§ Order for the Second Reading read.
§ MR. WHITESIDEsaid, in calling the attention of the House to the measures which he had introduced connected with Chancery reform in Ireland, it would not he necessary for him to occupy much time in enforcing a principle long since asserted in England, and which it was his object, with such alterations as might be necessary in reference to the difference of practice, to apply to Ireland. He would, however, as shortly as possible, explain the nature of his propositions. He believed that, since the reign of Charles I., many attempts had been made to reform the Court of Chancery, but that laudable task was not successfully performed in this country until, by the aid of two distinguished laymen in that House, and several able lawyers, the Court of Chancery in England was radically reformed. Very great benefits were conferred on the suitors and the public in this country by the reforms thus effected. He had taken the liberty of inquiring of one of the Vice-Chancellors what had been the result of the reforms accomplished by that House within the last few years, and as the answer he received would have more weight than anything he could say, he would beg to read one sentence from a letter addressed to him by Vice-Chancellor Stuart. [The hon. and learned Gentleman here read an extract from the letter referred to, in which it was stated that the alterations in the procedure of the Court of Chancery under the Act of 1852, especially those relating to the change in the Masters's Office, to proceedings in Judges' chambers before a chief clerk, to the substitution of concise certificates in lieu of voluminous reports, to the abolition of the 67 warrant system, &c., had worked satisfactorily, and had conferred on the suitors the benefit of an enormous saving in point of expense.] Now, he desired to enable his countrymen to participate in that enormous benefit. In the year 1819 the first attempt to reform the Court of Chancery in Ireland was made. That was done by an inquiry into the fees paid in that Court. That inquiry terminated in a reduction of those fees. It was only a partial reform, and did not affect the great question of reforming the voluminous pleadings. It was a curious fact, however, that even that partial reform had the effect of greatly increasing the business of the Court. Subsequently, another reform took place, namely, the abolition of the Six Clerks' offices. The effect of that reform was not, however, very serviceable to the public, although it conferred considerable benefit on the solicitors of the Court. A great number of orders were issued by the Lord Chancellor for the regulation of the business transacted in the Master's Office, but which orders clogged them more than before, and the effect was to increase the delay in those offices, and in many respects the expenses. During the time Lord St. Leonards was Lord Chancellor of Ireland a great reform was effected by abolishing the warrant system, or summons system, by compelling the Master not to proceed from summons to summons every hour, but to proceed continuously by one summons. That reform increased the business in the Master's Office, although the amount of the staff was never altered. He held in his hand a paper drawn up by Master Brougham, which set forth all the objections to the Master's Office in this country (which had since been abolished), and which equally applied to the Master's Office in Ireland. It showed that there existed evils in the system which were incurable, and that if a decisive remedy were sought it could be found only in abolishing the Master's office altogether. That, therefore, was the object of the first Bill which he had to submit to the House. It was a Bill for the more speedy and effectual despatch of business in the High Court of Chancery in Ireland by abolishing the Master's Office altogether. But there was a difference between the Bill relating to Ireland and the Act which had been passed relating to England. That difference would be explained by a short reference to the second Bill which he had to submit, and which was a Bill to amend the practice and course 68 of proceeding in the High Court of Chancery in Ireland. Sir John Romilly introduced a Bill for the benefit of the High Court of Chancery in Ireland, which proved to be a real and practical reform, and by which both the time and the money of the suitor were saved. He introduced a form if pleading by petition, and abolished, as far as he could, the old forms. That measure had succeeded to a great extent. But what was the principle of that measure? It was to give to the Master judicial authority in a great variety of cases, the effect of which was that, instead of the business being referred first from the Lord Chancellor's Court to the Master, then from the Master to the Court, and oftentimes again from the Court to the Master, the Master, by Sir John Romilly's Bill, was required and enabled to discharge a great deal of such business judicially; but in so far as Sir John Romilly's Bill did not wholly abolish the subordinate character of the Master, it was defeating, the fact being that at the present moment the Master of the Court of Chancery in Ireland was partly a judicial and partly a ministerial officer. The Masters were Judges in all cases in which they had original jurisdiction, and ministerial in all cases in which they had not. They were, therefore, without that power, weight, and influence, which Judges ought to possess, and the consequence was that the business of the Court of Chancery in Ireland was in a state of confusion as to its practice in the Master's Office. His argument, however, was that the country was not at present in a condition to abolish the offices of the five Masters, who had yearly incomes of 3,000l. each, and give them compensation for their salaries, by which they would be enabled to retire to Italy or elsewhere, and then to appoint Vice-Chancellors in their places. What, therefore, he would submit to the House was, that as the Masters had been proved competent to discharge a portion of the business of the Court satisfactorily, speedily, and cheaply, so they might be fairly intrusted to do the rest. It was, therefore, proposed that the existing senior three Masters in ordinary should be constituted Judges, under the style of Vice-Chancellors, with the same power and authority which the Vice-Chancellors of England possessed. Very few appeals had been made from the decisions in cases in which they had original jurisdiction; he therefore could not see why they should not give them original jurisdiction in all other cases. The saving of 69 the public would be great. In England the salary of the Vice-Chancellor was 5,000l. a-year. In Ireland he proposed to fix the salary at 3,500l., being equal to that of a Puisne Judge. Thus, they would have three Vice-Chancellors competent to transact all the business of