of the other House on Official Salaries, and which is well worthy of attention, because giving his own experience. He was then presiding in the Court of Chancery in Ireland—and no man over sat there with a greater reputation or with greater reason (from learning, ability, and practice) to repose confidence in his own conclusions and decisions; he was asked— But still the Lord Chancellor of Ireland has not so laborious an office as the Lord Chancellor of England?—The answer was—'Certainly not; but the Chancellorship of Ireland is quite sufficient to occupy any man's energies and time. The public is not aware of the pressure which there is upon a single judge sitting alone in court. If a man forms one of four, the division of responsibility, and the assistance mutually given, and the satisfaction which a man feels in finding that his opinion is agreed in by others, leave him without any doubt or pressure upon his mind. But I consider that the office of a single judge is one of the most painful that it is possible for any man to fill, however competent he may feel himself. He has to decide upon matters of immense weight in point of law, and of great importance in point of property, with no assistance, nobody that he can turn to, not a person in the world to whom he can speak upon the subject. He has to decide all upon his own responsibility. I consider, therefore, that the wear and tear upon the mind of a man, however great a lawyer he may be, who is conscientiously doing his duty, is very great indeed in the office of a single judge.' Sir E. Sugden subsequently partly qualified this opinion, but only partly, observing that in relation to the inferior Judges, as the Vice-Chancellors, they had at least the satisfaction of feeling, that if they should be wrong, their error could be corrected on appeal, which is not the case with a Judge whose decision is final. Now, Sir, I have heard from other quarters that there is an opinion, which has gained great strength of late, that it is desirable that the decisions in the Court of Chancery should not be the decision of a single Judge, but the decision of more than one Judge, and that this additional Judge should come for the hearing into the Chancellor's Court. And I think this view is strengthened to the House, if they agree with me, that it is desirable not to make an alteration of that practice by which an eminent man at the bar or the bench is taken at once into the Court of Chancery, there to preside. It would be a great loss to the Government and the public, if you were to lay down a rule that no man who has not practised in the Court of Chancery should attain the office of Lord Chancellor, and that thus eminent men, who at the Common Law bar have risen to the highest reputation, should be excluded from the attainment of the highest eminence of all. Now, the Bill I have to propose goes first upon the foundation that it is desirable to have more than one Judge sitting in the Lord Chancellor's Court; and further, upon this further foundation, that while the union of functions I have referred to remains, and the consequent necessity for the Chancellor's attending to political subjects, and the wear and tear of body and mind being such as Sir Edward Sugden describes, it is desirable that the Chancellor should have a greater portion of time than he now possesses, which he may afford to the consideration of these matters. It has been my fortune to be connected with Lord Cottenham in the administration of affairs, and I believe no man ever gave greater satisfaction by the attention he paid to the business of the Court over which he presided, and the clear judgment he brought to hear upon it—an attention shown not only in Court, but at his own house, where I have often found him late at night occupied in study, and where he has been engaged until two or three o'clock in the morning, considering authorities or precedents. But the great attention which he thus bestowed on the judicial questions rendered him less able to give the time others would desire to political and administrative questions. I think, therefore, that it would be desirable that the Lord Chancellor should be enabled to have some relief from attendance in the Court of Chancery, and that it should not be necessary for him to enter into questions of minute detail—the language and phraseology of Bills—but that he should be able to give sufficient time and attention to the consideration of all measures which may affect the administration of the law, or which may tend to alter, in any respect, the institutions of the country. Now, what