§ MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)
Mr. Speaker, Sir, in moving for leave to introduce a Bill to alter the constitution and amend the practice and course of proceeding of the High Court of Chancery in Ireland, I have to, crave the indulgence of the House while I state the circumstances under which the Bill was framed, and refer, as briefly as I can, to some of the details of the measure. And it will be convenient in the first place, with a view to understanding the necessity that exists for this measure, that I should state something of the circumstances which have produced in the system of Equity practice and procedure in the two countries a divergence of a very remarkable and, I think, a very unfortunate character. It is matter of common notoriety that, for a lengthened period, great dissatisfaction pre- 1570 vailed in this country, arising from the delay and expense attending proceedings in the Court of Chancery. That dissatisfaction continued for years; it culminated to a very great extent in the time of Lord Eldon; and in the year 1825 a Commission was appointed for the purpose of considering the amendments that should be made in the Equity proceedings in England. That Commission was followed by a Report in the year 1829, and upon that Report reforms in the Court of Chancery in this country were subsequently founded. The Act of 3 & 4 Will. IV. c. 94 extended the powers of the Chancellor and Vice Chancellor and of the Master of the Rolls to make General Orders for the regulation of the Courts of Equity in England; and, accordingly, in the years 1833, 1841, and 1845, Lord Brougham, Lord Cottenham, and Lord Lyndhurst framed orders which, to a great extent, carried out the reforms of the Court of Chancery, which were recommended by the Commissioners. But it is important to observe that they were not extended, nor was the statute under which they were made extended at all to Ireland. These General Orders were not, however, in their operation considered sufficient for the purpose for which they were framed, and in the year 1850 a Royal Commission was issued to consider further reforms in the Courts of Equity. In the same year, 1850, an Act was passed—Lord Justice Turner's Act —the 13 & 14 Vict. c. 35. It was entitled an Act to diminish the expense and delay of proceedings in the High Court of Chancery in England; and by it very important Amendments were effected in the Equity system in this country. The Commission of 1850 continued to sit for a considerable period. It made three very important Reports, aud upon these Reports Parliament immediately acted in the two statutes, the 15 & 16 Vict. c. 80, and another of the same year—the 15 & 16 Vict. c. 86. By the first of these statutes, the Masters in Chancery in England were abolished, and Vice Chancellors were added to those who before existed, with chief clerks, taking the place in certain instances and for certain purposes of the Masters, who ceased to exist. The second statute was aimed to amend the practice and procedure of the Courts of Equity in this country; and under it general orders of the Court have continued from time to time to be made, by very able Judges, and have carried forward Chancery reform in England to a 1571 very considerable extent indeed. It is, I am sorry to say, otherwise in Ireland. In Ireland, the Equity system was identical at its introduction with the Equity system in England, and it continued to be identical with it for hundreds of years. In point of fact, it continued to be identical with it substantially up to the year 1850, because, although there was no Commission leading to legislation for the Irish Court, an Act was passed in the 4 & 5 Will. IV., which gave to the Chancellor of Ireland and to the Master of the Rolls in Ireland, powers to make general orders for the regulation of the practice in the Court of Chancery in Ireland, and general orders under the provisions of this Act were made by Lord Plunket and by Lord St. Leonards, in the years 1834 and 1843, with the object and with the effect of identifying, as far as possible, the system in England with the system in Ireland. So it continued until the year 1850; but in that year a complete divergence of the systems began to be established. In that year a totally new system of practice and procedure was introduced in Ireland, by an Act called the Irish Chancery Regulation Act, 13 & 14 Vict. c. 89. It is important for the House to observe that that Act was not introduced by, and was not founded upon, the recommendation of any Royal Commission, or the Report of any Committee, or any preparatory inquiry such as that upon which, so far as England was concerned, all measures of the kind proceeded. That Act was passed, as I have said, in the year 1850, and it altered the practice of the Court of Chancery in Ireland to a very great extent. It abolished the old system of Bill and Answer, and established a system of Cause Petitions, giving to Ireland a course of procedure which, I believe, and I think I shall prove before I go much further, has not worked satisfactorily. That system has not been satisfactory either to the practitioners or to the suitors of the Court; and however well designed, and however in some respects accompanied with substantial benefits, it has created considerable abuses. It has resulted in the multiplication of affidavit upon affidavit; there is under it no machinery for joining issue, or eliminating the issue from the pleadings, and the result has been exceedingly injurious in Ireland. The Act also vested a new jurisdiction in the Masters of the Court. It created what has been called the Fifteenth Section Petition. It threw into the Masters' offices mortgage causes, testamentary causes, foreclosure 1572 causes, and various others, with an enumeration of which I need not trouble the House. So matters went on until, in the year 1854—the Incumbered Estates Court having been established some years before, and having become a very important institution, indeed, in Ireland—a Royal Commission was appointed for the purpose of inquiring into the working of that Court. Upon that Commission, some of the most distinguished men in England and in Ireland took their places. From Ireland we had the present Lord Chancellor of Ireland; we had the Lord Justice of Appeal, Mr. Blackburne; we had Chief Justice Monahan; Mr. Justice Fitzgerald, whose name is honourably known in this House; Judge Longfield, a very distinguished Judge of the Landed Estates Court; and Mr. Brewster, to whose eminence at the bar I need not refer. Upon the English side there were the present Lord Chancellor, then Sir Richard Bethel; Sir John Romilly, Master of the Rolls; and the hon. and learned Member for Belfast, Sir Hugh Cairns. It was a very strong Commission, and the character of its Members, and the knowledge and