Lords Sitting of 13 June 1836

MINUTES.
Petitions presented. By Viscount MELBOURNE, from Cambridge, against the Introduction of a Clause in the Municipal Corporations' Act appointing the Vice-Chancellor for the time being a Magistrate of the Borough.

THE APPELLATE JURISDICTION.
On the motion of the Lord Chancellor, the Order of the Day for the second reading of the Court of Chancery Bill was read.
The Lord Chancellorthen said, that although in point of form he was under the necessity of moving the Order of the Day for the second reading of the first of the two Bills which he had lately introduced, yet their Lordships would probably think it convenient that the two Bills—the one for the better administration of justice in the Court of Chancery, and the other respecting the appellate jurisdiction of their Lordships' House, and of the Privy Council, should be discussed as one measure. In point of fact, they depended one upon the other, and the arguments which applied to the one would apply of necessity very much when discussing the other. Before he said anything upon the merits of these two measures, he had to state to their Lordships, that on going into committee he intended to propose an alteration in the structure of the first of these two Bills. As it was printed, it correctly represented what it was his object to attain; but it fell short in regard to the machinery for carrying that object into effect. The Bill declared that their Lordships' House should, notwithstanding any prorogation or dissolution of Parliament, be at liberty to attend to the judicial business of the House. As far as the point of dissolution was concerned, although upon principle it rested upon the same ground which justified the measure with regard to a prorogation of Parliament, yet, as the time it would save would be so short, and at such distant periods, it did not appear worth while to leave the measure open to an objection on that score. In order, therefore, to reconcile their Lordships to the measure, he intended to leave out that clause of the Bill relating to a dissolution, and to confine it to the case of a prorogation of Parliament. So confined, the Bill would require some ma-
414
chinery to carry it into operation. What he should propose in Committee was, that after a prorogation, it should be lawful for his Majesty, by royal proclamation, to summon their Lordships to meet for the purpose of hearing appeals and writs of error only; and that it should be lawful for his Majesty to discontinue that sitting whenever he pleased, and again to summon the House during the prorogation for the like purpose. He would now state upon what grounds he called upon their Lordships to assent to the second reading of the Bill. Before he did so, however, he must express his regret at finding that the returns which had been made to assist their Lordships in the consideration of this subject had been in many respects erroneous. He believed those errors had arisen from the fact of several officers having been employed to make out the returns, and that they had not all followed the same principle in the investigations which had been intrusted to them. He had, however, the satisfaction of saying that, so far as they related to the deductions which he had made on a former occasion, from the returns laid before their Lordships, the returns themselves were correct; and that, therefore, no error in the returns would affect the conclusions he had then drawn from them. There was, however, one error which he much regretted, inasmuch as it would appear from the returns, that there was an arrear of appeal cases in 1834, whereas, in point of fact, there was little or no arrear at that time. The return, if not corrected, would show that the result of the unparalleled exertions of his noble and learned Friend, whose absence he had still to lament, was not to reduce the arrears, whereas, in point of fact, he had reduced them to nothing or nearly so. Their Lordships would recollect that, on a former occasion, he drew their attention to the business of the Court of Chancery at several different and distant periods. He called their attention to the state of Chancery business, as it existed immediately after Lord Hardwicke ceased to be Chancellor; also as it existed in the year 1813, being the period when the Vice-Chancellor's Court was established; also as it existed in 1823, because in that year their Lordships inquired into the whole matter of the arrears of business, both in this House and in the Court of Chancery, and on which occasion a Select Committee made a report containing very material and important evidence upon the

415
subject he was now discussing; and lastly he called their attention to the state of business terminating with the year 1835. He took an early period, by going back seventy years, in order that their Lordships might form some estimate of the manner in which the business of the Court of Chancery had increased. The average of causes from 1661 to 1665 was only 441, whereas from 1831 to 1835 they amounted to 1,283. From 1661 to 1665 the average number of petitions was 379, whereas from 1831 to 1835 they amounted to 2,813. The appeals from the then only Court—the Court of the Master of the Rolls—from 1661 to 1665 averaged only twelve, whereas from 1831 to 1835, they amounted to fifty-five. He did not state that as a necessary argument in support of the proposition he had to submit to their Lordships; but in order to correct a misconception which had gone abroad upon the subject—a misconception difficult to explain—but which, upon reference to figures, was shown to be without any foundation whatever. However, the important periods to which he was anxious to call their Lordships' attention, were the periods of 1813, 1823, and 1835, because from these it was that their Lordships must form an opinion as to whether the present powers of the Court of Chancery, and the appellate business of their Lordships' House, and of the Privy Council, were to continue as they were, or whether it was not the bounden duty of the Legislature to apply such remedy as was necessary, in order to dispose of the arrears of business that at present existed, and which must continue to exist, unless some remedy were applied. In 1813 Parliament decided, by passing the Bill for the appointment of a Vice-Chancellor, that the strength of the Court at that time was not adequate to perform the duties required. He would next compare what was the state of business at that time with the state of business at present, and he thought that their Lordships could not but come to the conclusion, that if the business, as it existed in 1813, called for the appointment of an additional judge, the enormous increase of business since that period was such as made it absolutely impossible for the machinery, as fixed by the Vice-Chancellor's Bill, to carry on the business of the Court of Chancery in a manner to do justice to
416
the numerous suitors in that Court. He would not refer their Lordships to the debates of that period, for it was enough to know that Parliament had decided that the measure was necessary; but he would refer their Lordships to a statement of the business before the Courts at different periods. In 1810, 1811, and 1812, the average number of causes set down for hearing was 540; 1820, 1821 and, 1822 ditto, 945; 1832, 1833, and 1834 ditto, 1,301. Those causes formed an important part of the business of the Court, but by no means constituted the whole. The next subject was petitions—1810, 1811, and 1812, the average number of petitions was 970; 1820, 1821, and 1822, ditto, 1,487; 1832, 1833, and 1834, ditto, 2,817. A similar increase had taken place in appeals from the other branches of the Court of Chancery to the Lord Chancellor. In 1810, 1811, and 1812, the average number of appeals was 16; 1820, 1821, and 1822, ditto, 42; 1832, 1833, and 1834, ditto, 55. That there should be an increase of appeals after the creation of the Vice-Chancellor's Court was an inevitable consequence. It was prophesied by Sir Samuel Romilly, that the effect of passing that measure would be to make the Lord Chancellor a Judge of Appeal only; and he would cease to be a judge in original causes. With some trifling exceptions, that prophecy had been fulfilled; and from that time it might be truly said, that the business of the Lord Chancellor in the Court of Chancery had been to review the judgments pronounced in the two other branches of the Court. It was not upon appeals and petitions only that the Chancellor was engaged, and which constituted a large proportion of the business of the Court of Chancery; but another important part of his duty was the hearing of motions. It was well known that some of the most important questions which arose between suitors in the Court of Chancery, were discussed and decided upon motions. It was made a matter of complaint in Lord Eldon's time, that the parties arranged among themselves, or so managed their pleadings, as to bring the real merits of the question before the Court upon motion. It was an extremely inconvenient mode of proceeding, and one not calculated to promote the interest of the suitor; but parties who had great and important interests at stake, if they could not have

417
the doors of the Court open to them upon the hearing of the cause, would naturally adopt any course to obtain a judicial opinion, by which their rights were to be regulated. On a former occasion, he also called their Lordships' attention to a most striking result of an inquiry as to the state of the funds in the hands of the Accountant General of the Court of Chancery. In the year 1812 it appeared that the money standing in the name of the Accountant-General was 28,137,000 l.; and that that money stood to the account of 6,266 causes. It appeared that the sum in the hands of the Accountant-General, up to the present period, was 39,780,000 l., and that that money stood to the account of 10,227 causes. But was all this money locked up awaiting the decision of the Court? Not so. The money so locked up, constituted but a very small part of this enormous sum. By far the greater part of it was money from which the suitors derived great and unmixed benefit. Sometimes from necessity, sometimes from choice, parties had resorted to the Court of Chancery for a security of their money, and for a due administration of the funds. This was done in cases of infancy, in cases of persons labouring under disabilities, and in those various and complicated cases affecting individuals or families, in which those acting for them thought it expedient to put the administration of affairs under the direction of the Court of Chancery. The machinery of the Bill which constituted the Accountant General's office was so perfect, the system of the office was so secure, that persons so situated could not possibly possess a place of deposit more perfectly free from danger. Although a small portion of this money was matter of contest, still the increase of this fund showed to what extent that particular branch of the business which gave rise to this fund had increased—great as had been the increase of business in the Court of Chancery, he believed that if the Court were put upon a footing which would insure to the suitors a speedy determination of their suits, there would be a much greater resort to it. Parties who had rights to establish and objections to enforce, were deterred from coming to the Court, and either compromised their suits or abandoned their rights altogether; not because they thought the ultimate result would be against them, but because the vexation
418
they would have to experience before the question was brought to a judicial decision induced them to compromise or abandon their rights rather than encounter such evils. When the Vice-Chancellor's Bill passed, it was supposed that great facilities would be given to the administration of justice in Chancery, and their Lordships would find, on a reference to figures, that the hope of such a result brought a great number of new suitors into the Court. He had already stated, that the average number of causes in the Court of Chancery for the three years previous to the passing of the Vice-Chancellor's Bill was 540, and that the average for the three succeeding years was 717. But the increase of the number of Bills filed in Chancery was still more striking. On referring to the returns, he found that the average number of Bills filed in the Court of Chancery in the five years preceding the Establishment of the Vice-Chancellor's Court was 1,830; in the five succeeding years 2,236, and in the last year 2,563. This great increase in the business of the Court was mainly to be attributed to the removal of that dread of delay which had existed previous to the passing of the Vice-Chancellor's Bill. So much then for the period of 1813. In 1823, notwithstanding that the Vice-Chancellor's Bill had then been in operation for ten years, it was found that there was such an accumulation in the judicial business of that House, that their Lordships appointed a Select Committee to inquire into the cause of it, and, if possible, to devise a remedy. It appeared from the Report of the Committee so appointed, that there was at that time an arrear of five years of appeals. That was to say, that an appellant or a respondent who had been under the necessity of resorting to their Lordships for the redress of a supposed erroneous decision in one of the branches of the Court of Chancery, had, after presenting the appeal, to wait five years before his case could possibly be heard. It was no wonder that such a state of things should induce their Lordships to institute an investigation, with the view of discovering the cause of this arrear, and, if possible, of devising a remedy for it. What was the result of the inquiry? The Select Committee stated in their Report, "There is now a manifest impossibility that any person holding the Great Seal can find the time

