Lords Sitting of 25 February 1831

MINUTES.
Bills. The Canada Lands Bill, and the Poor-Rates Returns Bill, were read a second time.
Petitions presented. For Parliamentary Reform, by Earl GOWER, from the Staffordshire Potteries, signed by 68,000 persons:— By Earl GRET, from Bristol, Berwick-on-Tweed, Bilstone, Belfast, Devonport, Waterford, Thorne, Winchester, and Waterford:— By the Marquis of LANSDOWN, from Lymington and Ayr: —By the LORD CHANCELLOR from Leeds, signed by 17,000 and odd names:—By Earl SPENCER, from a number of Merchants and other persons resident in London; and from several Parishes, for a Repeal of the Assessed Taxes, and for Retrenchment. By Carl DUDLEY, from Wolverhampton, against the Truck System. For the Repeal of the Duty on Coals, by the Duke of NORFOLK, from Shoreham. Against Slavery, by the Bishop of WINCHES-
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TER, several Petitions:—By the Marquis of LANSDOWN, from Banff Falkirk and Elgin. For the Reduction of Taxation, by Lord WHARNCLIFFE, from Liversedge, and other places in Yorkshire. By Karl GREY, from the Shepherds of Tweedale, against the Tax on Shepherd's Dogs; and from placed in Ireland, complaining of Distress, and imploring Relief. By the Karl of WINCHILSEA, from Southampton, for an Act to enable individuals to endow Churches. For the Repeal of the Union, by the Marquis of LANSDOWN, from Stradbally; and from Wareham, and other places, against Idolatrous practices in India.

PARLIAMENTARY REFORM.
Earl Dudleypresented a Petition from Worcestershire, in favour of Parliamentary Reform, signed by a great majority of the inhabitants. He acknowledged that he did not concur in the prayer of the petitioners, being very well content with the old system; but if any change were to be made, he thought that the admission of Birmingham and other large towns to the benefits of the elective franchise would be the best.

PROCEEDINGS OF THE HOUSE.
Lord Kingrose for the purpose of presenting several Petitions to their Lordships, but
The Lord Chancellorstated, that if the noble Lord was merely about to present petitions, without making any observations on them, their Lordships would, of course, immediately receive them; but if they related to matters of Church and State— such as those on which the noble Lord had recently been in the habit of addressing the House, and which the noble Lord would do well to broach in some other manner, as he (the Lord Chancellor) had to address their Lordships on a subject of importance, and as his address would be bounded within some limits—the noble Lord would perhaps allow him precedence.
Lord Kingsaid, that one of his petitions related to a peculiar grievance, and was a subject new to the House; but he would with pleasure give way to the noble and learned Lord.

REFORM IN CHANCERY.
The Lord Chancellorrose to present the second of the Bills which he had mentioned to their Lordships on Tuesday last, in a speech of great length. He owed too much gratitude to their Lordships for the attention with which they had listened to him on that occasion, to trespass upon them for more than a few moments at present; but he wished to make one observation respecting the Acts relating to Bankrupts. His opinion was, that the adjudication of bankruptcy was not on the best footing.

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As the law now stood, any man who had a debt of 100 l., or any two men who had debts, which together amounted to that sum or more, had nothing to do but to sign an affidavit, and give a bond for the costs, in the absence of the party against whom the process was directed, in order to have any individual declared a bankrupt. They had but to allege that he had committed an act of bankruptcy, by being denied to creditors when at home, or by lying in prison for a certain time, and the docket, as it was called, was at once struck against him, though he might be a most, respectable, nay, solvent man, and though he neither knew what was going on, nor had any opportunity of defending himself. The consequence often was, that when the bankruptcy was contested, and the parties had to go into a Court of Law to support the commission, it was found that great injustice had been committed, and the assignees, who had not the power of bringing forward any other acts of bankruptcy, were seldom able to make good the original. The subject was, however, one of great difficulty; and the remedy which had been suggested was in shape of a motion for a rule?nisi, with power to shew cause against it, but which carried certain objections with it of great force. The best course was, to deal with caution, and, if the Legislature agreed to his proposition of reforming the tribunal, an opportunity would be given, by the working of the new system, for the finding of a remedy for so great an evil. The course he would suggest would be, that their Lordships should not take this matter under consideration until the new judicature was, as he hoped to see it, in actual and successful operation, and he had no doubt that the experience of the learned and skilful persons to whom the Courts wore to be confided would guide them to a sufficient remedy He was happy to add, that during the last two days he had understood that his proposition had the entire concurrence of those who were most competent to pronounce an opinion upon it. The noble Lord concluded by moving, that the Bill be read a first time.