experience they possessed, entitled their recommendations to the highest consideration. Well, that Commission recommended an assimilation of the system of Equity in England and in Ireland. Nothing, however, was done, and nothing has been done up to the present time upon the recommendations of that Commission. The Lord Chancellor and the Master of the Rolls in Ireland had very large powers for the making of rules and orders — general rules and general orders—very large powers indeed. These powers were extended by the statute which passed subsequently to the year 1850; but I am sorry to say that, from peculiar circumstances, those powers have not been acted upon. Differences of opinion between the learned Judges of the Court prevented action upon those powers—and the result has been, that they have not been used for the purpose of the assimilation of the systems of the two countries—or, very much, for any other purpose. The Commission to which I shall now immediately refer was appointed owing to representations made as to the unsatisfactory state of things which existed; and that Commission, I may state, before I communicate to the House its nature and constitution, has found that, at this moment, the practice and procedure of the two countries, originally similar, have by the effect of modern legislation become 1573 almost entirely different. I need not say that that is a condition of things which is very much to be regretted. It is very much to be regretted that the principles of our law being identical, that the system of our jurisprudence, so far as England and Ireland are concerned, being the same—there should be, in practice and in procedure, almost an absolute difference; a difference which results in great inconvenience to the profession, at all events so far as Ireland is concerned, by preventing the attainment of the advantage to be had from the authoritative decisions of the Courts on common principles. And further, in a united kingdom it certainly is a desirable thing that the practice and procedure of the respective Courts should be identical. Well, it was in the position of matters which I have described, that in the year 1862 a new Commission was appointed. That Commission had upon it several of the distinguished persons whose names I have mentioned in connection with the Commission of the year 1854. Others were added to them. I shall mention the names of the Commissioners, and the value of their recommendations will be at once patent to the House. Upon it sat the Master of the Rolls in England Sir John Romilly, Vice Chancellor Sir William Page Wood, my hon. and learned Friend the present Attorney General, the late Attorney General Sir William Atherton, the hon. and learned Member for Belfast, Sir Hugh Cairns, Mr. Justice Willes, and two gentlemen who wore very well acquainted with the practice and procedure of the Courts here—Mr. Gifford and Mr. Follett. The Irish Members of the Commission were the Lord Justice of Appeal, known in this House as a man who during his life has maintained a position of the highest eminence, who has passed through the great offices of the law with the greatest distinction, who has been successively Attorney General, Master of the Rolls, Lord Chief Justice of the Queen's Bench, Lord Chancellor of Ireland, and is now Lord Justice of Appeal. With him were associated my right hon. Friend (Mr. Napier), who was late Lord Chancellor of Ireland, and whose high position is also well known in this House; Mr. Brewster, of whom I have spoken before as a man of great eminence at the Irish bar; Chief Justice Monahan, who is certainly one of the most distinguished men on the Common Law Bench in either country; Baron 1574 Hughes, who was specially qualified to judge of every question relating to the Courts of Equity; my colleague, myself, and Mr. Orpen, who represented the Incorporated Society of Solicitors and Attorneys in Ireland. I need not say that a Commission more entitled to public respect and deference in any recommendation which it might make, could not by possibility have been arrayed by the Royal Authority. The Commission was issued for the purpose, as staled in its Report, of inquiring into the following matters, with a view to reduce costs to suitors and the expenditure of the public money, and to assimilate, so far as may be practicable, the administration of Justice in England and Ireland: —That was the scope of the Commission; and I may state that, when the Commissioners assembled, they took the best means possible of securing the fullest and most reliable information which the profession could afford. They had that information collected, both as to the law and equity, by lawyers thoroughly acquainted with the subject, and furnished to them in Reports, showing the differences which existed upon the one side and upon the other. They appealed, not only to the members of the bar but to the members of the kindred profession of solicitors, and they received answers to elaborate queries upon all points connected with the management of the Courts of Equity in Ireland. And having done so, they stated their conclusions in the Report which I have before me, and which I had the honour to lay upon the table of the House on the last day of the last Session in these terms —
- 1. "The constitution, establishment, practice, procedure, and fees of the Superior Courts of Common Law in Ireland.
- 2. The differences between the constitution and the forms of practice, procedure, and fees of the Courts of Chancery of England and of Ireland."On the general question of assimilation of Equity practice and procedure, and the changes connected with it, we are of opinion—1575
- 1. That it is expedient that the system of practice and procedure of the Courts of Chancery of England and of Ireland should be assimilated as far as practicable.
- 2. That the practice and procedure of the Court of Chancery of England are generally to be preferred to the practice and procedure of the Court of Chancery of Ireland.
- 3. That demurrers should be allowed for want of equity or for rnultifariousness only.
- 4. That the Irish rule of not requiring an at tachment, and a return of non est inventus, in order to obtain a sequestration, should be extended to England.Our recommendations as to the changes in the constitution and fees of the Court of Chancery of Ireland, rendered necessary by the adoption of assimilation, are as follows:—We are of opinion—
- 1. That the office of Master in Chancery in Ireland, other than that of the Receiver Master, should be abolished.
- 2. That the existing Master should be retained so long as it may be found necessary that they may, as far as practicable, complete the business pending before them.
- 3. That, having regard to the special statutable duties now discharged by the Receiver Master, that office should be retained.