419
required for the business of the Court of Chancery and of the House of Lords, and for all the other great and arduous duties which are attached to his high office." The fact was, that since the passing of the Vice-Chancellor's Bill these duties of the Lord Chancellor had not only been not diminished, but had greatly increased, in consequence of the vast influx of additional suitors, which the hope of a speedier administration of justice had brought into the Court of Chancery. What was the remedy suggested by their Lordships' Committee in 1823, and subsequently adopted by the House? It was in a great measure a temporary expedient, and one which although justified by the great pressure of the arrears then before the House, was one which he thought they would be slow to adopt as a permanent plan. The plan recommended and adopted was, that in the highest Appellate Court in the Kingdom, namely, in that House, the highest officer of the law should not preside, but that others should be selected for the purpose of performing those duties which undoubtedly ought only to be discharged by the highest legal officer appointed under the Crown. He did not mean to say, that the individuals selected on that occasion, and who afterwards devoted so much of their time to the administration of justice in that House, were not as well qualified to perform the new duties imposed upon them as any men could possibly be. But it was not, in his opinion, becoming or fit, that in the highest Court of Appellate Jurisdiction, the individual presiding should be any other than the highest judicial officer under the Crown. Great assistance was undoubtedly derived from the exertions of the individuals who were selected in 1823. Their Lordships would all remember how Lord Gifford had applied himself to the task, and the great labour he underwent, presiding in that House from ten till four in the morning, and in the Rolls Court from six to ten in the evening—this was a degree of exertion greatly more than any human being ought to be called upon to perform— greatly more than any human mind could bear or any human strength sustain. Because their Lordships must remember, that severe as a Judge's labour might be whilst he sat in open Court, his duties by no means ceased when he left the Bench. A great and important part of the duties of a Judge was to deliberate on the argu-
420
ments he had heard advanced by counsel in Court, to investigate the authorities quoted, and as far as possible to make himself master of all the facts of the case brought forward for his decision. If a Judge were called upon to sit from ten in the morning till ten at night, it was perfectly impossible that he could have any time left for the discharge of these important duties. Such, however, was the expedient to which the House resorted in 1823. It in a great degree answered the purpose for which it was intended, because the House was then enabled to sit every day in its judicial capacity, or at least to sit five days a-week, the Lord Chancellor presiding on three days, and the Lord Speaker (as he was called) on two. The result was, that after the lapse of a certain length of time the assistance of the additional Judges was not so largely called for, and not so freely used; and although from the year 1823 down to 1835, there had been no one case in which some assistance had not been afforded to the officer holding the Great Seal, in the administration of the appellate jurisdiction of that House, of late years that assistance had become comparatively small, and at no period had it been so great as in the time of Lord Gifford. Of arrears in that House there were now comparatively none, and their reduction might, in a great degree, be attributed to the assistance which their Lordships had derived from two noble and learned Lords who had no other judicial functions to perform —who were therefore enabled to devote the whole or a great part of their time to the judicial business of the House, and who, by devoting so much of their time to that business, had conferred a great benefit upon the public. It was owing to the exertions of those noble and learned Lords (one of whom he saw present) that the arrears were at that moment so much reduced. Could any fact more strongly prove the propriety of the suggestion he took the liberty of making to their Lordships? How was it that the arrears had been so much subdued? Was it not because there happened to be in the House noble and learned Lords not attached to any other Court, and who consequently had it in their power to devote the whole of their time to the judicial business of that House? As far, then, as that House was concerned, he considered that the experiment embodied in the present Bill had

421
been fairly tried. Having, by a statement of figures, shown the state of business in that House at the two periods to which he had directed their Lordships' attention, he would now shortly state what was the arrear of business in the Court of Chancery. Here, again, he had the satisfaction of stating, that the exertions of those who had preceded him had been such as completely to subdue the arrear which, during the previous thirty years of his experience, he had known to exist in the Court of Chancery. Of appeals from the other branches of the Court of Chancery, pending before the Lord Chancellor, there were now none; because, from the Return made up to the last day of last Michaelmas Term, there then appeared to be only nine cases in arrear; and he had the satisfaction to state, that the case which he heard on Saturday last was within three of the end of the list brought forward at the commencement of the last Term. Of the business, therefore, at present pending before the Lord Chancellor, it might be said that there was no arrear. He stated this fact, to enable their Lordships to come to this conclusion—that if there were a Judge whose sole duty should be to attend to the Court of Chancery, that Judge would not only be able to dispose of all the appellate cases that could be brought before him, but would also have it in his power to devote a large portion of his time to the hearing of original business, which now, and ever since the year 1813, had been exclusively heard by the other branches of the Court. Of original causes in Chancery, now in arrear, ready for hearing, and waiting to be heard, there were between 700 and 800; and looking at the average number of causes determined, and the average number of causes set down for hearing, it was obvious that this arrear must go on increasing, unless some step were taken to prevent it. During the last three years, the average number of original causes heard and determined was 1,158; the average number of causes set down for hearing within the same period was 1,340. So that, with an existing arrear of 700 causes, their Lordships had this additional fact before them, that the average number of causes heard for the last three years had fallen very considerably short of the number set down for hearing. Did not this state of things in the Court of Chancery require some remedy? Why should they deny to the suitors in that Court the
422
right of having their causes heard without delay? If the arrear had arisen from the temporary illness of the Judge, or from any other accidental cause, the case would be different; but when it was found, from the general business of the Court, that there was no probability of subduing the arrear, he was sure their Lordships would agree with him in thinking, that this was a state of things which ought not to be allowed to continue. But the Bill which he had the honour to introduce to their Lordships' notice was not limited to the business of that House, or of the Court of Chancery. It related to another and a most important branch of the judicial business of the country, which was transacted before the Privy Council. Their Lordships were aware that the Privy Council was the Court of dernier resort for all the British colonies. In that Court only could the appeals from the judgments of the courts of justice in the colonies be heard and adjudicated, and their Lordships were aware also that some very important alterations had of late years been made in the law, by which the Privy Council had many other very important duties to perform addition to hearing colonial appeals. The Court of Delegates was, as their Lordships perhaps recollected, altogether abolished; so also was the Vice-Admiralty Court; and the duties which had formerly been performed by those Courts were now transferred to the Privy Council; so that at present that Court exercised one of the most important jurisdictions in the kingdom. Now, when this was taken into consideration, it would not, perhaps, be too much to say, that there was a great want of professional aid in the Court of Privy Council, and this want was felt when the Houses of Legislature passed the Bill establishing the Judicial Committee of the Privy Council. This Judicial Committee was composed of the Judges of the law courts and other functionaries, highly qualified for their duties; but when their Lordships looked at the individuals who constituted the Committee, they would find that most of them had so much business to attend to in their own Courts, that it was scarcely possible for them to find time to attend to the new duties imposed upon them. He might, as one instance of this evil, quote the case of the Vice-Chancellor, whose Court was full of business, and who was under the necessity of abandoning his own

423
Court in order to attend the Judicial Committee of the Privy Council. Now this was not a fair administration of justice. It was, perhaps, in favour of the suits in the Privy Council, but it was unfair to the Chancery suitors, because the Vice-Chancellor was under the necessity of neglecting his Court. The Bill, however, which he had the honour to propose, provided for all these evils. It was in the highest degree important that some one person, whose habits and knowledge of the law fitted him for such an office, should be appointed to take the lead in the Privy Council. The present Chief of that Court was not a lawyer, and it was necessary, not only that its chief should be a lawyer, but also that he should be the most eminent lawyer that could be procured; for, considering that that Court was the highest Court of Appeal for all colonial business, nothing, in his opinion, ought to be spared which could add weight and authority to its decisions. How was that object to be accomplished? In that House their Lordships were determined to have the highest law-officer to preside; so also was it requisite, nay, essential, that an equally high authority should preside in the Privy Council, for where else ought the highest law authority to sit, but in those Courts from whose decisions there was no appeal? If their Lordships adopted that view of the case, he was convinced that thenceforward no arrears of business could ever occur, either in that House or in the Privy Council. It was therefore obvious, under this manner of looking at the question, that the only course left for their Lordships to adopt was, to make the Lord Chancellor for the time being the President of the Court of Appeal, both in that House and in the Judicial Committee of the Privy Council. The only difficulty was, whether the same man who presided over these two Courts would be able to find time to attend to any other duties. It was impossible to look at the Reports upon the state of the Courts, and not at once see that the President of Appeals could not, by possibility, find time for other duties; indeed, the great apprehension he entertained was, that he would not be able to find time to attend to both his appellate jurisdictions—namely, his duties in that House and in the Privy Council. In the Court of Chancery, as at present constituted, the great difficulty was to find time to hear original causes;
424
the appellate jurisdiction of the Court was most amply provided for. He had stated in the outset of his speech, that from the year 1813 the Lord Chancellor had not heard any original matter in his Court, except by accident. The cause of this was partly owing to his having other duties to perform in his Court, and also partly to his duties in that House. During the course of last year, whilst the Great Seal was in Commission, two days a-week only were devoted to the hearing of appeals from the Court of Chancery, and those two days proved sufficient not only to keep down arrears, but also to reduce the arrears which had accumulated, so that at present there were no real arrears. If, therefore, the time which had been devoted to the hearing of appeals had proved sufficient for that purpose, it followed, as a matter of course, that the chief Judge of the Court of Chancery would have time to bestow upon the hearing of original causes. His reason for saying this was, that though the chief Judge in Equity might hear a great number of causes, yet if the doors of justice were opened wider there would be a great increase of business. At present, a great number of causes were kept out of Court by the impossibility of hearing them, and of doing justice in them. For the present, he was disposed to try how far the three Judges in Equity would be able to keep down the business in their respective Courts; and it was a part of the Bill which he now presented to the House, that it should be tried, whether one Judge was sufficient for the Court of Chancery, and three Judges in the other branches of Equity. That brought him to the consideration of an important subject. The appeals from the Roll's Court, as their Lordships were aware, and from the Vice-Chancellor's Court, came to the Lord Chancellor, and it had been suggested, that the way to relieve the Chancellor was to take away all intermediate appeals from the Court of Chancery, and send them up directly to their Lordships 'House; so that, in whatever branch of the Courts of Equity the causes were decided, the appeals should he to their Lordships' House alone. Now, if that House possessed the essential requisites of a court of justice, and was open all the year, and at the same periods that the other Courts were open, he, for one, should not have objected to such a proposition. But in its present condition