Lord Lyndhurst Lord Lyndhurst, after complimenting the noble and learned Lord on the able speech with which he had introduced his measures, and observing, that time for consideration must necessarily be given before any noble Lord could form correct opinions respecting those measures, wished to state at once in what points he agreed
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with the noble and learned Lord, and in what points he wished to reserve his opinion until he had an opportunity fully to consider all the details of his noble and learned friend's measures. He was sure their Lordships had had too much experience of him to fear that he would occupy any considerable portion of their time. He repeated, that he did not mean to argue the question, but only to advert to those points in which he concurred with the noble and learned Lord, and those on which he must remain in doubt until the details were before the House. With respect, to the first measure, the Bill which stood for commitment that day, he entirely agreed with the principle of the measure, as introduced by the noble and learned Lord. Of the details, of course he could not be aware; but there would be ample time to consider them hereafter. Soon after he (Lord Lyndhurst) had the honour of holding the situation which the noble and learned Lord now held, he had commenced several amendments, with respect to the superintendence of the Committees of Lunatics, which he was glad the noble and learned Lord had adopted. With respect to the second provision of the Bill previously introduced, he thought the noble and learned Lord had acted wisely and discreetly in retaining the Commissions. It was frequently necessary that inquiries should be made in the neighbourhood of lunatics, to which inquiries those Commissions were the most competent. It sometimes happened, however, that cases of great difficulty occurred: and while he had the honour to hold the Great Seal, there were three or four of such cases. The noble and learned Lord had adverted to that of Lord Portsmouth, and there had been also the cases of Davis, Brand, and others. For the purpose of preserving the order and sobriety and decorum of the proceedings in those cases, an authority higher than that of the Commissioners seemed requisite. He had, therefore, applied to the noble Lord, the Chief Justice of the Court of King's Bench, to ascertain whether it would not be practicable that one of the Judges should act in concert with the Commissioners; but difficulties manifested themselves in the execution of such a plan, which induced him to abandon it. Undoubtedly he had thought, that if a single Judge could be commissioned for that purpose, it would be very advantageous; but after the most careful search,

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not a single instance could be found of such a measure. It had been his intention, therefore, as the noble and learned Lord had said, to propose, that in any case in which, in the opinion of the Great Seal, a Judge ought to preside, power should be given to include him in the Commission. He was not acquainted with the details of his noble and learned friend's measure as to lunatics, but he approved of the principle, and recommended it to their Lordships' adoption. He would then pass to what his noble and learned friend meant to do with respect to the Court of Chancery. Although his noble and learned friend was quite justified in making the long statement which he made in opening his views to their Lordships, yet the outline of his measures was short. The first point to which he would advert, under that head, related to the mode of paying the Masters in Chancery. That system had occupied his attention, and he had endeavoured to alter it, with the assistance of the Master of the Rolls, but he was met at all points by the fees of the Masters; so that he found it impossible to effect his object, by his own authority; and he had therefore brought a bill into this House for the purpose. That bill was approved by their Lordships, and passed this House, but it was not so fortunate in the other House, where it was strongly opposed, and dropped. But he took no merit to himself for that, for it was merely carrying into effect one of the measures recommended in the Report of that very Commission which had been appointed to inquire into the Court of Chancery, and which Report had been so much abused, and so little perused or understood. Its object was, to remove a barrier which stood in the way of other improvements, and he was glad that his noble and learned friend had taken the same course; and he hoped that the measure now supported by his noble and learned friend in this House, and by his colleagues in the other House, would be attended with more success than the one to the same effect which he had proposed. Another improvement which his noble and learned friend had in view was, the transfer of the business of taxing costs from the Masters in Chancery to the Six Clerks. That was one of the improvements recommended by the Chancery Commission of 1826, and it was one, of which he thoroughly approved, and hoped that it would now be adopted by this and the other House. He had attempted in vain
