Lords Sitting of 28 April 1836

MINUTES.
Bills. Read a first time:—Stafford Disfranchisement; Witnesses Indemnity.
Petitions presented. By several NOBLE LORDS, from various Places, for the Better Observance of the Sabbath.—By the Earl of BURLINGTON, from various Places, for the Alteration of the Factories' Act.—By Lord HOLLAND, from Mansfield and Hitchen, against the Punishment of Death for any Crime but Murder.—By the Earl of CLARE, from Bombay, for an Equalization and Reduction of the Duty on East India Produce.

CHANCERY REFORM.
Lord Chancellorthe following passage in the King's Speech was read:—
"The speedy and satisfactory administration of justice is the first and most sacred duty of a Sovereign; and I earnestly recommend you to consider whether better provision may not be made for this great purpose in some of the departments of the law, and more particularly in the Court of Chancery."
The Lord Chancellor: It becomes now my duty to call your Lordships' attention to this very important subject, for the purpose of carrying into effect the objects referred to in his Majesty's most gracious speech. In doing this I have to bespeak some portion of your Lordships' indulgence. Not that it is my intention to address you for a considerable length of time, but because this subject, however important, did not; in another place, attract the attention of a large portion of that House when I addressed the Members respecting it. It is not easy to make the Court of Chancery an attractive topic, and yet there cannot be a subject more important to the country at large. There cannot be one of more importance to each individual Member of this House. The Court of Chancery, by degrees, has become the Court in which the property of the greater part of the country is subjected to litigation, and ultimately disposed of. The changes in

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the nature of property, the complex processes resorted to to secure the better enjoyment of property, and a variety of other causes, have brought a large portion of the property of the country into that Court. It must continue to be so as long as the present laws exist, and it is more likely to increase. Property must be under the administration and control of the Court of Chancery. To provide then for the due administration of that Court— to improve and amend a Court where nearly all questions concerning the property of the country is decided upon— this, my Lords, is the subject which demands your Lordships' attention. I am satisfied, then, that you will bear with me, while I, as shortly as I can, enter into this case, show you what are the abuses that exist, and the evils that have grown up, and state to you what it is I propose in the present Bill, by which I hope to redress the evils that I point out, and the remedies that I suggest to meet those evils, and where there are inconveniences, how I mean to obviate those inconveniences. The business that is now transacted in the Court of Chancery can be ascertained by the returns laid upon your Lordships' table. I have had returns made from the earliest period I possibly could collect, of the quantity of business transacted in the Court of Chancery. It may appear to your Lordships that these returns go to an earlier period than is necessary, or than the case requires. I was anxious to have laid before your Lordships a history of the progress and increase of business in the Court of Chancery, from that period, particularly, which is considered the golden age of the Court—the period when Lord Hardwicke was Chancellor. I endeavoured to do so, because there is the most extraordinary misconception entertained by some persons, that the business of the Court of Chancery has not materially increased since the time of Lord Hardwicke. Why, that would be a most extraordinary fact indeed if it could be proved, that notwithstanding the increase of opulence and wealth in this country, that a Court which must vary in its business with the increase of property, the functions of which must be adapted to the exigencies of the time, and the state of society, that it should not be resorted to in a greater degree than at the time when Lord Hardwicke presided in that Court. This would be a most extraordinary fact if true, and it was with some
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surprise that, in referring to the debates of the House of Commons in 1813, when a proposal was made to appoint a Vice-Chancellor's Court, that I find so distinguished an individual—one, too, so likely to be correct, and so little likely to state any thing hastily, Sir Samuel Romilly— who said that he believed that the business of the Court of Chancery in the time of Lord Hardwicke was equal to what it is now. It was computed that the business now done in the court of Chancery, is not more than that done by Lord Hardwicke. If, then, such a man as Lord Hardwicke disposed of so many cases, and such difficulty is now found in disposing of the same number, we should see whether the evil is in the system, or in those who administer it. For those reasons I was anxious to have the means of ascertaining the fact one way or another—to know whether the inconveniences and delay in the Court of Chancery arise from the increase of business, or are to be attributed to other causes. For these reasons I have procured these returns; and I was anxious to procure them from the period of Lord Hardwicke. Unfortunately, it appears by the returns that there is no book, no such book or copy, to enable the officers of the Court to make a return such as I called for from the time of Lord Hardwicke in 1750. I can then only direct your Lordships' attention to an imperfect return, as some of the books are missing, so that I cannot state what is the number of cases and hearings at that period. I am, then, under the necessity of referring to returns from the earliest period that they appear complete. They appear to be complete from the year 1761; and now I have to state to your Lordships what I believe to be the accurate result, as it appears to me, from these returns. It appears that the average number of cases set down to be heard in the then two branches of the Court, before the Lord Chancellor and the Master of the Rolls, from 1761 to 1765, was 411. The annual average is 411. I compare this with what appears from the returns to be the annual average for the last five years, from 1831 to 1835. The number at the former periods is 411; the number from 1831 to 1835 is 1,283. The number of petitions for a period of ten years, from the year 1750 to the year 1760, was, on the average, 379; the number of petitions from 1831 to 1835, was, on the average, 2,813. I will now refer

