§ Lord Wynfordpresented a Petition from Joseph Harrington, Westminster, who complained that he had been exposed to a Chancery litigation, the attorney's bill of costs for which amounted to 7,000l.; that he had paid that bill, with the exception of 1,700l., and that the attorney held back a valuable deed, until that retainer was paid, and the cost of taxing the bill would amount to 1,500l. He had never practiced himself in the Court of Chancery, but such a state of the law was worse than no law at all.
The Lord Chancelloraddressed their Lordships to the following effect: — In rising, my Lords, to address your Lordships on a subject of the highest importance, I cannot dissemble to myself, I cannot dissemble to your Lordships, that I am placing myself in a situation of no small peril, of no inconsiderable anxiety, and that I am laying myself open to numerous severe imputations. It may be said, that the evils of the existing system have existed for so many years, and that it is so gigantic in its character, that any attempt on my part to expose their extent, or to propose for them any remedy, argues no inconsiderable pre- 829 sumption on my part. I answer, that my duty, my double duty, as a member of the Legislature, and as the Judge presiding over the Court in which the evils alluded to arise, prevent me from justly incurring this charge of presumption. I shall also be told, that wiser and greater men, men of much more experience than myself, have sat in that Court during the whole of their lives, without ever attempting, even in the maturity of their experience, and at the close of their career, what I am attempting at the very commencement of mine. My answer is this:—Those great and learned men, whose integrity was unspotted as their capacity was undoubted, have entered the Court of Chancery with the same desire that I entertain, to effect a remedy of the evils which exist there. But such is the nature of those evils, so great is their tendency to push up their shoots, to throw forth their ramifications, to let their roots spread,—enveloping and entangling all the neighbouring objects, that scarcely any Judge has begun the work of pruning, and made the attempt to lop the rank exuberance of these evils, before he has found himself perplexed and encumbered by the wide-spread system, and overwhelmed by his effort to remove them. This, my Lords, is the excuse of those eminent men for having passed so much of their lives in the Court, without accomplishing a reform, without affording redress to complaints, and without correcting abuses, which they acknowledged to exist, but were unable to master. But to me it would be no excuse—it would offer no palliation, if, wise by their experience, and warned by their example, I were not, in the very beginning of my course, to attempt to do that which, were I to proceed onward as they proceeded, I should be unable hereafter to effect. I state this, my Lords, at the outset, in order to meet the charge which I know will be brought against me, that I, who have held the Great Seal only a quarter of a year—it happens, by chance, that being appointed on the 22nd November, I am addressing your Lordships on the 22nd February—I, who have little or no experience, whose knowledge of the practice of the Court must necessarily be limited —I, a mere novice in the law of that Court, nevertheless begin with attempting what others, to the very close of their career, have not attempted—a change, an innovation, and to sum up all in one ex- 830 pression, so hateful, so alien to long-established habits, so sore, so agonising to the experienced practitioner—in one hateful word, "the head and front of my offending"—a Chancery Reform. Reform, odious and reprobated in all places, is especially odious, and especially reprobated there, where it appears as it were a monster, composed of two parts, so utterly irreconcilable and incongruous as Chancery and Reform. My answer to this charge I have already given, and, short as my experience has been in that Court, I almost already begin to feel those difficulties and those encumbrances, which have overpowered and mastered the good intentions of all my illustrious predecessors. I feel afraid that I am already, as it were, becoming attached to the soil; I am already in the course of seduction; I am getting involved in the integuments and entanglements which I have been describing as forming the excuse for my predecessors, and I, who came into the Court pouring out prayers for reform, am almost already incapacitated for attempting it; and if I remain there inactive a little longer, shall be wholly so.
Vix prece finitâ, torpor gravis alligat artus;Mollia cinguntur tenui præcordia libro;In frondem crines, in ramos brachia crescunt:Pes modo tam velox pigris radicibus hæret;Ora cacumen obit; remanet nitor unus in illâ.I feel that I am on the point, if I delay but one instant of fleeing altogether from the day, of becoming fixed and rooted in the soil; and that I shall flourish only like the laurel in the fable, a monument of her escape from the embraces of the god of light. These, my Lords, are the considerations which induce me, while I may, to break loose from the entanglements in which I shall otherwise be involved. I now proceed to the subject; and in stating the objects which I have in view, I shall deem it unnecessary to trespass on your Lordships with any observations of that which has been a subject of so much complaint—the delays of the Court of Chancery; being aware that when I pronounce this word, I shall recall to all your Lordships' minds images of expense, of delay, of vexation; though I hope to none of more serious injury. But, my Lords, the usages of Chancery are not all evil. Bad as they are, they are, like the presiding Judge of another Court, not quite so black as they are painted. For those evils which do exist, however, it is well worth 831 our attempting to find one or two simple and safe remedies. Having thrown aside all consideration of the delay, I shall proceed, my Lords, shortly to state to your Lordships the course which I mean to pursue in unfolding the existing evils, and in recommending what I consider to be the most efficient remedies for them. To lead your Lordships through all the mazes of Chancery litigation and practice, would be exceedingly tedious, and it would not be more tedious than it would be useless. I think I shall better spend the short space of your Lordships' time—I hope it will be but a short space; I know promises of that kind are more frequently made than kept, especially with reference to legal matters, but I hope it will be a short space—I say, my Lords, I think I shall better spend the short space of your Lordships' time which I am about to occupy, by laying down the principles on which I think all judicial reforms ought to proceed, and by then showing the manner in which those principles will be carried into effect in the remedies for the acknowledged evils of Chancery practice which I am about to propose for the adoption of your Lordships. My Lords, the first of these principles which I lay down is this:—that in all cases where there is a great judicial machinery, where the construction of a Court leaves it open to various abuses, it is much better to begin by reforming that Court, rather than by any change in those laws or in that system of jurisprudence on which the rights and property of men depend. My Lords, it is better for obvious reasons. In the first place, it is safer; which in all changes is the first and cardinal consideration of all reform. If you do not take that course—if yon substitute for the ills you have (the maxim is almost proverbial) a something which you are not beforehand perfectly certain will not produce greater or even equal evils, you will not only do no immediate good, but you will be certain to do much eventual injury. Now, nothing can be more true than that a change in the construction of the Court will be a much more lenient, and a much more easy course; and a course which, if it shall be found not to effect the remedy expected from it, it may be more easily retraced, than the adoption of any new laws, altering that system by which the rights and properties of the King's subjects are disposed of, and the various grounds are prescribed on 832 which those rights and properties are held; in all respects a task of the greatest difficulty, and one which requires the utmost care and deliberation. In order to see how much safer it is to proceed by alterations in the constitution and the examination of the tribunals, than in the principles of jurisprudence and the established rights of property, one has only to consider, that every alteration in these principles, and in these rights, always has, more or less, a retrospective effect, and eventually all the consequences of an ex post facto law. An instance of this, although by no means the strongest instance that might be adduced, occurs in the case of the General Registry Bill, brought into the House of Commons by one of the Commissioners for the improvement of legal procedure, and now in progress through that House. However valuable the improvement proposed to be carried into effect by that measure, it has a retrospective operation, and the effect of an ex past facto law, for it attaches forfeiture to the want of registration, which did not apply to it before. This is not the strongest instance of the kind; but even of the objection to this extent, the plan which I propose to follow is perfectly clear. Another grand advantage of this mode of proceeding is, that it is not only easy of being carried into operation, and rendered more efficacious, but also that it tends to eradicate the evils and defects even of the principles of jurisprudence, which govern our tribunals, one by one, gradually, and progressively, and in a much safer manner than by altering the laws according to the devices of any man's ingenuity. You will find, my Lords, that if the tribunals for the administration of justice be placed on a good footing, the principles of jurisprudence, and the law itself, as applicable to person and property, will be improved, in the best and safest way—that of improved experience and gradually improved practice. And I do not scruple to say, that except in the case of our very earliest Statutes, the bulk of our law and our best laws have grown up by the improvement in the structure of our tribunals, and from the decisions of the Courts of Justice. Mow many of our best laws—how many of our best remedies for wrong, and securities against oppression, have been owing to Trial by Jury, and some other admirable portions in the construction of our tribunals. Of all 833 means of improvement, therefore, a change for the better in the structure and constitution of our tribunals is the safest and the most efficacious. The next principle on which I have proposed to myself to act is, that the Judicial and Ministerial functions ought to be kept as separate and distinct as possible. In the jurisdiction of Chancery, and of all Chancery Judges, the judicial and ministerial functions are too much blended; and to separate them is one great object of the Bill which I am about to propose to your Lordships. A third principle, my Lords, is this—that wherever it is possible (and in most cases I think it is possible), viva voce examination of witnesses should be substituted for examination by written interrogatories. This of itself, my Lords, though a complete novelty in Chancery practice, would, in my opinion, be a most invaluable improvement; and I will, with your Lordships' permission, briefly state some of the inconveniences and evils attendant on the opposite practice, with a view to render clear the importance of the alteration;— When a witness comes to be examined in a Court of Law—in the Court of Kind's Bench, for instance, where my noble and learned friend has so long presided with so much credit to himself, and advantage to the country—he is seen, not only by the Counsel and the parties, but also by the Judge and the Jury, and the examination takes place in the presence of those who put the questions, who are to decide according to the answers, and who are most competent to judge of the value of his testimony, as far as that depends on the manner in which it is given, which is a most important element in estimating the degree of credibility due to every assertion. The Counsel, too, hears the answer to the first question before he puts a second; and the Counsel who cross-examines a witness has previously heard the examination in chief, so that both the examination and cross-examination take place in the presence of persons deeply interested in exposing deficiencies and incongruities in the testimony given, and by which the cause has to be decided. These advantages, which are so ordinary and common in Courts of Law that it is not generally thought worth while to mention them, are of the very highest importance; and yet, from these advantages, some of our tribunals, including all the Courts of Chancery, where all interrogatories are put in writing, are 834 quite shut out. When a person is examined on written interrogatories, they are put first, second, and third, and so on, while no opportunity is afforded, or offered, of framing a succeeding interrogatory on the answer to a preceding one; so that the. examination is conducted almost in the dark; whereas, in a Court of Common Law, where the witness is examined viva voce, a second question is often founded on the answer to the first; and a third on the answer to the second; and a fourth on the answer to the third, and so on; so that the examination is conducted in the best manner—one question arises out of another; and thus, with all the light and information obtained from the examination in chief, the cross-examination takes place; and that, again, is