§ Order for Committee read.
THE ATTORNEY GENERAL,
in moving that the House should go into Committee on the Bill, said, it had origi- 501 nated in the Report of the Commission appointed in 1862 to consider the measures which should be taken for the purpose of removing, as far as might be, the differences in the administration of justice in the courts of equity and of common law in England and in Ireland. This Bill dealt only with jurisdiction in equity; the other branch of the subject remained to be dealt with hereafter. As to the principle of the measure, it was one which would, he thought, excite no difference of opinion, for it rested on the desirability of assimilating as far as possible equity procedure in Ireland to the procedure of England. Until 1850 there was substantially but one system in operation in the courts of equity on both sides of the Channel. In that year a measure was introduced for the improvement of Chancery procedure in Ireland. It was not founded upon any inquiry by Commissioners, and the principal change introduced was that the old mode of commencing and prosecuting suits by regular pleadings and issues joined was put an end to and procedure by petition substituted. It was provided that whoever desired to prefer any claim to relief in the Irish Court of Chancery might present a petition in which he stated his case, and verified that petition in a certain sense by a short affidavit, saying that everything he asserted was true to his knowledge or belief. Thus the suit was launched and if the petition so verified was not met by counter allegations on oath, it was held that the defendant admitted everything which was stated by the plaintiff. The burden of proof being thus shifted and thrown on the defendant, he told his own story, traversed the case of the petitioner, and his statement was held to be true until contradicted on oath. But then the plaintiff was again at liberty to traverse the statements of the defendants. The war of affidavits was thus prolonged indefinitely; there was no regular pleading; the parties might travel into all sorts of irrelevant matter; and great inconvenience resulted. The working of the whole system was very graphically described by Mr. Smith, a witness who gave answers to the questions circulated by the late Commission, as "a sort of competitive examination in swearing, little calculated to subserve the cause of truth or the interests of justice." In the very next year, 1851, a Commission was appointed, consisting of very eminent persons in the law, with others, to inquire into the 502 system of Chancery jurisprudence and procedure in England. They reconsidered the whole subject and did not think fit to adopt the new Irish system, but recommended extensive reforms in the old mode of pleading, cutting off excesses and superfluities and the abuses to which that system was liable. Their recommendations were afterwards embodied in two Acts of Parliament. One abolished the Masters in Chancery and substituted a system under which it was intended that the Judges, with the assistance of Chief Clerks, should work out their own decrees, under their own superintendence, in their own chambers. The other carried into effect all the improvements recommended in the then existing procedure. Besides introducing the peculiar procedure he had described, the Irish Act of 850 had provided for the immediate reference to the Masters in substance of the entire conduct of a largo variety of very important suits. Thus there grew up an original jurisdiction exercised in their chambers in the absence of the public and even of the profession beyond those immediately engaged in the case, and important questions of law were there determined. Personally the Masters exercised this jurisdiction very creditably; but their decisions were not reported, were frequently inconsistent, and had little authority. In England the working of the Masters' offices was in many respects similar; but, as he had said, the Chancery Amendment Acts abolished them, transferring their business to the Judges, aided by the Chief Clerks, but maintaining, with the necessary reforms, the old system of procedure. Of course every human system had its imperfections, and even systems good in themselves would in their working not always be found equally satisfactory. On the whole, however, the working of the system introduced by these Acts of Parliament in England had been answerable to the expectations of those who framed them. Under these circumstances a Commission was appointed in 1862 to inquire what ought to be done with a view to get rid of the differences in the modes of administering the law in the two countries. That Commission consisted not, indeed, of all the most eminent men in the country, for his right hon. and learned Friend (Mr. Whiteside) was not a Member of it. He wished that his right hon. Friend had been a Member of the Commission, for then it was probable that there might have been 503 greater unanimity than was likely on this occasion. Having regard, however, to the necessity of limiting the number, and of having some Members from each country, representing both common law and equity, it would have been difficult to appoint a Commission likely to make a more satisfactory Report on the subject referred to them. The Commission consisted of the Master of the Rolls (Sir John Romilly), the hon. and learned Member for Belfast (Sir Hugh Cairns), the ex-Lord Chancellors of Ireland, Napier and Blackburn, Chief Justice Monahan, Justice O'Hagan, then Attorney General for Ireland, and others. That Commission recommended the measure which the Government in substance had introduced. They took a good deal of evidence, particularly from Ireland, and they collected the opinions of many eminent persons who had considerable knowledge and experience of the subject. The result was, that there was a general agreement of opinion as to the propriety of assimilating the practice and procedure of the two countries, and of taking the English practice as the basis of that assimilation. One reason assigned for making that recommendation was, that both countries would be able to take advantage of the body of decisions which might be given in one country or the other. Again, appeals from the Irish Court of Chancery were heard in the House of Lords, and assimilation of the two systems would be a great advantage, because, as long as they were different, wherever there might be a competition between the English and Irish systems in points which ought to be substantially governed by the same principles, a Court of Appeal sitting in England would have a tendency to decide in conformity with the system with which it was most intimate. It was the general opinion among the witnesses that, on the whole, they would prefer adopting the English system; and there was also a great preponderance of opinion in favour of abolishing the Masters and allowing each Judge to work out his own decisions in his own chambers. With regard to procedure there was some difference of opinion; but the tendency was in favour of the English system—at least to the extent that was recommended by the Commission. The Incorporated Law Society had petitioned in favour of the Bill. The usual course when Government had taken charge of a subject of this kind and had 504 introduced a measure was, that any one who differed from their views in matters of detail should wait till the Bill got into Committee, and then propose Amendments. The right hon. and learned Gentleman opposite (Mr. Whiteside), however, had taken the unusual course of introducing a rival measure of his own, or rather two measures. He was happy, however, to say that, except upon points of detail, there was little difference between him and the right hon. and learned Gentleman—save that the right hon. and learned Gentleman proposed to do in two Bills what the Government proposed to do in one. The Government did not think it necessary, like the right hon. Gentleman, to propose the appointment of two Vice Chancellors. They believed that one, at a salary of £4,000 a year, would be sufficient. The salaries which the right hon. and learned Gentleman contemplated were not mentioned in his Bill, so that he was unable to give a comparative view of the expense of the two measures. The proposition of the Government was to create one office of Vice Chancellor, at a salary of £4,000 a year; a Chief Clerk to the Vice Chancellor, and also a Chief Clerk to the Master of the Rolls, commencing in each case at salaries of £800 a year, and rising by a graduated scale to £1,000. The total cost, therefore, would be, according to circumstances, £5,800 or £6,000 a year. Some further officers would be requisite; among them one of assistant registrar and four junior clerks, entailing an outlay of somewhat exceeding £2,000; but as these positions were to be filled by existing public servants the extra charge under this head to the public would only he about £200. In case circumstances should render it absolutely necessary, power was taken in the Bill still further to increase the machinery of the Irish Equity Courts to the extent of a further amount of £4,500 annually; that, however, would be the maximum of expenditure, and it was not at all likely that it would be reached. On the other hand, the total saving that would ultimately be effected under the Bill, and which would have to be set off against this new expenditure, exceeded £10,300 annually; but, of course, the whole of this would not be realized till the claims of the present holders of office were satisfied or extinguished. The House would probably be of opinion that two Vice Chan- 505 cellors were not necessary; but in any event they would, he trusted, regard as objectionable the proposal to