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to carry it into execution, but he trusted it would at length be effected. There was another improvement under this branch of the subject which he cordially approved, and which he had anticipated—he meant the alterations to be made in the practice of the Registrar's Office of the Court of Chancery. He had considered that subject in conjunction with that able and excellent Judge, the Master of the Rolls, with a view, if possible, to get rid of the long recitals in decrees registered in the: Court of Chancery, forming an encumbrance of paper which had become one of the great nuisances of the Court. This he had it in contemplation to remedy, if possible, in order that by getting rid of this, as well as other evils, he might remove the odium under which the Court of Chancery laboured. But here again ho was met by the fees of the Registrar, and of the Copying Clerks, which depended on the length of the decrees. He had no right to deprive them of these fees by his own authority, and he was obliged to abandon the attempt to abate what, certainly, he as well as every one else, considered to be a nuisance. He then brought a bill for the purpose into that House, which was passed by their Lordships, but failed in the other House. That alteration too, was one of the recommendations of the Chancery Commissioners of 1826, and he hoped that his noble and learned friend would have more success than he had, and that the improvement would, at length, be carried which he had struggled, both as Lord Chancellor, and as a Peer of Parliament to effect, in vain. These were the points on which he cordially concurred with his noble and learned friend. He now came to those branches of his noble and learned friend's general plan as to which he had his doubts, and on which he forbore to give any opinion at present. But before proceeding to the country in the discharge of his duties, he felt it. due to his noble and learned friend, to their Lordships, to the public, and to himself, to state the points on which he had doubts, and the reasons for those doubts. The first of these points was the alteration of the mode of taking evidence in Courts of Equity. His noble and learned friend had put the alteration he proposed in this respect in a very captivating point of view in his opening speech; but he assured their Lordships that the matter was not without its

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difficulties. When he went to preside in the Court of Chancery, with all the prejudices of a Common-law lawyer, he thought that it would be easy to effect an improvement in this respect. But on looking at the matter more narrowly, he found, or thought that he found, great difficulties on the subject; and he, with many others who had the same prejudices, began to doubt the policy or expediency of filtering the established mode of taking-evidence in Courts of Equity. Several of the Members of the Chancery Commission of 1826 had begun their labours with precisely the same view of the matter which he then entertained, and he might particularize the present Chief Justice of the Common Pleas, Mr. Justice Littledale, Doctor Lushington, and Mr. Smith. They thought at. first as he thought on this subject, and were desirous to substitute the Common-law method of taking evidence for the mode at present established in Courts of Equity. They attempted to bring: over the rest of the Commissioners to their views, and there was no point more anxiously and thoroughly sifted and discussed by the Commissioners than this; but the result was, an unanimous opinion that the present mode of taking evidence in Courts of Equity ought not to be deviated from. They saw the inconvenience and disadvantages attending that method of taking evidence, but they also saw, or thought they saw, that the inconveniences and disadvantages which would be the consequence of changing the method would be still greater, and, upon the whole, they thought it better that there should be no change: He did not mean to say positively that they were right in this view of the matter. He did not at present argue the case. But he stated this as one of the grounds of the doubt which existed in his mind, as to whether this part of his noble and learned friend's arrangement could be carried into effect with advantage. He did not state it as a reason for decided opposition, but is a reason for pausing and considering the matter further before he came to a decided conclusion on the subject. When he had first applied his mind to the consideration of the point, he had found great difficulties in it. No doubt there were some apparent absurdities in the mode of taking evidence in the Court of Chancery; but he could tell their Lordships, that the Judge who presided in the Court of Chan-