followed up by the re-examination. It is scarcely necessary to point out, further than by the bare statement of the process, what an immense advantage this affords in eliciting the truth, and putting the case on its best footing. But from all this advantage, I repeat, the Courts of Equity are, in a great measure, shut out. Not a word of this applies to the Court of Chancery for instance. To be sure the plaintiff there has the advantage, if advantage it be, of having the evidence of the defendant on oath; but the defendant has not the advantage of the plaintiff's evidence on oath; for although the answer is upon oath, the bill is not, that being prepared by Counsel, who states the best case he can for his client. Sometimes the cause is ripe for hearing on bill and answer; sometimes the parties are at issue on a point of fact, and then the issue is sent to be tried, but in a different form Horn that which takes place in a Court of Law. Now, how is it tried? A learned Counsel prepares written interrogatories, to be put to witnesses whom he never sees, and these are filed in the usual manner, and given out to the Examiner, an officer of the Court, who formally reads them to the witnesses, and formally takes down their answers. The Counsel who drew the interrogatories hears none of the answers—he has no opportunity of founding his second interrogatory on the answer to the first; the third on the answer to the second, and so on. The officer reads the formal questions, and takes clown the formal answers, and there the matter rests. All is done in the dark, and then what becomes of the cross-ex- 835 animation; since, where the interrogatories and the examination are for one of the parties, the other party knows nothing; either of the questions or the answers? He does not know even the questions; and how, then, can there be anything like a real cross-examination? And yet, sometimes, on these occasions, we have what, by a pleasant figure of speech, are called cross-interrogatories, on the behalf of parties who hear nothing of the examination in chief, and who can know nothing of either questions or answers. It is true, that this method of cross-interrogation is seldom resorted to, since it is found by experience to be too perilous, and generally quite as apt to serve the cause of the adversary as to prop up the case of him who has the rashness to use so indiscriminating and unmanageable a weapon. All, then, in these cases, is done in the dark; the witnesses are examined by an officer of the Court, who reads to them the interrogatories, and takes down the answers, and returns the examinations to the Court, where they are kept in retentis till publication passes, as it is called, and then, for the first time, they are communicated to the parties. Now the period of publication is sometimes enlarged for a long time, and much delay, vexation and expense are thereby occasioned to all concerned. Even if the examinations were taken down in the presence of Counsel and attorneys that would not be nearly so good as the system at Common Law, where one Judge attends and hears the whole of the evidence, and has himself the opportunity of questioning the witnesses, and of assisting the Jury, who have also seen and heard all the proceedings, by his observations on the evidence. Being satisfied, then, my Lords, of the great advantage of the practice of our Courts of Common Law, I propose to allow the viva voce examination of witnesses in Chancery, in presence of the parties, by their Counsel or attorneys. The fourth principle, and the last with which I shall trouble your Lordships at present, relates to the remuneration of the Judges and their subordinate officers, and they ought to be will remunerated; for where the highly intellectual labour is great, the remuneration ought. to be correspondingly ample, though not extravagant: but what I say in point of principle is, that, generally speaking, the remuneration of the Judges and the officers of the Court ought to be by salary, and not by 836 fees. When you remunerate a Judge by fees on the steps of procedure, you expose him to the temptation of encouraging delay and expense in order to increase his own emoluments, and thus, in theory at least, if not in effect, set interest in opposition to his duty. To be sure the Judges in the higher Courts are not apt to be swayed from the straight line of their duty, whatever be the temptation. They are selected for their learning and their integrity, and are under the eye of a watchful public and a jealous Bar, many of the members of which have seats in Parliament, and a power to call the Judges to account. But in principle it is always unwise to suppose any man above the reach of being tempted, and neither they, nor any other functionaries, ought to be exposed to such temptation, nor placed in circumstances which, in vulgar minds, will generate the suspicion, when duty and interest are in conflict, that they may be unduly swayed by the latter. And although we should be, in fact, perfectly secure against malversation by the Judges, even under such circumstances, yet I think that it would be a most objectionable and unwise proceeding to place a Judge in a situation which would have the effect of lowering him even in the eyes of the public—to carry it no farther—and to subject him to suspicion, who ought to be not only pure in fact, but above all jealousy and suspicion. These are the grounds on which I say, that even the higher Judges, who act under the eye of a watchful public and jealous Bar, and who are themselves men of learning and integrity, the least of all men likely to be swayed by interested and selfish considerations—on these grounds T say, that even the Judges ought not to be placed in situations in which it is possible for any one to suspect that they can have any other object than that of the diligent, active, and impartial performance of their respective duties. But if this be the principle which ought to be kept in view, in reference to the higher Judges, it is still more important to act upon it in reference to all inferior officers of justice. They do not stand upon such high and open ground—they are not so much in the view of the public —they are not so immediately responsible to Parliament—and they ought to be carefully excluded from the influence of circumstances which would lead them away from ' their duty, or subject them to the suspicion of being open to corruption. There is one 837 nicety in regard to this point which ought to be noticed. A Judge doing his duty under the eye of the public will be induced to perform it well and diligently, since upon that will depend his fame and estimation with the public, and this although he should be remunerated by a salary and not by fees. But it is not always the same with inferior officers; and I am told that some inconvenience has, in several cases, been felt from remunerating inferior officers by salaries instead of fees; for it is said, that the consequence has been, that these officers are disposed to earn their salaries as easily as may be, and do not perform their duties so actively as if their remuneration depended on fees. But I think the true distinction may be made, and the line drawn somewhat in this direction. Those officers may be made dependent on fees, where the multiplication of the fees does not depend on their own discretion, and where they cannot be increased at their pleasure. Suppose, for instance, that the emolument of the Judge or the Officer depends upon a fixed fee, such as ll. for every case decided, it is clear that it is the interest of the Judge or the Officer to try as many causes as possible, and it is equally clear, that this will not be productive of any undue delay for the purpose of multiplying fees, because the profits of Judge or Officer will be increased by despatch. Delay would then have no charms, for why should these officers keep a cause ten or twelve days for decision, when it may be ended in one? The great evil of the present mode of paying by fees is, that they are multiplied by delay, and so the officers have an interest in doing injustice to suitors. When the Officer is remunerated by fees on the successive steps of a procedure, then it becomes his interest to multiply the steps of any given proceeding before the conclusion, because he thereby multiplies the fees which form his remuneration. On the contrary, if the fees are made to depend on the conclusion of the whole business, then the Officer has no power to increase the amount of them, except by despatch. It is on these principles that the Bills which I propose to submit to your Lordships are founded, and the purport of which I will mention generally, without going into details at present; and your Lordships will, in the first place, have to consider whether the principles are in themselves sound; next, whether the enactments are consistent with the principles; and lastly, whether the details and 838 minutiœ of the measures are such as can, with reasonable facility, be carried into operation and effect. Having thus stated the principles and the points to which I wish your Lordships' attention to be directed, I proceed to state to your Lordships, very generally, the nature of the remedies which I mean to propose for certain inconveniences and evils which at present exist, as connected with the Court of Chancery, or with the functions of the Lord Chancellor. First, I must observe, that there is one great, and remarkable branch of jurisdiction, which has been attached by the Crown to the holder of the Great Seal, which does not properly belong to the Court of Chancery, but which has from time immemorial been confided to its care—I mean the jurisdiction in cases of Lunacy. The care of lunatics is part of the Royal prerogative, the- exercise of which is intrusted to the person holding the Great Seal for the time being. The Lord Chancellor, therefore, has the care of persons who are found lunatic, upon an inquisition taken under his own authority, and which he alone has the power to order. Now, very considerable inconvenience arises from the state of this jurisdiction as it at present exists. Whether we regard the very delicate nature of the trust which is to be executed, with reference to the lunatics themselves, and the feelings of their relatives, or the amount of the property which, in consequence of this authority, is subject to the control of the Keeper of the Great Seal, the jurisdiction is one of the very highest importance. The number of lunatics at present under the care of the Lord Chancellor is 400, all of whom have been found incompetent to manage their own affairs, by a Commission appointed by him to inquire and report on the subject; and the amount of the property appropriated to the support of those lunatics, for whose behoof the whole of the annual value of their property is not distributed, is 134,000l. a year; and that comprises only those cases in which no more than a part of the property of the lunatics is allowed for their maintenance, excluding those for whom the whole of the annual produce is allowed, and that amounts to about 10,000l. more. So that the sum administered by the Lord Chancellor, in the care and for the support of lunatics, amounts to not less than 160,000l. per annum. The whole amount of the fortunes of lunatics, subject to the control of the person holding the Great Seal, is no less 839 than from six to eight millions sterling— probably more nearly eight millions. This is a most anxious and fearful jurisdiction, and therefore it is, that the Constitution has wisely placed it in the hands of the Crown, which as wisely, from very early times, has been in the habit of intrusting it to an Officer who is at the head of the law, and high in his Majesty's Councils, and who is particularly responsible to Parliament for the faithful discharge of those functions which the Crown has appointed him to administer. The defects which, in my opinion, at present exist in this jurisdiction, and to which I wish now to call your Lordships' attention, are two—first, a defect in the mode of forming the tribunal by which the lunacy of any person is established; and, secondly, a defect in the mode in which the person of the lunatic is taken care of. First, then, as to the construction or constitution of the tribunal by which a person is pronounced to be a lunatic or not. In my opinion, that tribunal is not felicitously constituted. I do not mean to cast any imputation on those gentlemen who have been usually appointed Commissioners for holding these inquisitions—God forbid that I should; but this anomalous mode of proceeding consists in appointing as Commissioners, three Chancery lawyers, who perhaps never before had occasion to examine a witness, and these gentlemen are at once called upon to decide on the effect of complicated and conflicting evidence, in cases so delicate that it would be an arduous duty for the ablest and most experienced Judges, to come to a correct conclusion—and these Commissioners are paid by fees too, where, on my principle, none ought to be allowed; and which, in this instance, operate as a temptation to adjourn the case from day to day, to protract the proceedings, to the advantage of the Court, and the great injury of the lunatic's property. I do not say, that such is actually the case—that Commissioners do protract proceedings, for I know them to be excellent and worthy men—but I say a temptation arises for them to do so, and all the objections I have already stated against fees apply to this mode of paying the Commissioners appointed to inquire into the lunacy of any individual. It is difficult, on any authority that can be found, to send the Commission to less than three. I am not aware of a judicial decision, nor of any Statute on the subject, for all the authorities hold that the