determine by the Bill the gentlemen who ought to be appointed. The right hon. Gentleman asked them to declare that one of the Vice Chancellorships should be offered in the first instance to the senior Judge of the Landed Estates Court; in case of his refusal, to the second Judge, and in like manner to the third Judge. The second Vice Chancellorship, according to his scheme, was to be tendered first for the acceptance of the senior Master in Chancery, and so on in rotation. This method of limiting the pleasure of the Crown, acting on the opinion of its responsible advisers, was highly objectionable, as well as novel in principle. The Judges of the Landed Estates Court, he was prepared to admit, were gentlemen of the highest respectability and worth, who had discharged the duties of their office in a manner deserving the highest praise. To the Masters in Chancery also he wished to allude with the fullest acknowledgment of the services they had rendered. But was it reasonable, was it wise, was it in accordance with the experience and judgment of his right hon. Friend, to ask the House blindfold to adopt a rule which might prevent them getting the men best qualified for the positions to be filled? The House must see at once that if particular persons were brought by name under the notice of the House, personal discussions of the most invidious character might be excited, and therefore he hoped this proposition of the right hon. and learned Gentleman would not find favour. The next point of difference was as to the Chief Clerks. The right hon. and learned Gentleman said, "Do what you will, at all events avoid the office of Chief Clerk," and he appeared to attach great importance to that suggestion. The first question that arose upon that point was—did the hon. Gentleman avoid that office in his Bill? He (the Attorney General) undoubtedly proposed to adopt the nomenclature of the English Court of Chancery in cases where the offices were practically similar. The light hon. and learned Gentleman said, in his Bill, that it should be lawful for the Lord Chancellor to attach to each Judge an officer, to be called an Examiner. But that officer would, in point of fact, be a Chief Clerk, for he would have not only to assist in examining titles, but he would 506 have to assist the Judge in the general business of the Court. He defied the right hon. Gentleman to show any practical distinction between the office he proposed to create and that of a Chief Clerk in the English Court of Chancery. What, therefore, could be gained by a simple change of name when the office was the same to all intents and purposes? The duty of a Chief Clerk was to meet the parties in a cause, and to go through the figures and papers and all matters of detail with them; they having a right, whenever a matter of controversy arose upon questions of fact or law, to go before the Judge, and to have the advantage of his personal judgment on the subject in dispute. Some people in Ireland, including many gentlemen of eminence, apparently thought it would be preferable for the Judge to give his personal attention to every matter of detail and account in every cause which came before him; but in that case the Court would be completely blocked up, and its business would be practically put an end to. The right hon. and learned Gentleman further said that the Examiner might or might not be a barrister; but he (the Attorney General) thought there were many sound reasons for giving the appointment exclusively to members of the other branch of the profession. In the first place, the Judge would be strictly responsible for what was done under his directions; secondly, there would be greater security for that deference and feeling of subordination towards the Judge which, in the relation in which lie would stand towards such an officer, was indispensable, if the officer were not taken from the same ranks to which the Judge himself, while at the bar, had belonged; thirdly, because it was only fair, that there should be some offices of importance, to which solicitors should have a preferable claim; and lastly, to avoid the expense of unnecessary attendances of counsel, who would attend before a barrister, but would not before a solicitor. He believed it would be found in the end that the right hon. and learned Gentleman and himself differed more in name than in substance with regard to this office.
Coming to the other points of the Bill, he was very much gratified at being able to state that the remaining differences between himself and the right hon. and learned Gentleman really came within a small compass, although he did not by by any means wish it to be inferred that 507 the matters upon which they disagreed were without importance. The right hon. and learned Gentleman, with regard to the points affecting the procedure of the court, had, in the main, followed the opinion of a most eminent legal personage, whose judicial learning and acumen were universally respected—he meant the Master of the Rolls in Ireland. That learned Judge had published a pamphlet expressive of his views, and containing certain reasons for preferring, in several points, the practice of the Irish Court of Chancery to that of England. The right hon. and learned Gentleman had in a great measure reproduced those opinions in his Bill; but he (the Attorney General) could not agree with all the provisions therein sought to be introduced in accordance with the existing Irish system. By the measure of the right hon. and learned Gentleman, the plaintiff in Chancery would be permitted, by a verifying affidavit, to swear that everything contained in his Bill before the Court which related to his own knowledge was true, and that what was not within his knowledge he believed to be true. The onus prohandi was then to be thrown on the defendant. This verifying affidavit was perfectly worthless, and he was afraid that the mere requirement of it would operate as a premium on loose swearing. They would never keep a man out of Chancery by requiring him to file an affidavit of this kind. This was not his own view merely—he found that some of the most eminent men at the Irish Bar held the same opinion. Mr. Warren stated that the affidavit had come to be considered little more than a matter of form, and it was very embarrassing in the future prosecution of the suit. The House would see how it was embarrassing. Many a man, an honest suitor, did not know how to shape his case when he went into Court. It was not until the case had been sifted, until the suitor got a discovery from his adversary and the documents, that he knew exactly how the case stood. A man should not be called upon to swear in that kind of way. When the proper time came, let him give his evidence upon oath of that only which he knew. Mr. Smith took the same view of the matter. He said that the system led to competitive swearing little calculated to serve the cause of truth and justice. But the great advantage which was supposed to be derived from it was more objectionable still. It seemed to him the ne plus ultra of injustice that such an affidavit should invert the onus 508 prohandi. A man put an affidavit upon the file in the common form. He might know nothing at all, or certainly not a great deal, of the facts; his statement of his belief as to things which he did not know would not be received as evidence, for a moment, in any court of justice; he could not even be asked a question about it, when examined in chief, in the witness-box; and yet, forsooth, he was in this way to throw the burden of proof upon his opponent. That was the system which his right hon. Friend wished to preserve. Why should that be allowed in Chancery which was permitted nowhere else? By another provision in the right hon. Gentleman's Bill, interrogatories could not be filed by the plaintiff without the special leave of the Court. Now, he had always thought that one of the principal objects of a Bill in equity was discovery, and that a party in a suit had a right to sift the conscience of his adversary, and get from him all the facts within his knowledge. His right hon. and learned Friend made it another great point in favour of his own Bill that it abolished demurrers altogether. The Bill of the Government abolished all demurrers except those for want of equity and for multifariousness. Thus they would get rid of merely formal demurrers, and retain demurrers of substance. There were cases in which great expense and vexation were avoided to litigants by means of demurrers. In many instances the question at issue turned upon a point of construction or a question of right under an instrument, or some other matter equally clear upon the pleadings, where the grossest injustice might be done by allowing a man to drag his adversary through a series of interrogatories and answers when it was plain, upon his own showing, that he had no right to come into court at all. Such cases were most properly met, and could only be met by demurrers for want of equity or for multifariousness. It seemed, also, that in Ireland those gentlemen whoso minds had been led by their experience to conceive a just and righteous horror of the working of cause petitions in that country, were alarmed lest they should be retaining or bringing back the evils of that system if the English practice of moving for a decree were introduced. Every one acquainted with the operation of the practice of moving for decrees in England would say that that was an idle alarm. That practice 509 was found to be very salutary and beneficial in England, and to be unattended by any of the evils which had arisen from the Irish cause petitions; and there was no reason to apprehend any mischievous consequences from its introduction into Ireland.