I shall venture to propose, is, that there should be established a court, which should be called the Supreme Court of Chancery, or the Lord Chancellor's Court, whichever name may be determined upon, and in that Court should sit the Lord Chancellor, the Master of the Rolls, and one of the Judges of the Courts of Common Law, to be summoned from time to time as occasion may require. I am informed—at least in the present state of business before the Common Law Courts—it is the opinion of the present Lord Chancellor that it will not be difficult to obtain the assistance of one of the Common Law Judges for the performance of these duties. I propose, therefore, that there should be three Judges in this Supreme Court—the Lord Chancellor, the Master of the Rolls, and one of the Judges of the Common Law Courts—and that any two of them should have the power of hearing in the Court of Chancery all causes heard therein, and, in the absence of the Lord Chancellor, that the two remaining Judges should be possessed of all the powers and authorities exercised by him. It is part of the measure which I propose, that appeals in bankruptcy, now exclusively adjudicated upon by the Lord Chancellor, should be referred to this Supreme Court, and that the Lord Chancellor alone shall not exercise these powers with which he is entrusted, but that he shall always exercise them only as a member of the Supreme Court. By these provisions the Lord Chancellor would be enabled, and indeed required to attend to the business of the Court of Chancery. All the minute details would be heard by his associates, and he would not be so entirely absorbed by his duties as to prevent him giving that attention which his other high and important duties demanded. In the same way, matters of lunacy should be heard and decided upon by this Supreme Court. An arrangement should be made with the Judges, by which one of their number could give his attendance in the mode required. With regard to the salaries in future to be paid, it will be recollected by the House that the Committee on Salaries proposed last year that if there were any division in the office of Lord Chancellor, the salary should be reduced to 8,000l. a year. The Government have taken this suggestion into their consideration, and it is cur opinion that that is a greater reduction than ought to be made in so high an office. We think also that the pension to be paid to the Lord Chancellor on retirement from office ought not to be diminished. It is desirable, when the situation depends on the chances and changes of political affairs, that such a retiring allowance should be made as would induce men already in the enjoyment of high position to accept an office of so much importance to the country. We, therefore, propose that the salary of the Lord Chancellor shall be 10,000l. per annum, and that the retiring allowance be the same as it at present is, namely, 5,000l., a year. There is another detail in connexion with the office of Lord Chancellor, which I have some difficulty in mentioning, because, as First Lord of the Treasury, I may appear to have some personal interest in it. It is well known that there is at present a great deal of ecclesiastical patronage vested in the Lord Chancellor. It was originally vested in him, because the persons who acted in the Chancery offices were clerks in orders, and giving them benefices was a mode of rewarding their exertions. The arrangement belongs evidently to the time when the Lord Chancellor was himself an ecclesiastic. The patronage to which I refer is disposed of not by reference to the Crown, not by taking the Sovereign's idea sure, but is disposed of by the Lord Chancellor at his own uncontrolled discretion. On the other hand, it has been proposed by the Commission appointed last year, that the whole of these benefices should be sold, and the proceeds appropriated to the purpose of increasing the means of spiritual instruction. The Government, in taking that proposal into their consideration, were adverse to it. In the first place, it is not desirable to part with a great public trust, by selling the property attached to it to whoever should offer the highest price for it; and, in the second place, I do not think that such a separation of a great part of the Church from the State is desirable. What I propose, therefore, is, that this patronage be in future vested in the Crown, and that the Minister of the Crown take the pleasure of the Sovereign with regard to the dispensing of it, in the same way as the ecclesiastical patronage vested in the Crown is now disposed of.