- 4. That the Master of the Rolls, with one Vice Chancellor, having each one chief clerk and two assistant clerks in addition to the Lord Chancellor and Lord Justice of Appeal, will be sufficient to dispose of the Equity business in Ireland.That it is desirable that power be given to the Lord Chancellor, with the advice and consent of the Master of the Rolls and Vice Chancellor in Ireland, or one of them, by order under their hands, to appoint an additional chief clerk or assistant clerks to the Master of the Rolls and Vice Chancellor, or either of them.That power should be given to the Lord Chancellor of Ireland, with the advice and consent of the Lord Justice of Appeal, Master of the Rolls, and the Vice Chancellor in Ireland, or any two of them, to regulate the fees to be paid, so far as it shall be necessary to make any changes in the same in consequence of the alterations produced in Equity practice and procedure by carrying into effect the preceding recommendations.These are the recommendations of the Commissioners. They specify some particulars in which, owing to the peculiar circumstances of the country, the present system ought not to be changed, and they make a great many other recommendations; and, upon these recommendations, the Bill which I now introduce to the House has been based and framed. I can assure the House that, so far as I am able to judge, the Bill faithfully and carefully carries out the conclusions of the Commission and of the antecedent Commission of 1854; and that being so, I think I need not add that it has, at all events primâ facie, a very strong title to the consideration of Parliament. The Bill may be said to be divided into five parts: the first of these regards the appointment of a Vice Chancellor and Chief Clerks in Ireland; the second relates to the abolition of the Masters, three of the four Masters who at present exist in that country; the third division relates to the process and practice of the Court of Chancery in Ireland; the fourth concerns stamps and fees payable in that Court; and the fifth relates to some miscellaneous matters of no great consequence, except in one respect—namely, as 1576 it touches unclaimed dividends. That Bill I may say in the inception is, with the necessary modifications which the Report suggests, a consolidation of the three great English statutes, the 13 & 14 Vict. c, 35, the 15 & 16 Vict. c. 80, and the 15 and 16 Vict. c. 86. The first division of the Bill, relating to the appointment of a Vice Chancellor and chief clerks, is founded upon a principle on which the Commission in England acted, and on which the Commission for Ireland has been disposed to act, and it is this: that it is of great importance in disposing of an Equity cause, that a single judicial mind should apply itself to the case from the beginning to the end; that in one judicial mind there should be complete control over the cause; that it ought not at one stage to be tossed into the Master's office, and at another tossed back again; one man thinking of this part of the cause, and another of that—but that the whole of the proceedings should be homogeneous; that there should be harmony throughout, and that in that way the proceedings of the Court might be made more beneficial. That being so, it has been considered by the Commissioners that there should be a Vice Chancellor appointed for Ireland, and that the disposal of the entire business should be committed to the Lord Chancellor, the Vice Chancellor, and the Master of the Rolls. The Masters being abolished, two chief clerks will be required, a chief clerk for the Master of the Rolls, and a chief clerk for the Vice Chancellor; and it has been considered right and proper in that, as in other particulars, to follow the precedent set in England, and to provide that these two chief clerks shall be members of the profession of Solicitors, or be taken from the Examiners of the Masters who will be abolished. So far for the first part of the Bill, Then, as to the second, the abolition of the Masters. I believe no one who knows anything of legal affairs in Ireland will have a doubt that the Masters now in existence are able and conscientious men. I believe there is not one of them who would not hold his place with honour in any Court in the world; but, at the same time, the nature of the proceedings in these Courts has not been very satisfactory to the public. It has been considered, at all events, that they are not satisfactory—not from the Masters not doing their duty, but because the system which they had to administer was not satisfactory. Let 1577 me in this matter not be misunderstood. I am not making any imputation whatever upon the Masters. Quite the contrary; but as in England the machinery of Masters was not considered in reference to the appointment of the Vice Chancellor and chief clerks the best for the performance of the duty to be done, so in Ireland the same objection to the system has been started, and has been yielded to. There are, as the House may be aware, four Masters in Ireland. It is proposed by the Bill to abolish three of the four. The fourth Master is what is called a Receiver Master. He has peculiar duties to discharge—duties which could not be well discharged either by a Judge in the Courts of Equity, or by either of the chief clerks. He has to do with the accounts of guardians, of minors, and lunatics, and with the accounts of receivers over estates. He has also very extensive duties to perform in auditing the accounts of treasurers of grand juries in Ireland—and the county rate with which he has to deal amounts to something like a million sterling a year. He has also to audit the accounts of the collector general of taxes in Dublin — whose collection amounts to £190,000 a year, and it has accordingly been thought desirable and necessary that he should continue to discharge his peculiar duties when the other Masters have ceased to act. And I may say that even in that particular there has been no want of attention to the principle of assimilation recommended by the Commissioners, because while here in England the Masters generally were abolished, the Master in Lunacy continued to act, —and he continues to act with less extensive powers and less important duties than the Receiver Master will have to discharge in Ireland. While the Masters, according to the recommendation of the Commissioners, are to be abolished, it has been thought right and proper that the Cause Petitions presented under the fifteenth section to which I have referred, and which are now in their offices, shall be disposed of by themselves. The Master of the Rolls in Ireland, a very eminent Judge as we all know, and a man to whose opinion upon any subject great respect must be paid, protested against the transfer of that business to the Court, which will subsist upon the extinction of the Masters; and not only was deference paid to his opinion, but it was con- 1578 sidered that the mixing up of the old principle and the new would be attended with great difficulty and complication, and it was thought better that the old business in these offices should be disposed of by the Masters, and that the new business should be disposed of by the new Court. Again, in that instance, the English precedent has been followed, for the Masters here continued, in order to wind up their business, for a considerable time after the Act by which they were finally abolished had passed. I should state that, as to the appointment of a Vice Chancellor, and as to the abolition of the Masters and the creation of chief clerks, the opinion of the Commissioners was unanimous. And, indeed, I am not aware that there is any difference of opinion upon that subject, in either branch of the profession, or in the mind of the public. I will now go on to refer to the offices which it is proposed to create under this Bill, and the offices which it will abolish. I heard the other night some reference to this matter. Some anxiety was expressed to find out what offices were to be created and what offices were to be destroyed. And some allusion was also made which, I confess, I did not understand, to the intervention of the Treasury in this matter. I did not think at the time, nor do I now think, that the observation was called for, considering who the Commissioners were, upon whose authority and recommendation