HC Deb 02 June 1864 vol 175 cc1093-119


Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. O'Hagan.)


said, he did not think the measure before the House, however important, was calculated to benefit the suitors in the Court of Chancery in Ireland. On the contrary, it would be attended with great expense, which was wholly unnecessary. Its introduction was altogether premature, and was founded on evidence not calculated to sustain such a measure. From the statement of his right hon. and learned Friend it might be supposed that his was the first effort that had been made to reform the Court of Chancery in Ireland; but such was by no means the case. Chancery reform was taken up in Ireland before it was discussed in this country. In 1850 great reforms were introduced. The Masters' Office had been for many years a reproach, not because Masters presided there, or on account of the mode of procedure, but because the Government of the day wished to make the courts self-supporting. Stamps were required at every stage of a suit, and, in fact, a system of abuse grew up, not so much from the mode of administering justice itself, as from the endeavour to sell justice and make the court self-supporting—an idea as absurd as it would be to attempt to make the police of London self-supporting. Well, an Act was passed by which the old practice of bills and answers was entirely discontinued, and a short and simple proceeding, by petition to the Chancellor and informal answer through affidavits, was substituted. By that measure the proceedings in administration suits, mortgage suits, trust suits, suits relating to the guardianship of infants, partnership suits, and some other cases, were greatly simplified and taken out of the general jurisdiction of the Chancellor. By the 15th section of the Act, immediate, absolute, and full jurisdiction was given to the Masters of the Irish Court of Chancery. It became no longer necessary to file a Bill and have an answer in these suits. A short petition was presented to the Chancellor, on which he made a summary order referring everything to the Master, who was made a complete judge of everything connected with the matter. The result of that was a general improvement in, and a great cheapening and facilitating of, Chancery procedure. From that time forward the Masters in Chancery in Ireland were, in truth, as much Vice Chancellors as the Vice Chancellors in England, with this difference, that a short and inexpensive proceeding was necessary to initiate their jurisdiction and give them possession of the whole suit. In 1854, after this great change had been effected in the Irish Court of Chancery, a Royal Commission was issued to inquire into the practice of the Landed Estates Court in Ireland. The Commissioners appointed were Mr. Brady, now Lord Chancellor of Ireland, Sir John Romilly, Chief Justice Monahan, Mr. Blackburn, Mr. Brewgter, Sir Richard Bethell, Mr. Justice Fitzgerald, and Sir Hugh Cairns. In 1855 the Commission made a Report, and recommended the project of abolishing the Incumbered Estates Court and the Masters' Offices in Chancery, and appointing two Vice Chancellors, who should do the work in accordance with the English practice. The Report was received with much dissatisfaction, and although he had given evidence in favour of their project, he confessed that his first opinion was rather crude and premature, and had been corrected by subsequent experience. In Ireland the Report received the just condemnation which it afterwards received from the public, the profession, and a Committee of that House. A flight of competing Bills then made their appearance in that House, the professed object of some of them being to carry out the recommendations of the Royal Commissioners. Others, introduced by the right hon. Member for Dublin University, aimed at simplifying the procedure of the Court of Chancery, correcting abuses, remedying defects, utilizing the existing staff, and improving the machinery generally. The advantages of the right hon. Member's (Mr. Whiteside's) plan were that it exonerated the public purse from the burden of new officers; that it introduced a new and amended code of procedure, to be carried out by men well accustomed to the improved machinery, who knew its defects, and were willing to do everything in their power to improve the administration of the law. The ability, integrity, and zeal of these men were well known; and although Vice Chancellors might have higher rank, what was wanted was men not above their business, and accessible to the practitioners with whom they are daily brought into contact. Moreover, men with the rank, the salary, and the unapproachable dignity of Vice Chancellors might be tempted to job to find situations for their sons and sons-in-law. However, the competing Bills to which he referred were all sent before a Select Committee of that House, as able as ever sat for such a purpose. That Committee included among its members the Solicitor General, Sir James Graham, Mr. Ellice, Mr. Henley, Mr. Walpole, Mr. Herbert, Mr. Seymour FitzGerald, Mr. De Vere, and Sir Erskine Perry, The Committee took vivâ voce evidence as to the working of the Court of Chancery jurisdiction. Mr. Gibson, a gentleman of great ability and experience, stated that in the opinion of the Council of Attorneys in Ireland the existing system at the Masters' Office was nearly perfect; but he pointed out one or two small defects which might easily be removed. He also expressed his conviction that if Vice Chancellors were appointed the business would in effect be mainly conducted by clerks, and that the Vice Chancellors would be a sort of unapproachable personages. The Committee acted upon the evidence they received, and an Act was passed, under which, if a single abuse still remained in the Court of Chancery, it was not the fault of the system, but of the men. Saving and except the power of creating new offices, the jurisdiction of the Court was as large as that possessed by Parliament itself, and improvements were almost of daily occurrence in the procedure of the Court. The Lord Chancellor had never complained to the Government of the want of power, nor had any memorial been presented by the Bar or the Society of Solicitors. Moreover, the public were perfectly satisfied, and, on the whole, he had no hesitation in saying that the Chancery system was now in Ireland what it was intended to be in England, but what it certainly was not. It so happened, however, that in 1852 the Masters in England were abolished, and the Vice Chancellors got power to appoint chief clerks. Those chief clerks were simply Masters under another name, and the old system of references and reports still continued. Nevertheless, as it was believed that nothing Irish could be right, it was determined that the Chancery system in Ireland should he assimilated to that in England. In 1861 the Marquess of Clanricarde complained in another place of the continued waste of money and time to suitors in Ireland, and also of the extravagant expenditure of public funds for the Irish judicial establishment, which was out of all proportion, he said, to the work it had to perform. The objects of the noble Marquess were good objects, but, unfortunately, the noble Marquess did not state a single fact to show that his complaint was well founded. Yet, in the absence of everything like