I have stated now the general principles of the Bill which I have the honour to propose. But I should mislead the House if I gave it to be supposed that I was now carrying into effect all the proposals which the Government and the Lord Chancellor will have to make for the improvement of the administration of justice. In Her Majesty's Speech from the Throne at the commencement of the present Session, it it was said— The administration of Justice in the several Departments of Law and Equity will, no doubt receive the serious Attention of Parliament; and I feel confident that the measures which may he submitted with a view of improving that Administration, will he discussed with that mature Deliberation which important Changes in the highest Courts of Judicature in the Kingdom imperatively demand. Now, Sir, one of the changes which can and has been made, as any one will have seen who has consulted the public newspapers of the day, is, the reduction and abolition of many of the fees which are now paid in proceedings in the Court of Chancery. I am persuaded that nothing can be more desirable than that suitors should be I enabled to obtain justice without a very great expense, which must deter men from the I pursuit of their just claims. I have heard it said by some, that it was desirable that the avenues to justice should not be too open, for if justice were made too cheap; litigation would be sure to increase. If it is desirable to discourage litigation, this is not the way to effect that object. If a person comes with a frivolous complaint, or frivolous accusation, let him pay the penalty of that proceeding by the cost which will be imposed upon him. But to say that a man shall pay a particular amount of money before he can obtain justice in a fair complaint, that I hold to be inconsistent with the principle of justice, and the principle which in this country regulates the administration of justice. And when you say that by such a course you would discourage litigation, I think even in that point of view the greatest error would be committed. It evidently would be so, if you take the position of the person on whom the penalty might have to be inflicted. A man of 20,000l.. a year, to indulge his spite on some person, his enemy, would have no hesitation in spending 1,000l.. in litigation; but take another man, who has really a wrong done him, and he may be unable to spend 100l. to obtain justice. Thus while the rich man would be at liberty to satisfy his vindictive spirit of litigation, the poor man would be debarred from obtaining what was his right. The making of justice cheap, therefore, as far as it can be done, I hold to be one of the clearest duties of the State; and I think that we cannot in this respect err in reducing and abolishing as many fees now payable in legal proceedings as may be possible. There are other measures in contemplation for the purpose of effecting which there have been two Commissions appointed—one to inquire into the proceedings of the Common Law Courts, and another into all the proceedings in the Court of Chancery. I am persuaded, without mentioning any particular measure, that the result of these Commissions will be very much to prevent delays, these constant transfers of causes from one Court to another, and these tedious proceedings which have hitherto embarrassed the Courts of Justice. I believe that the Commissioners are devoting their attention to get rid, as far as possible, of these technicalities and forms which do not touch the real substance or merits of the case. I believe that if we proceed in this course, very much good will be done, and I am sure that there is no subject which more deserves the attention of Parliament. This I can assure the House, that however difficult the question may be, the Government will continue to pay the, most earnest attention to it, convinced not only that it is their duty to pay this attention, but if there is any right which the people of this country are entitled to, it is, that they should have justice not only impartially and fairly administered, as I believe it is, but administered at as little cost to the suitor as the case will allow. With these opinions upon the subject, and asking pardon for having detained them so long, I move, Sir, for leave to bring in this Bill.