425
such a measure would literally choke their Lordships' House with the influx of business. He might select one case in illustration of this fact. Their Lordships would, by this arrangement, have to perform not only their own judicial business, but also all that portion of the Lord Chancellor's business which he had been in the habit of transacting from the year 1813. The average number of appeals which came every year from the Court of Chancery to the House of Lords was seven. The average number of appeals which went from the lower Courts to the Court of Chancery was fifty-five. Of the seven appeals from the Court of Chancery to the House of Lords, there were two only amongst them of the fifty-five appeals from the minor Courts, so that fifty-three of them were disposed of finally by the Lord Chancellor, whose judgments were consequently not found fault with by the suitors. Now, supposing the appellate jurisdiction of the Lord Chancellor was abolished, those fifty-three cases would come to their Lordships at once, and in addition to the other business before them. The expense also of hearing appeals in that House was double what it was in the Court of Chancery, which circumstance, in the majority of cases, would be decidedly adverse to the removal of those appeals to the upper Court. Another objection to the transference of the appeals from the Court of Chancery to the House of Lords was, that the interlocutory pleadings and matter must of necessity follow along with them; and he would leave it for their Lordships to decide how far it would be possible for them to deal with such a subject. In cases, too, where a motion might be improperly granted or refused, parties could not wait until the ensuing Session to have such matters reheard and decided. The rights of parties and the value of their property required that they should have the means of correcting orders, which could not be carried into effect without doing them very great injustice. If the House were constituted as a regular court of justice, it would be impossible for it to take upon itself half of the appellate jurisdiction of the Court of Chancery, not only as it now existed, but even in the case of there being a third Chancery Court hearing original business; for then there would be not only fifty-five appeals coming before their Lordships, but one-third of that number in addition, from the quantity of business done in the
426
third Court. It was, then, utterly impossible that the appeal business could be accomplished in that House, unless the parties were to go through the intermediate appeal in the Lord Chancellor's Court. These objections he was sure, had never been contemplated by the persons who had proposed such an alteration. There now only remained one more point upon which he felt it necessary to address their Lordships, and that was respecting the proposed alterations in the periods during which their Lordships sat in their appellate capacity. It was his intention to propose that the judicial functions of that House should be extended throughout what was termed the judicial year. This proposal might appear to be an innovation upon the constitutional form of that House, and as such, open to objection; but he had already, in his former observations upon this subject, pointed out the means of preventing an improper use from being made of this change in the periods of their Lordships' Session. He should moreover propose that the House be summoned to their duties by Royal Proclamation immediately upon the prorogation of Parliament, which of course would continue to be made in the form in which it now was. What possible danger or constitutional evils could result from this proposal being adopted he was not able to conceive. There could be no ground for jealousy on the part of the House of Commons, for the House of Lords would be prohibited by statute from entertaining other than matters relating to appeal. If their Lordships should be of opinion that they might continue to sit upon appeals during the recess, it might perhaps afford them some satisfaction to learn that it would not now be done for the first time. Their Lordships might, perchance, like to see what had been the practice of the House in times of antiquity. It might be proper to observe in this place that in proposing these changes, he had gone contrary to the opinions of many of his own friends, and also to those of many of the profession, not because he proposed too much, but because he proposed too little; because, in short, he did not propose to convert that House into a Court of Justice altogether. He had said, that the alterations suggested by him were not altogether new, and he would refer their Lordships back to the time of Edward 3rd in the 14th year of whose reign an Act of Parliament was passed, by which it was

427
enacted, that in order to enable them to hear petitions from Chancery suitors, (for be it observed, that the Court of Chancery was as much complained of then, as it ever had been since,) during those times that the Houses of Legislature were not sitting, and for this purpose one Prelate, two Earls, and two Barons, were appointed to hear petitions, and to have power to judge and to decide upon the matters therein contained; but that if such matters should prove too difficult for them to exercise their judgment upon, they were at liberty to leave them for the general decision of the House, but at the same time the power given to them of judging and deciding was absolute. If, therefore, he should be asked how and in what manner the judicial powers of that House originated, he should reply, in the Crown; and he hoped that there would be no objection to subject the House to that summons of the Crown for the purpose of judicating and also of suffering the House to discontinue and dissolve their sittings by proclamation. His main object throughout the whole course of his deliberations upon the subject of this Bill had been to adapt the changes which he had to propose to the institutions which he found in existence, and the very last thing that ever entered his mind was to introduce any innovations whereby those institutions would in any way be endangered. He had religiously abstained from proposing to do more than he felt necessary, but what was contained in his Bill, was, in his opinion, absolutely essential to the due administration of justice, and to the satisfaction of the suitors of the empire. He should trouble their Lordships no further, but should submit the Bill for a second reading, in the hopes that they would consent to its being read, in which case, he would then enter at large upon the details in the Committee. The noble and learned Lord concluded by moving the second reading of the Bill.
Lord Lyndhurstsaid, it was a duty which he owed to the House, to the country, and, in some sort, to himself, that he should state fully and completely the opinions which he entertained with reference to the measure, the second reading of which had just been moved by his noble and learned Friend on the woolsack. He should state his opinions and views shortly and simply, entreating the House to bear in mind that the measure now under consideration had reference to the
428
prompt and effectual administration of justice, and that it was a question upon which all party considerations ought to be set aside; it was a question in which all had a common interest. He was happy to state, that in approaching the consideration of this measure, it would not be necessary for him to urge anything of a political character; on the contrary, what he had to state were circumstances which presented themselves clearly to the mind of every well-informed and sensible man. He was, however, compelled to state (and he did so with extreme regret,) notwithstanding the unfeigned respect which he entertained for the abilities, the talents, and the learning, of his noble and learned Friend on the Woolsack, he was compelled to differ from him as to the conclusions to which his noble and learned Friend had arrived on this particular measure. He (Lord Lyndhurst) objected to it in point of principle. A considerable time had elapsed since the Bill had been laid on the table by his noble and learned Friend; and since it had been printed, he (Lord Lyndhurst) had had an opportunity not only of considering it himself, but of conferring upon the subject with different Members of the profession of all political parties, and he had not found a single individual who had approved of the measure of his noble and learned Friend. His noble and learned Friend had said, that although there were two Bills on the table, yet they ought to be considered as one measure, and that measure was one of a simple description—it was to divide the office of Lord Chancellor into two parts— not separating the political from the judicial functions; but to divide the judicial functions into two parts, and to attach to one of those parts the political duties which now attached to that high and important office. The judicial duties of the Lord Chancellor, according to his noble and learned Friend's plan, was to preside at the hearing of appeals in the House, and to preside whenever the Lord President of the Council could not dispense with his services at the hearing of appeals before the Judicial Committee of the Privy Council. Now, if all the difficult, perplexing, and laborious duties in the Court of Chancery were to be detached from the office of Lord Chancellor, he should much wish to know what provision the other House of Parliament would be likely to make for the person who was to perform the duties which would remain. Was it likely, be

429
must inquire, that the other House of Parliament would assent to such a provision as would insure the services of an individual posessing those high talents and legal qualifications as were essential to the due and efficient performance of those duties? If the office were stripped of the laborious part of those duties, it would doubtless be less endowed; and could it be supposed that a person like his noble and learned Friend opposite (Lord Langdale) would abandon his certain tenure of the office of Master of the Rolls, or that the Vice-Chancellor would surrender his office, for one so shorn and cut down, and of the precarious character which that of Chancellor would be? It might be said, that an example to the contrary had recently occurred—he alluded to the case of the late Lord Chancellor of Ireland, who had abandoned, from a sense of public duty, the possession of the highest rank in the profession, to hold a situation of precarious character But the circumstances which followed had not been such as to be likely to lead others to follow a similar course. He repeated, that it would be impossible to get a person holding the office of Master of the Rolls to take the precarious situation proposed to be created by this Bill. And what, he would here inquire, were to be the judicial duties the new functionary would have to perform? Now he (Lord Lyndhurst) had looked into papers now upon the table, had made inquiries, and had ascertained the fact that fourteen or fifteen appeals in equity cases were all the appeals that for an average of some years had been decided by their Lordships' House. Now in the courts of the Master of the Rolls and the Vice Chancellor men presided selected from the highest ranks in the profession, and who, since their elevation to the Bench, had their minds constantly engaged in discussing the great principles of equity,—daily and hourly dealing with those principles,—conversant with details,—their minds by practice invigorated,—their faculties sharpened, and their powers thus every hour improved. Such was and would be the character of the inferior judges in equity; and what would be the character of the Judge of Appeal? He also would be selected from the highest ranks of the legal profession; he doubtless would be a man of the same capacity—the same powers of mind; but every member of the profession must know that the intricacies, the subtleties of equity, were difficulties not depending on statutes;
430
and was it to be supposed that even such a man could have his intellects kept alive, his faculties sharpened, his mind invigorated by having to decide fourteen or fifteen appeals in this House, and one or two appeals before the Judicial Committee of the Privy Council? And what would be the result of such an arrangement? Why, that the appellate judge would become inferior to those whose judgments he was called upon to overturn. Could anything be more dangerous in practice, would suitors be satisfied, Would the profession have confidence? No, the evils would be as great in truth as in reality. Look to this House; it was to the discharge of its judicial functions that it owed the character which it had long, and he trusted would ever maintain. It was of the utmost importance that it should maintain that high station in the confidence of suitors, the profession, and the; country, in which it had so long stood. That character must depend on the confidence which the country placed in the noble and learned Lord who sat at the Table to hear and dispose of appeals, and the fell in public estimation and in public opinion, their Lordships would fall with him. Let, then, the House take care not to put in hazard, still less to sacrifice the confidence so long enjoyed. The inevitable tendency of this ill-foreseen! measure would put that character in jeopardy. The Bill provided, that the new; functionary was occasionally to have the; assistance of the Master of the Rolls, the Vice-Chancellor, or the new Chief Judge in Chancery. He doubtless commenced with occasionally calling for that assistance, but, eventually, feeling his own inferiority, the practice would become habitual, and the high and important office he held, which had stood so high in the confidence of the people, would soon sink in public estimation. Would this measure be effectual even for the objects to which it was directed? His noble and learned Friend on the Woolsack had told their Lordships, that the Court of Chancery was not overwhelmed with business. He admitted the fact, and all his noble and! learned Friend's conclusions in that respect. But what was the number of days which on an average was sufficient to transact the judicial business of that House? He should not go into details, but he would state that seventy days was the average number for the last fourteen years on which the House had sat judicially. His noble

