HC Deb 10 August 1855 vol 139 cc2116-22

[Progress, 9th August.] Order for Committee read.

House in Committee.

Clause 1.


said, he did not blame the hon. and learned Solicitor General for bringing on a Bill of such importance at so late a period of the Session; but it was obvious that the Committee could not give the subject all the consideration it deserved. He had shown that the hon. and learned Gentleman was in error in supposing another Judge necessary, because there was no delay in cases at the Chambers of the Judge. The present system of Chancery administration worked very satisfactorily, and he did not think, from the opinion expressed by the Judges themselves, that there was any necessity for the appointment of additional chief clerks. He did not mean to say that, when the system which had been recently introduced was more fully developed, it might not be necessary to appoint additional chief clerks, or even additional Judges, but at present he believed that any inconvenience might be obviated by the appointment of junior clerks, and he therefore approved generally the objects of the Bill, As the right hon. Member for Carlisle (Sir J. Graham) had the other night referred to the question of Chancery Reform, he (Mr. Malins) might say that he thought some alteration was most urgently required with regard to the system of appellate jurisdiction. All appeals from the Master of the Rolls and Vice Chancellors went to the Lord Chancellor alone. It was felt that that proceeding was a hardship and an evil; and the Act of 1851 was passed to remedy it, creating, as it did, a Court of Appeal with two Judges. Now the system of one Judge reversing the decision of another could never be satisfactory. But the Act of 1851 had not caused that system to cease, for the Lords Justices and the Lord Chancellor, both sitting in Lincoln's Inn Hall in two Courts, still continued to decide appeals separately. He did not see why the Lord Chancellor should be called upon to decide appeals when there was a Court for the purpose, presided over by the Lords Justices. He had known the Lord Chancellor call for the appeal paper, and fix what appeals should be put into the paper, of his own Court. It was an extraordinary anomaly that neither of the two Lords Justices could decide an appeal alone, though both most eminent Judges; whereas, the Lord Chancellor was considered to be sufficient to decide appeals of the highest importance. He put it, therefore, to the serious consideration of the Government, whether the system of appeal from a single Judge to a single Judge should not be got rid of. But it might be said that there was appeal from the Lord Chancellor to the House of Lords. So there was; but the justice administered was not speedy, as an appeal to the House of Lords could scarcely ever be heard under two years. It was, therefore, too slow—too expensive—and neither was the tribunal satisfactory? There was no obligation on any Judge to attend the House of Lords except the Lord Chancellor. Therefore, in no less than fire instances during the present year there was no judgment, because the cases were heard only by two learned Lords, and they differed in opinion. The public were prejudiced in favour of the House of Lords; but in reality the peers took no part, the attendance being limited to the law Lords. The Judicial Committee of the Privy Council—a tribunal whose proceedings had given the utmost satisfaction—never consisted of less than three Judges, and generally of four, five, or six, and he did not see why some tribunal of an analogous character should not be established in connection with the House of Lords. With regard to the subject of testamentary jurisdiction, be did not think it desirable to transfer that jurisdiction to the Court of Chancery, but if the Solicitor General brought forward a measure in general conformity with the opinions of the learned Commissioners who had considered the matter, he (Mr. Malins) would do his best to render such measure perfect and satisfactory.


said, that the object of the Bill was to afford the chief clerks the assistance of an additional number of junior clerks, and it proposed that each chief clerk, who had now one junior clerk, should have an additional junior clerk. He considered it most important that the chief clerks should, as far as possible, discharge their duties in person, and he hoped some explanation would be given of the grounds on which the appointment of the additional junior clerks was recommended. He found it was proposed that the additional clerks should receive salaries of 2501. a year. Now, if they were merely to relieve the chief clerks from some of the mechanical duties of their offices, he conceived the salary was too high; while, if they were required to discharge any judicial duties, it certainly was far too low. It was his opinion that if an unlimited power were given to the Lord Chancellor to appoint junior clerks they would not hereafter find that junior clerks would perform their duty in an efficient manner.


said, he should move an Amendment to the effect that the increased number of clerks should be that of chief clerks, instead of junior clerks. It had been his wish that the Bill should be referred to a Select Committee. He had reason to believe that the chief clerks had discharged their duties in a perfectly satisfactory manner; but if high salaries were paid to those clerks, and very inadequate salaries were paid to the junior clerks, it was not to be wondered at that the junior clerks should seek to evade their work. His opinion was, that it would be better to increase the number of senior clerks, and also to increase their salaries, than add to the number of junior clerks. He would take that opportunity of stating that the solicitors, as a body, were strongly opposed to the Bill. He agreed with the right hon. Gentleman the Member for Carlisle (Sir J. Graham) that as the Bill stood it began at the wrong end, and he would recommend that, instead of increasing the number of junior clerks, they should add to the position and emoluments of the chief clerks. He thought that the whole subject was one which it might be very proper to refer to a Select Committee.


said, he did not consider that the Amendment of the hon. Member for Sheffield (Mr. Hadfield) would further the object in view of expediting the business of the Court of Chancery. It appeared to him that the increase of business in Chancery should be provided for by an addition to the number of Courts. He had, however, no objection to give aid to the chief clerks in the way proposed by the Bill, if there were an undue pressure upon them, provided the effect were not to constitute them Judges and relieve the Judges from that responsibility which ought to rest upon them.