original 840 regulation of the 17th of Edward 2nd is not a statute but a private regulation. A friend of mine—Mr. Illingworth—who as an antiquary, is as distinguished among antiquaries as he is as a lawyer amongst lawyers, consented, at the suggestion of my noble friend, my immediate predecessor, to make a search, and in this he proceeded in a very workmanlike manner, and he was not able to find any instance except one, in which the Commission had been directed to less than three. Although the escheat-ors in former times were Commissioners, or had the power of appointing Commissioners, no instance had been found in which there had been less than three of them, except in a single instance, in which two persons formed the Commission. Now, as by a late regulation an addition was made to the number of Judges, I think we ought to avail ourselves of that circumstance in order to form an improved tribunal for holding inquisitions in cases of alleged lunacy. I propose, then, that in cases of contested lunacy—such as the case of the Earl of Portsmouth, the case of Mr. Davis, and that of Mr. Brand—the person holding the Great Seal shall be empowered to call upon one of the Judges to preside at the holding of the inquisitions, in order that they may be tried with all the solemnities of the most important issues, and with all the advantages of great legal learning, and much judicial experience. This I take to be a very great improvement, and one which cannot be too soon carried into execution. I remember that Sir Charles Wetherell and myself attended, in the case of Mr. Davis, at a coffee-house, for eight days together, when the poor man was brought up every day, and placed in a room where a great mob assembled, under circumstances which were calculated to make him less sane than before; and all these proceedings were carried on at an enormous expense to his estate. As to the case of the Earl of Portsmouth, it brought a scandal on the proceedings of the Court. I am justified, then, I think, my Lords, by these cases, in proposing to place at the head of Commissions de lunatico inquirendo one of the Judges of the land. The second defect, as I have already said, is the want of sufficient care of the person of the lunatics, who are in number, at present, 400 persons, of rather considerable property. Your Lordships know, that in these cases there is a Committee of the Estate, and a Committee of the Person—the heir at law, 841 where there is real property, being Committee of the Estate, as the person who has the most interest to take care of it, and he returns his accounts to the Accountant-general of the Court; while the next of kin is usually the Committee of the Person, as having the most interest to take care of the lunatic, and to him a liberal allowance is made out of the estate. Now, in these cases, the lunatic, in general, is taken to the country, or is perhaps sent to a private lunatic asylum, and is kept in secret, so that the Lord Chancellor loses sight of him, and has no power to act, except when called upon to do so by some other party. And yet it is very important that the Keeper of the Great Seal, or some other proper authority, should at all times have the power to ascertain whether the lunatic is placed with relations who are careful to watch every glimmering of returning reason, and facilitate the cure— whether he is under the care of a person anxious to cherish every indication of recovery, and to put an end to the trust. It is important that he should have the power to take care that the lunatic should be in proper custody, and should not be intrusted to the care of persons more anxious to retard or prevent the recovery of the patient than to promote it, when they know that by the recovery they will lose their share of the 160,000l., which is distributed annually among the keepers of Chancery lunatics. I have often asked myself whether, in this respect, things are in the situation in which they ought to be; and the answer has been that I am morally certain, from what has taken place, that this matter is not as I would wish it to be. An instance came before me in the Court of Chancery, no further back than last week, which affords a remarkable illustration of the point to which I am now calling your Lordships' attention. A reverend gentleman, enjoying an income of 600l. a year, was one of the Chancery lunatics, and there was a Committee of the person and a Committee of the estate. It happened that these two combined, and a proposal was laid before the Master for allowing only 100l. out of the 600l. for the purpose of transferring the lunatic from a comfortable situation near Bristol to a pauper Lunatic Asylum in the county of Lancaster, the object being by depriving the unhappy lunatic of many comforts to add to the wealth of the heir at law. This circumstance was brought to my notice, 842 for the master thought this allowance remarkably small, and mentioned the matter to me. An inquiry was instituted, the facts I have slated were brought to light, and a stop was put to the project in this instance. But it was a mere chance that the matter was brought under my notice. I might never have heard of it, and should not have heard of it, had it not been that the small ness of the proposed allowance excited the master's suspicions, and led to the inquiries I have mentioned. I propose, then, to constitute a Board, of which the business will be to ascertain that the person as well as the property of the lunatic are properly taken care of. The expense of this Board will not be great, not exceeding one or one and a half per cent on the property of lunatics and I propose that the members of the Board shall be paid by a percentage on the property of the lunatics; and so much of their fortunes cannot be better bestowed than in thus providing for the security of the remainder and for their certain personal comforts. This plan appears to me to be one of peculiar utility and wisdom, and almost the whole of it was prepared and matured by my noble predecessor, who deserves the warmest gratitude of the public for the steady course which, in spite of all opposition, he has pursued in bringing to maturity this great and original improvement. I come now, my Lords, to a still larger branch of my subject—I mean the Bankrupt Law—in reference to which I had occasion to present petitions to your Lordships from the most influential persons in London, and another great and commercial city. The commissioners of Bankrupt are seventy in number, and they are generally young men of good connections and ability, considered as men of only two or three years standing at the bar, and men who, when they have acquired more experience, may be very able lawyers. Nevertheless, if I were to say that in nine out of ten cases they are the best Judges that could be chosen, or if I were to say. that they do not pay too little attention to their duties as Commissioners, and consider their offices only as steps towards business and advancement in their profession; or if I were to say that men of very great age—one of them lately died at the mature age of eighiy-six—did not sit with young men of twenty-one; or if I were to say that they were always appointed as the best Judges that could be found 843 for the purpose; or that the Lord Chancellor always appointed them for their fitness, and not because they were personal friends, or connections of personal friends, then I should be guilty of most grossly flattering the Commissioners, my predecessors, and myself. I lately appointed two Commissioners as they are usually appointed, they are two excellent young men, very proper, in comparison with those who generally hold the situation, to fill the office with credit; still they are not the men that I should have selected as Judges, if the Court had been constituted as it ought to be, or if they were to be appointed to the same functions in a court of common law. I impute blame to nobody: it is the system, and it is the system that is to blame; and therefore, it ought to be as soon as possible destroyed. I have great personal respect for the Commissioners of Bankrupts, but I cannot say that the Gentlemen who now constitute the fourteen lists are perfectly well qualified to be Judges in such complicated cases as are many Commissions of Bankruptcy. I repeat, therefore, that if I were to say, that I had appointed persons most proper for the execution of the duties of the situation, or that my predecessors had always done so, that I should be justly chargeable with the most overweening self-seeking on my own account, and guilty of the grossest flattery to my predecessors. The jurisdiction is one of the greatest importance. The subject is of the greatest importance to creditors, to assignees, to bankrupts, and to the Commissioners; and it is of the highest importance that the matter should be placed under the superintendence of the most competent Judges. The Commissioners have a most difficult duty to perform, both in the way of examination and procedure—a duty which it seldom falls to the lot of a Commissioner to undertake before his appointment to that situation; and they have a still further duty to perform, which, to the same extent at least, does not often come in the way of the most experienced Judges; they have to wring the truth from those who are often extremely well disposed to concealment and fraud; and, added to all this, they have the extraordinary power of committing to prison bankrupts and witnesses, for not answering to their satisfaction—a power which though fortunately controlled, by their liability to an action at law, and which no other tribunals possess 844 except the Insolvent Debtors Courts'—is larger and more responsible than is intrusted to those who have to administer the ordinary functions of the law. With all these important duties to perform, having to decide questions of law as they arise, and having to ascertain questions of fact for close and rigorous examination, it does not appear to have entered into the head of any Chancellor or into the head of the legislature, for the Chancellor only fulfils the presumed wishes of the legislature, that these Commissioners ought to be men of the highest talents and attainments. Then as to the number who sit in one Commission, and the mode of administering the duties of the situation—there may be five of them at. a sitting, although three of them only usually sit, and there being fourteen Lists the number of these Commissioners is seventy. The important judicial and inquisitorial duties they have to perform, require that each one of those seventy should be equal to the twelve Judges, but Westminster-hall cannot supply seventy such men, and therefore by their very number are Chancellors compelled to choose inferior men. The consequence too of this is, that they want rank and dignity in the eye of the profession, and want the means for preserving order in their Courts, and restraining the irregularities of Counsel. Sometimes, too, in consequence of their being not the chiefs of the profession, Counsel come to plead before them, who are men of much greater practice and experience than themselves; and then it may be supposed that the business is not conducted with that dignity and efficiency which characterizes the proceedings before able and experienced judges, who have sufficient weight and authority to keep Counsel in awe, and check their vehemence and irregularities. There are some Counsel whose principal practice is before the Commissioners. But Mr. Serjeant Wilde has practised before them, and so has my friend, Mr. Pollock, and Mr. Montagu, leading Members of the profession. Such men go to plead before young men of twenty one, or old men of eighty-six, and they really decide the cases, and not the Commissioners. The banister lays down the law for the Judge instead of taking it from him, and by the system which prevails of arguing, or I should call it wrangling, the time of Judges, barristers, bankrupts, and assignees, is wasted to no satisfactory purpose. From such Courts 845 recourse is too often had to the appellate jurisdiction of the Lord Chancellor. In case of an erroneous decision, or whether the decision be erroneous or not, the question comes before the Lord Chancellor on affidavits, the very worst possible mode; he has never seen the persons examined; he knows nothing of the manner in which the point of law arose; he is obliged to give his judgments solely on affidavits, making the appellate jurisdiction little more satisfactory than the original Court, and of his jurisdiction, where all is bad, it is sufficient to say that one part is not worse than another. The system is so bad, that it certainly must be altered; but how is it to be altered? Will it be sufficient to cut clown the number from seventy to thirty-five? If we were to do that, reducing the lists to seven—still continuing five Commissioners to each—it would be a great improvement, for it is wiser to have thirty-five picked men than seventy not so picked. The Lord Chancellor has a good excuse for not putting in the best men, because his answer is ready—"How can I get seventy good men?" but thirty-five he might get. Shall we reduce each list to one—that would be good. If we keep the whole seventy, with all the faults of the number and kind of men, and make a regulation that none of the Commissioners of Bankrupts shall practise in the other Courts—that would be a benefit— because we should destroy the monopoly of these Courts. Shall it be said, that none shall be appointed Commissioners, except such as have been of some standing and practice at the bar? And shall they be remunerated by salaries instead of fees? That, at least, would be some improvement, as it would place them beyond suspicion in that particular. And then, shall it be made a rule that no Commissioners