the measure is to be carried out. Now, I have to inform the House that by the Bill, following the recommendation of the Commissioners, the entire existing staff is to continue to be employed, that it is designed that there shall be no new offices created, none whatever—except the office of Vice Chancellor and the office of the two chief clerks — and that the officers, who at present do duty in the Master's offices, shall not be superannuated, but that, in so far as they are capable of doing duty at all, they are not to be relieved from duty, but shall be compelled to do in new offices work which will entitle them fairly to the salary they receive. The Assistant Registrars and Junior Clerks necessary in the new Court will be all taken from the old staff. So far as that staff is concerned, to some small extent there may be a want of employment for a very few men, but it is recommended by the Commissioners that, in order that the public may not be burdened with any expense for which they do not receive the fullest compensation, those persons who 1579 may have time at their disposal are to be employed in arranging the records of the Master's offices, a duty which it is most important for the country should be done. [Mr. WHITESIDE: What about the chief clerks?] The chief clerks are to be taken from the profession of solicitors, or from the Examiners to the Masters; and I may inform my right hon. Friend that the appointments are, be far as I remember, to rest with the Judge of the Court—with the Lord Chancellor and the Vice Chancellor; and it is only right, and fair, and proper, that those who have the burden and responsibility of most important and onerous duties, under the new system, should have the appointment of those upon whom they must rely—whom they must trust—nay more, whom they must train to do their duty. Now, I must state further, that I believe it will appear very clearly, when the details of this measure are considered, that the ultimate result of the passing of the Bill will be, not the casting of a bduren upon the Treasury, not the creation of additional expense, but that at least some £4,000 or £5,000 a year will be saved by a reform of the greatest possible value. So far with regard to the first and second parts of the Bill. The third, as I have stated, relates to the practice and procedure of the Court, and the important portion of that third part unquestionably is this, that it abolishes the Irish Chancery Regulation Act, so far as that Act governs the procedure of the Court. An imposing array of testimony has been accumulated by the Commissioners upon that subject, and is presented by them. That evidence, if I could venture to trouble the House with it, but I shall not, would, I think, abundantly satisfy it, that a more wise proceeding than that which is proposed by the Bill could not well be conceived. In the 23rd page of their Report, the Commissioners Bay this—The procedure introduced into Ireland by the Chancery Regulation Act of 1850, of petition, answering affidavit, and affidavits by way of evidence without proper limits to the filing of such affidavits, has not, in our opinion, worked satisfactorily.The references to Masters are attended with all the disadvantages which led to the abolition of the office of Master in England.The jurisdiction under the fifteenth section of the Irish Chancery Regulation Act of 1850, has generally failed in the objects for which it was intended, and has not been attended with the advantages experienced under the English system, based upon the recommendations of the English Chancery Commissioners of 1850. There are, 1580 however, some portions of the Irish procedure which we recommend to be retained.That opinion of the Commissioners—that judgment of the Commissioners—is founded upon the evidence of the ablest men connected with the bar and the Chancery Bench in Ireland. Master Brooke, who is a gentleman of the greatest ability, experience, and conscientiousness, in his answer to the Commissioners wrote thus—Our greatest want has been the deficiency of information for the practitioner's guidance, and the most valuable of all reforms would be the adoption of the practice of the English Court of Chancery, with its precise rules and printed decisions. Since 1850 we have been like travellers without a chart. The Act of that year, see. 17, empowered the Master, without reference to any rule or course of practice of the Court, save as by the Act provided, to regulate the course of proceedings as he might think expedient for rendering the same speedy and inexpensive, so far as justice would admit. So vast a power exercised by five Judges, whose decisions are not reported, nor even known in the other Masters' offices, though hitherto exercised, I believe, with great caution and moderation, cannot but have led to much diversity of practice and caused great perplexity, of which both counsel and solicitors frequently and justly complain. The obvious remedy is to bring us under the control of English authorities, which are accessible to all; and if there be any particulars in which our system is superior to the English, we would gladly surrender the advantage, if we could thereby obtain the benefit of fixed and known rules of procedure.And Mr. Serjeant Sullivan, a very distinguished member of the Irish bar, speaks in these terms—In my opinion, the working of the present system of proceeding by general cause petition and affidavits in Ireland, has been unsatisfactory. For a considerable period after the introduction of the system the utmost confusion and the loosest practice prevailed, and these continued long subsequently to the time at which they should have ceased, if they were to be regarded simply as the natural or unavoidable consequences of a new state of things; in fact, they have not yet been entirely removed, and they seem to me to exist as incident to the present system of Equity procedure.And Mr. Warren, whose name is also extremely well known at the Irish bar, and not the less honourably known by his connection with one who in his day and generation held a foremost place amongst the ablest lawyers in the empire, says—Under the system which has obtained in the Equity Court of Ireland, since the passing of the Chancery Regulation Act, 1850, many useless technicalities have been abolished, and the costs of suits as regards pleadings and some other items 1581 of expense, have been diminished. These improvements have been effected, either by a limited application of the Irish statute, or (as in England) by reforms of the old practice. But, in fact, the new system has altogether superseded the old practice, an effect which I cannot think the Chancery Regulation Act was intended to produce (Glascock v. Ross, 1 Irish Ch. Rep., 55), and which, in my opinion, even in the Courts of the Lord Chancellor and the Master of the Rolls, has not been beneficial. The loose nature of the cause, petition, and respondent's affidavit (to which the name of pleadings has been denied), has promoted vagueness of statements on the part of professional gentlemen, and of testimony on the part of witnesses, has thrown an undue measure of responsibility on the discretion of Judges, and has tended to make results uncertain. I think speculative litigation has been encouraged by the present system, and has increased since 1850.I entertain and desire respectfully to express the strongest opinion, that the change of procedure in the Irish Equity Courts which would be most beneficial to all parties interested, to the Judges, and to the bar, to solicitors and suitors, would be the simple substitution for it of the system of the English Equity Courts. If the English system were inferior to that of Ireland, I think compensation would be found in the advantages of uniformity in the administration of the same law in all the Courts of the United Kingdom, and in the aids which Judges and lawyers would derive from reported decisions on the rules of a common system. But if, as think, the English system on the whole, and in almost all its details, is superior to that of Ireland, the principles of public policy and justice to this country seem to call for the substitution which I have presumed to suggest.And Mr. Law — (I shall not trouble the House with any other extracts from this voluminous evidence)—Mr. Law, a friend of ray own and a very