431
and learned Friend had provided in one part of his Bill, that the House should be enabled to sit judicially even after a prorogation, under a proclamation, and the authority of the Crown. This consequence would, in his judgment, follow; the Chancellor during the Session would be deeply engaged in legislative business, more deeply as a politician, would take a more active part in debate, and thus his legislative and political functions would be brought into great activity, while his judicial functions would he dormant until the end of the Session. Where could be the necessity of the House sitting judicially notwithstanding its prorogation? Into this he had taken some pains to inquire; and also to ascertain the quantity of the judicial business transacted in that House. It was part of his noble and learned Friend's plan, that the Lord Chancellor being liberated from the duties of the Court of Chancery should sit six days in the week. Now, he found from the Returns on their Lordships Table, that in fourteen years the number of appeals entered were 1,078, being an average of about seventy-seven in each year; and he knew from experience that one-fifth of those ought to be deducted as going off on points of form, or in consequence of private arrangement, and therefore deducting one-fifth, sixty-two appeals would be the average actually entered for each year. The next question came—what was the average time of the sittings necessary to dispose of those cases? It was true they had heard of a case in which his noble and learned Friend was now engaged, being likely to occupy thirty days, but that was not a case which ought to govern general legislation. He found from the Returns, that, during the period of fourteen years, 745 cases had been decided in 836 days, being an average of one case a-day, or something less. And therefore, according to that, the sixty-two cases which he had shown to be the average number might well be expected to be disposed of in as many days, or at least that seventy days in each Session would be sufficient to discharge the judicial business of that House. His noble and learned Friend had adverted to the assistance given by Lord Gifford to Lord Eldon in that House. With reference to that assistance he had looked to the Returns, and he found that in 1824 they sat eighty-four days, and disposed of ninety-one cases; in 1825 they sat ninety-two days, and disposed of ninety cases. They sat
432
only five days in the week, and got through an arrear of business which in 1824 amounted to upwards of 212 cases. This showed how unnecessary it was to provide for the judicial sittings of the House after a prorogation. The plan of his noble and learned Friend was not new; it had been before the country more than half a century ago, and had been considered by the ablest statesmen, by the leading members of the profession, and all concurred in pronouncing an opinion condemnatory of it. The plan had been suggested in the time of Mr. Pitt, of whose views with reference to it he had the best possible authority, that of Lord Redesdale himself, not in a speech that might have been misreported, but in a book he held in his hand from the pen of an eminent and learned lawyer, and which showed that the subject had received their consideration, and had been rejected by them on the very grounds he would now state to the House:—
"And the remedy proposed was one which had been under the consideration of the late Mr. Pitt, when the business of the House of Lords appeared likely to increase to such a degree as to require some additional means to enable the House to discharge its various functions. He wished to provide against the evils which this increase might produce, and which it now has produced. The first suggestion made to him was, to separate the office of Speaker of the House of Lords from the office of Chancellor, and thus to enable the House to sit at all times on judicial or other business, without interfering with the business of the Court of Chancery, or with the other duties of the Chancellor. But to this these three palpable objections occurred:—1st: That the person who should preside in the House of Lords, and especially as the Court of ultimate appeal, ought to be a person whose education and habits, and continued practice in legal decision, might enable him to give assistance to the House, in the discharge of its judicial functions, and occasionally in its legislative functions; that a man so qualified would not readily give up the office either of Chancellor or Chief Justice, or his pretensions to either of those offices, for such new office; and that if such a man could be found, yet exercising no judicial function except in the House of Lords, he would (whatever might have been his knowledge and experience before his appointment) gradually lose that familiarity with business, which, as the author of the pamphlet justly observes, is essential to its prompt and steady despatch, as well as to its weight and authority in public opinion. 2nd. That if the Speaker of the House of Lords should have been educated, and should have even distinguished himself, in the profession of the law, he could not, in that office, be considered as the head of the law; that the person bearing that character no

433
longer presiding in the Court of ultimate appeal, that Court would therefore sink in authority, if not in dignity; and the uniformity of decision, which has resulted from the presidency of the head of the law in that Court would soon be lost. 3rd. That the office of Chancellor would suffer in point of dignity and authority in its judicial character, at the same time, that without taking from it other important duties, it would remain the first Law Officer of the Crown and the responsible adviser of the Crown, though not of the Lords, in matters of law—a circumstance which might produce the most distressing conflictions of legal opinions, and probably introduce party contests into judicial decisions."
Allusion had been made to the name of another distinguished individual—he meant Sir Samuel Romilly. It did so happen that men of all parties concurred in opinion upon this subject, and upon the same grounds. He found the opinion of that distinguished lawyer upon this subject expressed, not in the report of a speech, but in a pamphlet published by that celebrated man at a time when the office of Vice-Chancellor was about to be created. He might be allowed, he hoped, to direct the attention of the House to this opinion:—
"If, of the three Judges, said Sir Samuel Romilly, who are to preside in equity, two are to have the law of the Court in all its various branches familiar to them, and kept constantly in their view, by a regular uninterrupted attendance in Court, and the third is only to refresh his memory by looking back into records and precedents upon particular heads, just so as to enable him to decide in the course of a year nine or ten causes, or twice that number, which may happen to be brought before him for decision, upon appeals, it is very obvious that this effect must, in process of time be produced—the appeal will lie from a Judge, a perfect master of the law he is to administer, to one who has but an imperfect recollection of it. Or if that effect shall not really have been produced, there will always be a notion prevailing that it has. The suitor who has had a decree in his favour, and who sees it reversed, will be disposed to observe, that the Judge of the most experience is most likely to have well understood, and to have properly decided his cause; and the appellant whose appeal had been unavailing will observe, that it is not surprising that the appellate Judge should have had so much deference for his superior in experience and ability, though his inferior in rank, as to have submitted to him his own opinion, and to have affirmed the decree, from deference not to the reasons of the judgment, but to the character and authority of the Judge. When it has been proposed to separate the offices of Lord Chancellor and Speaker of the House of Lords, it has been always objected to such an expedient,
434
that as the House of Lords is a Court of Appeal, it is highly necessary that the person who presides in it should have his knowledge of the law kept constantly refreshed, and the habit of applying its rules unrelaxed, and that this can be secured only by his being in the daily habit of administering justice in a subordinate Court."
And thus we had Mr. Pitt, Lord Hardwicke, Sir Samuel Romilly, Lord Redesdale, than whom no better equity lawyer ever existed, all concurring in the impropriety of separating the important functions exercised by the Lord High Chancellor of this realm. He had other authorities of more modern date in support of the same position. In the debate which took place in the House of Commons on the question of the creation of a Vice-Chancellor, the late Master of the Rolls expressed his entire concurrence in the views taken by Sir Samuel Romilly, and he would here add that the noble and learned Earl not now in his place, but who had so long graced the Woolsack, had in the strongest terms possible expressed to him (Lord Lyndhurst) his entire concurrence in the view of this subject taken by the distinguished authorities to whom he had referred. He had the authority of another individual for whom he entertained the highest possible respect—he alluded to the noble and learned Lord not now in his place, the unfortunate cause of whose absence, he in common with their Lordships deplored. When this subject was brought before the House of Commons in 1830, that noble and learned Lord expressed himself in terms so pointed, that he should not properly discharge his duty if he did not bring them under the consideration of their Lordships:—" He said, that the jurisdiction of the Lord Chancellor is superior to all ordinary jurisdictions. If the Lord Chancellor's duties were confined to silting in the House of Lords, he would soon become a mere Judge of Appeal; he would soon cease to be what the Constitution prescribed he ought to be—the first lawyer in the country. Even as a Judge of Appeal we might set him up, and plant him on the Woolsack; we might give him power; but would he have any authority? would he satisfy the Courts below? would he satisfy the suitor?—would he satisfy the profession? See the course which would then be taken in the appointment of a Lord Chancellor. He would then be chosen because he was a cun-

435
ing intriguer behind the curtain—because he was a skilful debater in the House of Lords. Would such a man be qualified to decide appeals from the Vice-Chancellor, from the Master of the Rolls? He would hear, and he would listen—he would discover a hole to pick here, a word to carp at there —now a commentary to hazard—then a remark to risk—but would he be competent to grapple with the difficulties of a complicated case? Would he have any confidence in himself? Certainly not, because he would well know that the profession had no confidence in him. Such a Lord Chancellor, he engaged to say, would confirm at least nineteen out of twenty appeals. That which ought to be the last resort of suitors, the controller of judges, and the security of right, the power of the appellate jurisdiction, would exist only in name." These were authorities down to the present time; and he invited his noble and learned Friend on the Woolsack to cite any authority to the contrary that was entitled to or deserved any, the least consideration. He was not disposed to leave the subject here. He did not mean for a moment to say that nothing was necessary to be done; he did not mean to say, that improvement was not required. When noble Lords came into office so far back as 1830, much was expected on this head from them. They had previously indulged in attacks upon their predecessors for not amending the Court of Chancery—for not devising some means of getting rid of the arrear of appeals; and they came into office, if not under an express pledge, certainly under the strongest implied pledge, that they would do that which they had condemned their predecessors for having omitted. How had that pledge been fulfilled? Of his noble and learned Friend now absent (Lord Brougham) he wished to speak with the highest respect. He had disposed of more appeals at a given period than any Judge who had preceded him, or any who could succeed him, and he was now suffering, unfortunately, the consequences of that labour. He begged he might be understood as speaking of the noble and learned Lord's legislative measures only. It was true that a Bill had been brought in by him to amend the ministerial offices of the Court of Chancery, a subject which had nothing to do with the present question. In 1833, however, the first measure referring to this subject was proposed and laid upon the table. Though that measure was printed,
436
yet by some means or other it had never got into circulation. He had procured a copy of it by pure accident. The object of that Bill was to establish a new appellate tribunal, but its provisions were of such a character as to induce an opinion that no person who was not a fit subject for the administration of one of the powers of the Court of Chancery would ever have resorted to it. He, therefore, was not surprised that nothing more had been heard of that Bill. In 1834 noble Lords opposite presented a second Bill, which was read a first time, printed, and laid upon the table. That Bill was one of the most ingenious contrivances that ever entered into the mind of man. Its object was to transfer the appellate jurisdiction of this House to another tribunal, and what was that? Why, forsooth, the judicial Committee of the Privy Council, a tribunal consisting of two or three common law Judges, of the Chief Justice in Bankruptcy, of two civilians; and who did the House think was to be the president? Why, one of those sort of Chelsea pensioners, some ex-Chancellor, or another. Though that second Bill was printed, it, like its predecessor, was abandoned; and now there was a third measure, which was neither more nor less than the old measure which had been under the consideration of the profession sixty years ago, and which during that period never was mentioned without being scouted. This was the manner in which noble Lords opposite justified the attacks in which they had so long indulged against their predecessors. He had already stated, that a great additional judicial power was required to make the Court of Chancery efficient, and he thought it was a monstrous thing that in a great nation like this there should not be a judicial establishment so strong as to enable it to hear and dispose of a cause in equity the moment it was ripe for hearing. Viewing the question in that light, he (Lord Lyndhurst), with the permission of that House, in 1830, carried through a Bill which had for its object the making an additional Judge in the Court of Chancery. That Bill was passed with the entire approbation of this House, and of the noble and learned Lord to whom he had already alluded. That Bill went to the House of Commons, where it was, indeed, most roughly handled, and its author treated with anything but the courtesy which he justly expected from an unreformed House of Commons. It was said to be unnecessary, it was so stated by the then Master of