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to one other branch of the business of the Court of Chancery, in order to see what was the pressure on the time of the Lord Chancellor occasioned by hearing appeals from the Master of the Rolls. The average number of appeals from the year 1761 to 1765, was twelve; and the average number from 1831 to 1835 was fifty-five. Now, most of those appeals are all matters which occupy a considerable time; those appeals can none of them be matters of course. Of others it may be said that many of them occupy scarcely any time, being matters of course, merely; but I think it unnecessary to separate those that may be considered as occupying no time— it appears to me immaterial to endeavour to separate them from the motions, the time consumed by which is great, inasmuch as what I propose to submit to your Lordships is a comparison between the two periods, and the two descriptions of motions probably bear the same proportion to each other in the one period as in the other. I have now, I hope—and I trust for ever—put an end to that imputation which has been cast upon the present course of business in the Court of Chancery, as compared with the course of business in that Court to the time of Lord Hardwicke. I have shown that there being now a greater pressure of business, a greater amount of assistance is required in that Court at present than was necessary in Lord Hardwicke's time. And here let me say, that no man is disposed to speak more highly than I am of the character of that eminent individual as a judge; no man feels more sensibly than I do that he is entitled to the highest rank for his administration of justice in the Court of Equity. Few, indeed, had a better opportunity of judging of his great merits than myself; for having from an early period been trusted by Lord Hardwicke with his manuscript notes made in his capacity of Lord Chancellor, I was enabled to watch and ascertain the diligence with which that great lawyer performed the heavy and important duties that devolved on him. Notwithstanding, then, that, as compared with the present time, it appears there was but a small portion of business committed to his consideration, yet what he did despatch is proved, by the documents to which I have referred, to have received his unremitting attention. I find from his manuscripts, not only that he took copious
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notes, and made innumerable private illustrations; but that, in many cases, he did that which I am satisfied affords the best security possible that a judge has properly attended to the case before him— his judgments were not delivered at the time the case was heard, nor were they delivered at a subsequent period upon what might be recollected of the circumstances, or upon what might be recalled to the mind by a casual reference to the case, but they were written by his own hand, and delivered by him from what he had so written. This mode, which was much practised by him, and which, in my opinion, must have tended materially to raise the great name that belongs to his memory, I consider it always adviseable, where practicable, for judges to pursue. I do not say that in every case a judge should write his judgment; but, when the matter is complicated, and requires a minute attention to the facts, there is no course a judge can adopt more likely to lead to right conclusions, than the habit of writing his judgments, and delivering them from the paper he has so written. In drawing a comparison, then, between the time of Lord Hardwicke, and the time of which I am now speaking, I cannot be supposed to detract in any way from the character of that highly-eminent judge. My object has been to rescue the Court of Chancery from the reproach of being unable now to perform the duties which were so much more easy to perform in the time of Lord Hardwicke. When we find the difference in the business which I have stated, your Lordships will not be much surprised to learn that the same machinery, that the same power, is not now able to carry into effect all that ought to be done in the Court of Chancery, though it was effectual for the accomplishment of all that was necessary in the year 1750. The other period to which I am anxious to call the attention of your Lordships is the year 1813, inasmuch as that was the period in which it was found indispensable to afford assistance to the Court of Chancery. There are, indeed, two other periods to which I wish to direct your Lordships' attention; and I shall now state the result of the return for those two periods, and the reasons why I selected them. The year 1813 I selected for the reason I have already given. I also selected the year 1823, because in that year there was a report made by a Committee of this House,

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to whom was referred the inquiry, what was the best course to be adopted for the purpose of despatching the business of the appeals then pending? With reference to the year 1813, I take the average of the causes set down for hearing in the years 1810,1811, and 1812, to ascertain by the average of those three years what was the state of the business at that time which created the necessity of appointing the Court of Vice-Chancery. I find that the average number of causes set down was 540. Then I take the average of the three years, 1823, 1824, and 1825. I take these three years—beginning with 1823—that they may fall in with the three years of the subsequent period—viz., 1833, 1834, and 1835. The average number of causes set down for hearing, during the three years of the former period was 945; the average number set down during; the last three years was 1,301. The averages stand thus, then:—541 for the first period; 945 for the second period; and 1,301 for the present time. Referring again to the same source of information, as regards petitions, I find the average number during the three years 1821, 1822, and 1823, to have been 1,487; and in 1833, 1834, and 1835, it was 2,817. The appeals to the Court of Chancery in the years 1810, 1811, and 1812, were on the average 16; in 1821, 1822, and 1823 they were 42; and in 1833, 1834, and 1835 they were 55. There is another most important branch of business, which has occupied so much time, which has interfered so much with the business of the Court as to have been the subject of great complaint—I mean the motions, with respect to which I have not thought it necessary to call for any returns, and for this reason—because, in the first place, the labour of ascertaining the number of the motions would be such that I thought to impose it would be to impose too severe a tax on the officers of the Court, whose time is the time of the public; and, secondly, because a large portion of the motions are mere motions of course, and they ought to be separated in such a return from the others; but some alteration having taken place in the practice of the Court by which motions of course are distinguished, the result would not be one to which much consequence could be attached, inasmuch as it would not appear what proportion of the mere motions of course had been taken into the calculation, or what proportion had been
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omitted. As my object is to bring under the consideration of the House the relative importance of the business, and as I have shown the time occupied by the causes, the petitions, and appeals, it cannot be doubted that the other most important part has increased at least in the same proportion as that to which I have alluded. The probability is that it has increased in a greater proportion, because experience has proved, that when there is a great number of causes depending there is a considerable increase in the number of motions. If a cause is heard and disposed of, whatever may become of it a new application can be made. But the mere fact of such a cause being in Court, not only gives the opportunity of applying by way of motion, but often creates the necessity for a motion. No doubt, therefore, the motions have increased in the same proportion with the other business. There is another branch, and I shall refer to it not only to show to what a degree the business of the Court of Chancery has increased, but to show to your Lordships how important that machinery is to which I am endeavouring to call your attention; I mean the state of the funds in the hands of the Accomptant-general. The return to which I am about to advert I have from the Accomptant-general's office. The money in his hands in the year 1812, the year before the Vice-Chancery Bill was passed, amounted to 28,137,000 l., and was standing to the account of 6,266 causes; the sum in the month of October last year was 39,780,000 l. standing to the account of 10,229 causes. Your Lordships will feel, therefore, that it is of no trifling importance that a Court having such a wide jurisdiction, such a control over immense masses of property, should be administered in a way to secure to the subject not only the due, but a prompt administration of justice. My Lords, it is my belief, great as is the business of the Court of Chancery, mighty as are the functions which it has to perform, and immense as is the property under its jurisdiction, that if it were possible—as I hope it will be—to remove the causes of the delay which occur in the administration of justice in that Court, it would be resorted to infinitely more than it has been. The public require the interposition of such a Court; but they make great sacrifices to keep out of it, because they well know that the pressure of business prevents it from

