HC Deb 09 May 1866 vol 183 cc657-67

Order read, for resuming Adjourned Debate on Question [16th March],"That the Bill be now read a second time."

Question again proposed.

Debate resumed.


suggested that this Bill should be postponed, as he had come prepared with the papers to discuss only the Common Law Courts Bill, which had been postponed.


declined to consent to an adjournment.


appealed to the House whether, under the circumstances, they ought to be compelled to proceed with this Bill. The previous night there were three Irish Bills on the paper—the Petty Sessions Bill, the Common Law Courts Bill, and the Court of Chancery (Ireland) Bill. He found when he got his Parliamentary papers that morning, that the first of these measures was withdrawn. The Common Law Courts Bill stood next, and this Bill third. The Common Law Bill contained 144 clauses, and certainly afforded enough matter for discussion to have occupied the day, but he now found that, without any reason being assigned, that Bill was passed by without a word of explanation. He had come down prepared to discuss that Bill, and not the Court of Chancery Bill; and on the grounds of fair play he appealed to the House not to allow a Member to be taken by surprise after such a fashion. He begged to move under the circumstances that the debate be adjourned, and he hoped the Attorney General for Ireland would accede to that proposition.


seconded the Motion.

Motion made, and Question proposed, "That the debate be now adjourned."—(Mr. Whiteside.)


said, he distinctly advised his right hon. Friend last night that the Court of Chancery Bill would be proceeded with, if time allowed, to-day. He did not himself know until he received his paper the order in which the Bills would be placed upon it. The Court of Chancery Bill had stood over from the month of March last, and he must, therefore, press that the debate be proceeded with.


understood last evening the answer given was simply that the Bill would be proceeded with to-day, but nothing was said as to the order.


said, if he were allowed a short time he would fetch the papers, and proceed with the discussion of the Bill.

Motion, by leave, withdrawn.

Question again proposed, "That the Bill be now read a second time."