437
the Rolls, and by the Vice-Chancellor, that very Vice-Chancellor who, when examined before the Chancery Commission, being asked if three Judges were not sufficient to transact the business of that Court, exclaimed in a manner peculiar to himself, "Oh, no, nor three angels." He knew not whether the florid appearance of the countenance of the learned Vice-Chancellor had made it evident to the House that he at least was not overworked, but at all events, the Commons rejected the Bill. He must now call the attention of the House to a few data as to the number of causes disposed of by the two branches of the Court of Chancery. He found that in 1830 the number of causes entered for hearing was 898, and in 1835, 882. In 1830 it was said that the object of his Bill was to enable the Chancellor to lead a life of indolence and pleasure, though the number of causes was greater in that year than now; and though at that time there were ninety appeals in arrear, while at present there were none. Again, at that time all the bankruptcy business was done by the Chancellor and the Vice-Chancellor, and that had now been transferred. The rejection of that Bill, in 1830, experience told him was founded, not on principle, but upon feelings of party and of faction. He had said that additional assistance was necessary; in that he agreed with his noble and learned Friend on the Woolsack. He also agreed with his noble and learned Friend that there had been a great increase of business, although, in some respects, he must admit the returns were incomplete and imperfect. They presented the difficulty which he knew not how to reconcile— namely, that the number of Bills filed did not bear any proportion to each other, or showed that increase. In the year 1752, 2,169 Bills were filed, and in 1830 only 1,960, being a diminution of 209. That being so, he was ready to admit the return of the causes set down for hearing was the best test. He found that for the five years ending 1770, the average number of causes set down for hearing was 2,023; that for the five years commencing 1820,the average was 3,352, being an increase of one third; and for the five years commencing 1830 and ending 1834, the average was 4,752; so that, taking that return, the business had nearly doubled within sixty years. The increase of business arising from the hearing of motions and petitions had been still greater, but when his noble and learned Friend stated this increase, he ought at the
438
same time to have called the attention of their Lordships to the fact that the judicial strength during that period of time had also been doubled. When he held the office of Master of the Rolls he had sat only twelve hours in the week. He had afterwards suggested to the late Master of the Rolls, that he ought to sit like the other Judges, during the day, and the suggestion was adopted, and now the Master of the Rolls, instead of twelve hours, sat thirty hours in each week, thus more than doubling the time formerly devoted to that Court. It appeared on reference to history, that from the very earliest time the Court of Chancery had been a subject matter of complaint—it had been so in the time of Sir Thomas More, and of Lord Bacon, and though the complaints were loud, no remedy had been provided. Cromwell, when Lord Protector, had issued an ordinance commanding that causes should be heard and determined in the same day that they were set down for hearing; that ordinance, however, he need scarcely say, was never carried into effect. Lord Coke made similar complaints, and in his time a Bill was passed, making an addition of two Judges. Even when that alteration the same complaints prevailed in the time of Lord Nottingham, Lord Chancellor Somers, and down to Lord Eldon's time, and yet there had never been sufficient judicial strength to hear causes after they were ripe for hearing. These delays of justice produced further delays, and he had no hesitation in now saying, that there ought to be one Judge more appointed, but he must deny that their Lordships could, with benefit to the administration of justice, or with the semblance even of propriety, take the Lord Chancellor from the duties of his office in the Court of Chancery. One-third of his time was quite sufficient for his attention to the business of this House, and the remaining two-thirds might well be devoted by him to the Court of Chancery. In a word he wished for the appointment of another Judge, but he never could consent to a division in the character and duties of the office of the Lord Chancellor. He protested, however, against the principle of separating the office of Lord Chancellor, or taking him from his proper jurisdiction. But his noble and learned Friend on the Woolsack said, that to create an additional Judge would increase the number of appeals. He could by no means concur in this opinion. The increase of the business was to be attributed to the delays in hear-

439
ing causes when ripe, requiring motions to be made in aid of the cause,—motions frequently involving the whole question at issue between the parties. Those motions not unfrequently became the subject matter of appeal, and thus it was, that the business was increased. Provide for hearing causes without delay when ripe, and the number of motions would be diminished by one half. Again, there was another reason to show why a new Judge in Equity was necessary. The House was well aware that a Commission to inquire into the practice of the Court of Chancery was appointed, and the Commissioners reported upon the necessity of accelerating the hearing of causes when once set down. What was the use of accelerating a cause to one point, and then to stop? Such, however, was the case; no remedy was suggested by the Commissioners, though they stated that greater judicial strength was essential. Was it necessary for him to read any further authorities? He could not refrain from alluding to the evidence of his noble and learned Friend opposite (Lord Lang-dale), given by him before the Commissioners. His noble and learned Friend had said that "in many instances the delay between setting down a cause for hearing, and the hearing itself, exceeds all the other unnecessary delays put to together;" and his noble and learned Friend went on to say, that "the present number of judges in equity were not sufficient to get through the business." In that opinion his noble and learned Friend was corroborated by the evidence of Mr. Bell, Mr. Heald, Mr. Shadwell, and by Mr. Roupell. His noble and learned Friend had on the same occation said, "that any accumulation of causes set down for hearing was a disgrace to the country, and that the objection to the appointment of new Judges on the ground of patronage and expense ought not to weigh against pressing necessity." It seemed agreed, then, that further judicial strength was necessary, but no remedy was suggested in the Report. The Court of Exchequer was a Court of Common Law, and also a Court of Equity, for it had an equitable jurisdiction ingrafted upon it. It was, however, without any Judges in Equity. It was true that his noble and learned Friend, the Chief Baron sat as an equity Judge whenever he could afford time, and Mr. Baron Alderson assisted; when they could not sit, the business was suspended. Here there was a Court in which they had suitors, but no Judges. What he would
440
recommend was, that a permanent Judge should be added to the Court of Equity. As to the expense, that was not to be regarded when the importance of the measure was considered. His noble and learned Friend on the Woolsack looked upon the Judges of the Court of Review as unnecessary, and said, that the Commissioners did the business so well as to leave nothing for the Judges to do. He had long since predicted that such would be the case. In the course of four years the Judges had made 2,443 orders, and, in the four preceding, 2,476 orders were made by the Chancellor and the Vice-Chancellor. He would suggest that the business of the Court ought to merge in another tribunal. What he proposed was, that instead of the Lord Chancellor, an additional Equity Judge should preside over the Privy Council. The jurisdiction of the Privy Council took cognizance of the administration of the laws of Spain, France, Holland, and other countries. The new Judge should be conversant with the principles of law in reference to all those countries. He should at the same time hold the sittings of the Court at certain stated periods. The Judges attending the Judicial Committee of the Privy Council should be relieved from giving their attendance at the Old Bailey. An efficient tribunal might thus be constituted for every necessary purpose. This was the outline of what he had to propose. The principle of the present Bill was to separate the office of the Lord Chancellor, and to that he could never agree. If his noble and learned Friend would frame any measure upon the suggestions which he had thrown out, he would be ready to give it his cordial support. He knew that his noble and learned Friend opposite (Lord Langdale) had a measure to propose, and everything which came from him on the subject was entitled to the highest consideration. He had stated now his opinions of this measure; to its second reading he could not consent. His noble and learned Friend opposite (Lord Lang-dale) would state his views, and it would be for the House to say what course it would pursue. In the mean time, he felt it to be his duty to move as an amendment upon the motion of his noble and learned Friend on the woolsack, that this Bill be read a second time that day six months.
Lord Langdalespoke as follows*: My
* From a corrected Report published by T. and W. Boone.