Motion made, and Question proposed— That leave be given to bring in a Bill for the Administration of Justice in the Court of Chancery.

MR. J. STUART

said, that at that late hour, and on a subject of so much importance as that introduced by the noble Lord, and with a Bill which proposed materially to alter, and was intended to improve, the administration of justice in the Court of Chancery, it would be unpardonable in him to trespass on the time of the House, particularly on a measure so perfectly new, with many observations. He merely rose to say that the noble Lord, in that part of his speech which related to the office of Lord Chancellor and the administration of justice in the Court of Chancery, and the various measures which heretofore had been proposed with the view of improving the administration of justice in that court, had expressed himself with sentiments so just, with a view so clear and so accurate of the duties of that great office, that although he (Mr. Stuart) highly disapproved of the latter part of the speech, and, so far as he could judge at the moment, of the measure proposed, he could not withhold his admiration of the opinions enunciated by the noble Lord on the general subject. He regretted deeply that so humble an individual as himself—one who had no other claim to the notice of the House than that of being the senior member of the Chancery bar present—should be the first person to rise to make an observation on the noble Lord's speech. He regretted that no statesman on that bench, and with whom he usually acted, was present to state his views on this question—a question important to laymen ten thousand times more than it was to the legal profession. The views of the members of the bar were, in his opinion, of considerable importance; but the importance of their duties depended entirely, and beyond all power of estimate, on the authority and qualifications of the Judge before whom they appeared on behalf of others to solicit justice. He did not presume to form this opinion from anything said by the noble Lord (Lord J. Russell), who expressed just views on that part of the measure to which he (Mr. Stuart) was alluding. Concurring in the views of the noble Lord with respect to the first part of his speech, he now proceeded to notice a few points on which he differed from the noble Lord. To him the proposal was entirely new; and the noble Lord could not have taken the stop of pro posing such a Bill without, of course, consulting the law officers of the Crown. It was in the hope of eliciting the views of these learned Gentlemen, that lie (Mr. Stuart) ventured to throw out one or two considerations regarding the measure. The noble Lord (Lord J. Russell) being of opinion that the office of Lord Chancellor as a judicial and political office should be preserved, proposed by the intended measure to give to the Lord Chancellor, sitting in the Court of Chancery, some further judicial assistance sitting in the Supreme Court—not in the court of ultimate appeal—for although the Lord Chancellor sat as a Judge of Appeal in the Chancery Court, yet from him there was an appeal to the House of Lords. The proposal was to give to the Lord High Chancellor sitting in the Court of Chancery the assistance of two Judges, not two Judges whom he might solicit to assist him on occasions of importance, but, as he (Mr. Stuart) understood, the Lord Chancellor was to have permanently and constantly associated with him the Master of the Rolls and a Common Law Judge, with one or the other of whom he must be associated, and both of whom, its the absence of the Lord Chancellor, might discharge the duties of that high office. This was a very novel proposal; for at present, as the Court of Chancery was constituted, the Lord Chancellor was in the habit, when cases requiring it occurred, of calling other Judges to his assistance. The Lord Chancellor had at present the power of calling to his assistance the Master of the Rolls, and of requesting the co-operation of a Common I Law Judge, when matters of intricacy or importance required it. The principle of the noble Lord was, that the Lord Chancellor never could be considered competent to transact the business of his court without the assistance of these assessors Consider the effect of this. The noble Lord had said, and most truly, that the judicial strength of the Court of Chancery was inadequate for the performance of the business of the Court; that was, they had at present, or ought to have, the Master of the Rolls sitting in his own Court, two Vice-Chancellors sitting in their Courts, and the Lord