shall practise before other Commissioners, for each of them, as the case now stands, may practise before the thirteen lists, to which he does not belong, and in this mode of practise they have individually a great advantage; though by it the bankrupt's property may be destroyed by the Barrister upsetting the law which he establishes as a Judge. My Lords, the plan which I intend to propose does not stop at any one of these improvements it goes beyond them all. My Lords, no man is more cautious in the way of reform than the individual who stands before you. I have been derided and taunted by heated reformers, 846 both in and out of Parliament, as a timid reformer. I am, my Lords, a cautious reformer, anxious to tread upon sure and safe grounds, and I glory in the charge which they prefer against me; for what they call timidity I call wisdom. I prefer, my Lords, to sail with the lead in my hand when steering among unseen and unknown dangers, with breakers a-head and a rocky shore under my lee, upon which I might, but for this caution, be dashed to pieces. I love to proceed in a manner of which the safety is undeniable; so that I may easily retrace my steps, in case I should find it perilous to go farther. I have a disposition to lean to that side where the abuse exists and where a remedy is required, when that remedy can be applied without danger:—when there are no great obstacles, the removal of which may be attended with an evil as great as the abuse itself,— I am ready to go straightforward to my purpose. In such a case I would not propose to your Lordships any half-measures, nor insult you with the mockery of palliatives. What I propose is not a diminution of the number of Commissioners, nor the adoption of any of the other expedients which I have mentioned. I mean to propose that the system shall be entirely abolished—that the whole shall be swept away by one short and simple operation. But then it may be asked—What is to become of the vested rights of the Commissioners? My Lords, there are no vested rights here. I touch no vested rights—I meddle with no freeholds. We sometimes hear from lawyers of the feebleness of certain estates and interests; but of all estates and interests those of the Commissioners of Bankrupts are the most feeble. The whole depends on a letter sent from the Lord Chancellor's Secretary, informing them that they are to proceed upon such a Commission; but I may refuse to send any such letter, and may confine myself to only one list, and then a Commissioner, who found that he was never employed, might say, what is the meaning of this—is the bankrupt jurisdiction at an end? He would look at the gazette, and find Bankruptcies as before, and he would then see that he got no Commission because the Lord Chancellor did not choose to send one. In short the Commissioner has no interest but what depends on the person holding the Great Seal. A great hardship will, however, be suffered by the Gentlemen who have hitherto filled the situation 847 of Commissioners. Many of them are settled in life, with the idea that they are to retain their situation of Commissioners as long as they please; and, therefore, I propose to allow them an adequate remuneration on a large and liberal proportion; for I have always considered it very bad reasoning not to give full compensation in cases of this kind, when the good of the public requires the abolition of a long-established office. The Commissioners, I am bound to say, have put forward no claim. They have not held the slightest communication with me upon the subject; but however unpopular it may be, I do not think I can deprive them of their situations without a fair and liberal compensation. For popularity, in the ordinary sense of the word, I care not a rush. I look forward to honest praise for the conscientious discharge of the duty I owe to others and myself, and I desire no other public favour than that which I may fairly deserve. To the Gentlemen whom I thus deprive of the emoluments of their situations, I think I should give compensation, and thinking so, I propose that it shall be done. The public, however, will not suffer; for I propose that the compensation shall be paid out of the funds at the disposal of the Court of Chancery; and as the Gentlemen lose the compensation by being promoted in their profession, which many of them undoubtedly will be, in the course of eight or ten years, the burthen will be wholly removed. I repeat, I have always considered it hard for the country to refuse compensation in cases of this kind. It has a tendency to check improvement by the difficulties it invariably throws in the way of those who attempt it. It, in many cases, converts a hive of drones into a nest of stinging hornets, and such a transformation, by worrying the reformer, impedes the march of reformation. Parsimony in such cases is bad for the country and bad for reform, and if any one more than another should counsel us to give compensation in such cases, it is the reformer himself, for no money is better spent, nor is there any outlay which yields him such a large and liberal return of success and approbation. That I am not the only person who has held these opinions with respect to the jurisdiction of the Bankrupt Commissioners, I shall take leave to quote the opinion of a great and venerable law authority, whom I do not at present see in his place (the Earl of Eldon), but for whose accom- 848 modation, as well as for my own instruction and guidance, I have postponed on several occasions my present Motion. In a report of the proceedings of the Court of Chancery, I read, my Lords, the following words: — "The Lord Chancellor, on taking his seat, expressed the strongest indignation at the practice of the Commissioners of Bankrupts, and at the frauds which were every day practised, and particularly in the country, under cover of the Bankrupt Laws, and he expressed his determination to repress such practices." I read this from a report of the proceedings of the Court; but I think it necessary to premise, that, from the want of checks in the management of the proof of debts and the choice of assignees, it frequently happens that the Commission is sued out by a jobbing creditor, who is chosen also as a jobbing assignee, and he receives out of the estate a large fictitious debt, which he probably hands over, at the first opportunity, to the bankrupt himself. When, however, there ore Judges appointed with a power to commit for prevarication, and to inquire thoroughly into, and sift out the whole state of the bankrupt's affairs, I have a confident hope that no such frauds can be successfully attempted. Your Lordships should know, that the Commissioners are at present liable to action for attempting to perform their duty with that severity which justice requires. There have been two actions of this kind lately against the Commissioners of the fourteenth List, which I am bound to say, has been the only one which dared to perform its duty. I was Counsel for the plaintiff in one of these actions, and I recovered damages; but I really must confess, that although a Counsel in the cause I regretted recovering these damages, and thought them unnecessarily severe. The consequence, however, has been, that these damages have proved a lesson to all the Lists of Commissioners; and knowing that they are, by the decision of the Court of King's Bench, liable to action for this exertion of their authority, none of them do venture to hazard a commitment for the sake of forwarding public justice. I now, my Lords, proceed to finish the extract which these explanatory observations have interrupted.—"The Lord Chancellor went on to say, that the abuses which had crept into the administration of the Bankrupt Laws were a disgrace to the administration 849 of justice, and that he thought it would be better to repeal all the Statutes on the subject than to permit their continuance. No mercy was, at present, shown to an estate. In the country it seemed to be a mere matter of trade, for the assignees to work the commissions with the utmost possible gain to themselves, and the least benefit to the estate; and the solicitors appeared to form their calculations on the number of commissions which they could bring in to be worked by the partnership. Unless, indeed, this system was attacked in its strong hold, he was satisfied it would soon become liable to some of the greatest abuses known to the laws." These, my Lords, were the words of the late Lord Chancellor Eldon, uttered on the very morning when he first entered his Court as Keeper of the Great Seal; but it would be exceedingly difficult, in any of the proceedings, of his long and remarkable tenure of office, to point out any instances of his following up the principles which he then laid down. And why was this? When his Lordship spoke, he was but just installed in office; he was new in the soil, and he waited to ascertain something more of it before he attempted his reforms; but he waited too long; he stayed till he became affected by the heavy air of the Court of Chancery; he found the adhesiveness of the soil too strong for him, he became entangled and entwined in the roots and ramifications I have before spoken of, and it was impossible, by any after-effort for freedom, to throw off the many shackles by which he was enthralled. Warned by his example, made aware by the failure of that noble and learned person, of the nature of the evils, and of the risk to which I am exposed, I have shaken myself free. I escaped at once from the trammels which might have been thrown around me, and resorted to the remedies which appeared to me to be meet for the evils, before I became inoculated by the disease which I wished to extirpate. The proposition I have to offer to your Lordships is then briefly this. I propose that there be ten Judges on commissions, if you please to call them so, appointed in the stead of the seventy Commissioners of Bankrupts. I could have wished to name a smaller number, but after discussion on discussion—after taking into consideration the amount of business which they will have to transact, and looking at the degree of ability and information which will 850 be required to fill the situation, and the time which these Commissioners, or Judges, must devote to the duties of the office, for we intend that they shall sit in vacation and out of vacation; in the long vacation as well as the short one, and throughout all the Terms—looking at all these things, I have been compelled, most reluctantly I confess, to prefer a number much greater than I originally intended. One by one, however, I have been deserted in opinion by all whom I have consulted on the subject. Taking into consideration the nature of the work required, the qualifications necessary for the office, and the time occupied in its duties, they have one by one dropped off from me, with the assurance that ten was the very lowest number with which I could hope to effect my objects with respect to bankruptcy, and I was left, at last, alone in my desire to have a less number. At first, I was for six Judges or seven, but those whom I have consulted maintain that ten will be absolutely the smallest number I can name to perform the duties. This was, in the opinion of all, the lowest number, and but few of them I consulted were disposed to agree to any thing so low. I was the more disappointed with respect to the numbers, because I feel the difficulty of selecting so many persons who are thoroughly competent to perform the duties of the situation; but when I see fourteen lists of five Commissioners, three always sitting and relieving the others, and yet without giving any satisfaction in the despatch of business; and when I calculate the number of cases to be heard, and the circumstances under which they are to be heard, and when I look forward to the prospect of a diminution of the business of the Insolvent Debtors' Court, to such an extent, that we may hope to have it gradually transferred to the new Judges, and the three Judges of that Court entirely got rid of, I see that ten is the least number of Judges I can venture to propose. I wish it to be understood, however, that the functions of these Judges are to be divided into two parts— the Administrative and the Judicial, and that they are to be composed of three descriptions of persons. The first Judge I propose to make the chief over the whole administration of the Bankrupt Laws of the country. In the second class I propose to place three senior Judges, persons chosen from the higher walks of the profession, and through whom, in conjunction 851 with the chief, I propose to have the whole of the contested points in Bankruptcy ultimately decided. And in the third class, I place six junior Judges—men who are hereafter to rise to the higher rank—not as a matter of course, but in proportion as they may exhibit talent and learning to entitle them to promotion. To the whole of these Judges I would commit the jurisdiction in, and the administration of, the whole of the laws connected with Bankruptcy. I now proceed to show in what manner I propose to dispose of the business now transacted before the fourteen lists of Commissioners. To a single Commission, a Judge taken from the third, or junior class, I would give the power of adjudication in all cases where there is no dispute respecting the choice of assignees, or the proof of debt, or any of the ordinary business. When, however, a question of that kind does arise, I give this Judge power to adjourn the Court, for the purpose of calling to his aid two others of the same rank with himself, or one of the senior Judges, and they are then to have power to examine evidence on oath, and to take down that evidence or not, as they think fit, in the ordinary manner in which it is practised now in the Courts of Law. If, on this