able man, says—I think the present system of proceeding by cause petition and affidavits, in the Courts of the Lord Chancellor and Master of the Rolls in Ireland, under the Chancery Regulation Act of 1850, works unsatisfactorily in several respects. Thus, without noticing mere details, our procedure is, in my mind, highly objectionable in its combination, or rather confusion of pleading and evidence in the same document; in the indefinite allowance of alternate statements, instead of having fixed times for closing, first the pleadings and then the evidence; in the practical admission of hearsay, and other illegal evidence in affidavits; and in the absence of any efficient check on the manifest tendency to misstatement and suppression of material facts.As to the other parts of the practice and procedure of the Court of Chancery in Ireland, under the Irish Chancery Regulation Act of 1850,' besides those already observed upon, they are of comparatively small importance. In themselves they are, perhaps, for the most part, unobjectionable; but I would earnestly recommend that the system of procedure, as a whole, should be made identical with that of the English Courts of Chancery. There is nothing whatever to justify the maintenance of a distinct and different system here. Without insisting on the truth, that all needless 1582 distinctions between the two countries are mischievous in many other ways, I would submit, that even if our system of procedure were in itself as good as the English, it must be less satisfactory and efficient by the mere fact of its being different; for we are thus deprived of all the assistance which the English reports and text-books would otherwise afford us, and this is much more than enough to counterbalance any small merits our system may be supposed to possess. But, in truth, the English system of Chancery procedure appears to me to be, in all important points, greatly superior to ours; and, therefore, I would gladly see it entirely adopted here, and wait for such improvements in the common system as the experience of both countries may from time to time suggest.These are the opinions certainly of very eminent persons at the Irish bar, and they go with the other opinions in this report, which is, I presume, in the hands of hon. Members, to sustain the finding of the Commissioners in favour of the assimilation of the practice and procedure of the Courts of Equity in the two countries. Well, the Bill which I now lay upon the table of the House, is in all its parts framed to carry out the recommendation of the Commissioners, as to the system of printing Bills which prevails in this country, as to the duty of the Vice Chancellors and the chief clerks, and as to a multitude of other matters, which, of course, I shall not now trouble the House with. The details of the measure are very large indeed; the number of clauses in the Bill is very numerous, but the principal objects which it has in view are those to which I have already referred. It, in fact, contains some eighty or ninety clauses, taken, I may say, in terms from the English Bills; and if the House shall see fit to adopt the measure, the English system substantially, and in all its parts, will be transferred to Ireland. Well, that being so, the system of Cause Petitions will cease; we will have, of necessity, to modify the system so as to bring into operation the general orders which exist in this country. I think there are only two matters as to which the Commissioners think that there ought to be a difference—not a difference exactly— but in which they think that the English system ought not to be introduced. They do not think that the system of pleas ought to be established in Ireland. They think, further, that the demurrer which has been abolished in Ireland, but exists in England, should be re-established in Ireland upon certain conditions. The Commissioners were of opinion that a demurrer for multifariousness, or for want of equity, might be a useful thing; and 1583 the Bill proposes to make that change. When I come to introduce another Bill, I will show you how very candidly and how very liberally the Commissioners have acted—how willing they have been to consider the question of assimilation, not in a narrow spirit, nor merely with a view to take that which exists here and apply it in Ireland, because it exists here and not there, but that they have considered carefully, and fully, and substantially what is good here and there, and have been willing and anxious to act with generous reciprocity; to take for England that which was good in Ireland, and to give to Ireland that which was good in England. So far I have gone—and as fully as I could at this hour of the night—through three parts of the Bill. The fourth part relates, as I have already stated, to fees and stamps—a very important though a very dry part of the subject. It is important, not only to the revenue, but for the proper management of the affairs of the Court. Very proper arrangements have been made in this respect in England, but in Ireland, unfortunately, the condition of things is not satisfactory.
As the matter stands at present in the Court of Chancery in Ireland, there are not less than four separate systems of fees and stamps all existing together. The fees, which were formerly paid to the Masters in Chancery, were converted by a statute of Geo. IV. into Chancery Fund stamps, and they are so carried to the general taxation of the country. Formerly the Lord Chancellor had fees, and the fees are still collected in cash and accounted for to the Exchequer. The fees paid to the Deputy Keeper of the Rolls are paid in cash, and are also accounted for to the Exchequer; the Lord Chancellor's secretary also receives fees in cash, and those fees are accounted for to the Suitors Fee Fund. There are still some officers of the Court of Chancery in Ireland, I am sorry to say, who are paid by fees—a system quite contrary to modern notions. By the Bill which I now ask leave to introduce, it is provided that in future no officer shall be paid by fees, and that all fees shall be received in stamps. The fifth part of the Bill, to which I have adverted, relates to some miscellaneous items to which I need not refer, except as to one of them. In the Court of Chancery in Ireland there are very many sums of small amount which have been unappropriated and unclaimed; and while in England such sums, unclaimed for 1584 fifteen years, are allocated to the Suitors Fee Fund, in Ireland there is no power to allocate them at all. There are 163,820 accounts of this description, and the sums represented by these accounts amount to £74,632 4s. 5d. cash, and £43,198 17s. 5d. stock. The Bill, following the English precedent, provides that this large sum, and all other sums, after the lapse of a period of fifteen years shall be carried to the credit of the Suitors Fee Fund, and applied as they are applied in England. Such is the scope of the Bill which I now submit to the House, and I shall only add, that there is not a clause of the entire Bill, that there is not a line of it, which is not covered and sustained by the finding of some one of the English Commission to which I have referred. These Commissions were of the highest order, and statutes were founded upon their Reports; but, principally, the Bill is founded upon the recommendation of the two Commissions for Ireland, of the great authority of which I have already spoken. Taking this into account, taking into account that the men who conducted the inquiry were of the highest eminence upon the one side and upon the other; the English Commissioners represented by such persons as the Master of the Rolls, the present Attorney General, and Sir Hugh Cairns; and the Irish Commissioners by such men as Lord Chief Justice Monahan and Ex-Chancellor Napier; and that the recommendations in their Report are supported by the opinions of the oldest men in the profession of solicitors, men thoroughly and intimately acquainted with the working and management of the two systems; taking also into account that their recommendations are backed up by the earnest prayer of the bar of Ireland, I cannot but think that a Bill which is intended to give effect to those recommendations is entitled to the favourable consideration of this House. I beg, Sir, to move for leave to introduce the Bill.