proof, the House of Lords yielded to the wish expressed by so ardent a supporter of the Government, and a Commission was issued. It was to be regretted that the Commissioners, led away by too great zeal, forgot altogether the main object for which they were appointed. The theoretical value of an assimilation between the English and Irish systems was quite a secondary matter. The main point to be considered was the public advantage. He could not help thinking that the choice of Commissioners was very unfortunate. Six of them, and those the highest in rank, were members of the Commission of 1854, and were pledged to the opinion that the Vice Chancellor system ought to be introduced into Ireland. To this view they clung all the more obstinately and passionately because it had already been universally condemned by the people of Ireland. Moreover, other members of the Commission were personally interested in the recommendations which they made. A body thus constituted must in the very nature of it be very far from a fair and impartial tribunal. Now, it seemed to him that it had always been the rule of the House to disregard the representations of Committees or Commissions which were known to have approached a subject with preconceived views. A Royal Commission was appointed under the government of the Earl of Derby to inquire into the subject of harbours of refuge. It so happened that some Gentlemen were on it who had previously made strong recommendations in favour of certain harbours of refuge. The House peremptorily refused to adopt the recommendations of that Commission in consequence of the preconceived opinions of certain Gentlemen upon it. For the same reason the House ought not to attach weight to the recommendations of the Commission on the question now before them. The English Commissioners knew nothing of the Irish law system, and the Irish members knew nothing of the English system; the Secretary, no doubt, possessed the same acquaintance with both, Finding themselves in the difficulty, they thought the better way to proceed was to get two essays written, and a barrister of each country was instructed to draw up elaborate reports upon the practice of the Irish and English superior courts and then a series of interrogatories was circulated among selected members of the Irish bar. One gentleman to whom these queries were sent, was a man of truth and sagacity, and in extensive practice in the Masters' Courts in Ireland, and in replying he said that he would assume that the Masters were to be abolished, and one or more Vice Chancellors to be appointed in their stead. He stated it was rumoured that the Commissioners had already determined to advise the appointment of only one Judge in addition to one master and the Master of the Rolls—an arrangement which, in his opinion, would prove wholly insufficient, the object of it being to give more power and patronage into the hands of the Government. Throughout the whole of the inquiry of the Commission, there was not a single question asked any man as to what would be the effect of the projected change in regard to the expenditure of the public money and the cost to the suitor. That was either quite beneath the notice of the Commissioners, or else they discreetly avoided it, because they knew that their recommendations would involve an increase in the costs of suitors, and in the public expenditure for the sake of a new theoretical advantage. It was manifest from their first Report, that they had not considered the all-important question, whether the system they recommended would lead to a saving of money; neither had they asked any English gentleman how the system of chief clerk was working here, so that the Commissioners had left the House and the profession in darkness on that point. But it so happened that they had information on the subject from another source. Mr. Maul, a gentleman who had come into that paradise of suitors, the English Court of Chancery, had published the result of his experience. This gentleman said that in that camera obscura the chief clerk's chamber, which might be considered the very opposite of the camera lucida, the open Court of Chancery, property to an enormous amount was dealt with by the chief clerks, unknown to any one except to the parties interested, who might be unable to defend themselves, and who might be reduced to ruin and destitution as a result of the litigation carried on in that way. So much for the superior advantages of the procedure in the English Court. The recommendation of the Commissioners was not to distribute the business among the Judges now in Ireland—not to improve the Masters' officers or utilize them, but at once, contrary to the chief reason for which they had been appointed Commissioners, to create an enormous expenditure for the purpose of maintaining a Vice Chancellor and a chief clerk. The judicial staff in Ireland was twenty-two; the Commissioners wanted to make a grand jury of it by increasing it to twenty-three. The Vice Chancellor was to take rank after the Chief Baron, and thus have precedence over a number of eminent men now Judges on the Irish bench, and according to the evidence of Mr. Gibson and other attorneys of experience, that functionary would be unapproachable by solicitors for the transaction of business as they now discharged it with the Masters. The Irish Masters were most able and excellent men with salaries of £2,500 a year each. The Vice Chancellors were to have £4,000 a year. Now the present Master of the Rolls in Ireland was a most able and upright Judge, but it was utterly impossible that he should be able to discharge the additional duties that would be thrown upon him by the proposed change. According to the recommendations of the Commissioners, there would be an addition made to the already large judicial staff of Ireland of at least ten officers, and an augmentation of the public expenditure of £12,000 a year. It was also calculated by the best legal authorities in the country, that there would be at least 33 per cent additional cost to the suitors. The whole project was premature; it was the result of an investigation most inefficiently conducted, it was quite unnecessary, and would lead to increased expense both to the suitors and the public. For these reasons he moved that the Bill be read a second time that day three months.


in seconding the Amend- ment, pointed out that no complaint against the present system had been made by the Bar or the suitors. The Masters in Chancery were four of the ablest men in the legal profession in Ireland. Their tribunal was approachable by the junior Bar, by the solicitors, and by the suitors themselves, and in their place it was proposed to substitute a tribunal of greater dignity — of greater ability was not possible — which could only be approached by the senior Bar, of course at a much greater cost to the public. That was in direct opposition to the recommendation of a Committee, on which were men like Mr. Henley, Mr. Walpole, Mr. Ellice, and Sir James Graham, who all highly approved the jurisdiction of the Masters in original suits. Justice at present was efficiently administered, and at a small expense, and no portion of the Irish public required the change.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Longfield.)

Question proposed, "That the word 'now ' stand part of the Question."