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cery had very seldom to decide a question upon a balance of evidence, without that evidence having been before sifted in a Court of Common-law. The cases occurred but rarely in which the Lord Chancellor had to form his judgment upon a balance of evidence; and when the cases did occur, the practice was to direct an issue to be tried in a Court of Law before, a Judge and Jury, who saw and heard the witnesses. It must, therefore, be very seldom that a mistake in point of fact could be committed in the Court of Chancery. The great advantage of viva voce testimony was, that the witness was seen and heard by the Judge and Jury but all this advantage would be, in a great measure, lost, when the evidence was taken before one Judge, and the cause was to be tried by another, and yet this would be the case when witnesses would be examined on his noble and learned friend's plan. Counsel and solicitors would, of course, in most cases, attend on each side to examine and cross-examine, and this would be attended with great expense and embarrassment to the parties. And then he would ask his noble and learned friend, whether his own experience had not taught him the very defective mode in which a case was brought before a Common-law Court by the report of the Nisi Prius Judge, although it was the best shape in which the evidence could be brought before the Court? For his own part, the report of the Judge, read on motions for a new trial, had often appeared to him little better than unintelligible jargon, until the case was explained by the observations of those who had been present at the trial; and yet this would be the situation of the Court of Chancery with respect to the evidence when taken on his noble and learned Friend's plan. Why did he say this? His reason was merely to show the grounds of the doubts which he at present entertained, whether it would not be better to leave the Court of Chancery to direct issues as at present, when the case depended on a balance of testimony, than to substitute a regular and exclusive tribunal for the trial of issues for the Court of Chancery. There was another consideration, connected with this part of the subject, well deserving of attention. One great object in Courts of Equity was, to prevent the evidence for the plaintiff being seen by the defendant until he had closed his own evidence in defence; and the purpose of this

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obviously was, to deprive the defendant of the means of making a fraudulent or fabricated defence. Courts of Equity were so strict in this respect, that before the Court would consent, on any ground, to enlarge publication, the person applying for that enlargement was compelled to swear, that he was unacquainted with the evidence taken on the other side. Now it would be quite impossible that this advantage could be preserved when the evidence should be taken on his noble and learned friend's plan. The investigation in most cases could not be concluded in a single day. There must be an adjournment, and the defendant would thus be aware of the evidence on the other side in time to enable him to set up a fabricated defence; and of this opportunity, if he was a dishonest man, which defendants unfortunately too often were, he would not fail to avail himself. This was an important part of his noble and learned friend's plan; and as he was not, at present, prepared to give it his full concurrence, he stated the difficulties attending it merely to show why he could not accede to that part of the plan until he had seen the details and had further considered the whole subject. He should be glad if, in the result, he could agree with his noble and learned friend; but if he should feel himself compelled to differ from him, he would state the grounds of dissent fairly and frankly, and without any party or personal considerations. These questions about the Court of Chancery had been too often mixed up with party and personal feelings and considerations. But away with such feelings and considerations in treating of these subjects, which were in reality no party matters. Such questions ought to be treated with the utmost frankness and candour, for all of them could only have one object in view—and that was, to put the Court upon the best footing as a tribunal for the administration of justice. Having said thus much on the subject of the mode of taking evidence, he would, with their Lordships' permission, say a few words on another important branch of his noble and learned friend's plan, and that was, the alteration in the machinery of the Bankruptcy tribunal, which it was hoped would have a bearing backward on the business in Chancery, and diminish the labour of the Judge who presided there. That branch of the subject might be divided into two parts. The administration in Bankruptcy was intrust-