Motion made, and Question proposed,
That leave be given to bring in a Bill to alter the constitution and amend the practice and course of proceeding in the High Court of Chancery in Ireland." — (Mr. Attorney General for Ireland.)
§ MR. WHITESIDE
said, he thought it must be admitted that the Irish Administration were at last approaching subjects of some importance. The Civil Bill Act had been amended that evening, and the House was then asked to plunge into Chancery; 1585 and, although the question appeared uninviting, he must own that his right hon. and learned Friend had given them a clear and able statement. Even poets had been known to write on a suit in Chancery, His right hon. and learned Friend had referred to what was done in regard to Chancery reform twenty years ago; but what had been accomplished in that respect had been accomplished by the House of Commons, whose labours his right hon. and learned Friend had entirely overlooked, and which labours the Commission had also strangely forgotten. His right hon. and learned Friend had complained that the attention of Chancery reformers had long been bestowed almost entirely upon England, and that nothing effectual was done in Ireland till 1850. But what was done in that year, and who did it? Sir John Romilly, then a Member of that House, desiring to improve the administration of justice in Ireland, passed an Act of Parliament which it was the purpose of the ruthless destroyer now to overturn. That was called the Chancery Regulation Act, and its author acted in some respects with common sense. In looking at the Court of Chancery, he found gentlemen there who had almost as good a right to be Superior Judges as some who had reached that rank, and he thought he would avail himself of the staff then existing, To the suitor he gave the choice of suing by bill, which it was now sought to restore, or by cause petition, which, as the cheaper and shorter method of the two, was preferred by the whole Irish community ever since, but which was, nevertheless, now to be abolished. That act of Sir John Romilly had been most successful. But how did Sir John Romilly deal with the Irish Masters? Because it might be thought that these gentlemen were gouty old men of eighty, as in England, whereas they were as full of vigour and animation when Sir John Romilly undertook the matter as any Judge in either kingdom. Sir John Romilly kept them in office and succeeded in saving £15,000 a year for fifteen years; for which he deserved a vote of censure from his right hon. and learned Friend; for, according to the argument of his right hon. and learned Friend, he ought to have abolished the Masters fifteen years ago. There were at present four of them, receiving, with their staff, £4,000 per annum, and if their offices were abolished, what could be more agreeable for them than to draw liberal pensions from that old friend, the Consolidated Fund? Sir John Romilly 1586 gave them jurisdiction over various important matters, and his right hon. and learned Friend had forgotten to point out what evils had resulted from that legislation. There never were four gentlemen who, ever since that complete jurisdiction was conferred on them, had more faithfully and efficiently discharged their duties. They had decided ten cases for every case decided by the Lord Chancellor, and he challenged his right hon. and learned Friend to show how many of their decrees had been reversed. He had taken the trouble to inquire, and he found that the proportion was not 3 per cent. What was to be the expense of the new system? That was the vital part of the Bill. The rest was all "leather and prunella." He would state to the House what they were to get. The whole business confided to the Masters was now done by four gentlemen and their staff at an expense not exceeding £14,000 a year. The present staff were all to be paid off handsomely and sent on their travels either to England or to Rome to revive their classical recollections. It was proposed that the Master of the Rolls and the Vice Chancellor should have each one chief clerk and two assistant clerks, but then came this clause, which was to be regarded with infinite attention—Power, however, should be given to the Lord Chancellor, with the advice and consent of the Master of the Rolls and Vice Chancellor, or one of them, by order under their hands, to appoint an additional chief clerk or assistant clerk to the Master of the Rolls and Vice Chancellor, or either of them.The salary of the Vice Chancellor would be £4,000 a year. The salary of his first clerk, he heard it whispered, would be £1,500; of his second, £800; and the third, £600. The Master of the Rolls would have the same. That would make the sum £9,800. But then the staff might be doubled should that be thought necessary. That was done because it was known it would be necessary. From his knowledge of the habits of his country, he would say his impression was that the staff would be doubled forthwith. The staff would then cost £15,400. A noble Marquess in another place, whose talents he admired, and whose anxiety to economize was undoubted, had laid it down that economy was to be practised above all things; and the total of the economical advantages of the proposed arrangement stood thus, that whereas the work was now done for,£12,000 a year, it would 1587 under the Bill be done for £27,000. He admitted that in these days of liberality, when the country was suffering, £27,000 a year was a very moderate allowance to be given for the promotion of justice; but it raised the question, Was that a work off utility and necessity? If so, he would join heartily with his right hon. and learned Friend in passing the Bill; but it must be understood before they passed it. He would show the condition in which the question came before the House. His right hon. and learned Friend mentioned the Incumbered Estates Court, and he said truly a Commission was issued to consider, in regard to the continuance of that Court, what was to be done. There was a report that two Vice Chancellors should be appointed, and that the Incumbered Estates Court would be thrown into Chancery, Now, the late Sir Robert Peel founded the Court, but he did not put it into Chancery; on the contrary, he took it out of Chancery. However, when that announcement got abroad, consternation took possession of the House. That recommendation was objected to; but his right hon. and learned Friend, who was, probably, not aware of what took place on that important occasion, made no reference to an important Committee. He quoted the appointment of the Commission; but why pause there? They sometimes had upon Irish questions a Commission to overturn a Committee, and then a Committee to upset a Commission. Public opinion was alarmed, and as soon as Mr. Justice Fitzgerald proposed his Bill to carry out the proposed alterations, and he (Mr. Whiteside) proposed his for the Amendment of the procedure of the Court of Chancery, it was said this Government Commission would never do; they must not give way to a lawyer's Commission; the House must have a Committee of their own. But not a word was said of that by his right hon. and learned Friend. He never noticed the elaborate, able, instructive Report which that Committee had made, founded on the evidence given before them, not upon questions cut and dry, young gentlemen sending in their essays in reply, and telling the Commissioners in reply what occurred in the reign of King John. The Committee consisted of whom? Of the best men they could get—of the late Sir James Graham, of the right hon. Member for Oxfordshire, of the late right hon. Member for Coventry, Mr. E. Ellice, of the right hon. Member for the University of Cambridge, of 1588 Sir E. Perry, of the Member for Horsham, of the late Chief Secretary to the Lord Lieutenant of Ireland (Mr. Herbert), and several other eminent persons. How did they proceed? The Commission on whose Report they were now called upon to act and the Report of the Committee were in direct opposition. They must, therefore, choose between them. The Committee made a Report, founded upon evidence, filling 400 pages. His right hon. and learned Friend had made no observation upon it. He never referred to the fact that the whole subject had been probed and sifted to the very bottom