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performing its functions speedily. That, my Lords, I say is evidenced by the return to which I will now ask your Lordships' attention. Previous to the year 1813, there was a great pressure of business in the Court; there was considerable difficulty experienced in getting causes heard; and of course very serious impediments were thrown in the way of parties obtaining that which it was their object to obtain when they applied to it. In the appointment of the Vice-Chancery Court, however, the public had held out to them the prospect of a more speedy administration; and the consequence was, that there was almost immediately a rush of suitors to that court. Now there was nothing at that time to induce such an influx of business, except that, by the appointment of a new judge, there was presented the prospect to parties of obtaining a speedy decision upon their causes. That appears the necessary conclusion, from a comparison of the number of causes and the number of bills filed immediately before, with the number of causes and the number of bills filed immediately after the passing of the Bill for the establishment of the Vice-Chancery Court. During the three years before the passing of that Act, the average number of causes set down for hearing was 540; during the three years after the passing of the Act the average number of causes set down for hearing was 717. The average number of the causes set down for hearing during the five years before that period was 1,830; the average number during the five years after was 2,236. What the number is now I am not aware, but it greatly exceeds what I have stated. Now here is a sudden increase—we see the pressure of business taken off, and the probability presented of obtaining speedy justice, and suddenly there is the very great increase which I have described—when I say suddenly, I mean that there is an in-crease from 1,830 bills filed to 2,236. Having called your Lordships' attention to the proportion of the business found to exist in the Court of Chancery at these several periods, I will next advert to certain proceedings in this House, which are immediately connected with the present subject. I need not tell your Lordships that great difficulty has always been felt—in modern times at least—as to how the attention of the Lord Chancellor was to be divided between his duties in the Court of Chancery and his duties in this House. In the Court of
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Chancery he has, as your Lordships know' a most important duty to perform; your Lordships are also aware of the nature of the duties he has to perform here. There appears to have commenced, from the year 1813, owing to the great pressure of the business in this House and in the Court of Chancery, a sort of contest between the two jurisdictions as to which should have the services of the Lord Chancellor for the time being. Accordingly, in the year 1813 —whereas it had been the practice for the Lord Chancellor to sit each morning in the Court of Chancery, and to come to this House not long before the public business commenced, for the purpose of proceeding with the appeals—in 1813, it being found, that devoting so small a portion of the day to the hearing of appeals not only occasioned great expense to the parties, as it undoubtedly did, but also interfered with the due administration of justice, it was determined that the Lord Chancellor should sit in this House the whole of the days that were devoted to the hearing of appeals, and it was fixed, that on three days in the week the Lord Chancellor should so sit in this House. That arrangement greatly interfered with the business of the Court of Chancery in various ways. It interfered by taking him out of the Court of Chancery during the Session of Parliament for three days out of the six; it interfered also by breaking into the discussion. Almost all the cases which came before the Lord Chancellor are cases requiring a solemn inquiry, are complicated in their details, and give rise to more than one day's discussion. Now, nothing can be more inconvenient— and it is an inconvenience which exists at the present time—than for any regulation to exist, which makes it necessary for the judge in the Court of Chancery almost invariably to break off in the middle of the cause. It hardly ever happened, either in this House or in the Court of Chancery, that the hearing of the cause was finished in one day, and the consequence has been that it has scarcely ever happened that a cause could be proceeded with to the end uninterruptedly. If the hearing of a cause was commenced in the Court of Chancery, it had to be broken off that the Lord Chancellor might give his attendance in this House, here to begin the hearing of a cause which had to be broken off for public business, and the next day the hearing of the unfinished cause in the Court of Chancery was resumed. It is obvious, that where great attention is required to a detail of the facts,