the Court of Chancery. The value of this measure would be apparent when he explained to the House the course of the business under the 15th section of Sir John Romilly's Act. Under that section no less than eighty cases in one day were thrown into the Master's Office. All that the Lord Chancellor did was to ask whether the cause came within the 15th section of Sir John Romilly's Act, and if he were told that it did, he at once sent it into the Master's Office, and he heard no more of it until the Master had done all the work by ascertaining the rights of the parties, and really and truly deciding the merits of the cause. The suit was then brought back to the Lord Chancellor, who knew nothing, and did not pretend to know anything about it. The effect, therefore, of the proposed Bill was, that the person who was competent to inquire into, to ascertain, and to find out the facts, and to determine the rights of the parties, should have jurisdiction from beginning to end. His second Bill, he could assure the House would tend to economy, and facilitate the progress of business to a degree that would be most gratifying to every law reformer. In 1852 the costs of the Court of Chancery, as brought into the taxing Master's Office, amounted to 170,000l., which were reduced upon taxation to probably about 150,000l., while for the same year the costs for receivers amounted to 40,000l. Well, by the Bill which was now before the House, he thought he might calculate on bringing about a saving of expense in non-contested suits of about one-half, and in litigated suits of one-third. And he might state, that his opinions were confirmed in this respect by the calculations of persons well acquainted with the Court of Chancery in Ireland. His third Bill related to a subject of much importance, and was intended to alter the law and practice in respect of the appointment of receivers under the Court of Chancery. Many hon. Members might not be aware of the mischief arising from the present state of the law in Ireland under the system of Receivers. That subject had been inquired into by more than one Committee, and it was proved that the vices of the 70 system were such that it had sometimes led to the commission of great crimes. But the particular inquiry upon which the present Bill was founded was one which took place in 1852, when a committee, of I which his right hon. and learned Friend the Member for the University of Dublin (Mr. Napier) and the right hon. baronet the Member for Carlisle (Sir J. Graham) were members, was appointed, which inquired into the management of estates in Ireland under receivers of the Court of Chancery, the rentals of which at that time amounted to 1,000,000l. per annum, and which prepared as instructive a Report as could be found among the Parliamentary papers. The present Bill, founded upon that Report and other information, consisted of matter of law and matter of regulation; and of the matter of law he should very quickly dispose. Receivers in Ireland were appointed in many instances in which they were not in England; why, he did not know, and he therefore proposed to assimilate the law of the two countries in that respect. In England, where the mortgagee had a right to enter into the possession of an estate he could not obtain the appointment of a Receiver in Chancery, because he could assert his right at law, while in Ireland the mortgagee could throw the estate into Chancery and get a solicitor appointed as the Receiver; and the late Lord Chancellor had informed him (Mr. Whiteside) that the consequence often was, that where the rents were small, the estate was exhausted, and where they were large it was kept in Chancery to feed the cormorants of the law. The object he had in view was to lessen the number of instances in which Receivers could be appointed, and to abolish the right of parties, except in certain cases mentioned in the Act, to obtain the appointment of Receivers where they were not appointed in England. He would cite two or three passages from the Report of the Committee in question, which would explain to the House the principle upon which the present measure was based. The two classes of estates which were chiefly subjected to the influence of the Court of Chancery in Ireland were the estates of lunatics and minors, and estates which were encumbered either by mortgages or judgments. Now, the Committee in their Report pointed out that the estates of lunatics and minors were better managed by the Court of Chancery than the estates of debtors brought into that Court, 71 because the Lord Chancellor was supposed to have a parental authority in such cases, and made allowances dictated by a sense of justice which could only be done by Act of Parliament in cases where hostile creditors had brought the estate into the Court, and the suggestion made was, that in every such case—namely, that where the estates were brought into Court by creditors, the proceedings should be accelerated with all reasonable despatch. It was accordingly that object he had sought to accomplish by the Bill No. 2, to which he had already referred. The Committee further said, with great truth, that, though a Receiver might be appointed who could manage the estate beneficially, yet where the demands of a creditor were small the rents might be exhausted, and where the estate was small the rentals were often swallowed up by the present system. The Committee therefore recommended to limit the appointment of Receivers to cases in which the debt did not exceed 150l. a-year; but he was of opinion that the limit ought to be applied to those cases in which the estate, and not the debt, was small, and he therefore ventured to suggest that no Receiver should be appointed in cases in which the rental did not exceed 200l. a-year, giving the Court the power to put the encumbrancer into possession, not, however, with the fees of a Receiver, and taking care that he should not be disturbed by other creditors till his debt was paid off. Under the present system it was generally assumed that the appointment of a Receiver sealed the fate of a debtor; his property was exhausted, and during the interval of delay in the proceedings the inheritor, by collusion or contrivance, obtained all the rents he could. In order to obviate this, he proposed that when it was evident the property must be sold the sale should be ordered as early in the suit as possible. The difficulty at present was to get a proper person to act as Receiver. Now, the present Bill proposed to take away from the parties the power of nominating Receivers, and vest it in the jurisdiction of Receiver-masters, to be appointed under the Act. It was proposed to make the three senior Masters Vice-Chancellors, and the two juniors Receiver-masters, whose duty it would be to obtain and record the names and qualifications of persons fit and competent to become Receivers before their appointment. The