said, that having on a previous occasion entered into an elaborate statement of the character of the measure, he thought he should not be justified now in going through the whole question at the same length. There were, however, a few observations, some of a general and some of a particular character, which he wished to address to the House. He would, however, remark that the speech of the hon. and learned Member for Mallow was not a discussion of the question before the House, or a criticism of the principles of the Bill, but an indulgence in suggestions with reference to persons whose characters did not render them proper subjects for such imputations. He rejoiced to find so long a time had elapsed between the introduction of the Bill and its second reading, because it had given an opportunity for considering and examining its details, and the result had been the adoption of the principles of the Bill by the incorporated solicitors of Ireland, and by the great majority of persons in that country who were most competent to give an opinion. From the Incorporated Society of Solicitors of Ireland he had received suggestions upon details which they opposed; and as to those details, he believed that he should have very little difficulty in meeting all the views presented by this very important and influential body. He was not aware that there had been any expression of opinion in Ireland against the Bill; and, taking that fact in connection with the evidence on which the measure was founded, he thought he might say that it came before the House very much the reverse of discredited by the opinion of the country. It had been said that the Bill would involve much expense to the country, that it was wholly unnecessary, and that it would be very mischievous. Now, considering that the Bill was in all its parts sustained by the solemn recommendations of a Commission of the very highest authority, that it was a consolidation of statutes framed in England upon the authority of successive Commissions from 1824 downwards, and that the Acts thus consolidated were at the present moment in operation in England, to the satisfaction of the Bar and of the public, he felt some surprise that such a statement should be ventured upon in this House. It was represented as a conflict between the recommendations of the Royal Commission and the Report of a former Committee of that House. He could not deny that there was a material difference between the opinions expressed by the Committee and the Royal Commissioners. The Committee, however, was formed with a special object at a particular time, and the question merely left to them was, whether the Encumbered Estates Court should be abolished, whereas the Royal Commissioners were directed to address themselves to a consideration of the benefit and advantage of assimilating the law of the two countries. They would find that on almost every particular point the Committee were divided, and the matter was agreed to by a narrow majority only; whereas he presented a Bill to the House, founded upon the unanimous opinion of the two Royal Commissions which satin 1856 and 1861, composed of men as able, learned, and honest as ever sat on a Commission or a Committee. Even in the Committee some Resolutions were proposed by his right hon. Friend opposite which really embodied the principle of the Bill before the House — namely, that it was of the last importance that a Judge in equity who heard a cause should hear it to its conclusion, and should not make references to Masters, thus introducing confusion and causing delay and expense. The right hon. Gentleman was, therefore, a most persuasive witness in defence of the mea- sure which he came there that night to oppose. It was said that the Commission issued questions for the purpose of obtaining answers in accordance with preconceived notions. Now, it was only necessary to read the questions in order to be assured of the injustice of such a charge, for which, indeed, there was not a shadow of foundation. He denied also the allegation that the object of the Commissioners was by jobbing to create a place which might be useful for a friend. That was not the way to argue such a question, and the names of the Commissioners were alone an answer to the charge. The Commission originated upon an address of the House of Lords, moved by the Marquess of Clanricarde, in opposition to the wish of the Government. The Commissioners were the Master of the Rolls in England and Vice Chancellor Page Wood, two of the most distinguished Judges who ever adorned the equity bench; Mr. Justice Willes; the Attorney General, of whom he could not say in his presence what he might have said if he had been absent; the late Attorney General for Ireland, the late Solicitor General, Mr. Giffard, Mr. Follett, the Judge of Appeal in Ireland, a most distinguished man, far advanced in years, who had held with honour many high offices, Mr. Napier, Chief Justice Monahan, Baron Hughes, and Mr. Brewster. Could men have been selected by the Government who were more competent, more trustworthy, or less open to such imputations as had been made against them? There were, it was true, two Members whom the hon. and learned Gentleman said ought not to have been upon the Commission—himself and his Colleague, the Solicitor General. The reason that the hon. and learned Member urged against their being Members of the Commission was that they were interested in its result. All he would say in answer to that suggestion was, that no man who was worthy to fill the post which he now occupied could for a moment be influenced towards a conclusion by a consideration of that kind, and that this was a suggestion which ought not to have been made, at all events, by a member of his own profession. In the appointment of the Committee upon which such reliance was placed by his hon. and learned Friend and by the right hon. Gentleman opposite (Mr. Whiteside) the very same course was taken by that House. His two predecessors in office were both Members of that Committee. There was also added to the Commission the head of the Incorporated Law Society of Ireland, Mr. Orpen. A Commission so constituted was certainly not likely to depart from their duty to serve their friends, or to manipulate a question with the miserable object of maintaining a foregone conclusion. The hon. and learned Gentleman complained that this Commission had not thoroughly investigated the question which was submitted to their decision. Why, the Members of the Commission were themselves the most competent persons to decide as to the value of the English and Irish systems respectively. If witnesses had been examined they would have been the persons who could have given the best evidence. Never, however, did a Commission proceed more cautiously, carefully, and temperately than did this one. Notwithstanding the knowledge which the Commissioners themselves possessed upon the subject, they selected two well qualified barristers from England and two from Ireland to inform them upon the details and differences of the laws of the two countries. His hon. and learned Friend had quoted a letter in support of his views, but he did not regard its contents as any material substantiation of his hon. and learned Friend's arguments, because he himself had received letter after letter from disappointed suitors, each of whom represented his own case as having been treated in a more shameful manner than any other. His hon. and learned Friend had urged upon the House that the effect of the measure would be to increase expense, and that the number of Judges would be as great as in England, with far less work to be performed. The statement was entirely without foundation. On the contrary, both the expenses and the number of Judges would be reduced. He did not believe that so useful and comprehensive a reform, involving at the same time so great a reduction in expenditure, had been passed for some time. Of the four Masters of Chancery at present in Ireland the Bill proposed to retain but one, a single Vice Chancellor being appointed in place of the remaining three. The only new offices contemplated were those of the Vice Chancellor and two chief clerks, although his hon. and learned Friend had stated that there would be ten new offices created. The Bill provided that there should be no superannuation