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where the case is important and so complicated as to require that the whole mind he devoted to it in order to master the subject in its various hearings, nothing can he more inconvenient than for the individual to be withdrawn from its consideration till it is concluded, and he withdrawn from its consideration in order to give attention to the cause of some other parties, a cause, perhaps, of equal difficulties, and demanding, no less than the other, undivided attention. These observations, my Lords, must show I will not say the necessity, because the history of the past proceedings of the Court of Chancery and of this House proves that there is no absolute necessity, but the advantage of a change—it establishes at least this, that when a man has commenced a difficult task, he should be permitted to go on with it to the end. As I shall have more particularly to apply these observations hereafter, I will leave the subject for the present, requesting your Lordships not to lose sight of the principle for which I contend, that according to the natural constitution of the mind, it must he most inconvenient to have the mind of the judge diverted from the business in which he has engaged, before he has brought it to a close. It so went on from 1813, for the next ten years; and in the year 1823 a Committee of this House made a Report, one passage of which I will take the liberty of reading to your Lordships. At that time there was a great arrear of appeals. There were 225 appeals waiting unheard in this House; there were five years of arrears; that is, the parties who appealed, according to the then state of business, had to wait five years before there was any prospect of their appeal being heard. The Report contains this passage; it is near the commencement and on that Report, and on the opinions so stated, all the subsequent recommendations of this Report proceed:—"There is now a manifest impossibility that any person holding the Great Seal can find the time that is required for the business of the Court of Chancery and the House of Lords, and all the other great and arduous duties that devolve on him." As a remedy for this, it was proposed that there shall be appointed certain distinguished individuals, lawyers, for the purpose of assisting in hearing appeals and writs of error in this House. It was proposed, that certain persons should be appointed especially to preside over the hearing of appeals; that such an individual might not be a Member of this House, but that the individual who shall
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be so appointed to preside at the hearing of appeals, shall have power to declare his opinion, as judges and privy councillors do when required. A Return is on your Lordships' Table, showing what was the course adopted in pursuance of that recommendation of the Committee of this House, and commencing with the year 1824. Your Lordships will find that the sittings of this House were divided between the Lord Chancellor and those other persons who were appointed to preside over the hearing of appeals. Lord Gilford appears to have been the first person who presided in that character. Lord Gifford was a peer. Then there was the Lord Chief Baron; then there was the Master of the Rolls, who was not a peer. —he presided for a considerable time as Speaker of the House to hear appeals. At the same time there was a considerable number of days on which it appears the Lord Chancellor sat. There was then, as I have stated to your Lordships, an arrear of five years of appeals; there was a necessity, therefore, for sitting on every day but Saturday, and five days in the week this House did sit. The necessity of the case justified that arrangement. There being an arrear of five years' duration, and an impossibility of a suitor being heard without waiting for five years, some special remedy was called for—some departure from previous practice—some course which would enable this House to hear the appeals that were before it. But was that a course which anything but necessity would justify? Your Lordships' court constitutes the highest court of jurisdiction—it gives jurisdiction to all other courts—it is that from which there is no appeal—-whose decisions of law are to be taken as law in all other courts; and is not that jurisdiction the jurisdiction which is entitled not only to the assistance of the individual who holds the highest judicial office, but is it not expedient that every other jurisdiction where they clash should give way, to give a precedence to this House, and limit the course of appeal? I do not say that others may not be competent, but whoever holds the highest judicial office in this country, he is the individual who ought to preside in the highest judicial court of this kingdom. I will here suggest another inconvenience. In all courts of law there is a great advantage derived from the same individual presiding, that there may not be a judge of one way of thinking at one time, and at another time another judge perhaps equally

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eminent, equally competent, but possibly Dot exactly of the same way of thinking. It has been found that those judges have had their decisions most revered, and have been most successful, who have the longest presided over their respective courts. They have an opportunity of seeing the effects of their different decisions, and of varying them according to the varying state of society. Thus it is, that Lord Hardwicke is said to have "built up a system of equity." The necessity of the case justified the course which was taken, and the result was, that after a certain number of years, by the assistance of individuals, the great arrear was very much subdued. Though, however, it was much subdued, yet it required constant exertion to keep it down; if the exertions were to be relaxed only for a time, it would inevitably rise up again. It is not, therefore, for the interest of the subject—it cannot be just for the suitor, that any accumulation should be permitted in this House. I take it to be an admitted principle, that there should be found the means of speedily hearing the appeals that are presented, and the individuals whose duty it should be to hear those appeals, are not only the highest judicial officers of the Crown, but persons who should sit permanently, and not be taken, as chance may direct, from their duties. Having called your Lordships' attention to the state of the business of this House, and to the various periods to which I have adverted, I will now state to your Lordships what is the present state of the business of the Court of Chancery. It has been said—and inaccurately said—that the present arrears of the two courts—I mean the Court of Chancery and the Vice-Chancery, though, properly speaking, they are, perhaps, but one—it has been said, that the present arrears are 800 causes; they are not so much, it appears they are not quite 700. They are more than 600, but they are not 700. The average number of causes which have been disposed of in the last three years is 1,202; the average number set down for hearing is 1,301. Therefore, there is, according to the present state of business in the Court of Chancery, not only a large arrear where there ought not to be any; but, comparing the average number of causes set down for hearing with the average number of causes heard, there is an increase, which must make a considerable annual addition. It follows of necessity, that the present ma-
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chinery of the Court of Chancery is not adequate to perform the duties required of it. My Lords, it would be most astonishing to me if it were; for when I call your attention to the increase which has taken place in the average, from the year 1823 down to the present time; it would indeed be most extraordinary, if that which was considered only adequate to the business when it was so much less, were adequate to it now, when it was so very much extended. I have stated, my Lords, what is the business of the original hearing of causes which comes before those branches of the courts whose duty it is to hear and dispose of them in the first instance. I will next describe the state of the appellate jurisdiction. It appears that the average number of appeals in the Court of Chancery from 1818—I mean the average number of appeals standing for hearing— the average number from 1818 to 1831 varies from 80 to 130. I do not give this as an accurate average, but as a general result from the figures. The average for some time before 1831 was 441 in each year. In 1831 there was a most extraordinary exertion made. A noble Lord, whom I am proud to call my friend, and whose absence, on account of ill-health, every individual who hears me, I am sure, deeply laments—that noble Lord made, in the year I have named, a most miraculous exertion, and the result was, that in 1831 no less than 147 appeals were heard. Those efforts, added to the other extraordinary exertions of my noble Friend, as is proved by the present state of his health, went beyond human power. Certain it is, however, that the public had the benefit of my noble Friend's exertions.
The 147 appeals were disposed of in one year. The arrears of the Court of Chancery were for the time annihilated — there were no arrears of which any suitor could complain—still it was evident the slightest interruption would produce a fresh accumulation. At the present moment, I may say, there is no arrear. It has been my fate to see—what I believe has not been seen before for a century past—a paper for the causes of the day containing two appeals, with a note at the bottom announcing, "There are no further appeals ready for hearing." That I attribute to no exertions of my own, for I have not the lime, if I had the ability, to subdue that arrear of business. I do not attribute it, then, to any exertions of my own, but to the exertions of those who have gone before me. Since