Another provision of the measure proposed by the Government was that it should not be competent for any defendant in any suit commenced by Bill to take any objection for want of parties in any case to which certain rules, specified in Clause 68, should extend. In Ireland there was no rule as to want of parties which could be called settled or inflexible; but if at any stage of the case, even at the final hearing, the court discovered that there were persons absent from the record whose interests were concerned, and whom it was important to find, the court might make an order nisi to bind those persons unless they showed cause to the contrary. That, bethought, was carrying matters to an inconvenient and dangerous extent, There remained one other subject on which, when they got into Committee, he should be disposed to listen without prejudice to any argument from his right hon. and learned Friend. He alluded to vivá voce examinations. That was one of the most difficult and the least satisfactory brandies of the English system; but if it were found to be consistent with the proper despatch of public business in Ireland that all vivá voce examinations should take place before the Judge in court he should not on his own part interpose any objection, although certainly he should wish to have the opportunity of communicating with those in Ireland who were most conversant with that matter.
He had now stated the various points on which his Bill differed from that of his right hon. and learned Friend; the whole subject could he most conveniently discussed on the Government Bill, and he thought no useful purpose would be served by dealing with it in any other way.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Attorney General.)
§ MR. WHITESIDE
said, he thought the Bill which his hon. and learned Friend had described with so much ability should be referred to a Select Committee—not for the purpose of defeating a good Bill, but for the purpose of making a good Bill, which it was quite clear the Govern- 510 ment Bill was not. The statement of his hon. and learned Friend attested his conviction of the importance of the questions raised by this measure, which were among the most interesting that could be submitted to the attention of an enlightened jurist. His hon. and learned Friend first of all spoke of the frame of his Bill. Now, he (Mr. Whiteside) objected to the frame of the Bill. It was clear that the patronage portion of it was considered its most important part, and it had been dealt with as they sometimes dealt with a money Bill—tacking a clause to it, because they were determined the Lords should pass it. The constitution of the Court and its procedure were mixed up together. The two were entirely distinct. He had, therefore, placed on the table two Bills, one of which related to the constitution of the Court and the other to procedure. And for this reason. How had the present movement originated? In another place the Marquess of Clanricarde had discussed the relative costs of proceedings in the Courts of Chancery in England and Ireland, and the result of that discussion was that a Commission was issued to inquire as to the reduction of costs to suitors and the expenditure of the public money. But the Report of that Commission was of a most extraordinary character. The reference to the Commission was to inquire into the means of reducing the costs to the suitor. That was quite legitimate and proper. There could not be a more desirable thing than to reduce the cost of proceedings; because, although it was no doubt very well to get easily into the Court of Chancery, it was still more important to get out of it as cheaply as possible. The next object of the Commission was to inquire into the procedure, practice, and fees of the Court of Chancery in Ireland; and they were also to inquire into the difference between the constitution and form of practice of the Court of Chancery in England and Ireland. They took the last subject first; but what was most extraordinary was that the relative costs, of procedure in England and Ireland was entirely passed over, not a single question being asked with regard to it. There was not one word in the Report upon this all important subject—the real object of the Marquess of Clanricarde in moving in the matter. It would be his duty to prove that, so far from lessening costs, this Bill of his hon. and learned Friend the Attorney General would much 511 more than double them in the Court of Chancery in Ireland. The Bill would involve the creation of new places to the amount of £10,000 or £12,000 a year. The expenses of the staff was a small consideration compared with the administration of justice; but the Bill proposed to repeal every clause of the Chancery Regulation Bill, except the clause relating to pensions. Who carried the Bill of 1850? The Master of the Rolls, Sir John Romilly, who had signed the recommendations on which the present Bill was founded. But he preferred on certain points the deliberate opinion of Sir John Romilly expressed in that House some few years ago, supported by the most eminent men at the Chancery Bar, and not altogether unassisted by men whose names commanded considerable respect on this subject. By the Bill carried in 1850 it was enacted that parties taking certain proceedings in the Court of Chancery in Ireland must make affidavit that what was stated therein was true. Now, he found upon referring to the Act of Parliament that it was enacted that when a petition was presented it was to be verified by affidavit according to the form set down in the schedule of the Act; and that form was to this effect—the petitioner declared that so much of the petition as related to his own acts and deeds was true, and so much as related to the acts and deeds of others he believed to be true. That was the form which was so much censured by his hon. and learned Friend. Was it not right that a plaintiff who was about to put his adversary to an oath should be obliged to verify his petition by an oath also? The Master of the Rolls, in support of the change, stated that the effect of it would be to bring the matter at issue much more speedily before the Court, and the practice of filing pleas and demurrers, which led to so much delay, would be put an end to. But the extraordinary part of the legislation now proposed was this—that they were called upon to go back to all the technicalities which they had got rid of fifteen years ago. Again, the Master of the Rolls recommended his measure on the ground that it would enable the Court to take vivá voce evidence; but now it was proposed to restore the very mode of taking evidence which Sir John Romilly had condemned. Mr. John Sadlier, whose authority he would not wish to quote upon some other points, but whoso experience as an attorney entitled his opinion to weight on 512 this, said that written evidence was futile. Mr. Henley was of opinion that it would be impossible to resist the extension of the improvement to England. His right hon. Friend the Member for Cambridge University (Mr. Walpole) gave, it was true, a more qualified opinion, for he held that to expedite the business in Chancery the proceedings in the Masters' offices should be thoroughly reformed. But when Lord St. Leonards came to Ireland that very thing was done. Sir John Romilly also quoted the opinion of the late Mr. Bell, who said that in all his experience he had never cross-examined a witness unless he could examine him in chief, or cross-examine him on the ground of interest.
THE ATTORNEY GENERAL
said, he did not propose to go back to the old system. In England they had entirely got rid of the system of interrogatories, and the examination was vivá voce not only in substance, but in form.