expenses of the management of estates in the Court of Chancery were at present 20 per cent, but if 72 these provisions were adopted they would be reduced as nearly as possible to the ordinary agency expenses of a gentleman's estate—namely, to 6 or 7 per cent. Every application now made to a Master by a Receiver was made through an attorney, and caused an addition to the bill of costs; he proposed that the Receiver should communicate directly with the Master personally, and by letter, so as to get rid of the costly system of employing solicitors to do nothing but to quarrel before the Master. Another recommendation of the Committee was that the mode of letting estates under the Court of Chancery should be changed. An estate was now let for seven, years, pending the cause, the supposition being that a Chancery suit would not last longer than seven years, and the consequence was that the tenant, not expecting to retain possession for a longer period, wracked the estate as much as he could, and when he left it was sold at a depreciated price. Another consequence of the system was to lower the value of the adjoining property as the tenants applied for a reduction of their rents in the same proportion as the reduction which had taken place on that particular estate. The Committee recommended that there should be a power of granting leases for fourteen years, but he saw no reason why the Receiver-master should not have authority to grant leases for twenty-one years upon the principle that the estate should be managed in the way in which a good proprietor would manage it. Lord St. Leonards had proved before the Committee that when he was Chancellor he had no power to grant abatement of rents or allowances to tenants, when an estate had been brought into Court by hostile litigants. This was consequently fatal to the interests of all parties, and he, therefore, proposed that power should be given to the Court to make abatements of rent and reasonable allowances for repairs such as would be made by a good and careful landlord. He had several high authorities in favour of this Bill, which he believed would give peace to the tenantry under a rental of between 600,000l. and 800,000l. a year, and he therefore trusted the House would permit him by its means to carry out the recommendations of the Committee. The object of the next Bill was to provide for the sale of estates through the medium of the Court of Chancery, and to secure the titles of the purchasers of estates sold in Court. A few years ago the Court for the 73 sale of encumbered estates had been established. The principle of that Court was, no doubt, a sound one, but he had asserted, as much as eighteen months since, that in a short period the Court would be choked up with business, and would have to be removed. The then Solicitor General for Ireland had opposed a Bill upon this subject which had passed a second reading in 1853, but he had then told the hon. and learned Gentleman that in a short time he would support the principle of that Bill with as much sincerity as he then opposed it. That Bill gave the Court power to confer a Parliamentary title to property sold under its decree and dispensed with the necessity of instituting two suits—one in the Encumbered Estates Court for a sale, and another in the Court of Chancery for a receiver; but on the Motion of the hon. and learned Gentleman it was thrown aside. What had since taken place? The Encumbered Estates Court had got hold of estates to the value of several millions of money. At first it worked very well, because the original Act gave the Commissioners power to avail themselves of the inquiries which had previously been made with respect to the property by the Court of Chancery; but when they came to exercise an original jurisdiction, to do the work of the Court of Chancery as well as that of a great auction mart of land, to decide difficult questions of law and equity relating to marriage settlements, deeds, and wills, they became clogged with business and incapable of providing a remedy. One principle had been acted on in the establishment of that Court, which he trusted the British Parliament would never again sanction; power had been given for the sale of the property of every Irish gentleman—for the sale of an estate upon the possession of which his happiness and that of his family might depend, and he had no power of appeal unless the Commissioners themselves were pleased to grant it. He had opposed that principle, but a high authority had said that it was a right one, and that the Commissioners had always given an appeal when it was demanded. He would now give the House a sample of the operation of that principle. He did not blame the Commissioners, for he was more surprised that so many of their decisions should have stood than that so many of them should have been reversed, considering the difficulties with which they had to contend. The Bar had generally been unable to attend the Court in consequence of its distance from 74 the ordinary tribunals, and the Treasury had refused to place it in a more convenient situation, because it only concerned Irish property to the amount of millions. It appeared, from a Return which he had obtained, that out of forty-two cases there had been only six reversals from crises No. 1 to 19; but, then, from the reasons he had stated, the number increased, and there had been twelve reversals from the 21st to the 42nd case. He submitted, therefore, that it was high time for an alteration in this Court. He would never again agree to the argument that there ought to be an exceptional course of legislation in reference to Irish property. Let them pass a law founded upon the principle of the Encumbered Estates Act for Scotland and England, if they pleased, but they would find that any such law would be opposed by a strong cohort of Scotch Members, and justice was far too much respected in England to allow of the establishment of a Court in which the right of appeal depended upon the discretion of the Judge from whom the appeal was to be made, and in which one of the paid Commissioners was also one of the Judges of the land. He wished it to be understood that he made these observations without any disrespect to the learned Commissioner to whom he had alluded, but he trusted that when a new Court was created that no Judge of the land would be taken from the Bench to sit on it. He would state another instance of the manner in which this Court worked. An estate had been sold for 25,000l., and the unfortunate owner was obliged to pay 1,300l. interest on the debts, while the 25,000l. was lying in the Court bearing no interest. Instances of this kind had occurred to an almost inconceivable amount. He believed that it would take the Encumbered Estates Court five or six years to discharge the arrears before them. One member of the Bar, indeed, told him that in ten years they would not conclude