by the members of that Committee. Never had a body of men, not interested in the question, and not connected with Ireland, devoted more time, ability, knowledge, and capacity in dealing with this subject than the members of that Committee. Whom did they examine? They said the witnesses should be few, but that one should be able to give the sense of a score. They examined the Master of the Rolls in England, because he was the author of the original Incumbered Estates Act and the Chancery Regulation Act; they examined the Master of the Rolls in Ireland, the Judges of the Incumbered Estates Court, two Masters in Chancery, and they summoned the Incorporated Society of Solicitors to send one or two to tell their opinions on the whole matter. His Bill was thrown over, and, although at the time he was dissatisfied, his regret had since diminished. The proposition then made was to take three of the Masters (not altering the salaries) and to call them Vice Chancellors. To that the Committee was directly opposed, because it was shown by the witnesses that nothing could be more satisfactory than the manner in which the Masters disposed of the business under Sir John Romilly's Bill, and the Committee, therefore, rather desired to see their humbler title preserved and their jurisdiction increased. The reason as given in evidence was, that business could be done quickly and efficaciously before a Master, while a Vice Chancellor would be unapproachable, to use the words of a solicitor who was examined. But then came a point not entirely to be lost sight of: the costs to the suitors, which he was afraid would be largely increased. Up to that time, although the Master had power to get in money, he had no power to pay it out. The Committee did not see any reason why complete jurisdiction should not be given. The recommendations of the Committee 1589 were that a tribunal should exist in which unencumbered properties could be disposed of. They also held that Masters in ordinary should have in a large class of cases original jurisdiction. The Report of the Commissioners was opposed to that view. The next recommendation of the Committee was that the Lord Chancellor and the Master of the Rolls should make general orders and give power to the Masters to obtain the assistance of scientific persons, to enable such Court to decide the matters in issue. At present the only persons who disposed of matters without reference wore the Masters, and yet they were to be abolished, while it was contemplated to establish a reference to chief clerks, or a kind of inferior Masters, to do what the present Masters who had been well trained to the work did perfectly. It was extraordinary to hear stated as a reason why the orders which, if made, would have obviated the necessity for the Bill—that those orders had not been made because there was a difference of opinion among the Judges. No words could be more distinct than those which gave the power of making general orders and of distributing the business; and if those powers had been properly exercised there would have been no necessity for applying again to Parliament, as he had no idea of the Judges declining to exercise powers conferred upon them for the benefit of the suitor. It was clear that what could be done in England could in point of economy, simplicity, and expedition be equally well done in Ireland. If the Master of the Rolls had been asked courteously he would have told them his opinion in one moment. The number of references during the past year made by the Master of the Rolls was very small; that learned individual was careful to make as few references as possible. The Bill recommended by the Committee was introduced to carry out the object of enabling the Masters to deal with monies in court. If the Master of the Rolls had been asked what staff he would require to carry on the work in his own court with out reference, he would have replied that all the powers needed to reform the court would be the exercise of the powers conferred by the statute, and giving to the Master of the Rolls the aid of such chief clerks as he might require, capable of carrying out the objects specified in the Report of the Committee. It was not within the power of the Committee to frame rules, and the reason why more specific provision had not been made 1590 in the Act of Parliament was, that the House considered it unadvisable to incorporate general orders in a statute. In looking over the evidence of the Master of the Rolls before the Commission, he (Mr. Whiteside) observed that he stated that the carrying out of certain objects alluded to might have been accomplished by general orders, but if such orders had not been made it was not the fault of Parliament. The right hon. and learned Gentleman referred in support of his plan to the evidence of the profession, but it was a curious fact that the professional evidence was equally balanced on either side. Promotion was now so rapid that there was no knowing how soon his right hon. and learned Friend might have a successor in that House, and there might be proposals for the creation of a second Vice Chancellor and a second chief clerk to take the place of the Masters. What was the evidence upon the point? Mr. Pilkington, a very sensible gentleman in the profession, said—In my opinion the working of the jurisdiction which the Masters exercise in Ireland, under the 15th section of the Irish Chancery Regulation. Act, is satisfactory,Mr. William Smith, who was said to have more practice in the court than any other junior, said the result of his experience of the working of the jurisdiction which the Masters exercised was strongly in its favour; and so said two other juniors. The Incorporated Society of Solicitors declared that in its general bearings the Irish Chancery Regulation Act had worked well for the public, and that there had been a great saving of expense, particularly in suits for the administration of real estates. The body of solicitors in Belfast stated thatThe system of proceeding by cause petitions and affidavits in the courts of the Lord Chancellor and the Master of the Rolls, as affected by the Irish Chancery Regulation Act, is a vast improvement upon the present system, though capable of being still further modified.He admitted that amendment was necessary, but had no hesitation in saying that the Attorney General might suggest all that was required without either commission or statute. If the Attorney General had bestowed only two hours in drawing up a code of rules which would apply to; the existing machinery, adding any improvement that might be found in the English system, the result might have been satisfactory; but instead of that the proposal was to substitute an inferior system for one that had worked 1591 well in all respects. When the Report of the Committee was made there were four Masters, but subsequently one died, and the vacancy was not filled up. If one of the three retired, of which there was a hint in the Report of the Commission, they might try whether the work could not be done with two. The simple way to economize was not to fill up vacancies and not to create new places. When the Bill came on for a second reading he would appeal to the English Members to say whether the system of chief clerks had been successful. If some difficult cases had got before the Irish Masters, that was because no order was made for the distribution of the business, and, certainly, nobody could pretend that the decisions of the Masters were not sound. Did the right hon. Gentleman really adhere to his opinion that the examiners of the Masters would be fit persons for chief clerks under the new system? He had been informed that the Master of the Rolls in this country and the Vice Chancellors got the most experienced and able men they could find to discharge the important duties of that office. The question of expense was a most important one, and he trusted the House would look carefully at the proposed table of fees, in order to ascertain whether the costs of a suit, which were not now extravagant, might not be magnified instead of being diminished. He hoped the second reading would be put off till a distant day, so that the opinion of the public and the profession might be expressed upon the principle and details of the Bill.