of men who were still competent for the performance of their duties, and that every single individual at present engaged in the Masters' Office should be employed in the new courts to be created by the measure. He had made a calculation as to the pecuniary results of the Act. One Master had been in his office about twenty-four years, and two others about eighteen or nineteen years, and these gentlemen could, of course, retire on their superannuation allowance. The saving to the country, however, when all the proposed changes were carried out, would be about £4,500 a year. His hon. and learned Friend had complained that the Vice Chancellor was to be an officer of high rank but it was right that such should be the case, because the salary of the English. Vice Chancellors was £5,000 a year, and the duties attached to the Vice Chancellorships of England and Ireland were identical. They would not, therefore, be able to obtain the services of an officer of sufficient ability unless his salary were made proportionate to the responsibility which he incurred. It had been urged that the choice of the chief clerk ought not to be placed in the hands of the Judge, but if his hon. and learned Friend would take the trouble of reading the Report of the Committee, he would find that all the witnesses whose opinion was of the smallest value had concurred in the desirability of that arrangement. It would be difficult to conceive how the Judge and the chief clerk would be able to work harmoniously together unless that arrangement were adopted. The Bill might be divided into five parts:—1. It created a Vice Chancellor. 2. It abolished the Masters. 3. It changed the procedure. 4. It turned fees into stamps. 5. It arranged various matters respecting fees which were at present derelict and useless to the public. As regarded procedure, the system was practically the same in the two countries till 1850, when an alteration was made in the Irish practice by the introduction of the cause petition system, with regard to which they had a great deal of evidence in the Report of the Committee. By that system the parties went on piling affidavit upon affidavit up to the hearing of the cause, the consequences being looseness and disorder of pleading, very great expense, and much injury to the morals of the community. The Master of the Rolls in Ireland was not examined before the Committee, but he sent in a statement of his opinion in regard to the affidavit system prevailing in Ireland. He described its manifold evils and its tendency to cause each party to try and outswear the other. The learned Judge concluded by express- ing himself strongly in favour of an uniform system between the two countries. Very high authorities might also be quoted in favour of the proposal to abolish the Masters of the Court, who now acted as Vice Chancellors. Great delay and expense were thereby occasioned, and proceedings were pending in their offices for a number of years which would soon be decided if they could be dealt with by a Judge sitting in chambers. Master Murphy, who had been eighteen or nineteen years in his office, stated that he approved the proposal to substitute for the Masters a Vice Chancellor and his clerks, as the plan had worked well in England. He added that they were quite at sea in Ireland at present, for want of uniformity in the practice of the law. The system of Masters had been condemned by the Bar of Ireland, and there was the very highest English authority for saying that the English system had realized the highest hopes that had been entertained of it. The whole of the provisions of the Bill, except twenty or thirty clauses, were in operation in England to the satisfaction of the profession and the public. He trusted that the House would adopt a measure which, instead of causing additional expense, would be attended with a substantial annual saving, which would effect a reform of the greatest value and importance in the law of Ireland, and which would be a great boon to the people of that country.


said, that his right hon. and learned Friend the Attorney General for Ireland had one advantage over Members like himself. He came to that discussion fresh and young, whereas he and others around him had been poring for the last fourteen or fifteen years over matters which had been considered and dealt with by the foremost men within those walls. The right hon. and learned' Gentleman talked a great deal of the blessings which the Bill would confer upon the people of Ireland, but, speaking in their name, he (Mr. Whiteside) would say they had to thank him for very little. There was no redeeming point in this Bill either as regards the public money or the private suitor. A great deal was said of assimilation; but it filled him with surprise that learned persons in this country, such as the Lord Chancellor, did not deem the legal institutions of Ireland worthy of notice. What the Lord Chancellor had proposed in his Bill with regard to the arrest of the suitor in the County Courts had been the law in Ireland for many years, but such was official vanity that persons in high position never condescended to look into the laws of any other than their own country, or to take notice of them, Then it was said that County Courts should have the power of winding up small estates, to the extent of £400 or £500; but many years ago that power was given to the County Courts in Ireland to the extent of £200. He would, however, proceed to consider this ponderous Bill of 170 clauses. Its objects were three. The first, and most material, related to the demolition of useful offices and the creation of new ones. That was perfectly intelligible. The second part of the Bill related to procedure, and that part of the Bill had been drawn, in his opinion, clumsily and carelessly. The third part related to costs, which, as the right hon. Gentleman who moved the second reading of the Bill said, was untouched by the Commissioners, there not being a word from beginning to end of their judgment relating to the subject, The history of the Commissions relating to law in Ireland was remarkable. Long before an attempt was made in this country to facilitate the transfer of land cheaply with a secure title, the Encumbered Estates Court had been established in Ireland. An attempt was however made to undo the good work which Parliament had effected. The period of the Act for the Encumbered Estates Court was about to expire, and after the usual manner a Commission was issued to several most respectable gentlemen—he had not one word to say against any one who signed that or any other Report which had not been acted on. There was, for instance, the Commission on the Dublin Society, on which sat the Lord Justice of Appeal; but his recommendations were set aside when it suited the purpose of the Government, and adopted on the other Commission when it answered their purposes. It would be infinitely better to postpone the present Bill. The Master of the Rolls did not approve this Bill as it was drawn, and he might venture to say he never would. In 1854 what happened? Here was a curious lesson in legislation. A Commission was issued to inform Parliament what was to be done as to the Parliamentary title for the transfer of land in Ireland, and they made their Report. There were 900 suits clogging the court, and the Commission recommended that the whole of these should be preserved for the Court of Chancery. A tribunal had been established which was effectual, short, cheap, approved and satisfactory to the public, and that was to be got rid of—how? They were to remove all the Masters in Chancery, and give to the Judge the entire conduct of the case. The former Commissioners recommended that the jurisdiction relating to the Landed Estates Court should be vested in the Court of Chancery, and that all business then I pending should be plunged into Chancery; but nobody complained of the existing tribunals of the country; every; one, as as far he could discover, was satisfied with them, and for this very obvious reason—they were cheap, quick, and good. It was also remarkable that, at that time, it was proposed to create a Vice Chancellor—the very thing that was proposed to be done under the present Bill; and this was in order to give the Judge the entire control of the case in all its stages. Hon. Members most not suppose