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I had the honour of being appointed the First Commissioner of the Great Seal, it was not in the power of myself or my brother Commissioners—consistently with the performance of our other duties—to devote a large portion of time to the hearing of appeals in the Court of Chancery. In fact, there were but two days in each week devoted to that purpose. Before I accepted that appointment, I thought it my duty to consider whether I could perform the duties of it without neglecting the other duties which it would be incumbent on me to perform, and the arrangement I made was with the Vice-Chancellor, that neither one nor the other should be less devoted to their Courts than if the appointment of Commissioners of the Great Seal were not to take place; but that arrangement left only two days in the week on which it was possible to sit, with the addition of some days that were borrowed from the vacations to make up the time. It is a mistake to say that the appeal business of the Court of Chancery cannot be kept under; it is down now, and may be kept down without devoting a large amount of time to that Court. Two days a week from the month of April till January were sufficient for that purpose. When I come to another part of the subject I beg your Lordships to recollect what I am now stating, because I think it proves that the Lord Chancellor may not only get through all the appeal business of the Court of Chancery, but will have a considerable proportion of time which he may devote to other business. I have now brought down to the present time the state of the Court of Chancery, and in a few words I will call the attention of your Lordships to the state of the appeal business in this House. The last year was one most favourable to the despatch of business of that description. There was my noble and learned Friend to whom I have alluded, and my noble and learned Friend the noble Baron, whom I see in his place, who devoted much of their time to the despatch of the business of this House, and a large number of appeals were disposed of, in addition to that most heavy cause, Small v. Attwood, which occupied the time of this House during a considerable portion of the last Session, and which, I am sorry to say, must occupy a very large portion of the time of this House whenever we think it our duty to resume the consideration of it. It is obvious, then, that the appeal causes in this House cannot be kept down without a constant and vigilant atten-
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tion to the interest of the suitors. They may, however, be kept down by devoting that portion of time to them which was given to them during the last Session. The case to which I have referred is an illustration of the necessity of having a powerful machinery in this House to keep down the arrears. According to the calculations made by the parties in that cause, if the hearing of it were to commence immediately, and proceeded at the rate of three days in the week, it would scarcely be completed within the probable duration of this Session. If that be the state of things, what is to become of the other suitors? That involves a serious question for this House to decide. Is the attention of the House to be denied to this particular cause, or is this cause to be heard, and is a hearing to be denied to the multitude? That question, I say, must be decided by the Committee of Appeals. But let me now say, that great inconvenience arose from this House not having the power of exercising throughout the year the jurisdiction which belongs to it as the ultimate Court of Appeal of this kingdom. There is another part of the jurisdiction of this country which is nearly connected with the appellate jurisdiction of this House, and to which I wish to call the attention of your Lordships—I mean the jurisdiction of the Privy Council in matters of appeal. Not only has the Privy Council to discharge all that business which peculiarly belongs to it, arising from the colonies, but by a modern Act of Parliament, all the important functions of the House of Delegates. Various other duties are also imposed on it by modern Acts of Parliament. It appears to me that, by some modification of the existing system, it might be made as good a tribunal for discharging these important functions as could be devised. The Bill establishing the judicial Committee of the Privy Council had this defect—it did not make it the duty of any one individual to superintend and watch over the judicial business of that Court. There were numerous individuals who constituted the Members of the judicial Committee, and there was no one whose duty it was to attend to it, or who was answerable for the proper performance of the duties. The consequence was, that that high tribunal has been open to the great inconvenience of a change from time to time, even from day to day, of the officers who attended to administer justice there. Such are the inconveniences that exist at present in these three great tribunals—the House of Lords,

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the Privy Council, and the Court of Chancery. It is now my duty to endeavour to find some remedy by which those inconveniences can be remedied. My Lords, in applying ourselves to the consideration of that question, it behoves us to consider it well. In the Court of Chancery, the great, the crying evil is, the want of an individual who might be at the head of that court to perform the important duties belonging to it, and who could devote himself to those duties without having his attention directed to other matters—without being called away to other duties. As in the case of other legal tribunals, he should be able to devote his whole time, his whole talents, and his whole industry to the high duties of the court intrusted to him. Why should the Court of Chancery be placed on a different footing from other courts? Is its business less important, or has he who presides over it less important functions to perform? I think I have stated enough to show, that whether we regard its functions or the amount of property under its control, it far exceeds in importance any other court, or, I may say, all the other courts put together. The first measure, then, which I have to propose is to provide for the Court of Chancery a permanent judge, able to devote himself to the business of the court, and whose attention should not be called away to other subjects. The great evil which exists at the present moment in the appellate jurisdiction of this House is, that during the greater portion of the year it is shut from the suitor. It can only, as at present constituted, administer justice during the period of the Session; for six months therefore—for one-half of the year, those who are suitors to this House, who are appellants or respondents, have no tribunal to apply to. They have no means of bringing their cases on for decision during that time, and if they cannot accomplish their object of having their appeal heard during the Session, there is an end of the appeal for six months to come. The case which I before referred to exemplifies this strongly. It proceeded for nineteen days, and then, from the length of the argument, a question arose as to what probability there was that it would be concluded during that Session. If it was not to be finished in that time, it was obviously unjust to press one party to complete his case, inasmuch as, during the recess, the facts might escape the recollection of those who would have to decide upon it, and then to allow the other party to commence
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his case at the commencement of the next Session. The only just course, therefore, which could be taken was to prevent the case from proceeding further, the parties having permission to resume it next Session. Unfortunately it happens, that it is impossible to resume the discussion before the same individuals who heard it before. What course then can be adopted? This evil arises from this House not being able to continue hearing appeals after the close of the Session. The very case which I have just described may occur again. The argument may be once more commenced: from its great length no man can prophesy, with any certainty, when it will be concluded. Suppose it were commenced, and suppose, owing to the length of the discussion, or to the Session being speedily terminated, the parties are left in the same predicament as before. Could anything be more injurious—could anything be more destructive to their interests? The expense is perfectly enormous—it is frightful. What remedy, I say, can be applied to the evil? As this House constitutes the highest tribunal for appeals in this country, and as the suitor may sue where he pleases, in my opinion he ought never to have this court of justice shut to him. Close it, if you please, so far as it concerns its legislative powers; prorogue it or adjourn it according to the old constitutional form, but allow it to continue to sit for strictly judicial purposes. It is then said, that connected with any scheme for the improvement of the judicial system, something ought to be done with regard to the Court of Review. When I speak of that, I must call to your Lordships' recollection the period when it was established, and the purpose it was intended to answer. I believe these were the circumstances. I have lived long enough in the Court of Chancery to know that there was not a grievance more pressing than the necessity of attending to the business of bankruptcy. The subject being brought before the House of Commons in 1823, Sir Samuel Romilly stated, that of all the suggestions he had heard for redressing the inconveniences of the Court of Chancery, none were so likely to be beneficial as the removal of the bankruptcy business of that court. I believe that was the universal feeling—beyond all question it was my own, and when the proposal came into the House of Commons, I thought it my duty to support it. The complaint is, that the Court in question has not sufficient business to