their labours. That Court had cost the country from 14,000l. to 16,000l. a year. He did not complain of that, although every year the estimate had increased; but he proposed to increase the vigour of the Court of Chancery, to cheapen its expenses, and to engraft what was good in the Encumbered Estates Courts upon the amended procedure of the Court of Chancery. Some persons had objected that no Parliamentary title was given to sales under the Court of Chancery, but why should not the 75 Court of Chancery give the purchaser a Parliamentary title? It cost Parliament nothing to give a Parliamentary title, while it put three or four years' purchase into the pocket of the vendor. There was an additional reason why the Court of Chancery should give a Parliamentary title, for there existed in Ireland, what England did not possess, a system of general registration which had been in existence since the reign of Queen Anne. Every conveyance was registered, and if there were an honest title to property it would generally be found registered. To the learning, authority, and experience of the Court of Chancery he proposed to super add the power of giving a Parliamentary title. He therefore proposed to appoint three Vice-Chancellors competent to do the work that the Commissioners now performed. The Masters were competent to transact the business of the Court of Chancery and of the Encumbered Estates Court, so that in July, when the functions of the latter Court expired, the Court of Chancery could dispose of the business and the arrears of the Encumbered Estates Court, if Parliament should so determine. As it was plain that the business of the Court of Chancery would be greatly increased, and as important principles where small sums were concerned would sometimes be at stake, it would be necessary to create a local Court of Appeal. At present there was no appeal except to the House of Lords, and that was a very good Court of Appeal where the estate was large, where the parties could wait three or four years, and where a large bill of costs was no object. But in cases where moderate and small estates were concerned, the liberty of appealing to the House of Lords amounted to a denial of justice. There was practically in such cases no appealing from the Lord Chancellor. The Encumbered Estates Act gave an appeal to the Judicial Committee of the Privy Council, which cost nothing. A Court of Lords Justices, had been created in this country, which he regarded as a valuable improvement in our system of equity jurisdiction. Why should they not in Ireland avail themselves of the services of the retired Lord Chancellors and other eminent persons, and hear appeals upon the spot? He did not propose to create a new Court, or a new Judge, or a single new officer, or to put the country to the expense of a single guinea. He proposed to give the suitors the power of a rehearing 76 before two members of the Judicial Committee called to the aid of the Lord Chancellor—a Court which could be summoned and sit at less expense than the fees of a single counsel in an appeal before the House of Lords. He had another short Bill to complete this scheme for the reform of the Court of Chancery. It was, indeed, rather a suggestion for the Treasury, since it related to the subject of stamp duties. The 4th of Geo. IV. created a Chancery fund stamp, and he proposed that stamp duties of a similar amount to those levied on proceedings in the Court of Chancery should also be paid in the Encumbered Estates Court. He never could understand why proceedings in the latter Court should be exempt from stamp duty. At present there was no Stamp in the Encumbered Estates Court either upon affidavit or any other forms of the Court. Property in Ireland had risen in value, and his proposal would raise a fund to meet expenses. He proposed to levy a shilling stamp upon notices, and a ten shilling stamp on petitions, which would bring in a considerable fund. It must be recollected that the principle of these reforms had been accomplished in England, and there was no reason why they should not be extended to Ireland. He thanked the House for the patience with which they had heard his statement, and, in conclusion, begged to say that he had remarked of this Parliament, whether its existence might be long or short, that, in his judgment, there never had sat, nor ever would sit, a body of Gentlemen more anxious to reform the laws and to recommend them to the feelings and attachment of the people; and of this he was certain, that the first duty of all who professed to be Conservatives was to remove abuses from our system of judicature, and to recommend it to the respect of the country.
§ Motion made, and Question proposed, "That the Bill be now read a Second Time."
Mr. J. D. FITZGERALDsaid, he was bound to offer some remarks on the Bill of the hon. and learned member, especially as he (Mr. FitzGerald) was a member of a Commission to which the hon. and learned gentleman had not alluded. If he thought that this legislation was calculated to work the reforms the hon. and learned member had stated in his amusing and exaggerated speech, he would not have opposed these Bills; but as he did not believe that they would have these results, but would 77 have a contrary tendency, and as the hon. and learned member had thought fit to introduce his Bills while a Royal Commission was sitting to inquire into these matters, he should feel it his duty to ask the House to negative them. He had to apprize the House that the hon. and learned member in his speech, had dealt, not with the present, but with the past. Many of the evils to which he alluded had been swept away, for by the Act introduced by Sir John Romilly, in 1851, the abuses which had been pointed out by the hon. and learned member for Enniskillen had to a great extent now ceased to exist. He would offer some remarks now on the Royal Commission, to which the hon. and learned member had not alluded. In 1849 a great experiment was tried in the establishment of the Encumbered Estates Court, which had been attended with entire success. In five years the sales of land had amounted to 14,133,000l., and of this sum 12,000,000l., had been distributed to the proper parties. The hon. and learned member had stated that it would take from five to ten years to bring up the arrears of this Court, but, he (Mr. FitzGerald) could tell the hon. and learned member that he was entirely mistaken on this point. He spoke upon the authority of one of the Commissioners, whose opinion of the Court was as far from that of the hon and learned member as the statements of the hon. and learned member were from the facts.
Mr. WHITE SIDEsaid, he understood the hon and learned member to state in the House that he (Mr. Whiteside) had stated what he knew to be totally at variance with the facts. He begged to state that he had said nothing of the truth of which he was not satisfied.