that Masters in Chancery in Ireland were in the same position as the Masters in England. Ten Masters in England formerly sat in Southampton Buildings, in the dark, and never proceeded promptly with anything. They were very old and very odd personages. He (Mr. Whiteside) had occasion to visit the office of Master Fitzgibbon, in Dublin lately, and found him in a comfortable court, with barristers arguing and conducting their suits in full day light. He regretted to see the name of Mr. Brewster appended to this Commission, because if justice had prevailed in the legal promotions in Ireland that eminent barrister would, fifteen years ago, have been upon the Bench. He (Mr. Whiteside) had suggested that they should have a Committee of the longest-headed men in Parliament, and try what they thought of the Report of that Commission. The Committee was appointed, and the fate of the Commission was precisely what he thought it would be. The Committee summoned two of the Masters before them, and many eminent and competent witnesses; and when a mass of evidence had been taken, the Committee refused to recommend the abolition of the Masters. There was a total delusion on the subject of the Masters in Ireland, as if they resembled the same officials in England; and he remembered that Mr. Ellice and Sir Erskine Perry, who, with Sir James Graham and others, sat upon that Committee, having heard the evi- dence, remarked that the system in England should be abolished, and the Irish system adopted in its stead. The vote was taken upon the direct point whether all those officers should he abolished and Vice Chancellors appointed or not; and the Committee decided, not that they should be abolished, but that they should have original jurisdiction and all the powers of a Court of Equity over foreclosure suits, administration suits, and other matters, under the 15th section of Sir John Romilly's Act. With regard to the mode of taking evidence, the recommendation of the Committee was that vivâ voce testimony was to be encouraged and maintained in the Court of Chancery; but the present Bill enacted at section 93, except as thereinafter provided, that the examinations to be taken for the purpose of being used in the hearing of a case should be taken ex parte, and that no person should have a right to be present except the party who produced the witness, his counsel, solicitor, and agents. The right hon. and learned Gentleman the Attorney General for Ireland had quoted the opinion of the Master of the Rolls, but he could inform him that the Master of the Rolls had the very strongest objection to this kind of written evidence. To attempt to force upon the Irish courts against their will a bad system of taking evidence—a system condemned by the Committee, by learned authorities in Ireland, and by common sense and experience—was a thing which he hoped his right hon. and learned Friend the Attorney General for England would not sanction. The Committee referred to also directed that a Bill should be brought in, and it was brought in, by the predecessor of the present Attorney General for Ireland, giving power to the Chancery Judges to make general orders for the regulation of the procedure of their courts; and the right hon. and learned Gentleman in bringing in the Bill stated, as an apology for introducing clause after clause of general orders, that these Judges in Ireland would not agree about them, but the real reason was that it was necessary that the Lord Chancellor should be one of the three Judges. And what did the Attorney General for England think of a scheme which ignored the existence of the Lord Chancellor of Ireland? The Lord Chancellor had not introduced those orders, because he conscientiously believed that many of them would not be applicable to Ireland. Neither was he on the Commission. It was a censure on the Commission, on the Bill, on the Attorney General himself, if the procedure proposed was so inapplicable that the Lord Chancellor would not introduce it. The head of the law in Ireland was not supposed to be in favour of the measure, and would the House at that period of the Session rashly adopt it? When he (Mr. Whiteside) asked the Master of the Rolls in Dublin, where were his chambers, where were his chambers for carrying out the provisions of the Bill, he said he had none, and it would be difficult to find space to build them. He (Mr. Whiteside) asked, then, whether the criticism of his hon. and learned Friend was not just, that the real reason for introducing the Bill at that period of the year was—and he did not say it unkindly — because the Ministry was not strong. On a similar occasion the late Sir Robert Peel had said the same, and that for many reasons he said he would make them name the Vice Chancellors before they passed the Bill. He (Mr. Whiteside) did not go on that principle, but they could not remove the Masters until the Lord Chancellor was satisfied they ought to be dismissed, and until a new court was built for the new officials. The building clause was, in fact, fatal to the scheme. They refused ten years ago to abolish those four Masters and their staffs, the expense of which was about £15,000 a year, thereby saving £150,000 to the country. All but one of those gentlemen were now alive and full of work, having done it perfectly well from that day to this, and therefore he called upon the Attorney General for Ireland to say who were to be the new Judges who would do the work as well. The Attorney General knew that he would find the names of those Masters in almost all the difficult cases that occurred in their time at the Irish Bar—the names of Master Litton and Master Brooke—and that they were perfectly competent to their work. What was done with these officials in 1850? Sir John Romilly gave them at that time some powers, but not full powers. They were to have all powers in certain classes of suits except that of paying out money. The Attorney General for Ireland had referred to the evidence of the Master of the Rolls, who said that the decrees of the Masters came before him in order that he might direct payment of the monies. By one of the Resolutions of the Committee that proceeding was changed, and those gentlemen obtained complete power over the monies involved in the suits before them. The mode of conducting business before the Masters might appear to be rather loose, but it was simple. There was in a large class of cases no bill or answer but simply a short petition asking a reference to the Master. Supposing the case of a small farmer who died leaving a property of £400 involved under an obscure will, a short petition was presented and the Master heard a junior counsel once on each side, placed his own construction on the will, and handed over the fund. Now, it was proposed to abolish that simple mode of procedure and to begin every suit by a bill and answer, and after hearing two silk gowns the balance remaining to be handed over in such a case as he had instanced would be very small indeed. He had recently inquired of an experienced officer of the Court of Chancery what additional expense would be cast upon suitors by the proposed scheme, and the answer was that the expense would be increased by one-third or one-half. The most triumphant vindication of the recommendations of the Committee was to be found in the labours of the Masters. He found from the Return that had been made to the House, that from the 1st of January, 1851, when the existing system commenced, to the 8th of May, 1864, Master Litton had heard 6,133 short and long causes, had heard 31,508 motions and meetings in short causes, and 7,932 in long causes. In Master Brooke's office, during a similar period, there had been 7,124 long and short cause proceedings, 430 decrees and decretal orders made final, and 3,118 interlocutory orders. Master Murphy, in the same period, had heard upwards of 30,000 applications, and Master Lyle 22,020 motions and short causes and 5,025 long causes. Then as to reversals, he found that from 1851 to the 1st of April, 1864, there had been a total of 134 appeals from the Masters, and only forty-two reversals. It was well known that the Master of the Rolls in Ireland was most critical in reviewing the decisions of the Masters, and yet that almost hypercritical Judge, out of eleven appeals in 1863, only found cause to reverse the