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do; the principal grievance is, that the machinery is too large. The object in instituting the Court of Review, was to substitute for a body of not fewer than seventy bankruptcy commissioners a limited number of competent individuals, who should devote their whole time and talents to the business of bankruptcy, and all points connected with it; and I must, injustice to the noble and learned originator of the measure, state to your Lordships, that so far from its having proved a failure, there is not a single trader or merchant in London who has had anything to do with matters connected with bankruptcy since it came into operation who does not confess himself deeply sensible of the great advantages he has derived from the institution of this Court. It is no doubt true, that the business before the Court of Review has become considerably less than it was at one time, but this is precisely owing to the efficiency of the system, the labours of the Commissioners of Bankruptcy and the appointment of official assignees, whose services have been found of very great advantage. It is, in fact, as I have said, the very success of the measure which has rendered its machinery too extensive for its present requirement; one part of the system has operated so successfully, that the other part has become almost superfluous. For, my Lords, I will not disguise from you, that at the present moment the Court of Review has not adequate duties to perform; and I am also ready, quite ready, to admit, that it is the duty of Government not only to direct attention to the existing evils in the system of law, as in every other department of the state, but to see and consider how these evils may be remedied. In reference to the Court of Review, however, though the fact of its greatly lessened extent of business be as I have admitted, yet I cannot say, that I think any change in it can, at the present moment, be safely or satisfactorily made; and I will, in one word, give your Lordships my reason. My Lords, a measure was last year sent up to this House from the House of Commons, which your Lordships had not time to attend to at the late period of the Session at which it came before you. I allude to the Bill for the Abolition of Imprisonment for Debt. My Lords, it is my intention at the earliest possible moment, after I have found time to consider the details of that measure, to bring it under your Lordships' consideration. By the machinery of that Bill, if it
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be carried, a good deal of additional work will be thrown upon the Court of Review, and I therefore conceive that your Lordships will agree with me in thinking that, at least until the fate of this Bill is finally decided—and as I intend to bring it forward as soon as possible, that period cannot be far distant—it would not be wise to precipitate at the present moment, any alteration in the existing establishment of the Court of Review. My Lords, there is another suggestion which has been made, which I am disposed to view very favourably, and which I trust, will also meet with the approval of my noble and learned Friend near me. My Lords, it has been suggested, that very great inconvenience continually arises from having the equity jurisdiction of the Court of Exchequer existing as a separate system. That it is not only inconvenient in itself, but that it necessarily interferes with the other departments of the Court, since that Court has become a Court doing so much business, and invested with so much importance as a Court of Law. My Lords, it is necessary on this point that we should inquire what is the extent of the business done by this Court as a Court of Equity. I have already stated the progress of business in the Court of Chancery; the returns from which this statement was derived contain also a statement of the number of bills filed in the equity side of the Court of Exchequer. As I have stated, the average number of cases before the Court of Chancery, for the last three years, has been 1,300, there having been a gradual increase in the business before that Court for a number of years past. The returns from the Court of Exchequer are from the year 1820 to the present time; and, unlike those from the Court of Chancery, exhibit no increase, but, on the contrary, a slight decrease. The average number of cases before the equity side of the Court of Exchequer, in the period I have mentioned, appears to be but 120 a-year, while that before the Court of Chancery is 1,300. My Lords, what has been suggested on this subject is, that the equity jurisdiction now performed by the Court of Exchequer should be transferred to the Court of Chancery, to which it more properly belongs, but, as your Lordships will at once see, this cannot be done in the present state of the latter Court, unless some further judicial aid be given to it. Here, however, it is suggested, that the machinery now in existence for the purposes of equity in the Court of Exchequer, which

