Lord Ellenborough, in rising to move the adjournment of the House, would take the opportunity of asking the noble and learned Lord on the woolsack for some explanation with respect to the very unusual state of the judicial business which was waiting for their Lordships' decision. He believed, that it had been the almost invariable custom to proceed with appeals as soon as Parliament had assembled; forty days, however, had now elapsed, and nothing had, in that respect, been done. The number of appeals at present amounted to 140, a larger arrear than had occurred in any year since 1830. Under these circumstances, he hoped that some satisfactory explanation would be given of this very unusual and very uncommon delay in the judicial business, which was, in his opinion, as improper as it was unusual.
The Lord Chancellorsaid, he was exceedingly obliged to the noble Baron for giving him an opportunity of offering to their Lordships an explanation on the point to which the noble Baron had referred. The noble Baron had stated, that no appeals had been heard in the present Session, and that the usual course of that House had been not to let so late a period pass by without attending to that branch of business. Perhaps the noble Baron would pardon him, when he said, that this circumstance did not arise from any want of a disposition on his part, to apply himself to the performance of that particular duty; and, he believed that, after he had explained, the noble Baron would himself admit, that he had not been idle during those forty days to which the noble Baron had referred. He believed, that such would prove to be the fact, if the noble Baron inquired into the subject, provided he made his inquiry in a quarter where any knowledge whatever on this point was to be found, and where those who possessed that knowledge were willing to impart it plainly and fairly. Such, he was certain, would be the result, if application were made in any office where such knowledge existed, and where also a disposition was entertained to tell the noble Baron the truth. He was here supposing, that the parties applied to had both the will and the power to do that which was just and proper, and if they had, then the noble Lord would find, from their statement, that during the whole of those forty days, excepting Sundays, he had been employed, he would boldly venture to say, for a greater number of hours than any one of his predecessors, during a similar period, in the administration of justice, be that predecessor who he might. On that point he challenged comparison, and he demanded inquiry. During those forty days he persisted in getting through most important business in the Court of Chancery, and it was a melancholy, an undeniable truth, that he could not be in two places at once. He had sat in the Court of Chancery, during those forty days, seven, and sometimes (not unfrequently either) eight, hours a-day. He never had sat during that time for so little a space as six hours, except upon two days, when he attended upon his Majesty, and one of those days was, when the Recorder's Report was presented. He never threw away time. He never absented himself from 259 his court, except when it was absolutely necessary. Even on her Majesty's birthday he did not make an exception. On that occasion he might, following the example of some of his predecessors, who did not open the court at all on that day, have suspended the performance of his duties. He did no such thing, but sat in the Court of Chancery on that day from ten till two o'clock. With that exception, he had, on every one of those forty days (Sundays excluded), sat never less than six hours, and he had sat sometimes eight hours, and he was never in court one minute later than ten o'clock. On the score, therefore, of a proper and industrious attention to his duties, his conscience entirely acquitted him. He would not trouble their Lordships by recapitulating what he afterwards had to do at night; but, if the noble Baron would move (and he would gladly second the Motion) for a return of the number of cases which he had disposed of in the time mentioned, and for an account of the number of cases in arrear, and now standing over for judgment, then it would be made apparent that his time had not been idly or unprofitably spent. He believed, if such a return were produced, it would be found, that with one exception, all the cases now standing for judgment were those which had been heard during the last week. If the noble Baron would extend his inquiry over the whole period of his holding the seals, and ask for the number of cases which he had tried, and the number of motions which he had despatched in that time, he should feel greatly obliged to him; for he had heard, with much astonishment, that it had been said, that, since he was in office, he had only decided thirty-two cases, while the Vice-Chancellor had got through 900, and the Master of the Rolls had adjudicated in he knew not how many instances. But those who made such charges ought, in the first instance, to apply to persons who knew something of the subject, and who, moreover, were willing to tell, without exaggeration, what they knew. Those who put forward such statements derived their information either from ignorant persons, or from those who were wilfully practising on their credulity. Much was said about the small number of original cases decided in the Court of Chancery; but those who indulged in such observations forgot the number of appeals decided in that Court. Since the 260 establishment of the Vice-Chancellor's Court, in 1813, the Court of Chancery had become, in a great measure, a Court