decisions in two of them. He, therefore, asked with confidence whether there was any other tribunal in the country which could show such a result of their labours, and whether it was possible that the House would sanction the doing away with the services of these gentlemen? After the Committee of 1856 had concluded its labours, it had fallen to his lot to carry out the scheme of the Landed Estates Court, and he thought that it ought to be a self-supporting establishment, with which view he proposed to exact a small poundage upon the properties brought into Court. The very plan by which the Judges of the Landed Estates Court had distributed about twenty-eight millions of money, the plan of a permanent amicable tribunal, was that which it was now sought to get rid of, and to substitute chief clerks to do work which individual Judges now performed without such assistance. Would any one say that an attorney, with a salary of £800, in company with two other attorneys, would form a better tribunal than that which now existed? In the Landed Estates Court there were Judges, examiners, and all necessary officials. He wanted to see the Irish system of the Masters' office and the Landed Estates Court introduced into England. The examiner was not allowed to summon any witness, but a schedule was placed before the Judge, and each claimant stated his case—one person, perhaps, claiming £1,000 on mortgage. The examiner had merely to see that all that was stated in the schedule was true, and on the day appointed the case went before the Judge, who decided every question, even summed up the interest, and fixed the day up to which the interest was due, and so he went through the schedule. Would the chief clerk proposed by the Bill be found to perform the work in the same satisfactory manner, and was the Attorney General serious in thinking that he could pass the Bill? One claimant, for example, No. 3, said that he ought to be No. 1, because the first claimant was a judgment creditor, claiming by a judgment improperly registered. Was a chief clerk to decide on that nice question? The Estates Court decided on it there and then, but was it to be supposed that an attorney, appointed as chief clerk with a salary of £800 or £900, sitting in his chamber and prohibited from hearing counsel, would be superior to one of those learned and competent Judges? He impeached the whole principle of the Bill in reference to the introduction into Ireland of the system of chief clerks, for he thought it was the duty of the Government rather to incorporate the Irish system on the English system. He again called on the Attorney General to convince the House that the dear mode of proceeding was more advantageous than the cheap; and that the short and inexpensive process by summary petition was inferior to that by bill and answer. He should like to be told where there was in the Report a particle of evidence that one Vice Chancellor would do the work now done by the four Masters. Nobody believed that one Vice Chancellor could do it, and the only proper course to pursue would be, when one Master died, to see whether three could do the work, and when another died to see whether two could do it, or if the Government wanted an additional Chancery Judge let them try and seduce into the Court of Chancery one of the Judges of the Landed Estates Court, who were now lightly worked, and so save the money of the country. With respect to the cost of the proposed scheme, he begged to tell the Attorney General for Ireland that he thoroughly knew that part of the question. The right hon. and learned Gentleman said the places would be properly filled. Assuredly other places might he filled. Certainly every place that could be filled would be filled. If the present Secretary for the Colonies were in office in Ireland he would, without doubt, be called upon to fill up every place. The recommendation that the office of Masters in Chancery in Ireland should be abolished had already been twice negatived by the House. Then there was another recommendation, that the existing Masters should be retained as long as might be found necessary, which, he supposed, meant that they were to continue to do the work while the new officials played. He hoped the House would also observe that power was taken to double the staff of clerks at any future time. His estimate of the bill which the country would have to pay for these very questionable reforms was as follows:—The salary of one Vice Chancellor would be £4,000; chief clerk, £1,000; two junior clerks, £700; tipstaff, £100; crier, £120; total, £5,920. Then there would be the assistant registrar, £1,250; and the staff of clerks of the Master of the Rolls would bring the amount up to £8,870. That calculation proceeded on the assumption that one set of clerks would he sufficient, and if they were doubled, which the Bill contemplated as a possible necessity, that would involve an additional £5,000, giving a total of £13,870. That was, it must be owned, a very fair, respectable beginning; and it was more than probable that the Chancellor, who was not favourable to the Bill, would, if it were carried, be loth to lose the services of the good old working bands, trained by many years' experience, and would retain the Masters to save his court from falling into confusion. What security was there that it would be possible for one Vice Chancellor, even with a double staff of clerks, to get through the work of the four Masters? Further aid might be necessary, and thus there was the prospect of a possible addition to the expenses, which would bring them up to nearly £22,000. He had observed this curious fact, that in Ireland persons who were pensioned off never died. There were some who got pensions at the time of the Union, and who were alive and hearty still, although that was sixty-four years since. It was certain that when the Masters got retiring allowances the last thing they would ever think of doing would be to die. Then, there were claims for compensations from the other officials, who refused to serve except in their present capacity, and maintained that they were engaged during good behaviour. The proposal to make the young gentlemen who were now examiners chief clerks was preposterous, and he did not suppose it was seriously intended. He had no objection to attorneys getting places for which they were qualified; but he was satisfied they would not get men in that profession of high attainments and experience to accept the situations under this Bill at the salaries proposed. However, all the Government wanted was to have the Bill passed, and then they would come to the House in a year or two and ask that the salaries should be doubled. Although the title of Vice Chancellors had been refused to the Masters, they exercised complete jurisdiction on every question save one, and the Chancellor sent them very difficult cases to try. They performed their work admirably; and there were no other Judges in either country from whose decisions there were so few appeals. But because Masters had been abolished in England for the sake of uniformity, it was proposed by the Bill to abolish them in Ireland. He submitted that the eminent men who had signed the Commission rested their arguments on a mistake—a mistake arising altogether from the fact that they examined no person in this country to prove what was the working of the system of chief clerks. Sir James Graham had stated that that was a system which ought to be watched with the greatest carefulness, otherwise the evils of the old system under another name would spring up. On those grounds he hoped the House would not allow the Report of their Committee to be overthrown by the opinion of those gentlemen—however respectable they were—who had signed this Commission. He hoped the Bill would be withdrawn, and that the Attorney General for Ireland would send the Bill to those persons who had not seen it, and allow the general orders of this country to be considered by the Judges during the long vacation, so as to ascertain whether they were applicable to Ireland. If they were, he had no doubt the Lord Chancellor would adopt them without the formality of legislation. He hoped, therefore, that the right hon. and learned Gentleman would be of opinion that it was not advisable to proceed with that ponderous Bill during the Session.