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is now kept in operation for transacting the business of 120 cases a-year, will, if the proposed change be made, cease to be required at that Court; and the question is, therefore, whether it cannot be made available for the despatch of the thus increased business of the Court of Chancery? This is a point which well merits consideration. My Lords, if what I am now about to submit to your consideration should meet with your assent, and that of the other branches of the Legislature, its beneficial effect will be to make a great alteration in the Court of Chancery, by furnishing it with the means of carrying into effect its duties with more facility than it has hitherto had the power of doing, by leaving it in exclusive possession of Us head, whose undivided attention will thenceforth be applied to the business before the Court; and I cannot but think, that until we have had full opportunity of seeing how the additional facilities thus afforded will enable the Court of Chancery to get rid of the arrears of business before it, and to despatch new cases, it will be hardly advisable or expedient for us to make any of the further alterations which have been suggested. With this feeling, in what I shall have the honour to recommend to your Lordships, much of that which has occupied the attention of the public, and much of that which many distinguished and learned individuals have suggested as expedient, has been omitted. At the same time, my Lords, those parties who think that more ought to be done upon this subject, who conceive that the plan suggested is not equal to what they look upon as the necessity of the case, will, I think and hope, agree with me, that at least as far as it goes, it is a decided improvement on the existing system, and is a considerable advance towards promoting the final result which their view of the case leads them to desire. Your Lordships will admit, that it is, at any rate, safe not to do too much in the first instance; and that having once set on foot an improvement, which it is anticipated will be satisfactory and efficient, not to take additional steps until it is found that the first attempt has failed in producing the desired object. My Lords, I am sanguine as to the entire success of the measure I am about to propose, for I conceive that when we have decided that there shall be a judge at the head of the Court of Chancery, whose time and talents shall be solely applied to the business of that Court, there can be little or no doubt but that in a short time he will succeed in keeping down
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the Appeal List, and will effectively despatch all the original business of the Court.
My Lords, if this hope be realised, and if the person at the head of the Court of Chancery shall succeed in keeping down the business of that court, as far as that court is concerned, the object is attained. Upon the course to be pursued in the despatch of appeals in this House, I will repeat, that if your Lordships shall sanction the proposition for keeping open this House throughout the year, as a court of appellate jurisdiction, the evils which are so severely felt will be speedily and satisfactorily remedied. With respect to the Privy Council, no objection exists, except it be the want of a permanent head to the Council; which objection may be obviated in the way I have already suggested. The general result would be this, that the Lord Chancellor for the time being would be at the head of all the ultimate appellate jurisdiction of the country, by presiding at appeals in error before the House of Lords, and at appeals before the Privy Council. By these means, by providing for the Court of Chancery a Judge whose sole duty it shall be to attend to its important duties, and by the House of Lords sitting in its appellate judicial character, notwithstanding any prorogation or dissolution of Parliament, in order, like all other courts of justice, to be always accessible to suitors, all the objects which I have stated in the opening of my observations will be amply fulfilled. My Lords, for the important purposes I have mentioned, two Bills have been prepared, an outline of which I will now proceed to lay before your Lordships. The first of these Bills is relative to the administration of justice in the Court of Chancery. It provides, in the first place, that after the appointment of a Judge to be at the head of that Court, to be appointed according to the provisions of the Bill, the Lord Chancellor shall cease to exercise the jurisdiction in that Court. It then gives power to his Majesty to appoint the said Judge for that Court, under the style and title of Lord Chief Justice of the Court of Chancery; and that all forms and appeals heretofore addressed to the Lord Chancellor, shall, for the future, be addressed to the Lord Chief Justice of the Court of Chancery. The Bill then provides as to the precedency and salary of that Judge. The Bill is now in blank as to both the one and the other of these points, but I apprehend that your Lordships will conceive that the head of a Court

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so important as the Court of Chancery ought to be put as nearly as possible on a footing with the Lord Chief Justice of the Court of King's Bench. The Bill then proceeds to provide—and the difficulty we have had in satisfactorily arranging this point has been the sole cause of my delay in bringing forward the measure—the Bill then provides for the separation of the processes of the Court of Chancery from those under the Great Seal. The provision is, that all writs in respect to processes from the Court of Chancery shall be passed under a seal, to be called the Court of Chancery Seal, instead of under the Great Seal as heretofore, but that all others shall continue, as now, to be passed under the Great Seal. The Bill then proposes an apportionment of the officers now attached to the Great Seal between the Court of Chancery and the Lord Chancellor, and makes regulations as to fees and emoluments. Some of the officers must necessarily be attached to the Lord Chancellor, and the others can remain attached to the Court of Chancery. The Bill further provides, that the Lord Chief Justice of the Court of Chancery shall be appointed during life and good behaviour, and shall be removable upon an address from the two Houses of Parliament. This, my Lords, is the outline of the provisions of the first Bill. The second Bill relates to the appellate jurisdiction of this House, and provides, that in order to facilitate the despatch of appeals before your Lordships, that your Lordships shall sit for the purpose of hearing appeals in error, notwithstanding any prorogation or dissolution of Parliament. It further provides, that the Equity Judges shall be subject to summons before your Lordships, in the same manner that the Common Law Judges now are; and that the same power of summoning shall remain in your Lordships, notwithstanding any such prorogation or dissolution of Parliament. It further provides that the Lord Chancellor shall be present at all sittings of the Privy Council to hear appeals, with the proviso, however, that in the Lord Chancellor's necessary absence the Lord President shall have power to appoint any other member of the Judicial Committee to take his place. My Lords, I have now put you in possession of the extreme grievances arising from the overgrown state of the Court of Chancery, and of the inconveniences arising from the present mode of proceeding before the House of Lords in its appellate-judicial capacity, and before the Privy Council, and I have
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also stated to you the nature of the proposed remedy for those inconveniences. Your Lordships have now before you the very important question to consider, whether the suggested plan does not appear efficient to improve to a satisfactory extent the administration of justice, and the two ultimate appellate jurisdictions of the country, and of that Court by which questions involving much of the property of the country have to be decided. My Lords, if this measure shall become the law of the land, a very great and just subject of complaint will be entirely removed, and one of the objects stated by his Majesty, in his Address from the Throne "the better administration of justice, especially in the Court of Chancery," will be, I trust, amply fulfilled. I therefore earnestly hope that it will meet with your Lordships' hearty assent. The noble Lord concluded by moving the first reading of a Bill for the better administration of justice in the High Court of Chancery.
Lord Lyndhurstwished to know if an appeal would he from the Vice Chancellor and the Master of the Rolls to the Lord Chief Justice?
The Lord Chancellorreplied, that an appeal would lie, as the Bill he had introduced did not propose to alter the constitution of the Court of Chancery in any respect, except by putting a permanent Judge in place of the Chancellor.
Lord Langdalehad no doubt but that the plan proposed by his noble and learned Friend on the Woolsack would be beneficial. It was, however, liable to objection on two points. He was aware that the present was not a convenient opportunity to discuss the questions arising concerning it, and he did not, therefore, consider it essential to enter at large into the subject; but he begged their Lordships to observe, that the plan which had been detailed to them would leave political and judicial functions, both of the greatest importance, united in the person of the Lord Chancellor, and would leave judicial functions of appellate jurisdiction and original jurisdiction united in that of the Lord Chief Justice of the Court of Chancery, leaving an intermediate court of appeals between the original hearing in the Court of Chancery and the final hearing in their Lordships' House. All these subjects were of the most grave importance. He thought it respectful both to the House and his noble and learned.