examination, the dispute cannot be settled, and the parties, both of them I mean, agree to go to trial on an issue, they may do so at once, and without any delay, before one of the senior Judges, or the Chief Judge, assisted by a Jury, in the same manner as in the Courts of Common Law. If, however, both the parties do not agree, on an issue, but only one of them, then I give the Judge the power of deciding, and give the party not consenting, a power of appealing to another Court, composed of the Chief Judge and the three senior Judges, sitting as the Judges of the Court of King's Bench do now in Banco, in order that they may there, as in that Court, determine the question of law. This Court shall decide also motions for re-hearings and new trials. The appeals, however, I confine to the mere question of law. In the event of one party only agreeing to an issue, I do not allow the fact to be tried by less than three of the Judges, with the assistance of a Jury, and subject to all the ordinary rules and regulations, and motions for new trials. With respect to the examination of witnesses, I propose to give that power, in ordinary cases, to one of the junior Judges; but if difficul- 852 ties arise in the course of the examination, or if any obstacles or impediments are raised by the witness himself, then I transfer the examination to three of the junior Judges, with full authority lo commit any person who prevaricates, or refuses to give his evidence to the satisfaction of the examinants: an appeal against that commitment lying to the Chief Judge, but the Judges being in no instance liable to an action for damages for their conduct towards the witness. One word with respect to appeals to the Lord Chancellor. I propose at once to cut off all appeals, except on matters of law. I conceive, that if the truth in matters of fact cannot be got at by the exertions of three Judges in one case, or of one in another, and with the assistance of a Jury examining the evidence, and marking all the four viva voce testimony—how, in the name of God, can it be discovered by the Lord Chancellor, with written depositions and interrogatories, and all the formula which accompany appeals. If the parties consider the direction for the issue wrong, they can apply to the higher Judge, as they do now in Common Law in Westminster Hall. If they are not satisfied with the verdict, they can move for a new trial, and what then could the Lord Chancellor do more than to order a new trial or refuse it; and what, I ask, would be the defence for permitting an appeal to the Chancellor, save the desire to increase and to prolong those vexatious delays and ruinous expenses, which it is the whole object of the arrangements to prevent. I reserve the appeals j on matters of law, as well from the superior Courts in Bankruptcy as from the inferior, but I cut off all appeals to the Great Seal, except on matters of law, and I will answer for it that we shall not hear then of ninety-nine of every hundred of these appeals in bankruptcy which now occupy the Vice-chancellor for two months in the year, and the Lord Chancellor for more than one, and of which the number of arrears have been so much a subject of complaint. I am convinced, indeed, that under the new, and I hope I may say, improved system, the evils to which these appeals have given rise, will be wholly eradicated, and certainly, my Lords, I hope, as one consequence of improving the bankruptcy jurisdiction, that the business of Chancery may again be carried on, as it was formerly, without the assistance of the Vice-chancellor's Court. I will now, 853 with your Lordships' permission, say a few words about the Country Commissions. In conformity to the principle of action I have already laid down and explained, of acting at all times experimentally rather than proceeding too much in obedience to theory, I propose to make but a slight, although, I conceive, a very important change in the constitution of Country Commissions. All that I have said of the delay, the embarrassment, and the incorrect practice in the proceedings under a Metropolitan Commission, fall infinitely short of the mere outline of the workings of a Country Commission. Those Commissions are, in truth, turned into a mere source of patronage and emolument, at the expense of the estate of the unfortunate bankrupt and his creditors. The law requires that there should be five Commissioners, and that two of these should be Barristers. It is generally contrived, however, that the Commissioners shall be composed of three Solicitors and two Barristers; but they always take care to select Barristers resident in the Metropolis, who, they are sure, cannot, or will not attend, and the remaining three are left to act without restraint, or merely employ themselves, by every means in their power, not to decide the questions brought before them, but to contrive by delays of every kind—for they are paid by time and duration of sittings—to increase the profits which they always calculate on from the enjoyment of a Commission. It is my intention to extend to them the principles of the act I now propose for the metropolis, and I contemplate, at no distant day, the possibility of Bankrupt Judges going Circuit at fixed periods, like the other Judge's; but at present I shall content myself by endeavouring to eradicate one great evil, by requiring that the Judges of Assize shall, from time to time, select and form a list of all such Barristers residing in the county as they may think competent for the purpose, together with a few of the more respectable Solicitors, and that the names of those persons be returned to the Keeper of the Great Seal, in order that he may select from them three persons to be put on the commission which the cases of bankruptcy may from time to time require. I, for my part, should prefer only one Commissioner; but, leaving that open to consideration, I propose that to persons thus chosen and recommended the country cases shall be, for the present, 854 left for decision. These cases are at the present moment, on an average, not more than 700 in number, which, from the prosperous and comparatively healthy state of the country, is, I am happy to say, lower than we have seen it for years. Having said thus much with respect to the important point of bankruptcy, I now proceed to that other branch of my subject, the mode of taking evidence and the fees of the office, and those other causes of delay and expense in the administration of justice in the Court of Chancery; but first I will say a word of the Masters in Chancery, whose income at present is chiefly derived from fees. I propose, then, that the Masters should no longer receive any advantage from the taking of fees, but be paid by a salary. Originally the Masters were paid partly by fees and partly by the keeping of the Suitors' fund, which was intrusted to their care. This money, on the ground that they were under-paid, they were in the habit of letting out to interest for their own profit; but in the year 1720 the Masters, tempted by visions of profit, speculated in the South Sea Stock, and proving unfortunate, like many others, six of them were declared to be defaulters; and immediately on this, the Masters were ordered to give security. A regulation was then made by the Lord Chancellor, limiting the control of the Masters over the Suitors' funds; but on a seventh Master becoming a defaulter soon after, Lord Macclesfield took the control of the funds from the Masters altogether. The conduct of some of the Masters was afterwards urged against that noble and learned Lord, who was as excellent a Chancellor as any who had succeeded him, and who certainly did not deserve the impeachment brought against him. That noble and learned Lord laid a report on the Table of this House respecting the taking of fees as salaries, in which, on examination, your Lordships will find some excellent principles laid down. Another report was presented to the House of Commons in the year 1798, by Mr. Abbot, afterwards Lord Colchester, in which the subject of fees is again taken up. It is there said, that no inquiry should be made whether a fee was claimed by established practice, but whether it was one which ought to be continued, and if it was not, it should be cut off. Accordingly, it was recommended that some of the fees 855 then existing should be abolished, and amongst others those called Copy-fees, as unfit to be continued. I might also instance the recommendation of the Chancery Commissioners in 1826—that fees as salaries in most cases should be done away with. Bottomed on these recommendations, and in compliance with the desire of the country, I now propose that the whole of the fees of the Masters in Chancery shall be abolished, and that their Clerks shall be paid a sum never to exceed a maximum, but so collected and paid as never to give an interest in the multiplication of expenses and delays to the suitor, and at the same time afford them such a stimulus, in the way of emolument, to the performance of their duties, and to the advancement of the proceedings of the cause, as would keep them from falling asleep, and supply a fair stimulus for the speedy despatch of business. Looking at the emoluments enjoyed by the Masters, I find that in 1791 both the Master and the Registrar received large additions to their salaries; and they now possess 4,000l. a year, on an average, which really seems to me a tolerably handsome allowance for a gentleman. One of the Masters, a very excellent friend of mine, of whom I wish to speak with all respect, has above 4,700l. a year, and his clerk enjoys an income of 1,600l. a year; another of these clerics has 2,500l. a year, and one only 1,000l.; but he does not take copy-money. There is, however, among those fees, one of the very worst kind, called gratuity-money, which, although I might find some other phrase for it, cannot be known by any name half so concise as that by which it is known to the suitor who seeks for justice, and to the public when they have occasion to speak of it, and that is, the appropriate and ordinary name of a bribe. This bribe is, however, not paid to the Master. I wish it was, because the nature of the gift, and the notoriety of the allurement, would tend to destroy all its pernicious effects. These gratuities have been denounced before. They were exposed so long back as the time of Sir S. Romilly, who, in moving for a Committee to inquire into the subject, obtained the casting vote of one of the Masters (who had never heard of the practice of taking gratuities, and who was disposed to trust to the assertion of Mr. Perceval—that no such thing existed), purely on the private and solemn assurance of Sir Samuel, that the fact was 856 beyond doubt. On the information of Sir Samuel, that as much as 50l. was frequently received in the shape of a gratuity, this Master made inquiries, and was assured in the most solemn manner, that no sum beyond 5l. had ever been taken, except on one occasion, when extraordinary despatch was requisite, and then he had 10l. Shortly afterwards the fact came out through the means of a dispute, that this very man who made the denial had frequently received 50l. and on the examination of his books it appeared that his gains from this source were 1,500l. a year, in addition to the 700l. or 800l. he derived from legitimate sources. From that moment, however, all gratuities ceased in this Master's Office. It is, indeed, the duty of those on whom the power devolves, to take care that practices of this kind cease in all the offices. It is the bounden task of the superior, not only to keep his own motives free from all sinister interpretation, but to take care that his subordinates should be also free from reproach. I do not so much blame the Masters as the practice of the Court, but it is the duty of the chief of the Court, and now my duty, and I mean to perform it, to prevent all such abuses in all the subordinate offices of the Court. The task, I know, is a dangerous one, because I may be involved in a whirlwind of hatred and self-interest—it is an irksome one, because I am compelled to meddle with the affairs of men, with many of whom I am on terms of friendship—it is a laborious one, because I cannot hope in one day, nor in many days, nor even in years, to bring it to a full and satisfactory conclusion; but it is the bounden duty of a man placed in my situation to begird himself for the task—to bring whatever qualities he may possess honestly and laboriously to the accomplishment of his object—to let no means escape him which can be fairly and honourably applied to the removal of abuses—if he meets with difficulties, to labour to surmount them, but at all events to let it be seen with whom rests the responsibility of objection —on whom must fall the consequences of delay—I mean to place, in fact, the saddle on the right horse, and to show that I at least have played my part in the work of reformation. For assistance to accomplish so great a task, I throw myself, therefore, on my Peers, and on my country; I call 857 on them to support me, and if I fail, I shall at all events look into my own bosom with satisfaction, and console myself with the reflections of an approving conscience, having faithfully and honestly endeavoured to perform my duty. Therefore, as long as I sit on that seat (pointing to the Woolsack) there shall be no gratuities, therefore there shall be no charges,—therefore there shall be no shade or shadow of turning—there shall be no imputation that justice is hastened or delayed as expedition-money is given or withheld—therefore shall there be no speaking without action, therefore it shall not be said of us as of the Pharisees of old,—"Woe to ye, hypocrites, who make clean the outside of the cup, while all within is rottenness and corruption." There shall be