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ed in London, and within forty miles round it, to seventy Commissioners, formed into fourteen Lists; and the administration in Bankruptcy in the country was intrusted to Commissioners occasionally appointed for the purpose. The noble and learned Lord, his predecessor on the Woolsack (Eldon), had given much the same character of the country Commissioners as his noble and learned friend now on the Woolsack had given of the Commissioners generally; and therefore it had been Lord Eldon's object to transfer Commissions of Bankruptcy as much as possible from the country to the London Commissioners. Almost all the abuses, indeed, that prevailed in the administration of this branch of law were confined to the country Commissions. This was a conviction which all his experience and observation in the Court of Chancery had confirmed; and he had, in the course of the last Session, stated the remedy which, in his opinion, ought to be applied—and that was, to follow up the plan recommended by Lord Rosslyn, by establishing permanent Commissions in the great towns in the country, in the same manner as in the metropolis. His noble and learned friend, as he understood him, meant to retain these Commissions, and to appoint Lists for places beyond forty miles from London; and he was glad that his noble and learned friend had so far concurred with him, and he thought that his noble and learned friend had therein acted wisely and prudently. A great deal had been said out of doors about the London Commissioners, who had been made the subject of much abuse. That some young and rather inexperienced men were appointed, and that some men retained these appointments after being far advanced in age, was certainly true. He knew and admitted it; but at the same time he must say, that the Commissioners generally, and as a body, were as able men, and as good lawyers, as any in the profession; and were, to say the least, in that respect fully on a footing with those who insulted and reviled them. He alluded to a petition presented a short time ago to that House, relative to the Commissioners, in which the grossest, and, he was convinced, the most unfounded charges were made against them. He would say nothing as to the meeting at which that petition was agreed to, because, according to the newspaper reports, he

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himself had been abused at that meeting. The duties of the Commissioners might be divided into two parts—the administrative or ministerial, and the judicial. As to the ministerial duties, there could not be a better tribunal for the performance of that part of the duties than that of the London Commissioners—at least that was his opinion. It was a tribunal, also, which readily adapted itself to any quantity of business. Sometimes, as was well known, there was a great deal of business in Bankruptcy, and at other times very little; but this tribunal adapted itself easily to all circumstances, be the business more or less. Then as to the judicial part of the duties, he was satisfied, that, on the whole, these had been well done—done with very great diligence, ability, and intelligence. In support of this he might refer to a very strong fact—the smallness of the number of appeals from the decisions of the London Commissioners. The appeals were very few in proportion to the business done; in these few appeals there were very few reversals. He had inquired into the proceedings of the third List during the three years and a half in which he held the 'Great Seal, and in all that time, out of l60 Commissions there was only one appeal, and even that appeal was dismissed with costs. It was merely by accident that he took this third list as the subject of inquiry, and not from any idea that the Commissioners composing it were superior to those in the other lists. This was a strong fact to show that the. Judicial duties were well performed. He knew the answer that had been given to this at the meeting to which he alluded. It was said that parties were deterred by the expense of appeals. He had never found, however, that in a suit in Chancery the parties were much deterred from litigation by considerations of the expense, and, in point of fact, they were not deterred for that reason in this instance, since there were abundance of appeals from the judgments of the country Commissioners. Still he did not mean positively to say, that the business might not be as well or better done in another way, and by another tribunal. He merely stated these things as a reason for reserving his opinion as to that part of his noble and learned friend's plan, till he had an opportunity of seeing the details, and of further considering the whole subject. He had now concluded the observations which he had to make on