Chancellor in the Supreme Court, and all these were not sufficient to get through the business. The first effect of this measure would be to shut the court of the Master of the Rolls upon every day the Lord Chancellor sat. This was a serious objection. A Bill had been before the House for a very surprising length of time for the appointment of a Vice-Chancellor to supply the place of Vice-Chancellor Wigram. But even were that Judge appointed, he (Mr. Stuart) could not see that the Master of the Rolls had any time to spare from the business of his own Court. He knew that he had none. The learned Judge who had just retired from the office of the Master of the Rolls had been in the habit of sitting as a Privy Councillor, and abstracting that time from the Rolls Court which ought to have been entirely devoted to it. What had been the consequence? Why, there had been not only a great arrear of business in that court, but suitors bad become so dissatisfied that they did not resort to the Rolls Court, and even with the diminished business the arrears had been very large. He complained that the Master of the Rolls, with all the emoluments of that great office paid for discharging the duties of the office, and the office having its own peculiar duties and responsibilities, should be withdrawn from his own court, and called upon to give assistance to the Lord Chancellor, while suitors wore clamouring for justice at the doors of his own court. There was another proceeding of the Government to which he took great exception—it was this. Last summer, when Vice-Chancellor Wigram, who was a Judge of exemplary diligence, had been disabled by bad health from attending his duties, suitors had been unable to obtain orders in his court, and a large arrear of business was the consequence—the Government actually took the Master of the Rolls, and the Vice-Chancellor of England, while he bad health to do it, as Commissioners, to sit with another learned Judge in the Court of Chancery, to administer the duties of the Lord Chancellor. By this proceeding the suitors had been placed in a situation alike grievous to them, and disgraceful to the Government, for the effect of it was that the doors of two of the inferior courts were shut to the suitors, It might be said that there existed peculiar reasons for such a course; hut he should like to hear any reasons which would be of a satisfactory character, and sufficient to satisfy the public. All this had been done at a season of the year when the pressure of business was greatest, and when withdrawing the Vice-Chancellor of England, who did the greatest amount of the business of court, was a grievous injury to the suitors. He could not name that excellent and most useful Judge, the late Vice-Chancellor of England, without expressing his sense of the gratitude due to his memory, for his eminent public services during the twenty-four years which he had filled that high office, discharging an unexampled amount of business to the great benefit of the suitors. The effect of the conduct of Government in appointing last summer a Commission constituted of the inferior Judges in Chancery to transact the duties of the Lord Chancellor, had been not only injurious to the public, but had placed the Bar and he (Mr. Stuart) himself in a most disagreeable position. He had been beset with complaints of his clients; he had represented the state of matters to the Government as one not creditable to them, and highly injurious to the public; but he at last obtained the redress which was so urgently required. He noticed this because a noble and learned Lord had published a pamphlet on the subject, in which he (Mr. Stuart) and other Members of the Chancery bar who had pressed the Government to put an end to the Commission, had been charged with mercenary motives—with being actuated with a desire to serve their own purposes. That state of things of which they had complained has been put an end to. A Lord Chancellor has been appointed, and the noble Lord (Lord John Russell) has made up his mind on the importance of not separating the political from the judicial functions of the Lord Chancellor. He agreed with the noble Lord upon the wisdom of not separating these functions. But with regard to an argument used in favour of such a separation, he thought it whimsical at this time of day that it should be conceived possible that any man holding the high office of Lord Chancellor, in the face of the public and the bar of England, could dare to pronounce a judgment affecting property which should be biased from any political opinions. As to