no repose—no relaxation in my efforts—no folding of the hands to sleep. I shall use my endeavours, with the assistance of Parliament and the country, to put an end to these crying abuses; and if I do not effect all the reforms I contemplate, it shall not, at all events, be said of me, that I did not make the attempt to reform them. I have hitherto shown but the outside of this gratuity business. It may be asked, who pays it? Why, the attorney to be sure. Does he do it for nothing? No, he pays it for his client, and he tells him it is expedition money. I shall come to that presently; but here I would say, that against payments of this kind, for all purposes of such a description, it is the duty of the Court to protect the client. If the Clerk can get rid of the business quicker, he should possess a fair remuneration for doing so to all. If he cannot do it without sacrificing the interest of some other suitor, it is doubly objectionable; and under any view, whether of public justice or expediency, it is right that it should be abolished. But then there is another question connected with this matter. The Clerk who receives this gratuity, or expedition-money, has another function attached to his office; on him falls the delicate and difficult operation of taxing the very bill of costs of the Attorney who has paid him the money, of course on account of using expedition for his client. Your Lordships now begin to see some light thrown on those transactions. The judicious Clerk has received from the Solicitor, a very worthy man, and one who, it will be perceived, knows how to 858 invest his capital to advantage, the sum of 50l. of expedition-money, on account of the interests of the client, and then, when it comes to the turn of the judicious man, he repays this sum with interest, to the worthy man, by passing lightly over some 100l. of his bill, which he might not otherwise be disposed to tax with so much lenity. It will be seen, therefore, that the worthy and the judicious man both thrive by this means in their separate calling, and that the worthy man's seeds produce a most excellent and abundant harvest; and the better, perhaps, because he did not pay for his seed, but received it from his client. I now come to the client, whom I have hitherto kept pretty much out of view, as much as the object of the payments was kept out of his view during the progress of the suit. Payday, however, conies, and then I suspect the client is the only important person of the set. I do not, be it recollected, say that these things take place every day. Far from it—I believe they are not frequent; for the class of Solicitors are, generally speaking, a more highly respectable class of men than the Attorneys who represent the same situation in the Courts of Common Law; but what I wish to say is this, that the respectability of the solicitor is the only security possessed by the client for his abstinence from practices like those, which are always in his power. The fact of its being in his power is, therefore, in my opinion, quite sufficient to justify all proper measures for putting an end to the system; because, although it may be proved, as indeed I believe it can be proved, that such tricks are seldom resorted to, it will not be enough unless it be also proved, which it cannot be, that it is not in the power of the solicitor to resort to them. I come now to the separation of the administrative and judicial functions, and to the substitution of viva voce examinations in the Master's Office for the system of Interrogatories, and to the other means to be adopted for the improvement of that branch of the Court of Equity. I think, then, that the Masters should henceforward sit in open Court, at such hours of the evening as may be agreed on; and I am of opinion, that such arrangements can be made, with respect to the dispensing with their attendance on your Lordships, as will enable us to carry that plan into effect with little or no inconvenience to us or to them. 859 I propose, therefore, that three of the Masters in Chancery should form a Court, to sit every evening for the purpose of hearing exceptions to their own reports, and that portion of business which, at the present moment, occupies so much of the time of the higher Courts, but which, from its very nature, can always be more fitly determined by the Masters themselves; and when that arrangement is carried into effect, I am confident that the number of cases of exception will be reduced in the proportion of ninety-nine to a hundred, just as I am satisfied that the alteration proposed in the Bankrupt Court will reduce ninety-nine out of the hundred appeals from that Court to the Lord Chancellor. If I am right in speculating- on this result, and I believe I am, then will come the question of reducing the Court of Chancery to its natural and ancient limits of two Courts, in which the business may be speedily and effectually disposed of, without the assistance of a Vice-chancellor, or any other additional Judge; and then I hope will be fulfilled the declaration of Sir John Leach and Mr. Canning, in the celebrated Debate on the subject of the appointment of the Vice-chancellor—that by a judicious reform, that Court had Judges enough to go on without such an appointment. I hold this now to be possible, and I hope to make such arrangements in the course of the summer as will enable me to get rid of the greater part of the arrear before the Lord Chancellor, while the Master of the Rolls has prepared a plan for the despatch of the arrear before the Vice-chancellor. That second Judge—the Master of the Rolls—I cannot name to your Lordships without paying my tribute of respect due to his exalted worth; he is a Judge whose delight it is to decide, whose quickness keeps pace with his learning-, and who, in all that constitutes a great and profound lawyer, has never been equalled by any one, save that eminent man, Sir William Grant, one of his predecessors, to whom be it said, to his honour, no other can be compared—he is equalled, I say, by no other who ever sat on the bench which he occupies. The other great and important alteration which I propose with respect to the Masters is, to release them from the necessity of dealing with affidavits, and reviewing bills of costs, sending them at once to the office of the Six Clerks. I postpone, however, my explanations on 860 the details of this and some other portions of my plan, because they are as yet not fully matured; and because—although the nature and extent of the fees, and the system of taxing costs, have been fully examined—the arrangements to be substituted in lieu of them are not yet fully digested. The proposition for having recourse to viva voce examinations, instead of interrogatories, is, however, I am glad to say, fully admitted and approved of. I could have wished to give a Jury to assist the Masters, and that on their decision should depend the issue to be tried, as in other Courts, and in the same manner as in other cases of Jury-trial; but I find so many difficulties in my way, there is so much opposition, so many conflicting interests are to be reconciled, so many adverse claims to be settled, so many plausible reasons are advanced why that change should not be made — reasons too plausible in appearance for me not to fear that they might conceal something which ought to make me hesitate, though they are, perhaps, not well founded; and I could prove the error lurking below them if I could bolt the bran from the meal; yet, fearing that they may conceal something, and wishing not, in making any reform, to subject myself to the charge of rashness, I propose for the present to stop here, being willing to look forward to a more favourable time for making the improvement complete. There is no consummation, however, which I think more to be desired, or more important, than to introduce the assistance of a Jury into this branch of the administration of justice. That would put an end to much expense, and to the system of dark interrogatories, and I am anxious not to omit it, but, as I have stated, the time is not yet come when all the difficulties in the way can be surmounted. My Lords, I am anxious to avoid everything which may be considered as not bearing upon the merits of this question; but I must state, that in the Registrars' Office it is in contemplation to effect many alterations, the chief of which will be the abolition of copy-money, and the substitution of salaries for fees. When I name this, perhaps, my voice will be considered of woeful import to many; but when I find the great extent of fees, and the great expense of copy-money, both pressing hard upon the suitor, it is, in my opinion, a matter of paramount importance to them, that an abolition of the present 861 system should speedily be effected. Without satisfying these heavy demands, the suitor cannot hope to proceed one step; and thus the evil remains from day to day, from year to year. Fearing lest my imperfect experience should lead me astray, and anxious to derive sufficient authority upon the subject from authentic sources, I have taken occasion to refer to the Report of the Commissioners appointed to inquire into the state of the Court of Chancery. I find, then,—to put one case, as an illustration of the existing evils which I have endeavoured to explain to your Lordships,—that, in a bill of costs amounting to 1,474l. (your Lordships must not imagine this a large bill for Chancery costs; I have seen one that amounted to 8,000l.) were included the following items: —Charges in the Masters' Office, 238l.; Registrars' Office, 100l.; Clerks of the Court, 104l.; gratuities about 40l. Of the charge made of 238l. in the Masters' Office the larger portion is for copy money, and amounts to 132l. I have seen other bills of costs, and it occurs to me that, upon one occasion, where the whole amount of the bill of costs was 171l., (certainly a very small amount for a Chancery suit), 11l. was paid by the unfortunate suitor for fees alone; and I also find, both in the Masters' and Registrars' Offices, that the fees are chiefly derived from copy-money. In fact, I find that fees and copy-money form the bulk of the expense of all suits. I find, too, that the copying clerks charge 6s. 8d. per folio for which a stationer would charge three farthings, and all above this latter sum is an unnecessary expense. But very often a party does not even want the copies. "Good Master," he says," do not trouble me with copies, I have originals. Good Clerk, copy me no copies, I shall be better without them. Kind Sir, I do not want them." But then comes the mischief, for unless the copies be taken nothing is done, which your Lordships will say, in Chancery is a very great favour, and so the suitor would think if he could run away from his suit and the Court; but if you have an estate in Chancery, if you want to draw money out of the Court, you must take copies of all the papers, or not one step can you proceed. "Why should I (says a suitor) take copies when I do not absolutely want them? I have got the original in my answer, my attorney made a copy, I have them in the briefs for 862 which I have paid." "You must take copies" is the answer, "and must take them from each department, or your suit will make no progress, and never come to an end." I will suppose that there is to be an auction held, the parties are called upon to receive from the Master a bill of particulars, the Clerks demand fees, the bill is printed, the parties pay for that bill, they pay the printer. "Why," they say, "must we have copies?" "Oh," says the Master, "that won't do, you must have a written copy; and when you have a written copy, and have paid your fee, you are provided like a gentleman." Does the Court lend its authority to these gentlemen to make those demands? The Court says No—the Court says, that no more copies shall be charged than the one actually made. On what, then, is founded the claim for all the parties to pay for written copies? The order of the Court says, no more copies shall be paid for than one—though I speak from recollection, for I have not lately seen the order—but the Masters and their clerks make the suitor pay for one for each bidder. Do I blame these officers? I do not. I impute no blame to them, for the Court has known, and therefore has sanctioned, their practices. The Masters had not a farthing of salary for many years— it is the system, therefore, which I blame —the Masters had not a farthing of salary, except that sum which was voted to them in 1798, out of the Suitors' fund, of 600l. a-year. They were made to look for their incomes to taxing the suitors. In the Court of Chanrery, too, the Judges are paid by taxes on the suitors; this is not the case with other Judges; those of the Court of King's Bench, for example, who are paid out of the Consolidated Fund. It may be correct to take fees from the suitors, to levy on them all the expenses of the proceedings; it may be proper to make Chancery suitors pay the Judge on the Bench, and pay the expenses of the Chancery Court—it may be right that the suitors should be taxed; all this I will admit; but then, I contend that no more should be taken from the pocket of the suitor than goes to pay the expense of the Court and the Judge. He is obliged, however, to pay for much unnecessary writing, which is a clumsy, stupid, unjust method of raising from the public three times, and from the suitor three times, as much as would pay the one 863 Master and the one Master's Clerk, which are all that are necessary. I repeat again, that I do not blame the Master: I blame the system. These, then, my Lords, are the bulk of the changes which I propose; and I will only shortly advert to the advantageous results which I think, will take place. We shall get then at a better knowledge of the cause; we shall get