§ MR. WHITESIDE
said, it was to be done in a dark chamber, and that was the very thing to which he objected. The Master of the Rolls was strongly opposed to it, and here it was to be observed that the reformers were the Judges, and the anti-reformers the Law Officers of the Crown. He had seen a few days ago in Ireland an examination despatched in an hour which if conducted in a dark chamber would have lasted two or three days. The Master of the Rolls also said that the system of the Court of Chancery at that time amounted in a great measure to a denial of justice, and it was admitted by Mr. Pemberton Leigh that nobody could venture into that court unless the sum at stake was at least £1,000. An opinion was also expressed by a gentleman not then so well known to the House as he was now, but nevertheless admitted to be skilful, discreet, and learned, and that gentleman was Mr. Roundell Palmer. Mr. Roundell Palmer was then fresher and younger than now—he would not say more learned, but he was quite as competent to pronounce an opinion upon those principles which he had that night denounced with so much ability. He could not allow his hon. and learned Friend to escape. Mr. Roundell Palmer said it was an opinion very uniformly entertained that a very extensive reform must be carried out on such a principle as was incorporated in the Bill, and that such a remedy was absolutely necessary to restore efficiency and complete 513 utility to the Court of Chancery both in England and Ireland. His hon. and learned Friend proceeded to say that the former system had brought discredit on the Court of Chancery; that practitioners in the Court were as nearly unanimous in favour of the principle of the measure as possible, and that a Bill formed upon the same principle ought to be applied to the Court of Chancery in England also. He would refer to Mr. Headlam as another authority who had spoken strongly of the value of sending cases for administration directly to one Judge, and said some of the great defects of the Courts of Chancery in London were the expensive and voluminous proceedings, and the great mass of documents that were accumulated in consequence of all the evidence having to be in writing. The Bill passed for Ireland provided a remedy for these, and enabled the Master to dispose of all orders of the court. Mr. Keogh also said during the discussion that the Bill would be regarded as a boon to Ireland, and he censured very severely, with that eloquence which belonged to him, an unfortunate English gentleman who had ventured to open his lips—Vice Chancellor Stuart. Sir Page Wood found in the Bill the principles he admired, and recommended it to the House as one that would pull up old abuses by the roots, and he contended that the same principles ought to be adopted in England. The present Lord Chief Justice, when speaking on the same subject, derided the lawyers who objected to changes, and said if a measure were brought in to alter the constitution the lawyers would be quiet, but if it were to touch a cobweb in Westminster, the lawyers would be up eagerly opposing it. The measure, he said—Was calculated to work a most salutary reform in the proceedings of the Court of Chancery in Ireland, and if extended to England he had no doubt it would be found to work with equal advantage here.And he wound up by saying:—He wished, as a member of the legal profession, to express his unbounded acknowledgments and grateful thanks to his hon. and learned Friend for having taken up a course of legal reform in that House, which would be most gratifying to the public, and which showed that he was treading in his father's footsteps and was likely to add lustre to the honoured name which he bore.Was it possible that the Government was now going to destroy a Bill which had the approval of such men, and which had proved one of the greatest blessings that Ireland had obtained from the Government 514 of England for a long time? In the Bills which he had himself introduced he had yielded a great deal in order to get rid of opposition, but he could not yield those principles which these eminent men had approved in 1850, and which had been acted on ever since. In regard to the mode of verification proposed by the Bill now before the House, he contended that the measure would overthrow the Act of Parliament which had been found to work so satisfactorily. In England the vocations of the Master were added to the Vice Chancellor, and in Ireland the powers of the Vice Chancellor were given to the Master. In the 15th section of the Irish Act, it was enacted that all suits should go direct to the Master, and now it was proposed to introduce a Chief Clerk in the proceedings. He quite agreed that it was of great advantage that one mind should begin, continue, and end the cause; but the Attorney General, while professing to be in favour of the principle, by introducing the Chief Clerks, created the very evils he deplored. After all, the principal question, so far as the suitor was concerned, was the question of costs. When sitting upon a Committee for the rearrangement of the County Court Acts for Ireland, the Irish Chancery Act was brought prominently before him, and it was found to be a most useful measure. That Committee had to consider how cases under £200 should be dealt with, and they recommended that County Court Judges should be empowered on moderate terms to wind up suits under that amount. A question had arisen within a few days in England as to what was to be done with cases between £200 and £500. The hon. and learned Gentleman the Attorney General, in arranging his new and costly machinery, seemed to have forgotten what had recently passed in another place. Ireland was too poor a country to pay such excessive costs. By the County Courts Act for England the scale of costs and the fees of the Courts were fixed by the Judges, and he believed they might amount to £10 as against £2 10s. in the Irish County Courts. The Lord Chancellor had in the present Session introduced a Bill giving the County Courts of England equitable jurisdiction in cases not exceeding £300. Why was that increased jurisdiction to be given? Lord St. Leonards objected to the second reading. He was unwilling to send litigants, even in small cases, before an inferior tribunal, 515 and he said that questions might arise in cases of no greater amount than £300 as important to the litigants and involving questions of as much nicety as if thousands of pounds were concerned. Lord Cranworth argued that courts which were intrusted with the duty of ascertaining whether debts were due were competent to wind up these small estates, to ascertain who were the creditors, and to divide the assets. The Lord Chancellor reminded Lord St. Leonards of the effect of the reduction already made in the fees of the court. He said—I find that there was a suit instituted in the Court of Chancery to get a decree for some property not exceeding in value £150. The costs amounted to £95 13s; but the court fees, the reduction of which is the panacea of my noble and learned Friend, were only £5 7s. 6d. The next case is something still worse. There was a small suit instituted for the administration of an estate. The whole estate was £400, and the debts on it £100. The costs amounted to £139 8s. 8d., the court fees being only £9 12s."—[3 Hansard, clxxvii. 1040.]And the Lord Chancellor proceeded to express an opinion to which he entreated the particular attention of the Attorney General—The great fault of lawyers is that they become so enamoured of the old system in which they have been bred and in its principles, that they refuse to see anything but good in its application, and they look with suspicion on any plan which is likely to make the form of judicial procedure less elaborate and less costly as likely to cause a departure from that exactness in which they believe justice resides."—[3 Hansard, Ibid. 1041.]He did for a moment imagine that the cases cited by the Lord Chancellor must be extreme cases, and he called upon a solicitor in large practice, who assured him, however, that there was nothing remarkable in the costs in those cases, and that he did not see how the suits could be carried through for less. That gentleman added that he himself had several cases in which the costs considerably exceeded those referred to by the Lord Chancellor. He thereupon sent to Dublin and got four bills of costs. In one case the value of the estate was £651, and the cost of winding it up was only £59. In a second case the costs were £49; in a third £42, in a fourth £50 2s. He had received a communication from Master Fitzgibbon as to the way in which these Acts were worked out. And he confidently asserted that if a speedy decision at a trifling cost was a desirable object the present practice of the Irish Court had 516 attained that object. The question was, whether substantial justice could be got for the public, and he said that cheap and substantial justice had been obtained. The Masters did the most work, and they were Vice Chancellors under the present system. In a Committee of the House which sat six years ago, of which he (Mr. Whiteside) was a Member, the question was considered whether Masters should be abolished. The Committee, so far from so thinking, agreed that the Masters ought to have an original jurisdiction. They reported that the practice of taking vivé voce evidence in Chancery was a sound one, and that there ought to be a more extensive application of the principle. The Attorney General was accordingly directed to draw a Bill founded in fact upon the practice in the Irish Court of Chancery, and giving the Judges the power of reforming the practice of the English Court. That Bill would have prevented the necessity of even applying to Parliament again on the subject. He was sorry, however, to say that the Judges had refused to agree on the plan proposed. The Committee proposed to give power to the Judges to do by a general order all that the Committee thought necessary for the public good; but the presumption was that the Judges did not think that the proposed changes were required. The Committee admitted that it would be well to allow of a Parliamentary title being given to all landed property, whether encumbered or unencumbered: but then came the question whether the function of dealing with landed estates should be given to the Court of Chancery or to a separate tribunal; and the Committee was not in favour of throwing the additional duty on the Court of Chancery. Accordingly, he (Mr. Whiteside) brought in a Bill under which the present Landed Estates Court was created. He proposed that the work should be discharged by two Judges, but objection was taken to this, and in Committee on the Bill the number was increased to three. That he was right in supposing two would be sufficient to do all the business was evident from the fact that on several days the Judges of the Landed Estates Court rose as early as one o'clock. The business of the court had greatly diminished, for you could not sell the entire soil of a county twice over in twelve or fifteen years. The three Judges of the Landed Estates Court were