of Appeal from other jurisdictions. He was astonished, considering all the circumstances, when it was stated, that he had decided thirty-two cases. If he had been asked the question, he should have been inclined to think that he had not decided half-a-dozen of cases. For there was not a lad who had been six months in a Chancery barrister's office who did not know that the Court of Chancery had become, a Court of Appeals, of re-hearings, and of motions. From the time that Lord Eldon brought in his Bill, he repeated, the Court of Chancery had become a Court of Appeal, of re-hearings, and of motions, and not of original causes. But was the deciding upon appeals nothing? Did their Lordships do any thing else but decide appeals; and was it not just as rational to reproach their Lordships as to reproach him with not hearing original causes? But their Lordships, he must remark too, were enabled, by receiving judicial assistance from various quarters, to go through a considerable number of appeals; but the Court of Chancery had no such resource; and the business of Chancery stood stock still immediately the head of the Court left it, either to hear appeals in that House, or to attend to any other business. It was therefore the bounden duty of whoever held the Great Seal to take care, in the first instance, that the business of the Court of Chancery was not suffered to stand still,—which, after all, was the great point. If he wanted any authority in support of that proposition, he thought the most unquestionable authority would be the advice solemnly tendered in that place by the noble Earl who had so long presided in the Court of Chancery. That noble Earl had emphatically said to his (Lord Brougham's) predecessor, that so long as he was Chancellor, he should, above all things, never forget that the place, more than any other, in which he should be found, t was the Court of Chancery. With respect to his duties in that House, he must say, that other noble Lords had received assistance which had been denied to him. He had the help of a noble and learned Lord (Lord Wynford) which was the more valuable, because it was, on all occasions, tendered to him with the greatest possible kindness and good-will. The assistance of that noble and learned Lord was indeed 261 invaluable to any individual who was called upon to pronounce judicial decisions in that House. But, with that exception, he certainly had not received the same assistance of which his predecessors had availed themselves. He recollected when, for nearly half-a-year, the late Chief Baron (Baron Alexander) had sat in that House for the then Chancellor, because his presence was not required in the Court of Exchequer. That, however, no longer was the case; for his noble and learned friend, the present Chief Baron, had stated, that the business of the Court of Exchequer had so greatly increased as to equal that of the Court of King's Bench. That was the fact; and the consequence was, that the business of the Court demanded the undivided attention of the noble and learned Lord. It was all very well to receive assistance from the Court of Exchequer when the Judges of that Court only sat down to get up again, like a covey of partridges in the field, as was the saying in Westminster Hall; but the case was now altered; the business of that Court had been very much extended; and the consequence was, that he could derive no assistance from that source. Again, he remembered that the Master of the Rolls formerly sat in that House for a great part of the Session as Deputy Speaker, and gave his utmost attention to their Lordships' judicial proceedings. That assistance he was deprived of, because the Master of the Rolls no longer confined himself to evening sittings. For the despatch of business in his own Court, that learned individual now sat in the morning, so that he could receive no assistance from him. During one Session, he recollected that Lord Redesdale and Lord Gifford had assisted in deciding appeals in that House; and certainly a great mass of judicial business had been gone through in that Session. At that time the Lord Chancellor was enabled to avail himself of great and powerful assistance, which was not accessible to him, and he had stated very plainly how and why. But, let it not be supposed that, though he was more unfavourably situated than his predecessors, he would ever relax in those attempts which he had made, and which he would still endeavour to make, for the purpose of keeping down the judicial business in that House. He would, with their Lordships' assistance, continue to persevere; and, perhaps, he might be 262 permitted to say, that, notwithstanding the disadvantages that were opposed to him, he had, since he took the Great Seal, gone through a very large mass of judicial business in that House. Not certainly in any one year so great a portion of business as had been gone through in the year to which he had already alluded, when Lord Gifford sat as deputy to Lord Eldon; but still, leaving that great year out of the calculation, he would fearlessly state, that in the first year in which he had occupied the woolsack, he had transacted very nearly as much business. There might not have been heard quite the same number of cases, but still, he believed, there was very little difference. He mentioned this as an extraordinary circumstance, because, in the year to which he had alluded, Lord Gifford sat day after day. He was at that time Master of the Rolls; and, as he only sat in the evening, he had nothing else to do in the forepart of the day. In the first year of his holding office, he had heard, in the Court of