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the propositions which had been submitted to their Lordships by his noble and learned friend. As to what might be called the financial part of the arrangement, he was not as yet sufficiently acquainted with it to be competent to make any observations upon it, and he believed that it would be necessary for their Lordships to call for several documents on that subject, before they could thoroughly understand it. There was one particular, however, on which he was desirous to make an observation. His noble and learned friend had stated, that the diminution which these arrangements would make in the income of the Lord Chancellor, was 7,000 l. a year. By his calculation, the diminution was only 2,500 l. The whole of the Lord Chancellor's emoluments amounted to between 14,000 l. and 15,000 l. a year— arising partly from fees in Chancery and in that House, and partly from his salary as a Judge, and his salary as Speaker of that House. Of this sum, 2,500 l. was paid to the Vice-chancellor, whose office was at first experimental, and Lord Eldon having given up 2,500 l. of his income as Chancellor, to provide an income for this experimental Judge, the whole extent of the loss to the Lord Chancellor by the proposed arrangement would not be more, as he calculated, than 5,000 l.; but then he retained, as he conceived, fees to half the amount from the Commissions, which reduced the loss to 2,500 l. Of course, this observation was founded on the supposition that his noble and learned friend meant to retain the Commissions, and only meant to intrust them to a new tribunal. Now, he had this observation to make, that as long as it was thought proper to place the Lord Chancellor at the head of the peerage, his income ought not to be less than 14,000 l. or 15,000 l. a-year, more particularly considering the precariousness of the office; and, in his opinion, the 2,500 l. which was paid to the Vice-chancellor ought to be resumed, and that sum ought to be made up to him out of the Suitors' Fund, which could very well afford it. He was decidedly of opinion, that by this, and other means, the emoluments of the Lord Chancellor might be made up to the full sum of 15,000 l. a-year. Then as to the increasing of the Lord Chancellor's retiring salary to 6,000 l., it was to be considered, that there might be three or four retired Chancellors in existence, and then he was afraid, that the

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other House would hardly agree to allow the 6,000 l. to so many retired Chancellors, although means might be found to make up that sum, by appointing retired Chancellors to some other proper situations—such as head of the Privy Council —and then a further allowance might be made in addition to the existing retired salary. At present, the retiring salary ceased on the Ex-chancellor's accepting another appointment. There might be some difficulty in forming a proper arrangement in this respect, but he did not think that it was impossible. He begged pardon for detaining their Lordships so long. He was glad, that so much was now likely to be done of that which he had attempted to do, though he had unfortunately failed, as he was anxious that there should be an end of the odium which had been attached to the constitution of the Court of Chancery. There were two points only as to which he felt considerable doubt—the change as to the Commissioners of Bankrupts, and in the model of taking evidence in the Courts of Equity; the latter certainly was a most important change, and one which deserved the gravest consideration. He knew, that the Master of the Rolls did not on that head agree in opinion with his noble and learned friend, but he hoped that at last they would be able to come to a just conclusion on the subject, and that the change, if change should be made, would be effected in such a way, that, in case it should prove a failure, they might easily retrace their steps. With this precaution, it might, perhaps, be worth while to try the effect of a new system. He had only been anxious to throw out these few suggestions before he left town on his official duties, and he thanked their Lordships for the attention with which they had heard him.