the duties being too much to be performed by any one man, because they were political as well as judicial, recent experience proved that there was no pretence for this suggestion when a competent person held the office. From 1836 to 1841, the office was held by one who performed all the duties of Lord Chancellor, without any complaint of an excess of these duties. That noble and learned Lord (Lord Cottenham) never invoked the assistance now promised to his successor; and he knew, had he required it, that he could have commanded it without the assistance of Parliament. He (Mr. Stuart) knew that Lord Cottenham used to sit up until two or three in the morning; and the noble Lord (Lord John Russell) had urged that bestowing so much time on legal investigation was hardly consistent with the duties which the Lord Chancellor was expected to perform in attending Cabinet Councils. He (Mr. Stuart) knew not what symptoms of fatigue Lord Cottenham might have exhibited at the Cabinet, but no man showed less fatigue, even at the rising of his Court, than did Lord Cottenham during the period he had mentioned, and while he was in the vigour of health. But the noble Lord's scheme suggested to-night seemed rather a scheme to increase the anxiety and labour of the Lord Chancellor. He (Mr. Stuart) could not understand how the duty of a Judge in pronouncing his opinion on difficult cases could he a divided labour. The great excellency of the judgments of the Court of Chancery was their being pronounced by a single Judge. They had had experience of the other course of proceeding. They had had the experience of two Commissions—the one of last summer, and the other in 1835, the year preceding that in which the noble Lord at the head of the Government had had the sagacity and firmness to appoint Lord Cottenham. Lord Cottenham, while only a Commissioner, had been assisted by the Vice-Chancellor of England and the Master of the Rolls. Which were the better judgments of Lord Cottenham—when he was fettered by two assessors, or when he sat as Lord Chancellor alone? He (Mr. Stuart) knew that there was no measure of comparison between the two. All the important judgments, when he sat alone, when he studied alone, and alone pronounced these judgments, were admirable models of judicial eloquence and sound law. Why a constant assessorship, when the Lord Chancellor had it in his power to obtain assistance whenever he required it? Lord Eldon was in the habit sometimes of sending for this kind of assistance. Lord Eldon once directed a case for the opinion of the Court of Queen's Bench; he obtained the opinion; he was dissatisfied, and directed another case for the opinion of the Court of Common Pleas; he ob- tained that, and was dissatisfied with that also. He invoked the assistance of two assessors, and asked the Chief of each of these Common Law Courts to sit with him and reconsider the whole matter. They stated the reasons for the opinions they had formed; and then Lord Eldon delivered a memorable judgment, satisfying both the assessors that they were mistaken, and stultifying their previous opinions. This showed that it was a mere incumbrance to saddle the Lord Chancellor constantly with two assessors. But the noble Lord went further, and proposed that the judicial business should be transacted without any Lord Chancellor at all. Could anything be more inconsistent than the provisions of this Bill? If the office was so important, how absurd to make an arrangement of that kind! He (Mr. Stuart) did not say the objections could not be answered, but the Bill came before the House as a new measure; it deserved the greatest consideration, and such consideration he hoped the House would have, the opportunity of devoting to it. As to the ecclesiastical patronage now vested in the Lord Chancellor being transferred to the Prime Minister as now proposed by the noble Lord, it was highly objectionable. Candidates for Church preferment would, if the Bill passed, have to resort to the Government Secretary; it was to be made a Government matter. For his own part, valuing as he did the character of the Church of England, he would rather see the Lord Chancellor, who was deemed to be the keeper of the Royal conscience, exercise the choice and responsibility of Church patronage, than it should be placed at the disposal of the First Minister of the Crown, to be disposed of, he would not say on base considerations, hut he thought they might fairly infer on conditions which ought to be far removed from those which should influence the gift of livings and benefices in the Church of England.