Chancery, double the number of causes that had been heard in any one preceding year. On that point he challenged investigation. Let the papers be produced, and it would be found, that, of appeals and rehearings, he had disposed of upwards of 100 in that year. In the same year he had decided in that House, without any assistance, except upon two days, when his noble and learned friend sat in his place, a greater portion of business than was ever heard in their Lordships' House, with the exception of that particular year when Lord Gifford gave himself up almost exclusively to the appeals, which were argued before their Lordships. He must say, therefore, that there was no man against whom less cause of complaint existed, with respect to the attentive and sedulous discharge of his duties, than the individual who then addressed their Lordships. With respect to this lapse of forty days, to which the noble Baron had alluded, he must observe, that it would have been attended with the greatest possible inconvenience to the Court of Chancery, not only to those who practised there, but to the suitors before their Lordships' House, if their Lordships had at once gone on hearing causes, instead of postponing those hearings for a short time. He thought he could, in five minutes, prove to any noble Lord, that in proceeding as he had done, he had taken the wiser and the better course. There 263 were two branches of judicial business—the one consisted of Scotch appeals, which were generally very intricate; the other consisted of English and Irish appeals. With respect to Scotch appeals, the case stood exactly thus:—He had heard so many Scotch appeals in the last Session, in the Session before, and in the first Session that he held the Great Seal, as rendered it necessary to stop at the end of the Session of 1833. They were getting on too fast with the Appeal-list, and the parties, in many instances, were not ready. Such was the fact. He offered to sit for three or four days, to proceed with these appeals; but the parties were not ready. They were not aware that such great progress had been made; they were, in truth, overtaken, and the consequence was, that, when called on, the parties were not prepared to proceed. Now, it was a question with many judges, whether it was expedient to press so closely upon the Appeal-list; and he would state on what foundation that doubt rested. When a party had lost, his cause in court, he frequently worked himself up into the belief, that that cause was nevertheless a good one; his advocate, of course, would contend that the argument which he had adduced was irresistible, and, in that frame of mind, the first thing that struck the defeated party was to lodge an appeal. The advocate said, "My argument was perfectly right; therefore, I advise you to appeal at once." The client responded, "I am sure what you assert is the fact; and my idea is, that we ought to appeal." Whereon an appeal was rashly proceeded with, and considerable expense was incurred. But it did not follow, that after six or eight months were given to the client to reflect—it did not follow that, after a considerable time was allowed to the counsel to reconsider his opinion, and to consult men learned in the profession on the subject—it did not follow, under these circumstances, that the party would persist in going forward; and, indeed, nothing was more common than for a certain number of appeals to be dropped after a given time. But, if the Court of Appeal pressed forward before the parties had time to cool and come to their senses on the subject, those appeals, that otherwise might have come to nothing, would he forced on, to the great delay of other business, to the great inconvenience of the Court, and to the great expense of par- 264 ties, who, if you had not gone on so quick, would not have proceeded further than to lodge an appeal. Therefore, he had purposely abstained from proceeding with the Scotch appeals. Instead of going out of town for a few days, as he had done in the last recess, if he had remained, he could have easily disposed of all those Scotch appeals which he had purposely abstained from taking, and left, with respect to them, no arrear at all; but, for the reason which he had stated, he deemed it advisable not to press them forward. On the 4th of February, the Parliament met, which was not an immaterial circumstance with respect to the hearing of English and Irish appeals. That was out of term, which concluded on the 25th of January. Out of term, the Chancellor and Vice-Chancellor sat in Lincoln's-inn, and the Master of the Rolls in Chancery-lane. These courts absorbed all the Chancery practitioners, to whom the suitors in English and Irish appeals necessarily resorted for assistance. It was physically impossible, with respect, at least, to the leaders in the causes, that their assistance could be obtained in appeal cases at Westminster, when their duties detained them in distant courts. What, then, was the necessary result of the course which had been adopted? Why, it was manifest, that it was a most convenient arrangement, not only for the Bar, but for the suitors, that the latter should have the benefit of the talents and experience of those professional men, whose services they would otherwise be deprived of. It was evidently an advantage that he should go on sitting at Lincoln's-inn without losing one single minute of those forty and odd days, and thus keeping down the Chancery arrear, if such it could be called, for he believed he could dispose of all the causes in a week, and it should be observed, that those which constituted the apparent arrear were the growth