said, he thought that the manner in which the right hon. Gentleman who had just sat down had mixed up almost everything in the world in his speech must have rendered many of his remarks unintelligible to everybody but himself. The way in which he had jumbled together clauses and details of this Bill and that Bill, with recommendations of one Commission and recommendations of another Commission, interspersing the whole with comments on the practice and procedure of the Court of Chancery, had produced on his own mind only one impression, namely, admiration at the right hon. Gentleman's extraordinary skill in mystifying a very simple subject. The course taken by the right hon. Gentleman reminded him of the custom adopted in another country on the canonization of saints. One advocate pleaded elaborately all the virtues of the person to be canonized, and on another devolved the less agreeable and more invidious office of putting forward all his vices and faults. The right hon. Gentleman undertook the more agreeable of these tasks. There was no legal institution in regard to which any alteration or improvement was recommended but he was sure to be found its most able and courageous champion. Under his magic touch it assumed the aspect and wore the colours of the most delightful perfection. It was the model for all the world, and the astonishing thing was that anybody could think it capable of the least improvement. Even the right hon. Gentleman's former opinions were sacrificed upon the altar of his country. He had gone into the proceedings that were adopted on this subject in 1856, and certainly his remarks were comforting and encouraging. As the right hon. Gentleman had yielded to the opinions of others on that occasion, and now came forward as the champion of the opinions which then prevailed over his own, so they might venture to hope that when his present opinions should have been overruled and this measure had taken root and worked successfully, no one would be found more forward to stand up in that House as its champion than the right hon. Gentleman. In the month of February, 1856, two Bills were introduced, on the back of which were the names of Mr. Whiteside and Mr. Napier. One of them, sought to make provision for the more speedy and effectual despatch of business in the Irish Court of Chancery. And this was the description of the procedure of that Court contained in the preamble of the right hon. Gentleman's Bill— Whereas the present mode of proceeding in the High Court of Chancery in Ireland, by orders of reference, reports, and exceptions, is attended; with delay, expense, and other inconvenience, and it is expedient that every cause or matter should be prosecuted through all its stages before and under the direction of the same Judge or I judicial officer, &c. And what did the right hon. Gentleman then propose to enact? Why, the abolition of those Masters in Chancery of whom he was now the strenuous advocate, and the substitution for men with salaries of some £500 a year of three Vice Chancellors with £3,500 a year each, and each with a chief clerk at £800 a year and two junior clerks at a somewhat smaller salary. Then, by the right hon. Gentleman's other Bill, the English chief clerk's practice in chambers was sought to be introduced in all respects. [Mr. WHITESIDE: These were Bills that went before a Committee.] He was aware of that, and the right hon. Gentleman was a Member of that Committee, which sat taking evidence from the 6th of March to the 22nd of May. On the 5th of June, 1856, the right hon. Gentleman, after brooding over the subject and giving his best energies to it during the labours of the Committee, proposed Resolutions stating, among other things, that it was expedient that the High Court of Chancery in Ireland should undergo a thorough revision both in its constitution and procedure; that the constitution of the Court should be altered by the abolition of the office of Master in Ordinary with the present system of references and reports, and by the appointment of Vice Chancellors, who, with the Master of the Rolls, should severally hear cases and matters which should eventuate in further inquiries, so that the same Judge should conduct the entire proceedings from their commencement to their termination. It was true the right hon. Gentleman proposed also that the first Vice Chancellors should be appointed from the existing Masters. The Committee adopted in preference a plan recommended by Sir E. Perry, retaining the name of Masters, but giving them the functions of Vice Chancellors. He was aware that the right hon. Gentleman acquiesced, without dividing in favour of his own plan, in the views of the majority of that Committee; but it was somewhat too much for the right hon. Gentleman to come forward now, and eloquently denounce, as a thing unheard of and utterly subversive of the proper administration of justice in Ireland, the plan which he himself recommended and persevered in so late as the 5th of June, in 1856. Did the right hon. Gentleman mean to say that an assimilation of practice between the two countries was not to be desired, as recommended by the Commissioners? Such an assimilation was the principle of the Bill, and to that principle the right hon. Gentleman had not addressed one word of his speech. The evidence given by the Masters themselves supported the principle of this measure. Master Murphy stated that the most valuable of all reforms would be the adoption of the practice of the English Court of Chancery. He would not trouble the House with figures, but he could produce in detail proofs of the extraordinary diminution of expense and acceleration of business which had resulted from the new system in England. Very large estates were now distributed at an almost nominal cost in comparison with that which was incurred before. Lord St. Leonards speaking in 1858 said that he had personally examined into the system of the chief clerks' offices, and he declared that, with the exception of one or two suggestions he had made, which were adopted, the system was as nearly perfect as possible. The right hon. and learned Member for Dublin University was wrong in supposing that the present Bill would compel suitors in the Irish Court of Chancery to commence the simplest administration suits concerning the most trifling estates by the expensive process of bills and answers. If the right hon. and learned Gentleman had read the Bill, he would have seen that it introduced into Ireland the short, inexpensive, and summary method of taking out summonses in chambers in administration suits. Chief clerks, it had been said, would not be competent to determine important questions of law. They never did so in England, except when the parties were perfectly satisfied with their decision, and at any time such questions might be readily brought before the Judge himself. He trusted the House would not be led away by the eloquence of the right hon. and learned Member for Dublin University, but would remember that they were now engaged only in considering whether they should give a second reading to a Bill which was the result of the recommendations of a highly competent Commission, and which aimed at the assimilation of the practice in England and Ireland. Objections to clauses would doubtless be fully and fairly discussed in Committee; but the Amendment to the second reading of the Bill simply meant that the system of the Court of Chancery in Ireland was so perfect that it should not be altered at all.