able men, and had discharged their duties in a 517 very satisfactory manner. Instead, therefore, of appointing some gentleman of the bar to the office of Vice Chancellor, which his hon. and learned Friend proposed to create at a salary of £4,000 a year, he would appoint one of those learned Judges. He said this without having had any communication with them on the subject. He would also, if his hon. and learned Friend's Bill was to pass, amend it by a provision to retain one of the four Masters in Chancery who at present discharged their duties in so efficient a manner. Lord St. Leonards had appointed the best men to be Masters in Chancery; and of all the cases that had come before them three only had been reversed. He desired that one of these officers should have the functions of a Vice Chancellor; but the Masters among them sometimes decided forty causes a day, and it was not to be expected that a Vice Chancellor could do the same. He was quite aware that the moment a man ventured to speak seriously of economy in the public expenditure lie involved himself in difficulties; but he must express his conviction that, between doubling staffs and paying pensions, the measure of his hon. and learned Friend would increase the expenditure for the administration of justice by much more than £12,000 a year. He objected to the system of Chief Clerks, and his hon. and learned Friend would not introduce it into Ireland if he could help it. The Judges of the Landed Estates Court had Examiners, and these gentlemen were barristers. If there were to be Examiners, and solicitors were to be appointed to the office, he wished them joy of it; but if asked whether he should prefer to have nice questions of account taken by the Masters in Chancery or by a Chief Clerk, he should unhesitatingly give the preference to the former. Sir James Graham himself advised the House to beware of the system of Chief Clerks. The Examiners in the Landed Estates Court had distributed £30,000,000, and he believed that no one would deny that that distribution had been made to the entire satisfaction of the public, By the practice advocated by his hon. and learned Friend great delay would take place in the progress of the suits, because it was not unlikely that matters which were speedily settled by the plan now adopted would occupy weeks before they were decided by the Chief Clerks. For simplicity and brevity he infinitely preferred the former system. As the public were well satisfied, he should 518 like to see a uniform system adopted in the Landed Estates Court and in the Court of Chancery. At a lecture lately delivered in London it was correctly stated that the increasing power of the Chief Clerks should be viewed with some alarm. He thought that his hon. and learned Friend in seeking to extend to Ireland what was advantageous in England ought to consider more carefully the advantages which that country already possessed. In making a beginning it had naturally been thought better not to engraft the old dilatory proceedings of the Court of Chancery on the Landed Estates Court, but the quick proceedings of the Landed Estates Court upon the slow method employed by the Court of Chancery. Mr. Gibson had expressed his admiration of the simplicity of the Incumbered Estates Court, and the extreme facility which was afforded for personal communication with the Judges. That gentleman also said that it was the feeling of the profession generally that it would be better not to delegate authority to the Chief Clerks. Mr. Adair, in like manner, suggested that the principle of the Incumbered Estates Court should not be abandoned, but that it should be engrafted upon the Court of Chancery. His hon. and learned Friend had said, with an air of triumph, that the body of solicitors generally approved his Bill. Now, he did not believe that those gentlemen would be influenced in favour of a scheme which they did not approve by any hope of place, but he did not believe that his hon. and learned Friend was acquainted with the evidence given by that body. Regarding these gentlemen, as he did, with the greatest possible respect, he had examined their evidence. Those gentlemen said that the Irish Chancery Regulation Act was working well for the public, and had effected a great saving of expense. In answer to questions as to the working of the 15th section, which gave independent jurisdiction to the Master, they approved that section with some modifications. Those gentlemen suggested that a time should be fixed after which no further affidavit should be received. He had acted upon that suggestion, and had framed a clause in his Bill to carry it out. They would have no plea or demurrer, and he had abolished both. They would have no interrogatories without special leave of the Court, and that recommendation he had acted upon in his Bill. They thought that the business before the Chief Clerk should be mere matters of vouching and figures, and he had adopted that view in 519 his Bill. In respect to the question of interrogatories, about which the Attorney General had been so triumphant, he (Mr. Whiteside) thought the system of taking further evidence by an Examiner was vicious, and so thought the Master of the Rolls in Ireland, the Chancellor, and the great body of solicitors. He was at issue with the Attorney General upon that point, but he was fortified by the opinion of the Master of the Rolls, expressed in the able pamphlet which the hon. and learned Gentleman had not answered, and by the practice of the Chancellor, who took evidence himself, and prevented counsel putting useless and irrelevant questions. Then, he would ask, was the House of Commons to surrender its convictions to a blue book, and because certain gentlemen recommended uniformity was a bad practice to be introduced into Ireland? He was authorized by one of the Commissioners to say that this Bill had never been placed before them, nor had their opinion been taken as to the propriety of the mode of obtaining uniformity. Then, the hon. and learned Gentleman the Attorney General urged them to have the demurrer, but the Master of the Rolls in Ireland, with his sixteen years' experience as a Judge, declared that the idea of avoiding expense or preventing delay by means of a demurrer was a simple delusion. The accident of the Master of the Rolls being in London together with a chief officer of the Court of Chancery made it a convenient opportunity for inquiring into the matter before a Committee, which could take into consideration the whole of these Bills. He was told that the number of steps in a Chancery suit in England was double the number of those in a suit in Ireland. The hon. and learned Gentleman concluded by moving that the Bill be referred to a Select Committee.
To leave out from the word "That" to the end of the Question, in order to add the words "the Bill be committed to a Select Committee,"—(Mr. Whiteside,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ SIR COLMAN O'LOGHLEN
said, he concurred with the right hon. Gentleman the Member for the University of Dublin (Mr. Whiteside) in considering this a most interesting question, not only to the suitors 520 of the Irish Court of Chancery, but to the country at large. Several steps had been taken in the direction of a reform of the Irish Court of Chancery; the first of which was that taken by Sir John Romilly in the year 1850. He was perfectly justified in saying, considering the number of Commissions and Committees that had examined this subject, that it had received every consideration, and the House was qualified to decide the question upon its merits without again referring it to a Select Committee. It was hardly correct of the right hon. Gentleman to say that in proposing the abolition of the Masters in Chancery, and the substitution of a Vice Chancellor, he had yielded to the opinions of others rather than acted upon his own conviction; because that very provision was contained in a measure upon this subject which was brought in in the year 856, by the right hon. Gentleman himself and Mr. Napier. It was perfectly true, as the right hon. Gentleman stated, that several eminent men, including Sir Page Wood, supported the Bill of 1850; but that was because it was a step in the right direction in the commencement of Chancery reform. The Commission appointed to inquire into Chancery reform in England adopted the principles not of the Chancery Act of 1850, but of the Bill now before the House. The right hon. Gentleman said the expense of proceedings in the Court of Chancery in Ireland was much less than in that of England, but that was a matter of opinion, and he (Sir Colman O'Loghlen) did not believe the Irish system was so cheap as the English. One main principle of the Bill of 1852 was that a suit should be commenced and finished before the same Judge, and the Bill now brought forward by Her Majesty's Government was framed upon that principle. The right hon. and learned Gentleman objected to the Bill introduced by the Attorney General, because it differed from his own by providing for the appointment of a Chief Clerk instead of an Examiner. Now, the right hon. Gentleman in his own Bill really did provide for the appointment of a Chief Clerk, although he called him an Examiner, and the very clause proposing to appoint an Examiner was copied from the clause in the English Chancery Act appointing the Chief Clerk. The words of the two clauses were identical, and the duties of the offices were precisely the same. Another objection taken by the right hon. and learned Gentleman was that the Attorney General's Bill allowed a de- 521 murrer. In this matter the opinion of the Commission of 1852 had been, as he believed, rightly followed. With regard to the question of the examination of witnesses, the right hon. and learned Gentleman had made a mistake when he supposed the Bill proposed to introduce the system of interrogatories before the Examiner. All these questions could be discussed and settled in a Committee of the Whole House, and were not of a character which ought to be referred to a Select Committee. It certainly would be most unwise and imprudent to limit the discretion of the Crown in the selection of Judges in the manner proposed by the right hon. and learned Gentleman; and he demurred entirely to the right hon. and learned Gentleman's statement that the Judges of the Landed Estates Court had at present little to do. Their duties took up much time, and would be considerably increased by Bills now before the House. The Attorney General had shown that, even allowing for all the new appointments which would be necessary, £4,000 a year would be saved to the Treasury. The Bill had received the sanction of every man practising in the Irish Court of Chancery and of the Incorporated Society of Attorneys. All the questions of importance at issue between the Attorney General and the right hon. and learned Gentleman opposite were of such a character as ought to be settled, not in a Select Committee, but by a deliberate vote of the House, and the mere matters of detail were so few that they might very properly be disposed of in Committee of the Whole House.