§ SIR PATRICK O'BRIEN
said, it was hardly fair of the right hon. and learned Gentleman (Mr. Whiteside) to oppose the introduction of a Bill founded upon the Report of a Commission. He was also surprised at some of his observations, especially with reference to the Incumbered Estates question. The right hon. and learned Gentleman had always been ready to appoint his own friends to offices when he had the opportunity, and he (Sir Patrick O'Brien) did not blame him for doing so; but he was astonished to see him, the head of the legal profession in Ireland, come down here and oppose the introduction of a measure of the kind before them upon such grounds as he had given.
§ MR. WHITESIDE
explained that he had brought in the Bill to limit the Judges in the Incumbered Estates Court of Ireland to two, but was forced to allow three Judges to continue.
§ MR. SCULLY
said, he thought that the right hon. and learned Gentleman should have permitted the Bill to be printed before entering into a discussion upon its merits. At the same time, he should be happy to give the right hon. and learned Gentleman any assistance in his power to oppose the perpetration of any job, or the addition of any new burdens to the Consolidated Fund. He (Mr. Scully) would be glad to avail himself of the present staff, and to make one of the Masters a Vice Chancellor; for that gentleman had no more right to be pensioned off than any clerk in the office. It might be that the Irish Vice Chancellor would be unapproachable; certainly the English was such. It was true that the Irish Judges were the aristocracy of Dublin, while the English Judges were scarcely of the middle classes of England. He believed the right hon. and learned Gentleman to be mistaken in his estimate of the speed with which business was transacted in the Master's Office. The right hon. and learned Gentleman would find it rather difficult to extricate himself if he were unfortunate enough ever to become involved in legal proceedings in the Master's Office. A system of great delay existed, especially in connection with suits for the sale of property. Under the old method, suits had lasted thirty, sixty, and even eighty years, and though that state of things had been improved, he was sorry to say that of late years there had been a tendency to relapse. The affairs of Mr. John Sadleir, as a case in point, were not set free for nine years. It was necessary that some of the existing evils should be removed, but the Lord Chancellor and the Master of the Rolls could not agree in framing the necessary rules, and for that reason he approved of the Bill, because it would make the necessary changes effectual by Act of Parliament.
§ MR. VANCE
said, he saw no necessity for the violent changes proposed in the Bill. It could not be defended on the ground of economy, for it would pay off the present officers only for the purpose of creating others. Neither the Lord Chancellor nor the Dublin Chamber of Commerce approved the measure, and the Report of the Commission on which it was based was more than counterbalanced by the Report of the very able Committee, which came to quite a different conclusion. There was great alarm and dissatisfaction among his constituents as to these continual changes in the administration of the 1593 law and removal of officials. There was no ground of complaint against cause petitions, which, in his own experience, were cheap and expeditious. The great objection to the Bill was that it did not utilize the present officials, as was done in the case of the English Bankruptcy Act. He hoped the Attorney General would give ample time for the consideration of the measure, which, if read a second time, it would be well to send to a Select Committee.
§ MR. GEORGE
said, he should offer no factious opposition to the bringing in of the Bill, but he had to remark that what had occurred that night was a sufficient justification of the course taken by his right hon. and learned Friend and others in preventing the introduction of the Bill on a former occasion without any statement. When the Reports of the Committee and of the Commission came to be examined, there would, he thought, be found reasons for doubting whether the Bill would become the law of the land. He hoped the second reading would not be taken till after Whitsuntide.
§ MR. HENNESSY
desired the Attorney General to state distinctly whether he would agree to postpone the next stage of the Bill till after Whitsuntide. It was not right that these important measures should be brought on so late at night, when there were not half a dozen Members present, when the Ministers had all retired, and even the Chief Secretary had gone to bed. If the right hon. and learned Gentleman would not give him an answer, he knew what would happen.
§ Motion made, and Question put, "That the Debate be now adjourned."—(Mr. Hennessy.)
§ MR. O'HAGAN
said, he thought the manner in which the Question had been put to him quite unjustifiable. He was quite willing to allow reasonable time for considering the Bill—say a fortnight or so—but hoped it would be read a second time before Whitsuntide.
§ Motion, by leave, withdrawn.
§ Original Question put, and agreed to.
§ Bill ordered to be brought in by Mr. ATTORNEY GENERAL for IRELAND, Sir ROBERT PEEL, and Sir GEORGE GREY.
§ Bill presented, and read 1°. [Bill 78.]