Mr. J. D. FITZGERALDsaid, he did not believe that he had used language that was at all un parliamentary. He never meant to suggest to the House that the hon. and learned member had knowingly made misrepresentations to the House. All he meant to say was, that the hon. and learned member had made statements to the House, grounded upon information which had been given him, that information being totally mistaken and erroneous, and he now repeated that statement. The House would recollect that it became necessary, year after year, to renew the Encumbered Estates Court Act, and it became a matter of controversy whether the Court should or should not be kept up. This 78 difference of opinion caused Her Majesty's Government, under Lord Aberdeen, to issue a commission to ascertain whether the power of sale given to the Encumbered Estates Court, which gave an indefeasible Parliamentary title, ought to be continued, and whether it ought to be transferred to the Court of Chancery, having regard to the existing practice of that Court. The Commissioners were the Lord Chancellor of Ireland, the Master of the Rolls of England, the late Lord Chancellor of Ireland, the Lord Chief Justice of the Common Pleas, the hon. Member for Belfast (Mr. Cairns), the Solicitor General for England, the late Attorney General for Ireland (Dr. Longfield), and he (Mr. FitzGerald) was also a Member of the Commission. The Commission had worked diligently, and though it only commenced its sittings early in December, the Irish Commissioners were at present sitting to settle their Report, which he expected would, in a short time be transmitted to him for the approval of the English Commissioners, and as soon as it was in his hands a Bill should be laid on the table of the House to carry its provisions into execution. It was with a knowledge of these facts, as though to turn the Commission into derision, and to render it useless and unavailing, that the hon. Member had, in the month of February, introduced six Bills, which, with one exception, dealt with the subjects which the Commission was appointed to inquire into, and there was not a suggestion contained in these five Bills which had not been brought under the notice of the Commissioners in December last. When the hon. and learned Gentleman brought in his Bills he (Mr. FitzGerald) certainly understood him to say that he introduced them in order that they might be considered by the Commission; and he would still make this promise to the hon. and learned Gentleman—that when the Government came to legislate upon the Report of the Commissioners they would be ready to adopt anything that was valuable in these Bills, and give the hon. and learned Gentleman the credit of it. The draught Report of the Commissioners was printed ten days ago. Having inquired into the success of the great experiment of 1849, the Commissioners unanimously came to the conclusion that a tribunal ought to exist having the powers of the Encumbered Estates Court, with this difference—that it should have power to sell unencumbered estates as well 79 as those that were encumbered, it having been found in practice that the advantage of the indefeasible Parliamentary titles given by the Encumbered Estates Court had induced the owners of estates subject to no encumbrance to effect a mortgage on their property, in order to give the Court power to deal with it, and thereby enhance its marketable value. The hon. and learned Gentleman's Bill, however, would confine the powers of the Court solely to the sale of estates that were encumbered. Now, the Commissioners proposed to confer the powers above described on the Court of Chancery, but they recommended that that Court should first be remodelled, that the system of Masters should be wholly swept away, and that the procedure should be rendered more simple, cheap, and expeditious than the hon. and learned Gentleman's Bill would make it. They suggested that two Vice-Chancellors should be substituted for the present Masters, and made other recommendations as to the formation of a Court of Appeal. With regard to the hon. and learned Gentleman's Bills, one of them was intended to improve the procedure of the Court of Chancery, but it did not abolish the system of Masters for the present, and it translated the three senior masters into Vice-Chancellors at once. This was the plan of the hon. and learned Gentleman, although he at the same time said that the Masters had allowed the business to accumulate, and consequently implied that, to some extent at least, they had failed to perform their duty. Again, his Bill proposed to continue the remaining two Masters in their present position, and to appoint a Registrar and a staff of clerks, thereby greatly increasing the expense. The existing procedure with regard to references was also to be preserved, and the Masters would remain, though under another name. As to the hon. and learned Gentleman's Procedure Bill, a learned dignitary gave the opinion that the measure had been drawn up by a person who was ignorant of the rules and practice under Sir John Romilly's Chancery Regulation Act, which provided much better than this Bill did for cause petitions. The ignorance here alluded to was not imputed to the hon. and learned Gentleman, because he did not prepare these Bills himself, although he had brought them in. This Bill, however, carried absurdity to an extreme length. The Lord Chancellor and the Master of 80 the Rolls had power to make general orders under Sir John Romilly's Act. The orders that were framed by the Lord Chancellor were not approved by the Master of the Rolls, while those that were made by the Master of the Rolls were rejected by the Lord Chancellor. An Act was passed to enable the Lord Chancellor alone to make general orders. Well, the hon. and learned Gentleman had taken up the rejected rules of the Master of the Rolls and turned them into a statute. Again, another enactment of the Bill was, that every notice of Motion should have placed over it the title of "cause petition." And the Act contained a number of other similar provisions fit for general orders but not for a statute. He next came to the Receivers Act. At present there was in the Court of Chancery one Receiver-master, who was able to do all the business, and more, and do it well. The hon. and learned Gentleman, however, appointed two Receiver-masters in the place of this one, to do the reduced duty. The House was not informed that, according to the plan proposed by the commission, Receivers would be comparatively unnecessary, or that the appointment of a Receiver under a judgment was now very rare. The Bill, therefore, was unnecessary, and the same learned functionary, whose opinion he had before quoted, had stated that the person who prepared this Bill—not the hon. and learned Member—was entirely ignorant of the subject. Next came the Sales of Estates Bill, the greater part of the provisions of which were taken from the Encumbered Estates