§ MR. GEORGE
supported the proposal that the measure should be referred to a Select Committee, together with the Bill introduced by his right hon. and learned Friend the Member for the University of Dublin. He would remind the House that the Commission which had inquired into that subject did not include either the Lord Chancellor or the Master of the Rolls in Ireland; and he could state that the Master of the Rolls disapproved of many of its provisions. He was surprised not to find in this Bill any reference to the Report of the Committee which had sat upon the same subject. Prom 1850 to the present time the Masters in Chancery had been acting, with what success was shown by a Return obtained last year, from which it appeared that since the 1st of January, 1851, when increased jurisdiction was given them under Sir John Romilly's Act, down 522 to the 1st of April, 1864, the five Masters made in all 14,443 decretal orders, of which only 134 were appealed against, and but forty-two reversed. As long as these able officers were intrusted with the same powers, it mattered little to the public whether they went by the name of Masters or Vice Chancellors. The Bill of the Government purported to have in view the same objects as the Report of the Commission—namely, to reduce costs to the suitors, to prevent undue expenditure to the public, and to assimilate as far as practicable the procedure of the two countries. But so far from this, the measure would in practice greatly increase the expenditure to suitors, add enormously to the public expenditure, while in the name of assimilation it was proposed to force upon the profession changes some of which were opposed to the wishes and opinions of a very large proportion of the best informed members of the profession in Ireland. The Incorporated Solicitors, he perceived, were now disposed to look favourably on the plan of the Government, though before the Commission they warmly supported the existing system, as administered by the Masters in Chancery. He could scarcely believe that a body of gentlemen so respectable would allow themselves to be influenced by the fact that the Clerks in Chancery were to be chosen exclusively from members of their own profession; but it certainly was remarkable that the change in their opinion was coincident in point of time with this determination on the part of the Government. The Bill proposed to appoint a new Vice Chancellor and a Chief Clerk, to give the Master of the Rolls two additional clerks, and to appoint another registrar and other officers—causing an additional expenditure of £12,500 a year. It abolished at one stroke four Masters in the fullest enjoyment of their faculties, with full will to continue their duties, they would be entitled to pensions, amounting to about £3,000 a year, and there was a shoal of clerks employed in their offices who would also be entitled to compensation. For what purpose was all this waste of money, and why should the country be saddled with such an expenditure? The new offices would cost from £10,000 to £12,000 a year; the retiring pensions to the Masters would amount to much more. No case had been made out for such a scheme, and in times of economy like these the House of Commons would do well to look closely 523 at a Bill which would create a large number of good places, and displace able officers who would become pensioners on the State. The Government made a constitutional difficulty to the appointment of the existing officers to the new offices, but it would be impossible to find Judges more able or more esteemed than those of the Landed Estates Court. It required much to justify the course of proceeding the Bill proposed, and to show how far it was necessary in furtherance of the ends of justice to adopt the scheme proposed in this Bill. With regard to the question whether the Bill would increase the costs to the suitors, he would remind the House that there were some points in which the Irish practice was superior to that of England. For example, though all were agreed on the propriety of abandoning the system of successive affidavits, verification of the pleadings on oath ought not to be lightly abandoned, and the plan now proposed would certainly add to the expenses of the suit. Again, the practice in Ireland with regard to demurrers and pleas was the best, and the Master of the Rolls also disapproved the proposed vivá voce examination before the Examiners, believing that days would be occupied instead of hours, as would be the case, if the examination took place before the Court, and that a large additional expense would thus come upon the suitor. In a country like Ireland it was better to have justice administered, if less elaborate!, with less expense to the suitor than was the case in England. It had been shown conclusively that whereas the Commission was intended to save costs to the suitors and lessen the expenditure of public money, the Bill which pretended to carry out the Report of the Commissioners, did exactly the reverse. He and those who thought with him were of opinion that it would be fairer to ask the House to refer the subject to a Select Committee rather than crowd the notice paper with Amendments, which would be numerous and voluminous, and might lead to a great loss of time. If the Government would allow these three Bills to be referred to a Select Committee they would be able in a short time to combine them into a useful and satisfactory measure.
§ MR. SCULLY
had heard four interesting speeches from four learned Gentlemen, and the details of the Bill appeared to him to be thoroughly threshed out. The real question left for the House was, whether or not the Bills should be referred to a 524 Select Committee. It had been truly said that, in the present case, the bone of contention was the question of patronage, and lie thought it would be a wholesome regulation if in a Billl of this sort the practice and procedure clauses were framed by the Government, and the drawing up of the patronage clauses handed over to a patriotic Opposition, in order that the existing staff might be utilized. This the Government Bill did not propose to do. He did not see the use of sending the question before a Select Committee; and, as they had only had some twelve Members present on an average throughout the discussion that evening, they had practically had a Committee quite select enough. The only drawback to that was, that when the bell rang a number of Members would rush in, and by their blind votes overrule the judgment of those who had carefully attended to the business of the House. He thought it would be advantageous if, in the case of all Commissions of Inquiry into matters of that kind, the Commissioners were directed to frame a Bill to carry out their own recommendations in order that it might be submitted to the Government and Parliament. He regretted that in this case the Commissioners should have entirely overlooked one of the paramount objects for which they were appointed—namely, to inquire how the cost to the suitor and the expense to the public could best be redured. But he presumed that if the new procedure secured expedition it would necessarily diminish expense. In the Masters' Offices some cases had been going on for ten years, and they seemed likely to continue there for another ten. The Attorney General admitted that his measure would cause an immediate increase of charge to the public of £6,200, and that there might be a still further increase of £4,500. If permission was given for the creation of additional offices, and the incurring of additional expense, they might take it as a settled matter that the extra appointments would be made and the extra money spent.