returned, and said that he had not been the cause of the delay that had occurred this Session in reference to this Bill. He had only objected to its proceeding after midnight, for he was not willing then to plunge into Chancery, as the subject was bad enough in the daylight, and it was too much to expect the House to enter upon its consideration after dark. The measure had been before the House for some two years past, and proposed to effect most important changes in the present state of things. The first part of this Bill consisted of twenty-six clauses, and dealt with the appointment of new officers. Under this Bill he found that seventeen new officers might be appointed; to judge whether any necessity had arisen for this addition to the staff it was necessary to see what the staff was. In Ireland there was one Chancellor, one Lord Justice, one Master of the Rolls, three Judges in the Landed Estates Court, and four Masters—in all ten. In England there was one Chancellor, two Lord Justices, three Vice Chancellors, one Master of the Rolls, and one Judge of the Probate and Divorce Court—in all eight. So that in England there were but eight judicial officers to do all the business of Chancery, while there were ten in Ireland. Surely that was enough; and why, then, was it proposed by this Bill to increase the number to seventeen? The Committee which some years ago was appointed upon this subject was presided over by the Attorney General of the present Government, and when he proposed in the Report to put in a clause in favour of creating Vice Chancellors it was distinctly negatived. Why, then, was this Bill introduced in direct opposition to the Report of that Committee? The Bill was certainly not introduced at the request of the Irish practitioners, nor had it been framed to meet the wishes of petitioners from that country. It was, however, thought desirable to assimilate the practice in the two countries, and as usual, therefore, a costly Commission was appointed to inquire into matters which had already been inquired into and satisfactorily reported upon. Upon the Report of these Commissioners the present Bill was founded, and the first proposal by way of assimilation was the removal from their offices of men who were perfectly competent to perform their duties. As far as he could ascertain, no Court existed for the Vice Chancellor to be created by the Bill, nor had the foundation stone even been laid of the offices for the other functionaries. There was a belief prevalent-in England that Masters in Chancery were decrepit and worn-out old men, and at the time the inquiry was held the Irish Masters would have been only too glad to be paid off. The Commissioners, however, found that they were hale and vigorous gentlemen, and did not act upon that system. Indeed, the Masters had survived many of the Commissioners. In England these gentlemen might not be the most active and competent men, but the Masters in Ireland were now vivacious and energetic, and were as competent to perform their duties as any who might be put in their places. He maintained that fully three-quarters of the Bill before the House was unnecessary. They said that the Masters should have the jurisdiction and all the powers of a Court of Equity. The Master became a Judge, and what followed? There were four Judges, who did their duty perfectly well. The proposition was to pay off the existing staff, having salaries of ã2,500 a year, and to appoint one Vice Chancellor in their place at a salary of ã4,000 a year. He had a written statement from one of the Registrars of the Court of Chancery, who said that one Vice Chancellor would never be able to do the work of the four men whose office it was intended to abolish. If one man could do the work he certainly must be a remarkably clever man, but he did not believe that such a person could be found in Ireland. What more did the Committee do? Having provided that the Masters should be made Judges, they were not to be dealt with as Masters, but as Judges. It might be asked were no references made to them by the Master of the Rolls? He made very few, and to his honour it ought to be mentioned that there was one vacancy which he had not filled up. With respect to the Chancellor, there was one Master whom it was proposed to keep, and very properly—Master Fitzgibbon; and it was stated that the business was now done as cheaply and as well as it could be done. The Committee recommended that every equity Judge should dispose of the whole suit before him without any reference, and one of their resolutions recommended the practice of receiving evidence viva voce before the Judge who had to decide the case. That was a sound practice, and every facility ought to be afforded for the extensive application of that system. The proviso that the evidence should be taken by the examiners was vicious in principle, because the examiners had no power to decide what was legal evidence and what was not. The Committee recommended that the Lord Chancellor, the Master of the Rolls, and another Judge, or two of them, should be armed with extensive powers to regulate the practice and procedure of the Court so as to obtain economy, simplicity, and expedition, and should make general orders accordingly. Now, why was this recommendation not carried out? His idea was that nothing was wanted in the way of amendment to the present order of things but a good mode of procedure. The mode of procedure the framers of the Bill sought to introduce was vicious; it was actually proposed to introduce the old bill-and-answer practice, a mode of procedure which only one suitor had adopted during the last ten years. It had always been held that what was wanted was a process by which good equity might be obtained, at a moderate price J and that described the present state of the law in Ireland in that respect. The Commissioners inquiring into the subject had been ordered to see whether anything could be done to reduce the costs to suitors; but they had made no inquiries upon the subject at all, and the first result of their labours was a Bill proposing to increase the expenditure of public money, notwithstanding they went to work to see how ranch they could save the Exchequer. How did they propose to save public money? First, by creating seventeen new places; and when they had their new Vice Chancellor they would, no doubt, want a good grant for the building of a court for him to sit in; for, of course, they could not expect him to do the work in the humble places in which it was now done. He would strongly recommend the country gentlemen of Ireland to get into chancery as soon as possible, if they intended going there at all; because, if the matter in dispute affected a sum exceeding ã250, it could be settled cheaply now; but if the Bill passed he could assure thorn they would have uncommonly little change out. He hoped that the Solicitor General for Ireland would in his reply particularly direct his attention to the question of costs. In his opinion the costs under the new sys-tem would be much heavier than they were under the old. In one year, ending November, 1863, the Bills in the Irish Court of Chancery were 676—in the English Court of Chancery 2,796, being in the proportion of 4 to 1. In one year the taxed costs in the English Court of Chancery were ã720,739, in the Court of Chancery, Ireland, ã124,087 being in the proportion of six to four in favour of England. In England the cash and stock paid into the Court of Chancery in one year was ã8,552,220, and of money paid out ã8,663,39.5. In Ireland the amount paid in was ã335,175, and paid out ã340,584. In fact, the figures proved that what might be considered as cheap in England might be enormously expensive in Ireland. He submitted that, as the question of costs was to be inquired into, and had not been inquired into, and as the Commission had not concluded their labours, it would be a most impolitic proceeding to pass the Bill. Another point on which the Master of the Rolls and the Commissioners had different opinions was as to the practice of compelling a plaintiff to swear that the facts in his petition were true to the best of his information. In England the course adopted was exactly the converse of that pursued in Ireland— everything being taken to be denied till it was proved, and, consequently, it was necessary to establish the case by evidence. The matter was thus stated by an eminent authority— All statements made in a Bill or petition, being verified in the first instance, are accepted as true without further proof, unless denied. The English rule of practice, however, is the reverse; if the defendant does not answer in England when required so to do he is supposed to have traversed every averment in the Bill. There could be no doubt that the practice of the Irish court in this matter was preferable to that of England. Many things, however, which prevailed in England might be introduced into the Irish practice by a general order, and he desired to know why such orders were not issued. He contended, further, that the new system proposed by the present Bill offered no guarantee that the expense involved by it would be less or only equal to the cost of the old one, which was both cheap and satisfactory to the country at large. The system which worked very well in the Landed Estates Court, under its present organization would be greatly altered if a Vice Chancellor were placed at its head.