MR. ROUNDELL PALMER

said, if he wished to treat the measure in a spirit of opposition to the Government, he should rather choose to address the House on the second reading, especially at that late hour of the night; but feeling, as he did, most deeply the importance and difficulty, and wishing, if possible, rather to assist any Government in dealing with, such a question, than to offer any obstructions in the attempt to overcome these difficulties, he was quite sure the House would give him credit for a sincere desire to con- sider the measure which the noble Lord had introduced with a view to make it as perfect as possible. He did not think it was a measure which would give satisfaction either to the profession, to the suitors, or to the public. The object of the Bill was to obtain a better administration of justice in the Court of Chancery. What was proposed? To relieve the Lord Chancellor from the necessity of paying close attention to the details of the judicial business, it gives him the assistance of the Master of the Rolls, and a Judge withdrawn from one of the Common Law Courts. Observe how it would operate, if the alteration were effected. If the Lord Chancellor was relieved from giving close and constant attention to the judicial business, and the highest business of the Court of Chancery, the inevitable consequence must follow, that the Master of the Rolls being the only Equity Judge, must virtually take the place of the Lord Chancellor; in that respect, what became of the Rolls? It seemed little less than the abolition of the Rolls, because he could not conceive that the Master of the Rolls could be continually giving his attention to the business of appeals, which ought to be transacted every day—he could not understand how the Master of the Rolls could be giving daily attention to the Lord Chancellor's Court, without a total suppression of the Rolls Court as a court of co-ordinate jurisdiction. And even if it were considered that the suppression of the Rolls Court would not be the consequence, it was obvious that constant interference with the business of the Court must take place. The noble Lord had stated that Sir Edward Sugden had suggested that one or more of the Judges of the Courts of Chancery should assist the Lord Chancellor in hearing appeals. To that the same objection applied—that it was drawing these Judges from their own courts, and preventing the business in those Courts being transacted. No doubt it would be better to withdraw one Judge than two; but it was quite clear the objection was the same, whatever the extent in which they interfered, to any diminution of the judicial force of the Court of Chancery, at a time and under circumstances when it was necessary to increase it. His lion, and learned Friend (Mr. Stuart) had referred to the attendance of the Master of the Rolls in the Judicial Committee of the Privy Council. He hoped no one would understand that his hon. and learned Friend had intended the slightest reflection on the Master of the Rolls. He (Mr. Palmer) was sure such was not his meaning, and he was quite sure at all times, and especially now, his hon. and learned Friend would regret if anything should he said which could produce anything of a painful feeling. All the profession agreed that there never was a more conscientious or more laborious Judge of the Court of Chancery than that noble Lord, and certainly his attendance in the Judicial Committee was given not only on request, but because it was considered that one of the Judges of the Court of Chancery should attend. If that were necessary then, he did not see why it was not necessary now. But the Master of the Rolls could not attend the Judical Committee and the Lord Chancellor's Court also. That assistance to the Judical Committee must be withdrawn, if they only gave an equivalent amount from the Rolls to the Chancery Court. But the sittings of the Lord Chancellor were much more constant; and, therefore, a far more equivalent in the amount of assistance was required in the Court of Chancery. He could confirm the hon. Member for Newark, that the unavoidable interference in the Rolls Court was very much felt, and that it was a matter of very serious consequence to disturb the regular administration of justice in any of the Courts. Not only did it make the Court comparatively inefficient, but there was one other effect which ought to be extremely guarded against. It held out opportunity for a bad species of litigation, in which persons whose interest was delay, hung over their neighbours unfounded and unjust demands, with a view of driving them into a compromise. The noble Lord had expressly stated that in the business of that Court there had been a continual tendency to increase, requiring an increase of judicial force. The effect of the loss of one Vice-Chancellor had been severely felt, and business had accumulated. He was quite sure that there would be full employment, not only for an additional Vice-Chancellor, but for the Master of the Rolls, as a Judge in the first instance. Lord Cottenham, before going out of office, issued certain orders, which enabled causes to be brought to the stage of "appearing" in a simple and short way, without the expense of the old system of pleading. The effect was, that a vast number of cases of that kind came in for hearing; they would now be ready to be heard and disposed of, and the more the administration of justice was facilitated and simplified, the more certain it was that the public would come into Court, and a fuller judicial force would be required to attend to the business of the Courts. It was with great humility that he begged to suggest a remedy, hut he could not help thinking that the difficulty was where it ought not to be—not in the mind or disposition of the noble Lord, but in an apprehension that the country would not pay the necessary expense of duly administering justice. Because, if there had been no such fear, Government would have said, "If the Lord Chancellor wants assistance, let him have it. Take the best man you can get." There were five Judges in the Court of Queen's Bench, five in the Common Pleas, and five in the Exchequer, while in the Chancery Courts there were only five altogether. Why not get two more from the bench or from the Courts? He believed the country would find that it was more judicious economy to provide this assistance without interfering with the existing Courts. But if the country would not find the money, and if the money must be found, he thought that by consolidating the Court of Bankruptcy with the Chancery Court (of which it was originally a branch), and by revising the system of administration by Commissioners of Bankruptcy, and in the Masters' Offices, they might probably be able to throw all the Accountants' business of the Courts of Chancery and Bankruptcy together, and to withdraw from these Courts either Masters or Commissioners to the necessary extent to provide a fund, out of which might be paid one or two additional Judges of the Court of Chancery. Some system such as that would be desirable; but no good reason could (he thought) be given for seeking to save to the country the paltry sum of 10,000L—paltry in respect of the advantages to be gained—at a time when the public most required an efficient and expeditious administration of justice in the Court of Chancery. As to the assistance to be derived from Judges of the Courts of Law, if their business was only transacted in London, it might be considered that there was too large a judicial force. But for the purposes of the circuits it was necessary to keep it up; and it would not be found to be the universal opinion that we had more Judges than were required. Then one of the best Judges would have to be withdrawn from the Courts of Common Law to sit in the Chancery Court. That Judge could not be brought to relieve the Master of the Rolls, because it was necessary at all times that there should be in the Courts of Chancery a Judge thoroughly acquainted with Chancery practice. He did not disparage the value of Common Law in Chancery Courts; on the contrary, in the instances of late Chancellors, they had felt that the union of the knowledge of the two systems was of great importance; and although it was indispensable to have a sound knowledge of equity law, it was of the highest value that that should be in conjunction with and tempered by sound experience in Common Law. He did not submit these remarks in any spirit of hostility, but from a desire to aid the Government, as far as he could, in so important a duty as that of improving the administration of justice in Courts of Chancery.