441
Lords, I rise to address your Lordships under feelings of considerable embarrassment, not only from the pointed manner in which I have just been alluded to by my noble and learned Friend opposite, but also from a consciousness of the great difficulties which surround the subject under consideration. That subject seems to have been treated by the noble and learned Lords who have preceded me, as if it related only to the administration of justice in the Court of Chancery and in this House. To me, however, it seems to relate to the general administration of justice in all the courts of the kingdom, and also to be necessarily connected with the exercise of the legislative power of the High Court of Parliament. In my view, therefore, the importance of the subject cannot be too highly estimated; and it seems to me to be of a nature so exalted as to remove it far beyond the reach of party or political feeling. My noble and learned Friend, indeed (Lord Lyndhurst), set out with stating that it was his intention not to consider the question as a party question; and if in the course of his address he somewhat swerved from his resolution, his doing so is scarcely to be wondered at, when it is recollected that his own propositions on former occasions were, by his opponents, treated only with a view to party purposes. My Lords, the returns on the table are extremely important, as affording proofs of various facts necessary to be considered, and which I have considered with the best attention in my power. It is not my intention, however, to state the results in detail, but rather to suggest to your Lordships a more general view than has hitherto been presented of the consequences which flow from the many duties imposed upon the Chancellor. The extent of those duties is, in my opinion, a principal source of the evils complained of; and so clear does this appear to me, that I can hardly imagine my noble and learned Friend does not equally perceive it. When, indeed, he states that you may debate respecting the King's Bench, or other courts, and no political feeling will be thereby excited, but that once approach the Court of Chancery and the hostility of party is aroused, does he not inadvertently admit the fact? Does he not perceive that the reason simply is, because the Chancellor who is the highest judicial officer, is also one of the highest political officers of
442
the Crown? After long consideration I have come to the conclusion, that to the union of those judicial and political functions in the Chancellor is mainly to be attributed the growth of many of the evils which we are all so anxious to remedy; and though I admit that many eminent authorities are favourable to the opinion of my noble and learned Friend, that the office of Chancellor cannot be divided with advantage to the country, yet I have to submit to your Lordships that my noble and learned Friend has not come to a just conclusion on this subject; and no small part of my embarrassment arises from this, that while he considers the partial division of the office to be objectionable, I, on the other hand, consider that the office ought to be divided to an extent much more considerable than has been hitherto proposed.
My Lords, in the consideration of this subject, it appears to me necessary that the attention of your Lordships should be called to the many great and important duties which the constitution of this country imposes on the person holding the great office of Lord High Chancellor; to the utter impossibility of those great and important duties being satisfactorily performed by one man, however great his abilities; to the inconveniences which necessarily arise from that impossibility; and to the measures which appear most proper to supply the defects and remedy the evils which I shall point out.
With respect to the duties of the Chancellor, your Lordships have been informed that they are partly judicial and partly political; and that his judicial duties are partly of original and partly of appellate jurisdiction; but in order that the subject may be understood with distinctness, it is necessary to be a little more particular.
As a Judge in matters of original jurisdiction, he has not only to hear and determine all the various matters which properly belong to the jurisdiction of the Court of Chancery, and various matters attributed to him by Acts of Parliament, but other matters which come before him as Visitor of Charities on behalf of his Majesty, and as Guardian and Superintendant of Idiots and Lunatics and their estates, by special commission from his Majesty.
As a Judge in matters of appellate jurisdiction, he is Speaker or Prolocutor of this House, in its judicial capacity, the

443
supreme court of appeal for the United Kingdom; and he is Chief Judge in the Court of Chancery, rehearing and affirming, reversing or varying, the decrees and orders of the Master of the Rolls and Vice-Chancellor.
In both these respects he is in a situation somewhat anomalous. Strictly speaking, he is not a Judge of Appeal from the decisions of the Master of the Rolls, or the Vice-Chancellor; but the decrees and orders of the Master of the Rolls and the Vice-Chancellor, according to the practice of the Court, are not complete till they have been enrolled; before enrolment they must be signed by the Chancellor; when they are so signed they become his decrees and orders; till that is done, the suitors have, under certain sanctions, a right to have the causes reheard by him; and, under the circumstances which happen, such rehearings in most cases are substantially appeals. Strictly speaking, again, the Chancellor, though a Peer, is, no more than any other Peer, a Judge of Appeals in this House. The appellate jurisdiction (under circumstances to which I shall hereafter have to request your Lordships' attention) is vested in the House, and every Peer has his voice and vote. But, generally speaking, other Peers, even if attending the House, do not attend to the subject: and, notwithstanding some exceptions which have lately been more fre-frequent than they formerly were, the appellate jurisdiction of the House is in practice exercised by, and substantially vested in, the Chancellor alone.
As a politician, the Chancellor is the King's principal adviser in matters of law —a Privy Counciller—a Cabinet Minister —and a Great Officer of State, responsible in all matters ministerial and political which are connected with the custody and use of the Great Seal. He is the head of the law; he is or Ought to be superintend-ant of the Courts of Law—the minister whose duty it is to attend to the due administration of justice there. He ought to attend to the Bills from time to time brought into Parliament, for making new or altering old laws. To him in particular the King, and the two Houses of Parliament, are entitled to look for advice and information in all matters which regard the administration of justice and the state of the law. He is the Speaker of this House in its political and legislative capacity; and, among his many other political
444
duties, he is charged with the appointment and removal of Magistrates, and the patronage of the King's livings, under the value of 20 l. a year, in the King's books.
I have given no more than an outline of the duties attached to the office; but it is evident that no man can perform them with satisfaction to himself and the public. The extent, variety, and importance of the business to be transacted, is more than sufficient to distract and overpower the most vigorous attention, if attempted to he conscientiously applied. In this state of things, what has been found most pressing has been attended to, the rest has been neglected; and the consequences have been—delay of justice in the Court of Chancery—delay of justice in this House — the neglect of many of those great political duties which consist in the super-intendance of the law, and the administration of justice,—and the transfer of others of those duties to the office of the Secretary of State for the Home Department.
Again and again have the delays in the Court of Chancery and the House of Lords, and the inattention of the Chancellor to Bills passing through Parliament, been, ignorantly or from party motives attributed to a want of due exertion on the part of the Chancellor. Rarely indeed has the imputation been true,—the fault has been in the accumulation upon the Chancellor, of more and a greater variety of business than it was possible for any one man to dispose of. He cannot constantly and regularly attend to his judicial business in the Court of Chancery, because he is a Cabinet Minister and the Speaker of this House:—he cannot constantly and regularly attend the service of this House, because he is a Cabinet Minister, and a Judge in the Court of Chancery: — and he cannot constantly and regularly devote his attention to the great and important functions, political and legal, which belong to the holder of the great seal, because he is a Judge in this House and in his own Court.
Owing therefore to the multiplicity and magnitude of the duties imposed upon the Chancellor, there is in judicature a want of judicial power in the Court of Chancery, and a want of adequate judicial assistance to this House; and there is in legislation a want of power to attend in a proper manner to the various matters connected with the law, which come under the consideration of Parliament.
The want of judicial power in the Court of

445
Chancery is so frankly admitted by my noble and learned Friend opposite, that I shall take the liberty of assuming it, without troubling your lordships with the proofs in detail.
The consequence is delay in the administration of justice there,—a delay productive of the most serious inconvenience to the suitors and the public. The largest part of the whole property of the country which is litigated, is, in one way or other, subject to adjudication in the Court of Chancery. Those who consider how much the security of property, and the happiness of all ranks of people depend on the due execution of trusts,—the specific performance of agreements,—the settlement of accounts,—the administration of the estates of deceased persons,—the guardianship of infants,—the protection of the separate property of married women,—and the many other impartant subjects which fall within the jurisdiction of the Court of Equity, may form some notion of the importance of the Court of Chancery, and of the extent of suffering which must arise from undue or improper delays in the administration of justice there.
It is true that in the Court of Chancery there are many causes of delay besides the want of judicial power; and those causes of delay ought to be most carefully examined, with a view to remove them if possible, or to diminish their effect in cases where they cannot be removed: but of all the causes of unnecessary delay, the defect of judicial power is the most prominent; and until it is remedied, it is not only useless but a species of mockery to adopt other means to accelerate the decision of causes. Several years ago, it was well asked by my noble and learned Friend opposite, who has again asked to-night, why should you accelerate the process by which causes are made ready for hearing, if, when you have reached that stage, their further progress is stopped by the want of judges to hear them? The question was met by a suggestion now known to be without foundation, that there was no want of judges.
I shall not detain your lordships by detailing the particular inconveniences which arise from delay of the judicial business of this House. My noble and learned Friend seems to think, that all the judicial business may easily be disposed of. The arrears of Appeals and Writs of Error at the end of successive sessions, seem scarcely consistent with his view. Certainly
446
the delays which happen do not all of them arise from want of the judicial assistance of the Chancellor owing to his other employments; but that many of them de arise from that source your lordships will be assured of, if you do me the honour to attend to the statement which I have to make of the attempts heretofore made to remedy them. The other great cause of delay arises from the suspension of all proceedings during the prorogation or dissolution of Parliament.
Your lordships are aware, that the appellate jurisdiction extends over the whole of the United kingdom, and comprises matters of law as well as of Equity; and that there ought to be no delay at least no unnecessary delay, in appeals, will I hope appear from this consideration alone, that every appeal involves an assertion that the judge has committed an error. If the assertion be true, injustice has been done to the appellant, and is in course of execution against him; if the assertion be not true, there is an imputation upon the judge which ought to be removed. In either case the matter ought to be inquired into and determined without any unnecessary delay.
It ought further to be observed, that the evils of delay are greatly increased by the collateral effects which result from it.
Delay begets delay. In the course of time supplemental facts arise—parties die or change their relative situation—new parties interested in the property come into existence—interests devolve or are transmitted, and various dealings with the property take place. Every event may and often does become a source of fresh litigation and fresh delay. Bills of Revivor and Supplement, and repeated interlocutory applications are the consequences, and in their turn become the causes of additional delay and increased expense.
The delay united with its attendant expense attends to shut the door of justice. The man whose violated rights require the aid of the law, and who ought to find redress in the courts, is deterred by the delay and the expense. The wrong-doer sits in tranquillity and triumphs; nay more, the same state of things which discourages bona fide litigation encourages mala fide litigation, and invites the wrongdoer himself into court; he comes with a fictitious complaint, not to establish a right but to extort submission to a wrong, and to secure to himself the fruit of his own iniquity. There are cases in which the