[Notice taken that forty Members are not present: House counted, and forty Members being found present—


resumed: He said, that the system of taking evidence by the Judge, and not by the examiner, vivâ voce, was less dilatory and less expensive than the system it had superseded, and many suitors sought aid at the Court of Chancery who could not have done so under the old system. He next dealt with the accounts, contending that it would be impossible that a Vice Chancellor would ever transact satisfactorily the business and accounts that were taken before four Masters in Chancery. A large amount of evidence had been taken upon this subject. The Solicitor General for Ireland was examined, and he said that the pleading, whether it was by Bill or petition, ought to be verified on oath. The plan he (Mr. Whiteside) advocated was to keep the Masters because they had them, and to make the appeals from their decision go, not to the Master of the Rolls, but at once to the appellate court. Mr. Lloyd, Q.C., during his examination, recommended some alterations in the mode of taking evidence, and the statements made by him showed the absurdity of the procedure part of this Bill. Mr. Rogers, Q.C., expressed an opinion that the examination of witnesses ought to be oral, and stated that he was satisfied that one Judge would not suffice to perform the necessary duties, but that two Judges at least would be required, unless matters of account were sent to be disposed of before a chief clerk or deputy. He next dealt with the appeals against the judgments of the Masters; the small number of them was surprising. From the 1st of January, 1851, to the 1st of April, there were but fifty. From January, 1861, to April, 1864, there were 134 appeals, but only forty-two reversed. The Return, in fact, showed that about ninety-nine out of one hundred of the decisions of the Masters stood and were not interfered with: and this constituted such abuse, according to the advocates of the present Bill, as to warrant their removal. The number of cases referred to for Masters in Chancery in 1865 was 475; the number of orders appealed against was twenty-three; number referred, sixteen; number varied or reversed, four; while three were not disposed of. Then, as to the chief clerks, the question of their employment was a vital one. He objected in toto to transferring such important duties to the chief clerks, and leaving them to investigate the accounts. What the Government proposed to do was to change a useful tribunal into an imperfect one. He wanted to hear from his hon. and learned Friend the Solicitor General for Ireland whether the chief clerks that it was intended to appoint were to be solicitors. He complained that the Commissioners did not examine the Judges and officers of the Landed Estates Court as to how accounts could be taken, for those gentlemen had enormous experience in reference to such matters; and he contended that a similar system to that which prevailed in that court should be acted upon in the Court of Chancery, instead of attempting to introduce into Ireland the chief clerk system, which, he believed, was anything but a success in England. He contended that this Bill was an unnecessary measure, and was objectionable in consequence of the clumsy way in which its object was attempted to be attained, and also in consequence of the large increase of expense which would be attendant upon it. He did not object to the assimilation of the legal systems of England and Ireland in cases where a decided improvement would be thereby effected, but he did object to the efficiency of the system of one country being impaired in order to assimilate it with that of the other. The right hon. and learned Gentleman concluded by moving that the Bill be read a second time that day six months.

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

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


rose to offer some observations in respect to the Bill, in the hope of satisfying the House—or rather, as the House was so small—the public, that the Bill might well be considered unnecessary, wholly irrespective of the consideration into whose hands the patronage might fall, supposing the measure should pass through Parliament. He must also express his surprise that the observations of the right hon. Member for the University of Dublin had not elicited some remarks in explanation of the principle of the Bill from the Irish Law Officers of the Crown. The Bill proposed to overthrow the existing constitution of the Court of Chancery in Ireland, and yet neither the Attorney nor the Solicitor General for Ireland rose to offer one single word in justification of such strange proceedings. The Reports of the Commissions which had been appointed to consider this subject were incomplete, inasmuch as they only reported as to the advantage of assimilating the legal systems of England and Ireland, without taking any notice of that far more important question of the expenditure of the public money, and of the costs of suitors, which was prominently made the subject of reference to them. The chief clerks in the Equity Courts in England were assuming a jurisdiction which they were never intended to possess, and in some cases had gone so far as to act in opposition to the rule that no money in which a married woman had an interest should be paid out till after the woman had been separately examined. He did not say that he should be prepared to oppose the Bill at a future stage, but he thought that the House should have additional evidence on the subject before it proceeded to dispose of such an important question. The only information they had upon the question was that derived from essays and proceedings in Chancery, written by various gentlemen in reply to certain written inquiries made of them. The working of the present system in Ireland had met, as far as he knew, with the general approbation of the public, and it had the further advantage of being cheaper and more expeditious than that of England, and therefore better adapted to the poorer country. Irrespective of the salaries of the proposed clerks and officers, it would be necessary to erect entirely new courts if the English system of administration were adopted in Ireland. In his opinion, as far as he had materials for forming it, the English system ought to be assimilated to the Irish, rather than the Irish to the English. He might remark that six out of the persons who composed the Commission of 1861 were pledged beforehand to the abolition of the Masters. That Commission consisted partly of English and partly of Irish Members, the English Members being ignorant of the Irish system, and the Irish Members being equally unacquainted with the English system. In conclusion he asked the House to stop the Bill in its present stage, in order that it might be seen how the matter stood with regard to the Commission now in process of completion. If there was a necessity for assimilating the practice of England and Ireland in this matter it should be by assimilating the English to the Irish, which was the better system. To alter the constitution of the court which had been in operation for sixteen years with satisfaction to the public and to the Judges, was a serious matter, and such a measure ought not to be entered upon without the fullest information and the greatest deliberation.