§ MR. WALPOLE
said, that the main difference between the Bills before the House seemed to be this—that whereas one of them recommended the appointment of one Vice Chancellor, whose selection was to be left to the responsible Advisers of the Crown; the other Bill recommended the appointment of two Vice Chancellors, whose offices should he placed in the first instance at the option of certain judicial 525 officers now in existence. Of those two principles he much preferred that contained in the Bill of the Government; for he thought that public officers, and especially judicial officers, should be appointed on the the responsibility of the Advisers of the Crown, and it hardly became Parliament to suggest to the Crown the persons who should even have the option of accepting such an office. At the same time it would be for the Advisers of the Crown in the exercise of their discretion to consider whether they should select competent men who held existing appointments, or should give their patronage to other persons. There were some principles involved in the two Bills to which he wished to call attention. Parliament had thought proper to proceed on two entirely different principles in reforming the Courts of Chancery of England and Ireland. In 1850 it proceeded to reform the Irish Court of Chancery on the notion that all these matters could be conducted by cause petitions, and on evidence principally supplied by affidavits. From all that had occurred during the present discussion, he was led to believe that the objections taken to the Bill of 1850 had been completely sustained, and he was glad to find that the Attorney General had adopted the view then advocated. In respect of the English Court of Chancery, the Act of 1852 proceeded on a totally different principle, and was really one of the most successful amendments of the law which had been made in our time. The first credit was due to the Commissioners for the recommendations they made, and great credit was also due to his noble and learned Friend (Lord St. Leonards) for the manner in which those recommendations bad been carried out. But there was one point in which that Act was defective. He referred to the Examiner's Office. He did not believe there ever could be a good administration of justice unless the evidence was taken before the Court which had to determine the matter in issue. There was very great difficulty in working out that result; but on that point there were clauses in the Bill of his right hon. and learned Friend (Mr. Whiteside) preferable to those in the Government Bill. There was another defect in the English Act of 1852 with reference to the working out decrees by the Chief Clerk. After the onerous duties of the Judge were got through, the labour imposed on him was too great to attend to the details of the Chief Clerk's office. 526 The Judge was also naturally interested in supporting that officer's position, because he was his own Chief Clerk. These were the points to which he wished to call the attention of the House. Everything else was matter of detail, important indeed, but hardly fit for general discussion in that House. The question then arose, how should they deal with the Bills? If they could secure the attendance of the Attorney General, his hon. and learned Friend the Member for Belfast (Sir Hugh Cairns), and his right hon. and learned Friend the Member for the University of Dublin, and other Members, who really understood the subject, be believed they would be enabled to work out the result better in a Committee upstairs than in a Committee of the Whole House, where the matter would be discussed perhaps in presence of twenty or thirty Members, and divisions carried by those who had not heard the discussion. He should be glad to give his own assistance, either in a Committee upstairs or in a Committee of the Whole House, to put the Bill into as perfect a form as possible.
§ MR. MALINS
confessed, that after listening to the whole of the debate he had seldom found himself more embarrassed. He had thought they were all agreed that the system at work in Ireland was unsatisfactory, and that it required amendment; but he collected from his right hon. and learned Friend (Mr. Whiteside) that he was satisfied, and that the people of Ireland generally were satisfied, with the existing system, subject to some slight correction. If that were so, his hon. and learned Friend, instead of submitting Bills of his own on the subject, should have opposed the measure of the Government upon the second reading. The Government were under considerable disadvantage in legislating on this subject. The Attorney General in dealing with the question must have felt the disadvantage of never having observed the working of a single Irish Chancery suit, and during the debate he had been unsupported by any Members on his own side of the House who had had that advantage, with the single exception of the hon. and learned Member for Clare (Sir Colman O'Loghlen). He had known a good deal of the Court of Chancery in England before the Bill of 1852. His right hon. Friend who preceded him, had correctly stated that the Bill was an enormous improvement. It had corrected a system which was a disgrace to a civilized country. 527 The country now had as much reason to be proud of the system as it had before to be ashamed of it. There were, no doubt, some defects still—one being as to the mode of taking evidence; and another, the system of proceedings in Chambers by the Chief Clerks; but, upon the whole, it had worked exceedingly well, and if there were imperfections in the Irish system, the proper course would be to extend to Ireland the system in operation here. He quite agreed that the evidence should be taken viv£ voce whenever it was practicable; but viv£ voce evidence in the Court of Chancery here was impossible, on account of the weight of business, and the system of examination before the Examiner was, he admitted, objectionable. The working out of decrees was also a great imperfection. It could not be denied that a Judge who for six hours of the day had devoted all the energies of his mind to the hearing of causes must be too much exhausted to be able to give three hours afterwards to duties in Chambers. The Court of Chancery had been vastly improved of late years; great expedition was now used; general satisfaction was given, and if there were any defects in the Irish system it was only right that they should be amended. But he could not imagine anything more simple than the plan of defending suits by demurrer, and there could be no more convenient mode of deciding cases, if the facts were agreed upon. Nor could he fall in with the suggestion that the plaintiff should be required to verify his bill on oath, because it might be filed upon imperfect information, and he ought to have the opportunity of improving his case, and it was only to the way in which he ultimately put his case that he ought to swear. Upon the whole he came to the conclusion that it was desirable that the system in England should be extended to Ireland, and, therefore, he felt bound to support the Bill of the Government. During the present debate there had been the greater part of the time four or six Members sitting on the Government side and ten or twelve on the Opposition Benches; but if they sent the Bill to a Select Committee those who were most competent to deal with the subject would not be able to attend, He suggested to his right hon. and learned Friend that he should endeavour to amalgamate his Bill with the Bill of the Government, and the question should then be considered in a Committee of the Whole House.