Act. Now the Commissioners intended to recommend the extension of this power much further, and while this Bill dealt only with encumbered estates, they thought it was right that any owner of an estate, if he chose to incur the expense, might go into the Court of Chancery and say, "I want to sell my estate; inquire into it, and enable me to give a purchaser a clear indefeasible and Parliamentary title which no man can question." No. 5 Bill, that relating to appeals, was the last upon which he should have to trouble the House, for as to the sixth he quite concurred in its object. He quite agreed that there ought to be an Appellate Court, but he differed from the hon. and learned Member as to what the constitution of that Court should be. The proposed Court was to consist of legal functionaries, some of whom could not, without much inconvenience, leave their other du- 81 ties to attend the sittings of that Court; and then how would it work? First, there would be an appeal from the Vice Chancellor, whom the hon. and learned Member created, to the Chancellor; from the Chancellor to the new Appellate Court, and then there would be the House of Lords as the final Court of Appeal. The hon. and learned Member proposed that any one who appealed to this new Appellate Court should not be permitted to carry the case further; but his adversary, who had not appealed, was to be allowed to go to the House of Lords. In his opinion, such a provision would be in every respect unsatisfactory. He agreed that an Appellate Court was necessary, but he would not deprive any one of the right to carry a final appeal to the House of Lords; and he could never assent to the doctrine, that a man who had appealed to a local tribunal without success, should be prevented from having recourse to another tribunal in the last resort. One of the fifteen recommendations of the Commissioners was, that a local appellate tribunal should be created, to which a person might appeal from the decisions of the Vice Chancellors; and that, at the same time, a power of appeal to the House of Lords should be open to every one. Under all the circumstances to which he had alluded, he would put it to the House whether the hon. and learned Gentleman should not have been content to leave his Bills upon the table of the House until the Report of the Commission was before them; and whether he was justified in asking the House to affirm the principle of these measures by acceding now to the second reading? Could the House, in fairness, agree to this measure until it knew authentically what were the recommendations of the Commissioners appointed to inquire into the working of the Encumbered Estates Court, and as to whether it would be advisable to transfer its powers to the Court of Chancery? The Commission had found it necessary to consider the construction of the Court of Chancery, and to submit recommendations which would tend to simplify it, and render it fitted to receive and deal with the new jurisdiction. On these grounds, therefore, considering that inquiry was still pending—without any wish to impute to the hon. and learned Gentleman that he had stated knowingly what was erroneous, but only that the information upon which he spoke was inaccurate—he called upon the House now to reject these Bills, and to accede to 82 the Motion he was about to make—namely, that they should be read a second time that day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. CAIRNSsaid, he wished to suggest the propriety of adopting a medium course between the proposition of his hon. and learned Friend the Member for Enniskillen (Mr. Whiteside), who moved the second reading of these Bills, and the proposition of his hon. and learned Friend the Solicitor General for Ireland, who moved that the House should reject them altogether. He thought sufficient reason had been assigned why the House, at all events, should not reject the Motion of the hon. and learned Member for Enniskillen until the report of the Queen's Commission was laid upon the table. He regretted that in the course taken by his hon. and learned Friend the Solicitor General for Ireland, his hon. and learned Friend had not exhibited his usual consideration and judgment. The hon. and learned Gentleman had referred to Her Majesty's Commission, but that Commission was merely required to Report to Her Majesty, and it would be for Her Majesty to say whether the Report should be laid upon the table of the House. The course taken by his hon. and learned Friend the Solicitor General was most unfair to the Commissioners, and, indeed, his hon. and learned Friend seemed to have forgotten altogether what sort of thing a Report was. The hon. and learned Gentleman had stated to the House the contents of a draught Report not yet even approved by all the Commissioners, which was therefore subject to change, and which was confidential until it had been submitted to Her Majesty and ordered to be laid on the table of the House.
§ MR. MALINSsaid, he could not refrain from remarking that the hon. and learned Solicitor General for Ireland had commented in a tone of great bitterness upon a proposition which was the result of extreme labour on the part of his (Mr. Malins') hon. and learned Friend the Member for Enniskillen, and was dictated by no other motive than an earnest desire to improve the state of the Court of Chancery in Ireland. Instead of addressing the hon. and learned Member for Enniskillen in a tone of bitterness and sarcasm, he (Mr. 83 Malins) should have expected that the hon. and learned Solicitor General would have tendered thanks to his hon. and learned Friend on behalf of a reforming Government for the efforts which he had made to reform a profession of which he was himself so distinguished an ornament. But, instead of meeting with thanks, the hon. and learned Member for Enniskillen had been reproached with misrepresentation, and was told that he was totally ignorant of the subject he had brought before the House, but that he was not so much to blame as some other person who had prepared the Bills which had been introduced by him. Now, he (Mr. Malins) had never understood that when an hon. Member brought a Bill into that House he was to be told that it was not his Bill, but that it had been drawn up by some other person. Would the Government like to be treated in a similar manner? It was perfectly well known that a Bill brought in by the Government was not drawn up by the individual Member who introduced it; and, indeed, one of the most important Bills brought into the House since he had been a Member of it—the Succession Duty Bill—was not drawn up by the right hon. Member for the University of Oxford, the then Chancellor of the Exchequer, who introduced it; but was drawn up upon the best legal advice that could be obtained, and did signal honour to those who prepared it. He (Mr. Malins) totally deprecated the observations which had been made by the hon. and learned Solicitor General, and