thought the Bill was a personal rather than a public one. He was of opinion that the present system of the Court of Chancery in Ireland worked in a very satisfactory manner. It was popular, and he had been informed that it was infinitely cheaper than any system which could be introduced from England. He hoped, therefore, that this Bill would not be allowed to pass without some explanation being given by the Government as to the necessity for the contemplated change in the constitution of the court. It was only a matter of common courtesy that the Law Officers of the Crown should explain to the House why the proposed system was better then the existing one. Irish Gentlemen who were distinguished by their legal abilities had in the strongest language condemned a great part of this Bill, and it could hardly be expected that hon. Gentle men should vote for the Bill unless some attempt were made on the part of the Government to refute the arguments which had been advanced against it. In order to give the Law Officers of the Crown time to make the explanation which he demanded from them he should move the adjournment of the debate.


could not wonder at the course taken by his hon. and gallant Friend. He himself had not the honour of being an Irishman, but it had fallen to his lot to serve for some eight or nine years upon Commissions connected with Courts of Law, receivers, and Ecclesiastical Courts, and, in company with his old colleague Sir James Graham, he had dragged to light, he would not say the misdoings, but the curious proceedings of English and Irish receivers, ecclesiastical registrars, and so forth. It was so marvellous a proceeding that they always used to say to themselves that there was no sport except rat hunting in a barn that could be at all compared to it. Well, he had sat listening with great patience to the statements made on the present Bill, which related to matters of great interest and importance; and he had hoped at the conclusion of the able speech of his right hon. Friend (Mr. Whiteside) that the Law Officers of the Crown would have given some explanation on the subject to the House. It was due to the subject and also to his right hon. Friend; but to leave the question in entire silence was not fair to hon. Gentlemen, and especially to laymen, who, like himself, were anxious to come to a right conclusion with reference to this matter. The House was in no position to come to a decision on the question, until they had heard what could be said in favour of the Bill. He thought, therefore, that his hon. and gallant Friend was quite warranted in moving the adjournment of the debate in order to give the Law Officers of the Crown an opportunity of making the statement which no doubt they would make, and which possibly might satisfy the minds of all hon. Gentlemen.


was most anxious to hear all that could be urged against the Report of the Commission before he addressed the House; because the reasons adduced by the right hon. Gentleman the Member for the University of Dublin in favour of the rejection of that Report appeared to him to be so insufficient and inconclusive as not to require any reply. He wished, before making an answer, to hear what additional matters the learned Gentlemen opposite could bring forward in support of the argument of the Member for the University of Dublin. It had been assumed that his learned Friend the Attorney General for Ireland had moved the second reading of the Bill without making any statement as to its provisions. That was not the case. The Attorney General, while abstaining from matters of mere detail, which could he settled in Committee, explained the main features of the Bill—namely, the abolition of the Master's offices in Ireland, and the adoption of the English system. He would at the proper time show that this Bill was based on the Report of a Royal Commission, consisting of men of the highest eminence in both countries, who were supported by the unanimous opinion of all the men who, from their practical acquaintance with the Irish Court of Chancery, were best qualified to form a judgment on the subject. His hon. Friend the Member for Armagh had stated that the Master of the Rolls did not give evidence before the Commission.


said, if he had made such a statement he had certainly done so by mistake.


said, that no doubt it was a mistake, and a very grave one, for the Master of the Rolls was one of the first witnesses examined, and his evidence was strongly in favour of the Bill. He wished to call attention to the names of the Commissioners who had been treated in such an offhand way to-day. They were the present Lord Romilly, Mr. Blackburn, the present Lord Justice of Appeal in Ireland, Chief Justice Monaghan, Mr. Brewster, Mr. Napier, Vice Chancellor Wood, Baron Hughes, Sir Hugh Cairns, and the English Attorney General. Was not something more substantial than the arguments of the Member for the University of Dublin required to induce the House to overthrow the settled opinion of a Commission composed of such distinguished men as he had just named?


reminded the hon. and learned Gentleman that the question before the House was the adjournment of the debate.


was then proceeding with his remarks when—it being a quarter to Six of the clock—

Debate adjourned till To-morrow.