better decisions, and we shall get them quicker; we shall get at the truth; we shall feel confidence in our Judges, and we shall get speedy justice; and, as a condition of all these beneficial results, my Lords, we shall get a great diminution of the expense: so that we shall make, I hope, eventually, the Court of Chancery so rapid in its proceedings, and its proceedings so few, that we may dispense with one of its Judges. I will now, my Lords, very briefly refer to the general and ultimate results of the alterations I propose. But before I do this, I must revert to another subject. I have on several occasions appeared to myself as if I had forgotten something, and after having sought for it in vain, I have now found it; and I will go back to that, as it is a subject which will give, I believe, great satisfaction in the City of London, and will be, I believe, one great improvement in the management of bankrupts' estates. The assignees to these estates, as at present constituted, are a great source of expense— and for this I have the authority of Lord Eldon, who has on more than one occasion expressed his dissatisfaction with the present system. The assignees are in general chosen from among the principal creditors to the estate, and having a great stake in the concern, are generally supposed to be more anxious to make as much as possible of the estate. They may be supposed also to regulate the expenses in the best manner, and to understand the whole business. It is obvious from their functions that much must depend on the choice of assignees, and, as a general principle, the person who has most interest in the bankrupt's property, and most concerned in winding up his accounts expeditiously, is a proper person to be chosen assignee. But the misfortune of this system is, that the assignee acts alone, and there is no check over him to whom much must be confided. I propose to add to the ordinary assignee one in whom the Court can confide; I would take from that list of respectable persons,' merchants, and others 864 well acquainted with the affairs of the world, though they no longer devote themselves to active business; I would take one assignee from those men, who are all known to be gentlemen of great experience, and who are now the Special Jurors of the City of London. Many of them would do honour to any situation or any place—they have been active men of business, of most respectable characters, of unsullied integrity, and would not dishonour even the Bench itself. I have frequently seen them in the box at Guildhall, and I know that it would often be in vain for the Judges to try causes without their assistance. Let, I say, a list of twenty-five or thirty of these gentlemen be formed, after due deliberation, and let the Chief Justice at Guildhall, or the Chief Justice of the New Bankrupt Court, always appoint one of the gentlemen from this list as the assignee of the Court, to be a guide and a check on the other assignee; and let there be one to each Commission of Bankruptcy; and that will, I am morally certain, give to the creditors of the bankrupt the best security they can have that the estate will be properly managed. It will perhaps astonish your Lordships to learn that, at present, the floating average amount of unclaimed dividends is not less than 250,000l. They ought to be divided; the last Bankrupt Act orders that, after the lapse of a certain term, to be done; but sundry excuses are found to avoid complying with this part of the Act of Parliament. A great many persons would be glad to have their dividends; but they consist of too small sums for them to seek them, or they are at too great a distance; and so, as I have stated, the amount of unclaimed dividends at present is not less than 250,000l. It happens, too, sometimes, that the assignees, who are in trade, become bankrupts themselves, after they have obtained possession of the bankrupt's property. Even this morning, a case of this kind came before me in the Court of Chancery, the gentleman having in a short time lost 81,000l., which would be sufficient to break half-a-dozen ordinary men: he was an assignee to a bankrupt's estate, and though he is yet a rich man, your Lordships will see, when such an event occurs, when an assignee fails with the whole of a bankrupt's property in his hands, in what difficulties it involves cases that are already complicated. The assignee has, indeed, no right to make a profit on the bankrupt's 865 property—it is his business to divide it; but he is solicitous only to secure himself, and turn the property in his possession to his own advantage, which will, I think, be prevented, and the division be always and best accomplished by appointing, as the Court's assignee, a man on whom the Court can place confidence, and in whom, in conjunction with the assignee appointed by the creditors, the whole of he bankrupt's estate shall be vested. This is the outline of my plan, and its beneficial results will be these: — It will, I think, shorten, cheapen, and facilitate, the business of the whole department of Bankruptcy, and of course facilitate the despatch of business in all the Courts of Chancery. It will now be my pleasing task to call your Lordships' attention to some of the benefits of this plan in detail, and it will, I am sure, be satisfactory to your Lordships to learn, that it will diminish both the patronage and the expense. I have carefully calculated the cost, and I can assure your Lordships, that it will be much less for more efficient work. In the first place, my Lords, we shall get rid of seventy places, filled by gentlemen at considerable salaries, and we substitute for them only ten places, thus reducing to that extent the patronage of the Great Seal. I shall propose, however, that one Conveyancing Master be added to the Court of Chancery, in order to save it from that stigma which is now thrown on it, of being' obliged to refer to a common Conveyancer to ascertain if a title to an estate be good. At present, my Lords, when any questions concerning a title come before the Court the Court is obliged to refer them to a Conveyancer. I say, that this is not fit and proper. I hold, that the Court which has especial cognizance of such cases, is bound to say if the title be good. That is a high branch of the law, and the Court cannot plead ignorance for not performing this part of its duty. I remember, on one occasion, that there was a dispute between my excellent and learned friend, the Solicitor-General and Lord Eldon, on a point of this kind, and the Solicitor General, refusing to take the opinion of the Court, insisted on the question of title being referred to a Conveyancer; who had thus to decide, for a ten-guinea fee, what opinion the Court should give. I wish, then, to have a Conveyancing Master; and if it be supposed that twelve Masters are not too many, or rather. I 866 should say ten, for the Master of the Rolls and the Accountant-general, who are included in the number, cannot do any of the ordinary duties of the Masters; but if twelve be not too many; and they have to examine evidence, and perform many other important duties; and if two Masters ought to be added, I shall propose that one of them be a Conveyancer, and thus we shall cut off seventy small offices, and we shall have an increase of eleven large ones. Your Lordships will not suppose that, these two descriptions of offices are the same. For a man who delights in patronage, who wishes to oblige his friends, seventy small offices are much more convenient than eleven large ones. He can give away the seventy small ones among his friends; he can oblige a colleague with one; but he cannot, he dares not make a Judge of a man who is incompetent; he dares not go himself into a Court over which he has placed an unfit person. At present, the persons who are made Judges are not made by favour; they are not obliged by the choice; it is their right, and God forbid that they should hold their office by any other title. I say, they are not made as a favour; they rather confer a favour by taking the office. By substituting officers of that high and respectable description, then, for seventy small places that any body may fill, I lop off at once from one of the Ministers of the Crown the patronage of seventy places, which will be a great diminution of patronage in the hands of the Crown, and which', in a constitutional point of view, cannot be unimportant. That will be a great benefit, if no other good effects result from it; but I think delay will be abridged, decisions will be improved in their quality, and given with greater expedition, and the expense, that great and tangible evil, will be much diminished. The saving, in the first place, will be at least 6,000l. a-year in the Secretary of Bankrupts' department, as that will be diminished from 9,000l. to 3,000l. In the whole Bankruptcy department, the clear nett saving, after providing for the expense of the New Court, will be 26,000l. a-year. I do not include Lunacy, which is not now a subject of expense, and will only be so in as far as the new-Board is concerned. There will then be a saving of 26,000l. in the Bankruptcy department. The saving in the Masters' Office, and in the Registrars' Office, will be, I calculate at the lowest, 20,000l. 867 a-year, leaving an ample allowance for Clerks, Masters, and all that is necessary to the establishment. To this 46,000l. 5,000l. must be added for sinecures, when those who now hold them cease to exist. To this also must be added 11,000l. Another sinecure?, which were given by Lord Chancellor Thurlow to his son, and were afterwards held by his nephew, who is now their possessor. The sinecures held by the rev. Mr. Thurlow, now amount, my Lords, to between 9000l. and 10,000l. a-year. I know that these are vested interests; that Mr. Thurlow enjoys these emoluments under a patent; but I confidently hone that he may come to terms. Mr. Thurlow has long enjoyed his income, and will not be averse, I am sure, to consider the circumstances of the time. I may, perhaps, be said to be hasty in these matters, and I may be blamed, as I have been blamed for getting rid of the Registrar, and for wishing to abolish the Six Clerks. When I first took my scat in the Court of Chancery, I found it was a practice for a Master to come there of a morning, who was described to be always ready to give any information to the Court as to its practice, which must have been done by some curious method—I fancy by means of a speaking-trumpet, or some such instrument, for the instant the Court assembled, he made his bow and retired, and was afterwards sitting in Chancery-lane while I was sitting at Westminster, so that the important duties of this officer, as far as the Court was concerned, consisted in making a bow on one side, as the Clerk made a bow on the other, and then retired. Although it was, I have no doubt, thought to be a great innovation, I dispensed with the appearance of the Master in Court of a morning, and I do not find that the Court has yet needed his assistance. So it is said, that the Chief Registrar is an officer of great importance; that he keeps all the other Registrars in order; and I have no doubt that this was done by that fair person, Mrs. Eleanor Gwynn, commonly called Nell Gwynn, when she was a Registrar of the Court of Chancery, though. I suppose she seldom attended the Court, except, perhaps, when Lord Shaftesbury held the Great Seal. Now I should imagine, that the Patentee for making out Commissions of Bankruptcy, (the Rev. Mr. Thurlow), like that lady, has no business in the Court of Chancery. By the reforms I 868 propose, I am aware that I deprive myself of great patronage, should I live long enough to enjoy it; and, if the Chief Justice of the Court of King's Bench received 4,000l. a-year for his patronage, and that the salary of the Chief Justice of the Common Pleas was augmented on the same grounds, I might, perhaps, take some credit to myself for sacrificing so much patronage, without looking to any pecuniary consideration. I cannot help here remarking, that I think it is a little hard that the Chief Justice of the Court of King's Bench should receive a retiring pension, equal in amount to that allowed to the Lord High Chancellor, who has entered upon the arduous labours of his official situation, and resigned very large professional emoluments, for the purpose of taking this office, the possession of which he holds on so very insecure a tenure. I may here observe, by the by, that if I thought my tenure of office was in the slightest degree insecure, I should hardly have bean so strenuous a Reformer as I am—I should not have taken so much trouble for the purpose of introducing Reform into the Court of Chancery. On the contrary, if I thought there was any chance of being turned out, I should very probably be like the Churchwarden who manages the concerns of the parish, and farms the poor out as cheaply as he can, not seeking to introduce any improvement, and not regarding the complaints of the paupers, because he knows he must go out of office next year. If, I say, I supposed I should not remain in office, I should very likely not be troubling your Lordships on this occasion. I am aware, then, my Lords, that the holder of the patent place I have alluded to has vested rights in it; but if he should be very exorbitant in his demands, let him not think himself very sure of the tenure by which he holds office; if he should think that a sum equal to that which is given to a Judge, after a life of labour, for his retiring salary, is not a sufficient compensation; and, if I should not go out of office, I will grapple with this patent place; and I will let the Patentee see that I can exercise the power which the law confers on me. The fees for scaling all Commissions of Bankruptcy, whence the Patentee derives