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Friend to mention them now, and he begged to apprise their Lordships that he intended to bring them seriously under their consideration in the future stages of the Bill.
Lord Abingerdid not rise for the purpose of going into the merits of the question. He did not see any ground to apprehend that the objects proposed would be attained by the plan brought forward. The difficulties alluded to by his noble Friend who had last spoken, had also crossed his mind. With respect to the observations made by the noble and learned Lord on the Court in which he had the honour to preside, it appeared to him that the great difficulty connected with the Court of Exchequer was not the want of an extensive jurisdiction, but of competent persons to keep the equity division of it in continual activity. Since the period of the separation of the Courts, suitors experienced extreme difficulty in having their business conducted in the Court of Equity, where there were no permanent sittings. There was no reason why those who aimed at the improvement of our judicial establishments should not take the state of that Court into consideration. Its original condition, before the partition of it took place, had been very imperfect, and its functions had been so blended as to make it in many respects impracticable to distinguish between them. But the measure which had been introduced when he was a member of the other House, which opened the Court of Exchequer, and admitted solicitors from all parts of the world to practise in it, had made it answer all the objects of a court of law much more effectually. It was now as competent as any other Court for the purpose of administering law. But with respect to the equity jurisdiction, the Bill introduced by his noble predecessor in the office of Chief Baron (Lord Lyndhurst) had produced inconveniences which he did not seem to have contemplated; for the arrangements made by that Act for the regulation of the sittings of the Court were productive of much delay in the hearing of causes. The obvious remedy for this would be to appoint some competent person under the Lord Chief Baron in the Court of Exchequer to hear the equity causes, and to allow him to sit permanently. The result of such an appointment would be, that great part of the business which now overwhelmed the Court of Chancery would corns imme-
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diately before the Court of Exchequer. If a person of great legal attainments and experience were appointed to sit in the equity divisions of that Court, it would be completely open, and would possess all the advantages common to those Courts whose sittings were permanent.
Lord Wynfordwas not quite certain that he had understood the observations made by his noble and learned Friend (Lord Langdale). He (Lord Wynford) should certainly object, as his noble and learned Friend had done, to appeals being made from the Vice Chancellor and the Master of the Rolls to the Lord Chief Justice, and he thought that the appeal should be made immediately to the Speaker. He was quite sure, that if the latter course were to be adopted there would be a saving of great expense, and much delay would be prevented. He also understood his noble and learned Friend to object to the Lord Chancellor, who presided in that House, mixing up politics with judicial decisions. He had always wished to see an alteration on this point made in the mode of conducting the judicial business of that House. He wished that the person presiding in it should be a permanent Judge, unconnected with party politics, because it was not fitting that a person attached to any of the great parties in the state should decide on points of order, and other questions that might be raised in that House. With these two exceptions he was ready to give the Bill his support. He had always thought it quite impossible that the same persons could perform the business of that House and the Court of Chancery, and he was therefore glad to see it divided.
The Duke of Wellingtonhad not understood one part of the speech of the noble and learned Lord on the Woolsack. He wished to know what was to become of the jurisdiction of the House of Lords after a prorogation or dissolution of Parliament? Was it intended that the jurisdiction should continue in the absence of the House of Lords, or that the House should sit as a court of judicature in appeal cases, after his Majesty should have thought fit to prorogue or dissolve Parliament?
The Lord Chancellorsaid, that the House of Lords would sit throughout the year, for the purpose of hearing appeals and writs of error only.
Viscount Melbournebegged leave to say a few words on the Bills which had been

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laid before the House. He understood his noble Friend on his right (Lord Langdale) to say, that he did not entirely concur in the measures submitted to their Lordships, and in that opinion he also understood the noble and learned Lord on the other side to agree. But the general ground on which they objected to these Bills was, that it was proposed still to leave political and judicial functions united in the person of the Lord Chancellor. Now, he must be allowed to observe, that the measure, as at present proposed, would not at all preclude them from adopting a further reformation in this respect, provided that it seemed good to their Lordships on further consideration. But if they were to agree to that change in the first instance, they could not return to the state of things now existing if the alteration should not be found beneficial, and, therefore, he thought that the Bills were at least cautious measures, not proceeding so fast as many thought necessary, and at the same time not preventing a more thorough reformation if it should be expedient to adopt it.
The Bills were read a first time.