said, he must request the indulgence of the Committee for a short time. He wished to allude to the reforms which had recently been effected in the Court of Chancery, and to the benefit which had resulted from them. The result of the recent reforms introduced into the Court of Chancery was that the whole of the administrative functions formerly discharged in Court, to the great waste of public time and the expenditure of the suitors money, were now discharged in Chambers, at great economy of time and money, and in such a manner as to give general satisfaction. The right hon. Baronet the Member for Carlisle had stated there were 9,000 summonses issued in one year, and upwards of 3,000 orders made. Well, these involved transactions which to be conducted by responsible persons and yet did not call for any judicial determination or the application of great legal or intellectual powers. Such duties could not be better discharged than by chief and junior clerks. The Judges had unammously made a representation to the Lord Chancellor for additional assistance, although he was confident that not one of those eminent persons were desirous of in any way avoiding any of the duty which devolved upon him. As regarded the state of business in Chambers, he was prepared to deny that at the present moment there was, except in case of the continuation of examination which had been commenced, anything like approximation to arrears. He willingly recognized the great propriety of the observations made upon the general question by the right hon. Baronet (Sir J. Graham) and other speakers, and agreed that anything like a return to the former system of Chancery proceeding would be much to be deprecated. Of that, however, there did not seem any danger. He trusted the Committee would have no difficulty in acceding to the proposal for giving one additional clerk to each of the chief clerks, and he was inclined to doubt whether, instead of appointing additional chief clerks, it would not be better to appoint another Judge. On that point, however, he might say that, anticipating the passing of the Testamentary Jurisdiction Bill, it had been his hope, in appointing a Judge to deal with the testamentary and matrimonial business, which would not have occupied more than one-half of his judicial time, that that judge would have been able to give other his time to business of the court of chancery. There was one point of great importance to which he might advert here. Service instances had occurred. Several instances had occurred in which the House of Lords, sitting as a Court of Appeal, had failed to discharge satisfactorily its proper functions. He quite admitted that scarcely anything was amended in the judicial instructions of the country until the recognition of the necessity of that Amendment had been passed on, so to speak, from father to son, and from generation; and so it was with regard to the House of Lords. It was therefore, doubtful how long it might be before they got a tribunal in the last resort satisfactory in its constitution. The members of the present tribunal felt themselves at liberty to attend or not attend, as they pleased; with the rest of the Court were mere volunteers; they attended a judicial sitting as they would a debate; they felt themselves at liberty to remain during the whole of the arguments, or not; and the result was, that that court, the decisions of which ought to be unalterable as the laws of the Medes and Persians, was felt to be unsatisfactory in its constitution and inferior to the lowest tribunal in what ought to be the accompaniments of a court of Justice. He had already drawn the attention of the noble Lord at the head of the Government to the subject, but he readily confessed that it was one which was most difficult to deal with. He might here express his regret that it was not the rule to confer a peerage on some eminent member of the Scotch Bench, who might thus become a member of the appellate tribunal of the House of Lords. A great number of appeals were every year brought from Scotch, and, besides the advantage which would result from the presence in the Upper House, when those came before it, of a judicial personage versed in the law of Scotland, he thought it was only due to the high position and eminence of the Scotch Bench that a peerage should be conferred on one of its members. In conclusion, he trusted the Committee would endorse the unanimous opinion come to by the Judges of the Court of Chancery and the Lord chancellor, and would agree in the necessity of the slight addition in the Court proposed to be made by the present Bill. With gave regard to Chancellor the power of appointing any number of permanent additional clerks, it was his intention to strike out that section, and to substitute for it a clause enabling the Lords Chancellor, from time to time, as necessity arose, to appoint other temporary clerks, He did not wish to arm the Lord Chancellor with any more power than was really necessary, and he hoped all difficulty on the subject before the Committee would now be removed.


said, he had felt, when he addressed the Committee the day before, that the subject of the Bill was of the utmost gravity, and that opinion was very much confirmed by the observations to which the Committee had just listened. He had long felt that neither the appellate jurisdiction as it existed in Chancery, nor the appellate jurisdiction, in the last resort, were at the present moment satisfactory. He entertained great doubts as to the advantage of a double Court of appeal, believing that one appeal was for the benefit of the suitors, but that that appeal ought to be an unexceptionable Court. It was not, however, expedient to pursue the subject further on the present occasion. Enough had been said in presence of the noble Lord (Lord Palmerston) to show the opinion of one of the law advisers of the Crown, a man at the head of his profession, as to the necessity of some alteration, and he trusted that that most important matter would receive the careful consideration of the Government. Any change in regard to the appellate jurisdiction of the House of Lords was one of the gravest questions which could be brought before Parliament, because that was one of the most ancient powers possessed by the other branch of the Legislature. Whether they would surrender that power was a matter open to question, but he would remind the noble Lord that it was the duty of the Government, when once they had made up their minds as to the course to be pursued, to bring all their influence to bear in endeavouring to reconcile Parliament to any change which might be thought necessary. He thought that the debate altogether would not be thrown away, and he was quite sure that the zeal of his noble Friend to promote the public interest would lead him during the recess to give the utmost attention to that important subject. With regard to the second clause, there was no reason whatever why it should be retained. Instead of modifying it, it would be much better if his hon. and learned Friend would consent to withdraw it altogether.

Amendment withdrawn: Clause agreed to.

Clause 2 struck out.

Clauses 3 to 9 inclusive agreed to.

Clause 10 struck out.

Remaining clauses agreed to.

House resumed; Bill reported, with Amendments.

Bill read 3°, and passed.

The House adjourned at a quarter before Nine o'clock.