his revenue, the law gives me the power by a side-wind to put an end to, by preventing the Seal being put to Commissions. If I do that, what 869 then becomes of the Patentee's emoluments, what becomes of the Sealer, and his fees, if no Commissions are addressed to him to seal? I will not say, that the Patentee has not a vested right, but it is a joke to say, that he holds it on the same tenure as your Lordships hold your freehold estates, of which you cannot be deprived but by the failure of the seasons, or the conquest of an enemy. The vested rights of this Patentee depend on the clause of an Act of Parliament; and he who holds the Great Seal can put an end to them when he pleases. I think, then, that the holder of this place will listen to the voice of liberality, he will attend to honourable feelings, or even if he take counsel of common sense and prudence, will take into his consideration what I have now stated to your Lordships; he will consult his attorney, his counsel, his conveyancer, and take all those legal steps necessary to make up his mind to accept the liberal offer I shall make; but in the event of his being obstinate, I now give notice of what he may expect. From the abolition of this sinecure, then, we shall save 8,000l. a-year out of the 11,000l., which, added to the 51,000l. I have already mentioned, will make with the various savings in the Masters, and Registrars' Offices, all of which I have not enumerated, the whole saving amount at least to 73,000l. per year. There is one office about which I must say one word, though, as I have at present a great interest in it, I should be the last person to say anything on the subject. If the Reform I propose, should be carried into effect, it will cut on between 7,000l. and 8,000l. from the income of the Lord Chancellor, his emoluments from bankruptcy amounting to that sum; it will put an end to a large portion of the income of that Officer as well as to a large quantity of his patronage; and certainly I would not give up, nor would any man give up, the large profits of a professional income, to take an office which is held at pleasure, and may be taken away by a change in the Ministry, unless there be attached to that office a sufficient reward. It may he said, perhaps, that I am so cutting down the office, that no man will be disposed to accept it, mid. therefore, I am fixing myself in it for life. My Lords, to avoid that, I shall certainly propose that the salary be increased. It would be at least proper, too, I think, that the Lord Chancellor of England, 870 the Chief Law Officer, should have a retiring pension equal to that enjoyed by the Chief Justice of the King's Bench, and the Lord Chancellor of Ireland, when the Lord Chancellor is liable to be dismissed, and the Lord Chief Justice may hold his office for almost the whole of his life, the present Chief Justice having held his situation for not less than fifteen years, and receiving a regular salary of 10,000l., and he is not obliged, like the Lord Chancellor, to keep up any great scale of expense. It is most unfair that the Lord Chancellor should not be as well provided for us these two Judges. There is another point, my Lords, to which I must allude, I mean the Court of the Privy Council, over which some learned person, whose retiring salary was not sufficient, might most advantageously preside. Something, my Lords, must be done for the Appellate Jurisdiction, as your Lordships will be sensible when I inform yon, that from the Island of Jersey there came, in three years, thirty-six appeals, while from the 76,000,000 inhabitants of India, there came only seven appeals in the year; —a slate of things, I should think, sufficient to produce in the minds of your Lordships the conviction, that it is impossible to have appeals perfectly disposed of while the Privy Council remains constituted as it at present is; — there is no regular Court, no regular Bar, no regular Officer at the head of it; none of those useful and proper regulations, which ought to belong and appertain to all Courts, but more especially to a Court of Appellate Jurisdiction. If has at present no one good quality. It ought to be presided over by the highest Officer—the very best Judge of the kingdom. Without a Judge of this description, the authority of such a Court would be obeyed, but it would not have any weight; it would not be respected—it would not be venerated— it would not give judgment that would be followed hereafter. It is necessary, therefore, that the highest Officer of the kingdom—the man of the greatest talent, should be placed at the head of the Appellate Jurisdiction, and for this reason I wish to see some of the learned persons who enjoy pensions without being yet so far advanced in life as to make them incapable of discharging such duties, appointed to preside over the Court of the Privy Council. Recurring to the Court of Chancery, I have to observe, that the 73,000l. 871 which we shall save, is now paid by which come out of the suitors' pockets. In one year there are about 1,200 bills of costs to be taxed; to this may be added 750 cases that are not taxed, making on the whole, say 2,000 suitors, among whom the cost of 73,000l. is distributed. Supposing each suit to last two years and a half, this will make the saving to each suitor about 100l. in fees alone. But your Lordships must also recollect, that, besides these fees, the attorneys swell the bills of costs by some charges of their own, and in paying the fees for their clients, charge interest on the money they advance. I know that there are some attorneys who say no, but these must be extraordinary men—the only men I know who lay out their hard money without expecting any return for it—and these attorneys must be different from other men, not as is generally supposed, from being more greedy, but from practising a romantic generosity, such as I have never before heard of. The savings, then, will amount to 73,000l., and that now comes principally out of fees, which are enhanced by the charges of the attorney. The sum is distributed, indeed, unequally: some costs amounting to 1,800l. and others not above 18l.. But the diminution of expense is the least of the benefits I expect. If the reforms I have recommended be carried into effect, they will so reduce expense as to make Equity as cheap or cheaper than law; they will promote despatch, they will make Equity as certain as law; and they will make it, I hope, as satisfactory to the whole community. My projects may, indeed, fail; for projectors and inventors are never mistrustful, and they find, or fancy, benefits that no other person can perceive; but, if I fail, it will not be, my Lords, without having exerted all my talents and industry on this subject, and without having sought and obtained all the professional assistance I could command, both in the Court to which I belong, and in the other Courts of Westminster Hall. I might have had more advice, my Lords; I might have taken a different course; I might have moved your Lordships to appoint a Committee; I might have got a Commission to inquire, for the asking; to that Commission, or to that Committee, I might have referred my ideas; all the gentlemen I have consulted might have been examined; and after months had elapsed, when the long vacation had passed, and 872 the next Session had arrived, a Report would be made—a discussion would ensue —the Report would be torn in pieces by pamphlet after pamphlet—no measure would be founded on it—no good would come of it—and we should find all our labours thrown away, and the Report and the inquiry would be stifled under conflicting opinions. I thought, my Lords, that the course more fitting for me to take in my present circumstances as a Minister of the Crown was, first to judge of the whole matter myself—to make myself master of all its bearings—to form my own opinions, and my own plans—and, having matured those opinions, and drawn up an outline of my plan, T sent it to several bodies of learned professional gentlemen, the Judges in Equity and of the Common Law, the Masters in Chancery, the Commissioners of Bankrupts, and the Commissioners appointed to inquire into the Court of Chancery in 1826; I requested them to examine the plan; I stated, that I was anxious that they should sift my ideas, and point out any opinion which might seem to them to be erroneous; for, though I knew that I had well and maturely weighed my own opinions, I wished to learn by what arguments they could be met, and to what objections they were liable. These gentlemen met day after day; they conferred together; they had the assistance of the Crown lawyers; they did as I wished—they examined the plan; and they tore to pieces, to rags, to tatters, the ideas I laid before them. By this I got at the truth; by this I corrected many defects; and, aided by their experience, and their sound and deliberate judgment, the measure was subjected to a more severe and rigid scrutiny than perhaps any measure ever brought before Parliament; for the bodies to which I submitted it have different interests, and are in the habit of viewing things under different aspects, and some of them have a strong interest in the decision of the question. From their examination, I have derived far greater satisfaction than I could expect from the inquiries either of a Committee or a Commission; and I hope the plan, now that it is submitted to you, may be found equally to satisfy your Lordships. It now, my Lords, only remains for your Lordships to perform your duty, and to you I commit the measure which I have prepared. Upon your Lordships I now throw myself, 873 as the reformer, or rather the improver, of the Court of Chancery, and I call upon you, my Lords, to assist me in removing the blots which make that Court unsightly in the face of the whole community. My Lords, I entertain great respect for the Court of Chancery, knowing what it has in it of good; and therefore it is natural, that I should attempt to put away the abuses from it, to cleanse it from the weeds which have grown around it; but in sweeping away abuses, and in clearing away weeds, I wish to restore and retain all that was originally good, and was adapted to the circumstances of the times under which it was established, reforming only those parts of it which the altered state of the circumstances under which we live require to be reformed to adapt it to them; and by so reforming and purifying it, make it adequate and fit to perform that great duty it was originally and is now intended to perform. I have omitted, my Lords, till now, to defend myself against one charge. I may, for these propositions of Reform, be called an innovator, and an enemy to the institutions of the country. But, believe me, my Lords, he is no enemy to any institution, who, when he finds it covered with stains, and with the grossest abuses, the growth either of time or of neglect, endeavours to cleanse it from those disfigurements; he is no enemy of any person,—no enemy of any thing,— no enemy of any country,—no enemy of any institution—who, respectfully viewing that institution, and anxiously seeking out its merits, is not also blind to its defects, and who is only anxious to exalt its merits by purifying it from its imperfections. If you call that man, an enemy to his country who would struggle to prevent an hostile foot from tainting its shores—if you call that man an enemy to his country, who would die in the last ditch, rather than see the smallest of its rights sacrificed—if you call that man an enemy to his country, who would eradicate civil conspiracy and rebellion, by removing the food upon which they live; and who would thus root out from it all pretext for those seditions and conspiracies by which the peace of the country is endangered—then must you call that man an enemy to the institutions of his country, who, because these institutions, in the progress of time, have become clouded, and incrusted by accidental defects, not originally appertaining to them, but contrary to, and alien from, their nature, 874 would root out those defects, and purge away the rust, that has been formed by time, in order that the natural mineral may shew with a purerlustre and a brighter face;—then call that man an enemy who is the enemy only of its worst enemies, the seeds of abuse and of decay which are ripening within— enemies that are more perilous to it than are foul conspiracies, or domestic traitors —enemies that put its existence in greater jeopardy than do foreign invaders or implacable foes. My Lords, I am an enemy of this description—I am an innovator of this stamp—guilty to such a charge, I am most ready and proud to plead, and of it I shall never be ashamed. Be it as to Parliamentary Reform—be it as to the retrenchment of abuses in various departments of the Government—be it as to the remedying defects in the Administration of Justice, similar to those which I have attempted to describe; with respect to all or any of these things, the only hostility I have ever felt, I now feel, or ever can feel, to the institutions of my country, all my hostility is to their defects; and the only motive by which I am actuated is, the anxious and earnest wish to purify and amend them—if possible, my Lords, to make them perfect. My Lords, I have the honour to present to your Lordships the first of the three Bills I have mentioned, which I now move be read a first time.
§ Lord Lyndhurstsaid, that in most of the statements of his noble friend he concurred; but he wished to ask him when he intended to bring in the other Bills, and at. what period he meant to forward them?
The Lord Chancellorwas understood to say, that the two other Bills would be laid on their Lordships' Table on Friday, and that on Monday he should be prepared to say what course he meant to pursue.
§ Bill read a first time.