§ The Lord Chancellor moved the second reading of the Chancery Affidavits' Bill. When the Bill had been read a second time, he should move the suspension of the Standing Orders, in order to allow it to pass through the rest of its stages that day.
§ The Earl of Eldon
opposed the Bill, on the ground that it was totally unnecessary, because the Lord Chancellor had the power, of his own authority, to have affidavits read either before or after Seals, or at any time that he chose, from the first day of January to the last day of December. He had power, even in the time usually called the long vacation, to proceed with causes in any stage, and to hear affidavits read, or carry on any proceeding touching the suit, and to call counsel and solicitors before him to proceed with the business of the Court. He had sat a long time in the Court of Chancery, and never had the least doubt as to the Lord Chancellor's powers in this respect. There was, therefore, in his opinion, no occasion whatever for passing this Bill; and as there was no occasion for it, that was a sufficient objection to its passing. He had sometimes sat from six o'clock in the morning till eleven at night; and, at all times of the day, and at all times of the year, he had permitted applications to be made on important matters requiring despatch, and had heard affidavits read, without any doubt of his power to do so, in case he had thought it proper. The Courts of Chancery were open during the whole year, and their business might at any time be transacted, without regard to its being before or after Seals, which were appointed merely as matters of convenience. He should be sorry, therefore, that a Bill should be passed to enable the Lord Chancellor to do that which he himself had ample jurisdiction to do of his own authority.
The Lord Chancellor
need scarcely say, how highly gratifying to him it was, to hear it laid down as an undeniable proposition, by the highest living authority, that it was competent to the Lord Chancellor to hear affidavits read, and to proceed with the business of his Court at any time of the year, without any other regard to times or seasons than that which might arise from the convenience of the suitors and the Court, and the proper despatch of business. But the objection had been taken by parties in Court; and where there was a losing party, and that party was in possession of the Court, it often happened that he was anxious to protract the final decision of the cause, and with that view to take advantage of every real or supposed formality calculated to suit his purpose. A delay of this kind had been attempted the other day, and he had asked the most experienced members of the Bar, whether there was any good and valid objection to the reading of an affidavit after the last Seal? The general opinion was, that it could not be done. He had asked, upon what principle this practice was founded, of not having affidavits read in cases of this kind, after the last Seal; but, as to this, he could get no satisfactory explanation: but it was said, that in practice it had not been done. He then applied to one of the Registrars, a gentleman of great experience, and his observation was, that it never had been done before. He had then consulted another Registrar, also a gentleman of great experience, who said, that it had never been done; but he could give no satisfactory account of any principle, and was rather of opinion that it might be done, although there was no precedent for it. In the absence of precedent, and seeing no principle for his refusal to hear affidavits read, in cases of the nature then before him, he drew up an order, and caused it to be fixed up in proper places, to give notice, that he would hear affidavits read, and proceed with the business. But still parties insisted on the objection, and one of them refused on that ground to appear. Seeing, then, that some doubts were entertained, and that the objection might be taken advantage of in case of prosecution for perjury, he thought the best way would be, to put an end to all doubt by means of an Act of Parliament. He, however, gratefully acknowledged the assistance which he had received from his 726 noble and learned friend, and as his noble and learned friend, the highest living authority—and a higher there could not be, whether living or dead—was so decidedly of opinion, that a Statute was totally unnecessary, he could have no object in proceeding with his Bill. He took it for granted, upon an authority as high as that of any of the decided cases, that the Lord Chancellor had the power which was required, and that, therefore, a Statute was unnecesssry. If it was unnecessary, it was, of course, inexpedient. Again thanking his noble and learned friend for the assistance which he had given on the present occasion, he would decline proceeding further with the Bill. He would, with the permission of their Lordships, allow the matter to stand over, that, if any difficulty should hereafter be thrown in the way of the Court, such a measure might, as speedily as possible, be passed into a law.
§ The Earl of Eldon
was quite clear as to the authority of the Lord Chancellor, and that there was no ground for doubt on the subject; but he begged to disclaim any intention to dictate to the noble Lord on the Woolsack.
The Lord Chancellor
had not said, that he himself had any doubt on the subject. His opinion certainly was, that he had the authority; but, as others, high in the profession, doubted his authority, he had introduced the Bill, chiefly out of deference to their opinions. He would mention what the real doubt was. There was no doubt as to whether affidavits might be generally read; but the doubt was, whether affidavits could be read in cases of appeal entered after the last Seal after Term. An appeal was entered, and notice of the circumstance was served, and then the question came to be, whether, as the appeal was entered after the last Seal, the affidavit of service could be read? The entry of the appeal after the last Seal, made the difference, as they said; and, although he had himself little or no doubt as to the power of the Lord Chancellor, he had introduced the Bill out of deference to the opinions of others of great experience. Now, however, he would not proceed further with the Bill at present; but would still retain it in the House, when it might be proceeded with, in case it should hereafter appear that there were any reasonable grounds of doubt.—Bill read a second time.