§ SIR HUGH CAIRNS
said, that a remark had been made that no Irish Member who had served on the Commission had addressed the House in favour of the present Bill, and as he had the honour to be on the Commission he hoped the House would allow him to make a few observations upon it. The object of the Commission was to ascertain which was the better practice, that of Ireland or that of England, in this matter. The first thing which the Commission endeavoured to ascertain was the practice in the Court of Chancery in England and in Ireland, for the purpose of seeing which was the better. They also aimed at discovering the opinion of gentlemen in Ireland who were competent to speak upon the subject, and they therefore examined the Master of the Rolls, Master Litton, and Master Brooke. There were three great points upon which they were examined, the first as to the substitution of compendious printed forms for the old written pleas, the second as to the mode of taking evidence, and the third as to whether the Masters' jurisdiction should be retained or abolished. On the question of written pleadings, the Master of the Rolls said that the English practice was by far the best, that he thought that the English practice of taking evidence ought to be adopted in Ireland, and that the English practice as to Masters was the best. Mr. Litton said that he thought that the system of procedure adopted in England was nearly perfect; and Mr. Brooke said that the most valuable of all reforms would be the adoption of the English practice in the Courts of Chancery in Ireland. Not a single witness before the Commission gave evidence on the other side. On that Commission there were several persons acquainted by experience with the practice in England and in Ireland, and they were unanimous that the practice in England should be introduced into Ireland. The hon. Member for Cork (Mr. Scully) said that the fault he found with the Commission was, that they had neglected to inquire into the question of reducing the costs to suitors—the only question they were appointed to deal with. Now, what the Commission were instructed to inquire into was the differences between the constitution, forms, practice, procedure, and fees of the courts in England and Ireland, with a view to reduce the costs to suitors, and the expenditure of public money on the establishment charges. These were two distinct 529 questions. As regarded the costs of suitors, the Commission knew perfectly well that the very great and cardinal point in which the English system had been successful was the diminution of costs to the suitors. [Mr. WHITESIDE: No!] My right hon. Friend disagrees. [Mr. WHITESIDE: Entirely.] He must be allowed to have a little experience in the matter. He knew what the costs were before the new procedure, and he knew what they were now. He knew also what the cost was in Ireland, and what the expenditure of time and money was in Ireland, in arriving at a result, sometimes occupying months and sometimes years, which in this country was arrived at in a few weeks at a very slight expense. The other point was a different matter—that with reference to the expenditure of public money upon the salaries of the Judges and officials. That was a question with which the House was as competent to deal as the Commission, and therefore the Commission did not interfere in that matter. It was not necessary for the Commissioners to do more than make the recommendations they did as to the Judges. The salaries were for the Government to propose and justify to the House. His right hon. Friend the Member for the University of Cambridge (Mr. Walpole) said that if he could mention one respect in which the improvements introduced into this country in 1852 had not been successful, it was the mode of taking evidence and the proceedings before the Chief Clerks. But the House must remember that since the year 1852 the mode of taking evidence had been further extensively altered, and that there was a small amount remaining of the practice of 1852. It was not the practice now, when there was any serious dispute as to facts, to take the evidence before the Examiner, or otherwise than in open court. As to the question of Chief Clerk, he owned there was a great deal of truth in what his right hon. Friend said upon the subject. The practice required most careful watching. He owned, upon the whole, that it had worked successfully up to this time, owing to the very great care which the present Judges of the Court of Chancery had taken never to let go their hold over the proceedings before them; so that whenever a person wished to have a matter heard personally before the Judge he could have heard it before him, instead of before the Chief Clerk. It was impossible for a Judge to transact every minor 530 detail of cases, to go through accounts, and similar business, which could be performed by a Chief Clerk. At the same time there was the danger of allowing the Chief Clerk to go out of his province; and that could only be guarded against by public opinion, and by that House taking care that that officer should not pass out of his jurisdiction and assume more authority than belonged to him. The right hon. Gentleman the Member for the University of Dublin (Mr. Whiteside) had raised a very delicate question connected with the Landed Estates Court in Ireland, by stating that there were more Judges than were required for the business coming before the Court, and suggesting that one of the Judges should be made Vice Chancellor. He (Sir Hugh Cairns) believed that to be quite true; but the remedy was that the Government, if they adopted that view, should not fill up any vacancy that might occur until the opinion of the House of Commons was expressed upon the subject. He did not accept the argument that they should take away a Judge from the Landed Estates Court and make him a Vice Chancellor. It would be dangerous for the House to take that course. The appointment to a judicial office should be made upon the responsibility of the Government. As to the proposal to send the question to a Select Committee, he would say for himself that the Government having in their Bill carried into effect the recommendations of the Commission he would be satisfied that that Bill should be dealt with by a Committee of the Whole House; but, at the same time, the Government would do well to consider whether a greater amount of satisfaction would not arise by complying with the inclination of the House, if there was a general inclination in that direction, and referring these Bills to a Select Committee.
§ SIR GEORGE BOWYER
said, he had had some experience of the Court of Chancery as counsel, and also unfortunately as a suitor, and it was in the latter capacity that he was able to speak of the functions performed by the Chief Clerk. The system of warrants was the great objection to the Masters' offices. The number of Masters should have been diminished, and they should have had a paper of cases as the Judges had. Instead of this the Masters were abolished. Cases now went technically before the Judge in Chambers, but practically before the Chief Clerk. The Masters used 531 to be men of considerable standing at the Bar, and counsel appeared before them. But the Chief Clerk was usually a solicitor, and counsel could not go and argue before an attorney. It was said that the parties could go before the Judge if they were not satisfied with the decision of the Chief Clerk; but this involved additional expense, and the Chief Clerk naturally exercised considerable influence over the Judge. He had heard from many eminent and experienced solicitors that they had great difficulty in knowing how to deal with the Chief Clerks, because they often knew nothing and cared nothing about the law of evidence. Things were thus admitted before the Chief Clerk which would not be admitted in any court in the kingdom, and which were never admitted before Masters in Chancery. The fact was the practice in the Chief Clerks' offices was becoming as bad as it was formerly in the Masters' offices, and before such a system was adopted in Ireland there ought to be an examination before a Select Committee. Another point on which he wished to say a few words referred to the manner in which the judgments of the Court were given. What was the judgment of the Court? It was often a speech made by the Judge, such as might be made in the House of Commons or elsewhere, in which he introduced every possible topic that could support his view of the case. He had heard a Judge make statements in these speeches in regard to matters which were not only not in evidence, but which the parties would not have been allowed to prove in evidence if they had attempted to do so. A Judge sometimes spoke for two hours, and then at the end of his speech there was not a counsel in court who could tell what the result of his judgment was. Counsel endorsed upon their briefs what they supposed the judgment to be, and then the parties went before the Registrar to try and find out what the Judge had decided. There were minutes of decree, attendances of solicitors, and other expenses incurred, and ultimately the parties sometimes had to go back to the Judge and obtain an interlocutory opinion upon the matter. He knew cases in which a Judge had made a speech of two or three hours, but in which two or three months elapsed before the actual decree was settled. But the Judge's speech was reported and became a precedent, although the actual decree of the Court when settled was very different from the speech. 532 Until the Judges were obliged to draw up their own decrees, giving the reasons for those decrees, there would be no reform in the Court of Chancery. He should support the proposition for sending those Bills to a Select Committee.
THE ATTORNEY GENERAL,
in reply, reminded the House that both the Bills embodied, to a great extent, the same principle—that of establishing in Ireland the English system; the two Bills also agreed in abolishing the office of Master in Chancery; and really the points of difference between himself and his right hon. Friend the Member for the University of Dublin were reduced to eight matters of procedure, and two important questions as to the constitution of the court, which were peculiarly fitted for discussion in that House rather than for a Select Committee. It was for the House to decide whether certain officers should be appointed, and whether the patronage of the offices they were to fill was to be assumed by Parliament or to rest with the Crown. As to the points of procedure, if these were to be considered by a Select Committee, it was highly probable that those hon. and learned Gentlemen who were most competent to deal with them would not be able to attend the Committee; and the consequence would be that all those points would have to be discussed over again in a Committee of the Whole House. If his right hon. Friend should succeed in getting the House to agree with him, there would be no difficulty in giving effect to his views; and if, on the other hand, he should succeed in carrying the clauses as they stood, he was sure his right hon. Friend would throw no difficulty in the way of having effect given to the pleasure of the House of Commons.
§ MR. WHALLEY
rose to address the House; but the cries for a Division were so loud that but a few detailed sentences of the hon. Member's speech could he heard.
§ Question put, "That the words proposed to be left out stand part of the Question."—The House divided:—Ayes 68; Noes 30: Majority 38.
§ Main Question, That Mr. Speaker do now leave the Chair, put, and agreed to.
§ Bill considered in Committee.
§ House resumed.
§ Committee report Progress; to sit again on Thursday next.