of only the last fortnight. He contended, that with respect to the Scotch appeals he had acted wisely in stopping, and not proceeding in too rapid a course. With respect to the English and Irish appeals, he thought it would be much better for the suitors, that some little delay should take place, rather than they should be deprived of the assistance of able men. On the 15th of April next, all the branches of Chancery would be open, and transacting business under the same roof, that of 265 Westminster-hall, and the suitors could then avail themselves of the talents of those eminent professional men, of which they would otherwise be deprived. Was not this, he would ask, a fair way of looking at the subject? Was not this the course which the convenience of the suitor made it paramount for him to adopt? He was very sure, that more would ultimately be done by applying themselves, for a certain number of consecutive days, to the hearing of appeals, than if they spread their sittings over several weeks. Suppose they sat one day or two in the course of a week to hear appeals, and continued those sittings during six weeks, would any one believe, that they would get through the same extent of business, as if they took three days in each week in succession, or as if they sat for the entire number of days without intermission? If they sat de die in diem for those six days, they would, he was convinced, despatch, he would not say six times as much business, but he was perfectly sure, that they would get through at least twice as much, and at a far less expense than if their six days' sittings were scattered over six weeks. If he had been aware, that this subject would have been brought forward, he would have collected one or two other facts which would have placed the subject in a still clearer point of view. He should now say one word upon another subject. There were said to be many defects in the system of appeals in that House. One defect of the system especially was, that while the whole of their Lordships were supposed to sit to hear appeals in that House, they did in fact generally devolve the duty on those of their number who happened to be professional men. The consequence of this was, that he, who was the Judge in the Court of Chancery, sat in this House afterwards, and heard the appeal from his own judgment. This was highly inconvenient—it was keeping the word of promise to the ear, but breaking it to the judgment; for the appeal was in reality a re-hearing before the same Judge who had decided in the Court below. To avoid this as much as possible, the noble and learned Earl, who had held the Great Seal for so many years had constantly had recourse to the assistance of a noble Lord who had been Lord Chancellor of Ireland (Lord Redesdale) a Judge scarcely inferior to himself in the extent of his learn- 266 ing. In the same manner, he now desired to have the assistance of an Equity Judge. He had had that assistance from his noble and learned friend, (Lord Plunkett) while that noble and learned Lord was in England during the preceding Session; and accordingly, when his noble and learned friend had been here, he had betaken himself to hear English and Irish appeals. It so happened, however, that this year he could not possibly have the assistance of that noble and learned Lord. The instant he had it; and if he had it not soon, he should nor longer delay, but should be obliged to undergo the task of sitting; but he believed, that their Lordships would rather think that he had good reason to wish to postpone the hearing of English and Irish appeals in Equity cases, till he could have the assistance of his noble and learned friend. He was aware, that he had the power to hear them, and to say, as some of his predecessors had done, "I see no reason to change the opinion I entertained in the Court of Chancery; and I affirm the decree with costs." He knew he had such a power; but there were two objections to it: the one was, that justice should be done in such a way, that the suitor ought to be satisfied with it; and the other was, that justice should be done in such wise that the suitor may be satisfied, if it be possible. Under these circumstances he had given notice, that he should not adjourn from the Court of Chancery. He had had a proper and most respectful, but still urgent representation made to him on the subject. He had said, that the vacation would be longer, and that it would be better to sit now than in the vacation; but their answer was, that the course of that Court had been to adjourn at this time; that men made their arrangements upon it; that their health required that there should be some remission of labour; and he felt the force of these arguments, and that he had no right to call on Gentlemen to exhaust themselves; and therefore he had said, that he would make arrangements to preclude the necessity of this sitting. The consequence of this would be, that the Court of Chancery would rise on Thursday before Good Friday, and not sit again till the Monday or Tuesday of the week after next. Their Lordships would adjourn over Good Friday, and sit the whole of the Easter week, a course which they pursued three years 267 ago. The consequence of this would be, that sitting during that time, and having an arrangement by which that sitting could be continued during the rest of that period, the whole of the time might be occupied up to the first day of Term. So that before Easter Term, there would have been a greater number of sittings, and a disposal of judicial business in that House, not to mention the Court of Chancery, than there ever had been at any one time before.