he thought that the criticisms which had been made by the hon. and learned Gentleman were quite unworthy of his position. The hon. and learned Gentleman had spoken of the absurd character of the Procedure Bill proposed by the hon. and learned Member for Enniskillen; but was the hon. and learned Solicitor General for Ireland aware that it was almost entirely the same as the Bill which regulated the procedure in England? The hon. and learned Gentleman reproached the hon. and learned Member for Enniskillen with having proposed two enactments, which showed the contemptible character of the Procedure Bill, one of which enacted that all affidavits were to be made in the first person. Now, was the hon. and learned Gentleman aware that the enactment in question was absolutely a rule in the Court of Chancery in England, made by the Lord Chancellor, the Master of the Rolls, and the Vice Chancellors in 84 pursuance of the Act of Parliament? Was it then to be a matter of reproach to his hon. and learned Friend (Mr. Whiteside), that he had provided for the Court of Chancery in Ireland a regulation that was now a regulation of the Court of Chancery in England, rather than leave it to the Judges to make rules which, when affirmed, were as much a part of the Act as if they had been contained in the Act itself? Previous to the year 1852 practices prevailed in the Court of Chancery in England which he, as a professional man, had no hesitation in asserting were a disgrace to civilised society, and they were removed by a Bill similar to that now proposed by his hon. and learned Friend (Mr. Whiteside) for Ireland. The hon. and learned Solicitor General made an indignant appeal to the House, and said that the hon. and learned Member for Enniskillen was guilty of an impertinence, not only to the Government, but to the House itself, in laying upon the table these six Bills while a Report was under consideration upon the subject. The hon. and learned Gentleman then adopted the course which had already received the condemnation of the hon. Member for Belfast (Mr. Cairns) of reading a draught of the Report of the Commissioners, and then said it was discreditable to bring forward these Bills while there was a Report in progress which might be totally opposed to them. The hon. and learned Gentleman seemed to forget, however, that only a few nights ago the Government themselves brought in a Bill respecting testamentary jurisdiction in opposition to a Report of twelve distinguished Commissioners, which was not a draught Report, but one signed and sealed after having been maturely considered. When the Testamentary Jurisdiction Bill was again brought before the House, he (Mr. Malins) should certainly claim the vote of the hon. and learned Gentleman, because, after his speech that evening, his hon. and learned Friend (Mr. Fitzgerald) could scarcely sanction the proceedings of a Government which set a Report at open defiance and acted in direct opposition to it. It was certainly with great surprise, after the indignant remarks of the hon. and learned Gentleman, that he (Mr. Malins) had found that the provisions contained in the Bills of his hon. and learned Friend (Mr. Whiteside) so greatly coincided with the recommendations of the Commissioners, and he was almost inclined to attribute the bitterness exhibited by the hon. and learned Solicitor General for Ireland 85 to the fact that he had found himself rivalled and forestalled in bringing forward Bills for reforming the Court of Chancery in Ireland. The hon. and learned Gentleman, said, the Encumbered Estates Court worked well. He (Mr. Malins) acknowledged that it worked well in converting Gentlemen's estates into money, but he was exceedingly misinformed if there was not a great arrear of business in that Court. His hon. and learned Friend proposed to transfer the jurisdiction with regard to encumbered estates to the Court of Chancery, and to give that Court all necessary powers. It was said that his hon. and learned Friend had copied the clauses of the Encumbered Estates Act; but he (Mr. Malins) would venture to say that if the hon. and learned Solicitor General for Ireland were to introduce a Bill on that subject he would find it necessary to copy those clauses also. The next Bill was an important one, as it effected a reform relative to the appointment of Receivers to estates. The Report also was anticipated in this respect. His hon. and learned Friend bad hit the right nail on the head ill all respects, and he suspected that the cause of all the ill-feeling towards his hon. and learned Friend evidently was, that his hon. and learned Friend would make the Report when it was presented nothing more than a series of recommendations, in conformity with his hon. and learned Friend's Bills. The hon. and learned Solicitor General for Ireland had said that he entirely approved the principle of the Appeal Bill, but he raised objections to the tribunal which it would constitute. His hon. and learned Friend (Mr. Whiteside) considered that it was of the highest importance to establish a ready and cheap Court of Appeal in Ireland. In that country an appeal lay from the Master of the Rolls to the Lord Chancellor, and from the Lord Chancellor to the House of Lords in England; but in a great majority of cases the appeal to the House of Lords amounted to a denial of justice, on account of the delay and expense attending such a proceeding. The Lord Chancellor of England, it must be remembered, heard no original causes, but merely appeals. In Ireland, however, the Lord Chancellor heard causes originally, and the consequence was that there was virtually in that country no Court of Appeal. His hon. and learned Friend proposed to constitute a ready and cheap Court of Appeal, consisting of the Lord Chancellor and two other Judges—ex-Chancellors, 86 Masters of the Rolls, or Puisne Judges; and he might remind the House that there was in England a tribunal of great importance, the Judicial Committee of Privy Council, to which all appeals from the Ecclesiastical Courts and the Colonies were submitted, and which was constituted precisely in the manner in which his hon. and learned Friend proposed to constitute a Court of Appeal in Ireland. He (Mr. Malins) would give his cordial support to the Bills of his hon. and learned Friend, which were the results of the labours of upwards of two years; and he considered that his hon. and learned Friend deserved the thanks of Parliament and of the country for his efforts in the cause of judicial reform, and that he ought also to have received the warm and cordial thanks of a reforming Government. He regretted that his hon. and learned Friend, instead of receiving tke thanks of the Government, had been met in a tone of reproach, bitterness, and sarcasm which, he thought, was altogether unjustifiable. He deprecated the tone in which his hon. and learned Friend had been met on the other side, and trusted the Bills would be read a second time.