The Lord Chancellorsaid, that nothing could be more satisfactory to him than the observations and explanations of his noble and learned friend, and the very candid manner in which he had stated his approbation of those parts of the general plan in which he concurred, and the equally fair and candid manner in which he had stated and explained his doubts as to other parts, which he could not at present fully approve, but which he by no means pledged himself to oppose. It was satisfactory to hear his noble and learned friend state his views so candidly and fairly, distinguished as his noble and
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learned friend was, by varied learning and great experience; and he trusted, now that his noble and learned friend had mentioned the difficulties that pressed on his mind, that he should be able, as it would be his duty, to remove the difficulties, or so to vary and modify his measure, as to keep clear of them. He should be very glad if he could obtain the approbation of his noble and learned friend to his general plan, and any suggestions from him would be listened to with the most earnest and respectful attention. It might be thought sufficient to have said this much respecting his noble and learned friend's observations and explanations, since he had not pledged himself to oppose even those parts of the plan as to which he at present felt doubts; but he was anxious to say a few words respecting the grounds and reasons of his noble and learned friend's doubts, as otherwise, an injurious impression might go abroad, as to the propriety and advantage of some of the most important parts of the measure. It was true, as his noble and learned Friend had observed, that the subject ought to be treated openly, frankly, and candidly, and without personal or party feelings, and both his noble and learned friend and himself had, he was convinced, only one common object; and, with that impression on his mind, he would shortly advert to one or two of the difficulties which pressed on his noble and learned Friend's mind. The first of these three Bills—that which related to Lunatics— was more his noble and learned friend's measure than his, especially the second branch of it, and therefore he was not surprised that his noble friend should approve of that being carried forward to a successful conclusion. As to the mode of paying the Masters, he really was not aware that this had been part of the bill which had gone down last Session to the other House, and had dropped, owing to the demise of the Crown, and which certainly he had opposed and retarded [Lord Lynd-hurst "It was a separate bill."]—Why, then, if it was, he had certainly not opposed that bill; for he was not aware of its existence. What he had opposed, and that vehemently, but still most conscientiously—was that bill, by which it was proposed to appoint an additional and new Judge in Equity. He was not aware of the bill for altering the mode of paying the Masters, which coincided with the

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view which he himself entertained on that subject, and he had no doubt but that his noble and learned friend would concur in a measure, which, it appeared, he had himself anticipated. As to the report of the Chancery Commissioners of 1826, he quite agreed with his noble and learned friend, that few persons had perused it with much attention, and perhaps that might be hard of himself; for he really did not know that the Commissioners had recommended the payment of the Masters solely by salaries. But still, the fact was, that, he had perused the whole of that Report from beginniner to end; and what he thought he found there was, not a recommendation to pay the Masters by salaries only, but a recommendation to pay them partly by fees and partly by salaries—the very worst of all possible ways, for it united the disadvantages of both modes of payment. If the Master should be indolent, and the salary was 2,000 l. or 2,500 l. then he might say, "I am sure of this, and can live very easily on my salary, and need not trouble myself much with business." If he was avaricious, the salary would be no check on his disposition to create delay and expense in the suits, in order to multiply his foes. There would be no check on avarice, but indolence; so that this mixed mode of payment was the very worst plan that could be devised. His plan was, to pay the principal officers by salaries only, and the inferior officers by fees—not upon the intermediate steps of procedure, but on the causes being concluded—so as to obviate all temptation to create delay and expense, in order to multiply the fees. Then, as to the mode of taking evidence, neither the party nor the Judge, as the system at present existed, saw the witnesses. It might, perhaps, be difficult to substitute another made; but he was far from thinking it impossible; and he certainly did think, that it would be a great improvement to have the issues tried in the Master's Office, instead of sending them to a Court of Common Law, leaving it to the Lord Chancellor to decide on questions of law, and on new trials, after the facts had been ascertained by trial in the Master's Office. As to the difficulties of this mode of taking evidence, they had the experience of proceedings of a similar kind in Scotland, to guide them. The Scotch, about four or live hundred years ago, had been in the civil law stage, that in which the Court of Chancery and Doctors' Commons now are