447
injured party will rather submit to oppression or a compromise of his right, than expose himself to litigation, which he knows will be attended with great delay, and consequent anxiety and expense.
But delay, however, grievous in its consequences, cannot always be avoided, and is not always to be imputed to the court in which it occurs. There are cases in which unnecessary delay, to a great extent, may be justly imputed to the neglect or misconduct of the parties or their agents; there are also cases in which the truth cannot be investigated and ascertained without the consumption of a great deal of time, i. e. without much delay. Cases of long pending accounts, of intricate transactions—cases of complicated and artfully concealed fraud— cases of trust, the execution or breach of which may extend over a long series of years, are cases of that kind: and these are the cases, above all others, which I have generally found made the subject of declamatory attacks on the Court of Chancery, and cited as proofs of unnecessary delay there; and there are persons who in ignorance, or in the eagerness of their party zeal, have denounced delay in terms which would seem to indicate an opinion that to be "swift of despatch" is the only or principal requisite of a good judge. There cannot be a greater or a more dangerous mistake. There certainly may be cases in which a rash, hurried, and wrong decision against the miserable suitor would to him be preferable to a prolongation of his suspense and anxiety. But haste or undue celerity generally produces injustice in the particular case, and it always tends to produce the appearance of injustice, and an universal distrust in the minds of all suitors and of the public; and in that way is more pernicious to the general interests of the public, than the undue delay of which I have endeavoured to describe the effects.
The office of Chancellor is, however, political as well as judicial, and I have next to beg the attention of your Lordships to the inconveniences which arise from the want of the due performance of those political duties which the Constitution attributes to that high office. It will be admitted, that it is the first duty of Government to provide for the due administration of justice, which is in fact the life-blood of a civilised community. But justice, though in its popular sense of wider import, in its practical application depends on the law— and it becomes necessary for the Government to take care, that the law, on which
448
justice in its practical application depends, is in as good a state as the advancement of knowledge, the state of society, and other circumstances will permit. The constant fluctuation of all human affairs—the new sort of transactions in which men from time to time engage—the new relations in which they stand to one another, make it absolutely necessary for their welfare, and even for the peace of society, that such corresponding changes, as wisdom and experience may sanction, should from time to time be made in the law.
A constant and vigilant superintendance over the state of the law should therefore be diligently exercised. The mode of its working—the defects which may be observed—the inconveniences which arise— should be duly and regularly noted. The learned judges whose duty it is to administer, but who have no authority to make the law, when they meet with cases to which the existing law is not applicable, should give information to the Government, and the changes which may from time to time become necessary should be carefully considered upon a general system. In the absence of any efficient assistance in this respect from the Chancellor, the Government, in both its executive and legislative parts, is in want of a constant and safe guide to useful improvement when there is need of it, and of a constant and prudent check to inconsiderate innovation when ignorantly proposed.
It is impossible that the laws should be absolutely fixed, but custom will always give a preference to that which has been long used; and by adopting a proper plan of care and superintendance, you may acquire a fixedness of method and system which, admitting of such variations as the fluctuating state of affairs may and must from time to time require, will nevertheless establish and confirm those settled notions of right and duty on which the welfare of society depends. The law cannot be looked up to with the same blind veneration that it used to be when involved in mystery and obscurity; but it will receive a different and more valuable sort of veneration, when all rash changes are checked, and all useful suggestions are adopted, as they ought to be, upon a general plan, for the purpose of making the whole system conform to the habits and manners of the people at large.
Most justly has it been said, "Morosa morum retentio res turbulenta est, œcqué ac novitas;" and truly have we experienced it in this country. There was a time,

449
which all who have attended to the subject may remember, when no change that could be resisted was allowed; when men of great power and influence really believed that our system of law was not only better than that which was enjoyed by any other country, but was as a whole, and in every part, better than any thing else which the wit of man could suggest; when Government, or the law authorities, instead of watching the system with a view to improvement when safe and proper, watched the system only for the purpose of protecting it in the state it then was. That plan of resistance was for a time eminently successful; but the necessity and the desire of change went on increasing, and at length prevailed. Proposals to change then came on with a rapidity which scarcely admitted of control. The Government has from time to time found itself embarrassed by the proposals to change which have been made, and by its own incapacity to afford them due consideration. The Chancellor was the person upon whom the duty devolved, but it was utterly impossible for him to perform it, and the expedient has been, to appoint commissions to inquire into the state of the law in its different branches, and to suggest remedies for ascertained grievances.
We have, accordingly, within a few years past, had, in England alone, Commissions to inquire into the state of the Court of Chancery, the Courts of Common Law, the Law of Real Property, the Ecclesiastical Courts, and the Statute and Criminal Law. The expedient was in perfect conformity with the established practice of the Constitution, but was never before so extensively resorted to. The Commissioners, generally speaking, have applied great knowledge and industry in investigating the subjects submitted to their consideration. They have collected a great mass of very valuable information, and made many useful suggestions. But they worked separately, collected their information and made their suggestions separately, with special regard to their own peculiar objects and circumstances; and their recommendations have not always been perfectly consistent with one another. If there had been a central power to compare their different reports with each other and with the whole system of the law; if there had been a minister able to bestow his own time on the subject, to consult the judges and officers engaged in the administration of the law, and, after receiving their advice, to procure the proper Bills to be prepared, and to explain to Parliament the foun-
450
dation and reasons of the proposed changes, i. e. if the time of the holder of the Great Seal had not been otherwise occupied, the country might, before this time, have derived infinite benefit from the Reports of the Commissioners. Under the circumstances which have existed, some fruits, nay, considerable fruits, have been derived from their valuable labours; but I would venture to ask the members of the successive Governments which have existed during the last ten years, if the difficulty of determining whether the recommendations of the Commissioners should or should not be adopted, or, that difficulty being overcome, whether the difficulty of preparing, bringing forward, and explaining the necessary Bills, have not been in many instances insuperable? and whether this has not arisen solely from the want of sufficient knowledge and power in the Government to attend to the subject?—a want of sufficient knowledge and power, which would not have been experienced if the holder of the Great Seal had not been so unavoidably occupied with other matters as to prevent his giving due attention to the subject. And I confidently ask every man who has witnessed with any attention the manner in which Acts of Parliament for alterations in the law are prepared and brought forward, whether he is not satisfied that very great public inconvenience constantly arises from the want of some constituted and responsible Minister capable of attending to the subject, and of giving the requisite information and proper assistance in laying the proposal before the legislature for its consideration, and in framing, and finally settling the details of the law, when the general principle is approved of?
It is in vain to disguise the fact—every Government has struggled with the difficulty, and at times even attempted to dissemble it; but the present arrangement of the offices does not afford the country the benefit of a constant and vigilant superintendance over the administration of justice, and does not afford to the executive Government and to the legislature such regular and constant information respecting the state of the law, the proceedings and situation of the courts, and all other matters relating to the administration of civil and criminal justice, nor such assistance in the preparation of new laws, as may afford the best guide to safe and useful improvement, and the most secure check to rash and ignorant proposals to change. Without a proper guide, the Parliament proceeds from

451
year to year blundering in legislation, accumulating one statute upon another, without system and without order; and the statutes themselves are often framed in such a manner as almost to defy interpretation; daily provoking observations in the courts of justice upon the carelessness and want of skill in the legislature.
But besides the inconveniences arising from the impossibility of performing the whole duties thrown upon the Chancellor, there are others which arise from some of the duties which he is obliged to perform being incompatible with one another, and unfit to be performed by the same man.
Being a Judge of rehearing in the Court of Chancery and, in effect, the Judge of appeal in the House of Lords, there have been in practice two successive appeals— one from the Master of the Rolls or Vice-Chancellor to the Lord Chancellor in the Court of Chancery, and a second from the Lord Chancellor in the Court of Chancery to the Lord Chancellor in the House of Lords.
The due administration of justice makes it absolutely necessary, that the decisions of every judge of original jurisdiction should be subject to reconsideration; not only upon a rehearing before the same judge, but upon an appeal to another judge or court; but a double appeal (being more than is necessary to secure the due administration of justice) produces unnecessary litigation, expense, and delay. We do not want an appeal in the shape of a rehearing and then a real appeal.
Lord Lyndhurst: That is what this Bill does in effect provide.
Lord Langdale: Yes: and my noble and learned Friend may recollect that that is one of the provisions of which I have disapproved. In order to the due administration of justice, two things are wanted— first, a rehearing, which enables the parties to offer new arguments, or present the case in a new light to the same judge, and affords to him an opportunity of correcting any errors into which he may have accidentally fallen; and secondly, an appeal to another judge or court, whenever there is reason to think that the judge has committed an error after the case has been duly presented to him, and he has had an opportunity of duly considering it. It is a great mistake to suppose that a cause cannot be candidly and fairly reheard by the same judge. I have been witness to many instances of that kind; and no doubt there are cases in which the Chancellor, in the name of the House of Lords, reverses his
452
own decrees in the Court of Chancery. But this he might do in his own name, upon a rehearing in his own court, without the forms, or the delays and expenses of a pretended appeal to another court.
Moreover, the mind of a judge ought to be in a state of the greatest possible calm and tranquillity. His cool and undisturbed attention should always be given to the case before him, and he should be, if possible, protected from the agitation of political storms. Yet the Chancellor is left peculiarly exposed to them, and what is it that we may not see? The man is subject to human frailty; he is called from the judgment-seat to mix in party politics, and when his power is tottering to its foundation, or great political excitement exists, his feelings will show signs of their existence. One man may be almost dissolved in tears—another may collect himself into rigidity, by an effort too manifest not to betray his inward emotion;—another may scarcely seek to conceal the wild excitement which tosses his mind:—but all such scenes are unseemly on the judgment-seat, and all such feelings unfit the judge to do his duty there. It is clear that such things ought to be avoided; clear also, that a judge ought not to be liable to be assailed by the importunities and solicitations which inevitably crowd on the possessor of great patronage: clear also, that the suitors ought not to be subject to the great expense and inconvenience which is often produced by the change of their judge with the change of administration. Let the case of Lady Hewley's charity be taken as an example of this sort of inconvenience. The case was heard before a noble and learned Lord now absent (Lord Brougham), with the assistance of two judges. Before the decision was given, that noble and learned Lord ceased to be Chancellor, and the hearing went for nothing. The case was again heard by my noble and learned Friend opposite (Lord Lyndhurst), with the assistance of two judges; and before the decision was given, my noble and learned Friend in his turn ceased to be Chancellor: and this second hearing would also have gone for nothing if the parties had not consented to be bound by the decision of my noble and learned Friend, notwithstanding his loss of office. Experience has indeed sufficiently proved the great inconvenience resulting from the union of the political and judicial functions of the Chancellor.
In stating the inconveniences which appear to have arisen in the different ways I have mentioned, I should be sorry to have