said, that the hon. and learned Gentleman the Attorney General, had endeavoured to divert attention from the real arguments used by the right hon. and learned Member for Dublin University, and with having unintentionally misrepresented the course taken by that Gentleman in 1856. For his own part, he was as great an advocate for the assimilation of the practice of England and Ireland as any man living. He hoped, indeed, the time would soon come when no Act would be passed for one country that would not be binding on the other. What he complained of in the present Bill was that it carried out only a portion of the recommendations which had been made, and that it left untouched many differences between the two countries. A mixed Commission of English and Irish barristers might be able to prepare the heads of a real assimilation Bill, but it was a perfect mockery to call the measure now under discussion by that name. The right hon. and learned Member for Dublin University had pursued a consistent course, and if defects still existed in the system of the Irish Court of Chancery, it was not his fault or that of the Legislature. It was remarkable that throughout the whole Report of 1860 no reference was made to the Report of 1856, and in many of the most important points the two Reports were quite opposed to each other. When a Bill of this kind was brought forward, it was incumbent upon the House to consider how the Masters in Chancery had conducted themselves. It was an extraordinary fact that during the last fourteen years the four Masters had made 14,400 decretal orders, and only 137 appeals took place out of that number. Then, again, out of these 137 appeals, only forty of these orders were reversed! And that was the jurisdiction which it was now proposed to abolish. If they abolished those Masters and appointed one Vice Chancellor, the result would be that next year they would have to come down and appoint one or two more Vice Chancellors, and additional chief and under clerks. From statements made on good authority, it would seem that in this country the system which it was proposed to extend to Ireland had produced confusion and disorder, which never could have arisen if a competent authority had decided on the judicial and legal difficulties as they arose. He thought it would be legal suicide to destroy a system which had worked so well in Ireland, and on those grounds he should vote against the second reading.


said, it had at one time been his misfortune to practise in the High Court of Chancery in Ireland; and he must say that though the right hon. and learned Gentleman the Member for the University of Dublin and the hon. and learned Gentleman the Member for Wexford (Mr. George) were very high authorities in the Courts of Common Law, he had never met either of them in the High Court of Chancery. The Bill the House had to consider that night contained only 192 clauses, with attendant schedules; but he hoped they would not go into those clauses on that occasion, for he really did not know but that he would be compelled to oppose every single one of them. All that they ought to do at that late hour was to discuss the principle of the measure only. The Report which had been so much condemned that evening was signed by Mr. Napier, the hon. and learned Member for Belfast (Sir Hugh Cairns), and other eminent Chancery barristers. The Commissioners were unanimously in favour of assimilation, and their authority ought to have great weight with hon. Gentlemen opposite. He did not undertake to support the Bill in all its details, but to the principle of the Bill he did give his support.


said, that having been a Member of the Select Committee, he naturally took a great interest in this subject. It was one on which laymen might be permitted to express their opinions, and, in fact, the Report of the Commission lost much of its value in his estimation by the fact that it was composed of professional men. Remembering the part which the late Sir James Graham took in those proceedings he could only say that if Sir James Graham had been amongst them during this discussion they would not have heard many of the arguments that had been advanced that evening. Many legal reforms had been carried in opposition to the profession. The Attorney General had entirely mistaken the position of his right hon. Friend the Member for Dublin University. His right hon. Friend might at one time have been all in favour of Vice Chancellors, but he had changed his opinion, seeing how well the present system of Masters worked in Ireland. He should suggest that his hon. and learned Friend behind him should allow the Bill to be read a second time, and that he should afterwards move that it be referred to a Select Committee.


said, the opponents of the Bill had failed in satisfying him that the Bill ought to be opposed at this stage. He had practised in the English Court of Chancery under the old and new systems, and the result of the new system was that suits which before 1852 would have lasted five years were disposed of in twelve or eighteen months. The Masters under the Irish system were totally different from what they were in England; for in this country there never was known such a thing as a cause originated before a Master; whereas in Ireland a suit went at once before the Master on a cause petition; he pronounced a decision upon it, and then worked out his own decree. That system he (Mr. Malins) regarded as very objectionable. He thought the Government had done right in introducing a Bill for assimilating the laws of Chancery of the two countries, and he approved of the principles of the measure. No doubt some of the details of the measure were open to objection, but the best way of meeting them would be by referring it to a Select Committee. The English system was by no means perfect, and what required alteration in this country might be guarded against with regard to Ireland. Instead of abolishing the Masters and substituting a Vice Chancellor and a chief clerk, he thought the Masters might be retained to act with the Vice Chancellor with great advantage to the suitors. He recommended the hon. and learned Gentleman not to persevere with his Amendment.


said, that after the expression of opinion of the hon. Member for Horsham, he would not press the Motion to a division, but at the proper time he should move to refer the Bill to a Select Committee.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read 2o, and committed for Thursday next.