§ MR. KEOGHsaid, the hon. and learned Gentleman who last spoke had accused his (Mr. Keogh's) hon. and learned Friend the Solicitor General for Ireland of having indulged in bitterness, reproach, and sarcasm, which were directed against the hon. learned, and particularly suave Member for Enniskillen. His hon. and learned Friend the Solicitor General, before resuming his seat, had assured the hon. and learned Member for Enniskillen (Mr. Whiteside) that nothing was further from his intention than to utter any expression which might hurt that hon. and learned Gentleman's feelings; and he (Mr. Keogh) would not have expected, after such a declaration, that any charge would have been made against his hon. and learned Friend the Solicitor General for Ireland, if he had not known how particularly sensitive and careful the hon. and learned Member for Enniskillen was, upon all occasions, in that House and elsewhere, not to give to any person the slightest possible offence—not to use a single expression which could jar upon the ear of the House, and not to assail the reputation of any man, whether openly or covertly, manfully or anonymously. If they had not dealt with these Bills in the manner suggested by his hon. Friend the Member for Belfast (Mr. 87 Cairns) he apprehended that the hon. and learned Gentleman opposite was himself to blame, for he was informed, before the Bills came on for discussion, that the Report which had been referred to was prepared, and he was perfectly well aware that the Commission had dealt with all the subjects to which they referred. It had been suggested to the hon. and learned Gentleman (Mr. Whiteside) that he should not press his Bills until that Report was laid upon the table; but the hon. and learned Gentleman, for some reason best known to himself—whether to obtain a temporary advantage, a momentary triumph over a Commission composed of such eminent and distinguished persons, he (Mr. Keogh) could not say—thought proper to persist in forcing on this discussion. ["Oh, oh!"] No doubt the hon. and gallant Member for Dublin (Colonel Taylor) who said "Oh, oh!" was thoroughly acquainted with all the details of the Commission. He (Mr. Keogh) would submit to the House that if the hon. and learned Member for Enniskillen had chosen to take the moderate and practical course of allowing those Bills to lie over until the Report of the Commissioners was placed upon the table, they would have been spared this long discussion. Hon. Gentlemen had stated that, by the Chancery Regulation Act, a great advantage had been gained in adding to the cheapness and efficacy of the Court of Chancery, but he could only say that he remembered, when that Bill was carried, that it was carried against the strenuous opposition of the present Vice Chancellor Stuart, then a Member of that House, and of a number of hon. and learned Gentlemen opposite, who now thought fit to approve it. The hon. and learned Gentleman (Mr. Whiteside) proposed to make the three oldest Masters in Chancery into three young Vice Chancellors. Now, one of these three Masters was called to the Irish bar in 1815, so that he could not be much under seventy-five years of age, and surely he could not be expected at that age to commence again as a young Vice Chancellor. He would suggest to the House the expediency of adjourning the debate until the Report of the Commissioners was laid upon the table of the House; and if the hon. and learned Gentleman would agree to let these Bills stand over, the Government would consent to that course. If, however, he insisted upon pressing them, they would be obliged to vote in favour of the Amendment of his 88 hon. and learned Friend the Solicitor General for Ireland, that these Bills be read a second time that day six months. He should move that the debate be adjourned for a month.
§ MR. HENLEYsaid, he thought it was not desirable to come to any decision upon the Bills that evening, for if they did they might find, when the Report of the Commission was laid upon the table, that they had affirmed a principle objected to by the Commissioners, or, vice versâ, rejected a principle approved by them.
§ MR. WHITESIDEsaid, he understood it to be the pleasure of the House that the debate should be adjourned, and he should therefore yield to that feeling. It was a perilous thing, as he had discovered, to meddle with the Court of Chancery. About six weeks ago he had had some communication with the Solicitor General for Ireland on the subject of these Bills, and that learned Gentleman having told him that on the day then appointed for the second reading he was compelled to be absent to attend on a Commission, he had consented to postpone them, and the reward of his courtesy was the speech of the hon. and learned Gentleman, which was clever in its way, no doubt, but which lectured him in a manner to which he was not accustomed at his hands. As to the hon. and learned Attorney General for Ireland, he had spoken in a style of eloquence which was peculiar to him. He was not aware that he had incurred that attack upon him by meddling with the character of the hon. and learned Gentleman; indeed, it was about the last thing he wished to meddle with, and his acquaintance with the hon. and learned Gentleman, whether at the bar or in that House, was so slight, that he did not know that he had any right to do so. As to what the hon. and learned Gentleman said about anonymous attacks made by him, he could only say that, as he did not in the least comprehend the observation, he was quite unable to reply to it. As to the appointment of a gentleman over seventy years of age, why, did not the hon. and learned Gentleman remember that a man over seventy years of age could be a Prime Minister? The gentleman to whom reference had been made was quite competent to perform the duties which he proposed to confide to him, but he could see what was the object of the Government as well as if he were in the councils of the hon. and learned Gentleman the Attorney 89 General for Ireland, and he would, if he were able, defeat that object. The object was to carry on a job to get the appointment of two or three new officials, and he saw through that object clearly. With regard to the correspondent of the hon. and learned Gentleman the Solicitor General for Ireland, who wrote in such a provincial style, and said that these Bills had been framed by persons ignorant of Chancery procedure, he begged the hon. and learned Gentleman, the next time he wrote to him, to give him his compliments, and to tell him that he had neither the feelings nor the manners of a gentleman. The Chancery Regulation Act had been praised, and he could only say that the gentleman who prepared that Act had assisted him in preparing these Bills, as he had, he believed, told him that such was the case. He could only say that he should not oppose the adjournment of the discussion until the Report of the Commissioners was laid upon the table. He had endeavoured to carry a measure which was for the good of his country, and it had, as might have been expected, met with the vigorous opposition of the Attorney General and the Solicitor General for Ireland.
§ Debate adjourned.
§ The House adjourned at half after One o'clock.