§ Lord Wynfordreferred to the Lord Chancellor's statement respecting the impropriety of pressing too closely upon the appeals, and observed, that on that point he totally dissented from the noble and learned Lord; for he believed, that the principle applicable to the cases of appeals was very different from that supposed by the noble and learned Lord. The great cause of appeals, the great object in view in making them, generally, was the delay that must take place before the judgment could be carried into execution. If that reason were taken away, and it would be taken away by pressing closely upon the list of appeals, there would not be so many of them brought; for the reason of bringing them—the advantage of delay—would then be at an end. He begged to confine his observations, however, to Scotch Appeals only. This remark, however, he would make with regard to the appellant jurisdiction, that however objectionable it might be for a Judge to review his own decision, suitors would go to that House unless they were actually prohibited. They might establish Courts of appellate jurisdiction in Westminster Hall; but so long as that House retained the power of ultimate decision, so long would suitors never be satisfied till they obtained that ultimate decision.
Lord Ellenboroughfelt it would be but just to himself, as well as the noble and learned Lord, to state the impression which the information which he had just conveyed had produced upon him. It struck him, that if the reason assigned by the noble and learned Lord for not hearing appeal cases up to the present period of the Session was a valid one, it must be considered an equally valid reason for his adopting a precisely similar course in all future Sessions. At all events, as far as the English and Irish Appeals were concerned the reason so assigned would hold good, for it was ob- 268 vious it would be quite as inconvenient for Counsel to attend English and Irish Appeals before Easter, in all future years, as it was stated by the noble and learned Lord to be in the present. Indeed, if the statement of the noble and learned Lord was to be admitted as a valid explanation of the circumstance, that no appeal case had as yet been heard, he thought that the English and Irish suitors should at once be informed, that in future years no English and Irish Appeals could be heard until after the 15th of April, as by that means they would be saved a great deal of unnecessary anxiety. With respect to Scotch appeals, the case, he apprehended, was nearly similar, and if so, he thought it should likewise be at once intimated to the Scotch solicitors, that in future the House would attend to no Scotch appeal until after Easter. He confessed he was so far satisfied by the noble and learned Lord's statement, as to admit, that it would he inconvenient to proceed with English and Irish appeals, while Counsel were engaged attending the Equity Courts in Lincoln's-inn-Fields; but at the same time he was bound to say he was not altogether so satisfied with the reasons which the noble and learned lord had assigned for not having hitherto heard Scotch appeals. The noble and learned Lord had commented upon the fact, that in some few appeals called on towards the end of the last Session, the solicitors were not prepared to proceed; but, considering the very unusual length of the last Session, he put it to the House to say whether that circumstance was so very surprising? But surely it was not to be fairly inferred, that because in the month of July or August last, owing to peculiar circumstances, those solicitors were unprepared to go on with their causes, they must have been unprepared in the month of February, when the present Session of Parliament commenced. He could, therefore, see no reason why those causes had not been heard by the noble and learned Lord at the usual and fitting period. Again, he confessed he could see no reason why the Scotch lawyers engaged in Scotch causes should not wish to enjoy the Easter recess, as well as their English brethren. The noble and learned Lord bad entered into a very lengthened statement relative to the quantity of business he had gone through since he first got possession of the Seals; but he (Lord 269 Ellenborough) was still at a loss to know what observation of his had called for that statement. He never inquired to the noble Lord, that he was an idle man; he never said, that the noble Lord had not been employed in the Court or Chancery during all the time which, in his opinion, ought to have been devoted to the hearing of appeal cases; be never meant to insinuate that the noble Lord had been indulging in relaxation while he ought to have been busy. The utmost he had done, and he would maintain he was perfectly justified in so doing, was to express an opinion, that as the noble Lord, was Speaker of their House they had a fair claim to some portion of his time; and, at the same time, to inquire the reason of his absence, that absence being a total deviation from the usual practice. He knew well, that the noble and learned Lord had been ever since the commencement of the present Session, daily employed in the Court of Chancery; and not only, dint he was employed hearing causes in Court throughout the day, but that he was often obliged to devote his nights in preparing his judgments. He did not in the least doubt the noble and learned Lord's assiduity; but he wished to know, and he would again say he had a right to desire the information, why their Lordships and the suitors of their Lordships' Court were not to derive the benefit of some portion, however small, of that assiduity.