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in this country; that was followed by the second stage, in which examinations were taken by Commissioners, but in the presence of the parties and their counsel and agents, if they chose to attend and question the witnesses; and of late, the Scotch had got beyond that, and had reached the third stage, in which the issues of fact were tried before a Judge and Jury. It was not surprising that Dr. Lushington should have had a partiality to the first stage, which was that of his own Court, the Doctors of Civil Law being, as was well known, very much attached to their own ways; neither was he surprised that his learned friend had not made a very vigorous defence of the principle of viva voce examination, with a partiality to which, he was said to have begun the investigation. According to his (the Lord Chancellor's) plan of proceeding gradually, he proposed by his Bill to take one step, from the first stage to the second, in the hope that this would enable him to make a safe advance to the third stage. The Chancery Commissioners, mentioned by his noble and learned friend, might have concurred, for anything he knew, in the expediency of retaining the existing mode of taking evidence; but if so, some of them must have altered their opinions since 1826. Before he had submitted his plan to their Lordships, he had laid it before many gentlemen of the profession, some of them having been themselves Commissioners in 1826, and left them to discuss it among themselves, he not being present. He had absented himself, as the freedom of urging and discussing objections might otherwise have been restrained by delicacy, and they had approved of his plan; so that if the Chancery Commissioners of 1826 were unanimous in approving the continuance of the present system of taking evidence, they had since taken a much sounder view of the subject. As to the Commissions of Bankruptcy, it was notorious, that in the country the attorneys made jobs of them, and yet it was equally notorious, that in many places, some of the greatest men and the ablest lawyers—Mr. Serjeant Cross, Mr. Losh, Mr. Evans, afterwards Recorder of Bombay, and some others whom he might mention—had acted in these Commissions. It was but fitting, that a word should be put in for the country Commissions, when they had been so severely attacked. But his general objections did not apply to the Commissioners either in town or country,

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but to the system. He differed from his noble and learned friend as to Lord Eldon's observations on the subject, and could not suppose that these observations were con-fined solely to the country Commissions. He admitted that many of the London Commissioners were able men and excellent lawyers; but, at the same time, it was perfectly well-known, that some of them fell into the grossest blunders. For instance, it appeared in actions at law, that those composing one of the lists, had found a man a bankrupt on an act of bankruptcy supposed to have been committed by the son, and an act which, after all, was not an act of bankruptcy. The Commission was, of course, superseded, and the aggrieved party recovered damages against the Commissioners. But in these cases the proof was often difficult; and in the case mentioned, although it was proved, the unfortunate sufferer got only trifling damages for what to him was, perhaps, total ruin; and this blunder was committed by the celebrated fourteenth list. The great objections, however, to these Commissioners were the irnumbers—their sitting-all together—their practising before each other—and their being constantly called off from the exercise of their duties as Judges, to appear as barristers in the defence of their clients; for it should be understood, that the public did not purchase the whole, but merely a small part, of their time; by the salary paid to them as Commissioners. Against these, and not the men, were his objections directed, for he repeated what he said on the former evening, that it was impossible for any sets of Commissioners, under such circumstances, to give satisfaction. Passing to the other part of his noble friend's observations, he must say, that he thought the plan of taking viva voce evidence, instead of interrogatories, would tend much to get rid of all that chicanery which had been long in the Court of Chancery a subject of just complaint and animadversion. With respect to the country Commissions, he must say, he thought the plan proposed would be a great improvement, and that the suitors in bankruptcy would be much benefited by the appeal, which would at once lie from the assignee in the country to one of the Judges of the new Bankruptcy Court in town. It would also much relieve the Court of Chancery itself, by freeing it from a troublesome and tedious class of business. His noble friend had adverted to the probable loss which the holder of
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the Great Seal would experience by these reductions and alterations, and he had denied, that it would amount to more than 2,500 l. a year, while he (Lord Brougham) estimated it at 7,000 l. Unquestionably, he had not been in office long enough to know much of its receipts, and if the Civil List Bill did not pass, it was not likely that he should receive any salary at all. His noble friend, too, who was probably the Chancellor in reversion, while he was the Chancellor in possession, might form a somewhat different estimate of these things; but this he would say, that it never could be intended, nor would Parliament, he was sure, allow it to be, that the Lord Chancellor of England should receive a smaller salary than a Puisne Judge. In conclusion, the noble and learned Lord paid a high compliment to his noble and learned predecessor (Lord Lyndhurst) to whom he was indebted for the suggestion of many valuable alterations, and for the maturing of others, particularly the ground-work of the valuable improvements in the administration of the important branch of lunacy. His Lordship also, in conclusion, complimented the Lunacy Commissioners, to whose exertions the country was indebted for many valuable alterations in the management of Asylums.
Bill read a first time.