MR. S. WORTLEY

said, that the subject was of great importance. He subscribed to every sentiment which fell from the noble Lord, and could only express his regret that the Government should feel itself crippled by that which his hon. and learned Friend had very properly designated a false economy. He regretted that the Government should be influenced by a false feeling of economy, which was, in fact, the real great impediment to an efficient reform of the Court of Chancery—a feeling for which he believed the House itself was mainly responsible, he said it was a most glaring inconsistency that there should be no less than fifteen Judges to administer the Common Law of the land—a number not at all greater than was necessary—and that the whole business of the Court of Chancery—a business which was increasing, whilst that at Common Law was decreasing—should be administered only by five Judges. Whilst the Government adhered to this principle of false economy, it was idle to talk of effecting any useful reforms in the Court of Chancery. He fully concurred in the statement of his hon. and learned Friend (Mr. R. Palmer) that it would be most inexpedient to take away one Common Law Judge to assist the Lord Chancellor. If that were done, how could the business of the circuits be provided for? Persons of less dignity than a Judge, Sergeant, or Queen's Counsel, would have to sit, or during the whole time of the circuits the Lord Chancellor would be deprived of the assistance of the Judge whose aid it was now proposed he should receive; and he did not think that would be a satisfactory arrangement. There was one other point to which he wished to ad- vert. No alteration was to be made in the appellate jurisdiction of the House of Lords. It had always been held to be an evil that there should he an appeal from the same Judge sitting in the Court of Chancery to the same Judge sitting in the House of Lords. The present measure would introduce a greater absurdity. A case would he heard and decided by the Lord Chancellor sitting with the Master of the Rolls and a Common Law Judge, and then there would be an appeal to the Lord Chancellor in the House of Lords, sitting alone. The appeal, therefore, would be from a stronger to a weaker court. With respect to appeals from Scotland, although he admitted that the eminent persons who filled the office of Lord Chancellor sometimes made themselves masters of Scotch law, yet under the present system they could not be certain that the Lord Chancellor would be present to hear Scotch appeals. It so happened last year that the decision of a great number of these appeals depended entirely upon the voluntary exertions of a noble and learned Lord (Lord Brougham), who was not bound by any compulsion to give his attendance in the House of Lords. The country had the benefit of the valuable services of that noble and learned Lord, who, from his early education, was well acquainted with Scotch law; but it might so happen that these Scotch appeals might be brought before a single Judge, who had no knowledge of the Scotch law. He agreed with his hon. and learned Friends in their anxiety to see passed some measure for the improvement of the Court of Chancery, and he had thrown out these observations with that view.

MR. HEADLAM

said, he agreed with his hon. and learned Friends that this was not the proper occasion to express any decided opinion as to the merits of this Bill. He agreed with the noble Lord in the opinion which he had expressed, that it was not desirable that there should be a permanent Judge in the Court of Chancery as a Judge of Appeal, because the powers entrusted to such a Judge were too great to be placed in the hands of any individual, however eminent he might be. He thought that there ought to be more than one Judge sitting in that Court. He must say, however, that he could not approve of this scheme, because he thought it might have the effect of closing the Court of the Master of the Rolls as a court in the first instance. He must object to any delay in the ordinary proceeding of the business in Chancery, He knew one case in which the costs, occasioned by mere delays, amounted to 1,000l.. in one year, not arising from any fees, hut because a decision was required before the estate could be administered at all. He objected to the measure, because, he repeated, it would have the effect of closing the Court of the Master of the Rolls, and he did not think there would be sufficient force in the Courts of Chancery to enable the suits to be determined within a reasonable time.

LORD J. RUSSELL

I can only say that I am much obliged to the lion, and learned Gentlemen who have been so good as to take a part in this discussion. I am convinced that the objections which they have mentioned are intended in a friendly spirit, and I can only say that they shall he carefully considered. I omitted to state one point, namely, that there are officers under the Lord Chancellor with respect to whom a considerable reform may be effected by consolidating their duties, still preserving for the Lord Chancellor a sufficient number of officers to give him assistance in some of his most important duties. The Lord Chancellor will give every attention to this matter with regard to the appellate jurisdiction. I can only say that I made no proposition on that subject, because I think it is one which had better be left to the discretion of the House of Lords.

MR. S. WORTLEY

said, he wished to ask whether one of the Common Law Judges would be permanently selected?

LORD J. RUSSELL

One will be summoned from time to time.

SIR H. WILLOUGHBY

said, that the public wished to see the abolition of fees in the Court of Chancery, and the payment by salaries substituted.

The ATTORNEY GENERAL

said, that one of the objects of the Bill was to carry into effect the recommendations of the Committee on Salaries in the Court of Chancery, and to effect consolidation, which would diminish expense. With reference to the main subject of the Bill, no doubt various opportunities would arise, during the discussion upon it, which would enable them to put it into such a state as to meet the wishes of both sides of the House.

Question put and agreed to;—Bill ordered to be brought in by Lord J. Russell, Sir G. Grey, Mr. Attorney General, and Mr. Solicitor General.