The Lord Chancellorrepeated what he had before stated, that he did not take the noble Lord's interference in this matter in bad part. Indeed, he rather thanked the noble Lord for bringing the subject under their Lordships' notice. He complained not of the noble Lord's manner; there was nothing discourteous about it, inasmuch as he had not meant to insinuate, as he certainly had not openly stated, that he (the Lord Chancellor) was an idle man. But with respect to the Scotch appeals, the noble Baron seemed to have entirely forgotten his (the Lord Chancellor's) statement, when he said, that this was the first time of a Chancellor not sitting in the House of Lords before Easter. He (the Lord Chancellor) had already stated, that in one instance Lord Eldon did not sit judicially in that House once in the whole year, Lord Gifford having attended in his place; and that Lord Lyndhurst was absent for half a-year, during which 270 period Sir John Leach, and Chief Baron Alexander sat for the purpose of hearing appeals. He wished their Lordships to bear in mind, that at the time of the absence of the noble and learned Lords just mentioned, the arrears were pressing; and that, at the present moment there were actually no arrears of Scotch appeals. It was a fact, that at the end of last Session he was proceeding with appeals entered at the commencement of the same Session; he was hearing in July appeals entered on the January preceding; and he only stopped for the reason he had already explained. But he was perfectly willing that the Scotch appeals should be proceeded with; and he begged the Scotch suitors and solicitors to attend to what he was about to say. He was now warned, that there was a complaint, that the Scotch appeals were not heard. He would take care, then, that they should be heard, but the parties roust be ready when called upon, and must not quarrel with the Judge that heard them. His noble and learned friend (Lord Wynford), who had just quitted the House, being always prepared and willing to do his duty in that place, would be ready to hear them; and the Scotch suitors, who complained that the appeals were not heard before Easter, might be assured that they would henceforward be brought on. But he was not bound to have arrears in the Court of Chancery for their pleasure; and he would not. They must rest satisfied with such judicial assistance as his noble and learned friend, the late Chief Justice of the Common Pleas would give them, no doubt, with perfect alacrity; and he hoped they would, as he knew they ought to receive it with thankfulness. Here, then, was an end of that complaint. Was he to be told that he was bound to give up the business of the Court of Chancery for the purpose of hearing Scotch appeals? He denied that he was. It was enough for him, being importuned on the subject, to say, that the business should be done in his absence. This promise he now gave; the appeals should be heard; but he did not bind himself to hear them. Let the parties look to that. He knew it would be exceedingly convenient for some persons if he were to sit in that House hearing Scotch appeals, and allow the business of the Court of Chancery to get into arrear. Then the complaint would be, that the Court of Chancery was 271 neglected, for the purpose of despatching Scotch appeals in the House of Lords. This was not altogether an imaginary charge; it was one which had already been made against him. It had been said, that the Scotch business gave him no trouble; that he could hear Scotch appeals easily; but that it was much more laborious and difficult for him to dispose of English suits in the Court of Chancery; and that, therefore, he preferred sitting in the House of Lords to decide the Scotch appeals. He was determined, that that charge should not be brought against him again; and, though by taking the Scotch business himself, he might put an end to all complaints about arrears, raised in many instances by parties irritated because their own cases were not taken out of the proper turn, he still should not do so, either to gratify them or those other parties who wished for nothing better than an opportunity of attacking him, as formerly, for neglecting his duties in the Court of Chancery, and who hated nothing so much as the disagreeable fact—the non-existence of arrears.
Lord Ellenboroughsaid, that as the noble and learned Lord had thrown out an obscure intimation, somewhat in the nature of a menace, of the course to be adopted with respect to Scotch business, it would be very important that the parties interested in Scotch appeals should distinctly understand what the noble and learned Lord's intentions were. Did he mean to hear the Scotch appeals presented this year at the end of the Session, if it should be sufficiently prolonged, or before Easter in the next year?
The Lord Chancellorsaid, he should answer the noble Lord's inquiry shortly, plainly, and distinctly. He had said nothing about the end of the Session, but he intended to do exactly what his predecessors hail done before him, and what one of them had preached by way of advice, and practised by way of example—namely, to sit in the Court of Chancery, and not in the House of Lords, and to leave his noble and learned friend to hear appeals presented to their Lordships.
§ The Conversation was dropped.