453
it supposed, that I impute them to the personal conduct of the eminent men who have successively held the high office of Chancellor. No man is bound to perform impossibilities; and certain I am, that no man in modern times has been, or is able to perform, in a satisfactory manner, the numerous important, complicated, and incompatible duties, which are attributed to the office of Chancellor. And if it should be said that the Chancellor, finding himself embarrassed by the multiplicity of his business, ought to have investigated the cause and provided a remedy; I shall answer, that it would have been better if he had done so, but that every lawyer has been brought up to contemplate the office of Chancellor as the great object of professional ambition, the great prize, the remote prospect of which allured the student to devote his early days to painful and laborious industry; and the possession of which rewarded a life of toil. To dim the splendour of the office by abstracting any of its attributes, has been thought a species of profanation; every legal mind has recoiled from the consideration of expedients likely to end in that result; and I cannot lake upon myself to impute blame to those Who, in such circumstances, have shrunk from the task. But, turn the matter in every way, the question forces itself upon us—What ought to be done with the office of Chancellor? From the numerous, complicated, and incompatible duties thrown upon him; the work of the country is not done; and I hope that I am not assuming too much when I venture to say, that it cannot be done Without a division of his labour; and that to make the division effectual and beneficial, it should be made into three distinct parts, according to the three distinct classes of duty which the Chancellor has to perform: the judicial original—the judicial appellate—and the political. If the necessity, and also the principle of division tie ascertained, we ought (I presume) to go the whole length to which the principle leads, provided we do so with the necessary prudence and caution.
There are three things to be provided for:—1st, sufficient original judicial power in the Court of Chancery; 2nd, sufficient legal and political power to enable the Government to give adequate attention to the state of the law and the administration of justice; 3rd, sufficient legal assistance for the exercise of the appellate judicial power of the House of Lords. And, to provide
454
for these objects, I submit to your Lord, ships,—
That the Lord Chancellor should no longer hold the Great Seal, but be created by letters patent, and confined to his judicial functions of original jurisdiction in the Court of Chancery:
That the Great Seal should be delivered to a Lord Keeper, who should perform all the political functions which have heretofore belonged to, or ought to have been exercised by, the Lord Chancellor holding the Great Seal, but should have no judicial power whatever:
That this House should be made a satisfactory Court of Appeal, by the appointment of judges competent to do the work imposed on them, and responsible for the due performance of their duties.
My Lords, I consider that this may be done with due regard to the prerogative of the Crown, and to the dignity and privileges of this House. But I feel that I have now touched upon the most difficult part of my subject, and I can scarcely venture to proceed further without entering into some historical detail respecting the appellate jurisdiction of this House, and the attempts which have from time to time been made to reform the Court of Chancery.
It is not easy to trace accurately the origin of the legal authority of the House of Lords, in matters of judicature. The King was at all times considered as the fountain of justice,—as the authority to be resorted to in any case of grievance by error, delay, or obstruction in the ordinary Courts: and it was upon the King, or the King and his Council, especially his Council in Parliament, that the country mainly relied for redress. In the time of Edward 3rd, [14 Edw. 3, stat. 1, cap. 5,] it was enacted—
"That at every Parliament should be chosen a prelate, two earls, and two barons, who should have commission and power of the King, to hear by petition delivered to them, the complaints of grievances and delays done in judicature: and by good advice of themselves, the Chancellor, and others, should proceed to take a good accord, and make a good judgment. And that in case the difficulty seemed so great that it might not be determined without assent of Parliament, the records were to be brought into the next Parliament, and there a final accord should be taken, what judgment should be given in such case."
The Parliament which originally possessed judicature was the High Court of Parliament, of which the King was the

455
head, and the House of Commons a constituent part; but the House of Lords containing the only persons who in early times were competent to attend to matters of law, it is no wonder that the main jurisdiction centered there; and it was once conceived that any cause, and in any stage of it, might be heard and determined in this House:—that this House might receive the first plaint, or order the proceedings in an inferior court to be removed hither at any period, and assume the task of determining them. With these matters involved in the obscurity of what, for this purpose, may be considered remote antiquity, it is unnecessary to occupy time.
The appellate jurisdiction from the Courts of Common Law, was that which was first reduced to regular form. It rests upon the King's writ, which, after some variation of form, ultimately became a writ whereby the judge in the court below, upon alleged error, was commanded to bring the record to his Majesty in his Parliament, that he, with the assent of the Lords spiritual and temporal, in the same Parliament, might cause to be done what was right for correcting the alleged error.
Upon the consideration of the errors, it would appear that the learned persons who are now summoned to attend this House as the King's council here, had not only voice of advice, as they now have, but also voice of suffrage which they now have not; and that afterwards the King, either of his own authority or with the advice of the House, assigned a select number of Lords and Judges to hear and determine the alleged errors: but it has long been entirely settled, that when in pursuance of the King's writ the record is brought into Parliament, and the alleged errors are to be considered, it is the House of Lords who are to decide the question, though the Lords for their own assistance or satisfaction, may ask the advice of the Judges and others who attend the House, as the King's council here.
This was a settled course of proceeding before it became necessary to consider of appeals from the Courts of Equity. When the business of these Courts increased and their decrees became numerous, the necessity of providing some means of revising their judgments must have become obvious. But the great Courts of Equity—the Court of Chancery, the Court of Exchequer, and the Court of Requests, as well as the Equity Court of the Duchy of Lancaster, were
456
presided over by the Lord Chancellor, the Lord Treasurer, and the Lord Privy Seal, and the Chancellor of the Duchy,—all great officers of state; and it was not easy to provide a remedy. The first expedient resorted to was, to apply to the King for Commissions to examine the decrees; and instances of such Commissions to examine the decrees made in the Court of Chancery, are found in the times of Elizabeth, and of James 1st and Charles 1st; but it was not unfrequented to attempt to vacate decrees, by Bill in Parliament in a legislative way.
It is probable that the House of Lords was first applied to by way of petition to itself, in the time of James 1st; and it is very singular, as showing the state of the jurisdiction at that time, that in a case in which the House had, upon petition, made an order that was complained of, they did not persevere in maintaining the order, but directed that the cause should be reviewed in Chancery, by the Lord Keeper, assisted by such Lords of Parliament as should be named by the House, and the Lord Keeper was to be a suitor to his Majesty for a Commission. The jurisdiction of the House was not freely exercised till after the Restoration; and after some disputes which had their origin in questions of privilege, the House of Commons, on the 19th of November, 1675, passed this resolution:—
"Whereas the House has been informed of several appeals depending in the House of Lords, from Courts of Equity, to the great violation of the rights and liberties of the Commons of England; it is this day resolved and declared, that whosoever shall solicit, plead, or prosecute any appeal against any Commoner of England, from any Court of Equity, before the House of Lords, shall be deemed and taken a betrayer of the rights and liberties of the people of England, and shall he proceeded against accordingly."
The Commons soon after voted two appellants into custody. The Lords voted protection to the same persons, and declared the resolution of the Commons to be "illegal, unparliamentary, and tending to a dissolution of the government." Upon this the King prorogued the Parliament for fifteen months, and the dispute was afterwards settled under circumstances not well known. The Lords, however, succeeded in establishing their right. After the union with Scotland, (though the Act took no notice of the appellate jurisdiction,) appeals were brought to the House of Lords from Scotland, by petition to the

457
Lords without any application to the King; and by the Act of Union with Ireland, the appellate jurisdiction was expressly reserved to the House of Lords of the United Kingdom.
The jurisdiction which in process of time was thus firmly established, was at an early period disapproved of by Sir Matthew Hale, who pointed out the inconveniences arising from such a Court of Appeal from the judgments of learned Judges given with deliberation, and yet subject to be overthrown by one single content or not content; and it does seem a singular constitution, that a House composed as this is, should have power to decide in matters of law by a majority of votes against the opinion of all the Judges. This power, however, has been but rarely exercised. Very few instances of the interference of the House of Lords against the opinion of the Chancellor have occurred. The reason undoubtedly is, that whatever may have been done soon after the jurisdiction was first exercised, the Members of the House have generally thought it unbecoming to interfere in matters which they did not understands in which they might have a personal interest; and, in the result, it has generally been found difficult to induce the Lords to attend at all. The inconveniences indicated by Sir Matthew Hale, and which were experienced in his time, can be hardly said to exist in modern times. The whole business has been usually left to the Lord Chancellor or Lord Keeper alone; he has decided appeals and writs of error according to his own judgment and discretion, assisted when he pleased by other Judges; but his decisions have been made in the name of the House; and from the circumstance of his judgments being nominally those of the House, they have had, in the opinion of the public and of the profession, a much more imposing dignity and authority than they would have have had if pronounced by him as a single Judge in a distinct Court. In this view, the public were, for a considerable time, rather benefited than injured by an arrangement which at first seemed very objectionable. There were persons who smiled at the contrivances and ceremonies resorted to for the purpose of giving to the proceedings of one man the appearance of being the proceedings of the House of Lords; but, in substance, the public looked to the Chancellor alone; the Chancellor well knew that the only responsibility, which the nature of the case admitted of, vested in him; he took pains accordingly, and the public had the benefit.
458
But an inconvenience, not contemplated at an early period, arose. The Chancellor having, in substance, become the sole Judge of Appeals in the House of Lords, the business of Appeals could not ordinarily proceed in his absence; and, at the same time the business of the Court of Chancery was continually increasing. The business of Appeals was increased by the union with Scotland, and long afterwards by the union with Ireland. It would be tedious to trace the history with minuteness. The Chancellor had, as I have said, three sorts of business. He was a politician; a Judge of Appeal in the House of Lords; and a Judge in his own Court. His increasing occupations deprived the country, in a great measure, of the benefit of his general superintendence of the law; but there were parts of his political business of such urgent and pressing necessity that they could not be neglected, and they were not. The rest of his time was divided between the House of Lords and the Court of Chancery; and in neither place could satisfaction be given. I pass over the complaints which were from time to time made during the whole course of the eighteenth century, and come to a period of ten years after the union with Ireland. In the spring of 1811, there were depending in the House 296 appeals and forty-two writs of error; a Committee was appointed to inquire what measures it might be expedient to adopt, for the more expeditious hearing of causes brought into the House by appeals and writs of error. On the 20th May, the Committee reported that it would be expedient for the House to sit for hearing appeals, at least three days in every week during the Session; meeting at ten o'clock at the latest on each day, till the arrear should be considerably reduced, and subsequently two days in the week; that, as such a regulation would take up a large portion of the Chancellor's time, it was absolutely necessary that some relief should be afforded him in the discharge of his other judicial duties; and that it was expedient (in order to secure at the same time a sufficient attendance upon the House of Lords by the Lord Chancellor, and sufficient means for carrying on the business in the Court of Chancery) that an additional Judge in the Court of Chancery should be appointed. On the 30th May, the resolutions of the Committee were adopted by the House; and they were the germ of the Bill for the appointment of the Vice-Chancellor, which passed into a law about two years afterwards.

459
About the time when the Committee reported, the House of Commons instituted proceedings of their own on the same subject. The question was taken up as a party question. A desire to throw blame on Lord Eldon appears to have been at least as powerful as the love of justice in the minds of some of those who opposed the measure; and the debates of the period, though affording some useful suggestions, contain but little valuable instruction. There were those who thought, or said they thought, that the Chancellor, by his personal dilatoriness, was the sole cause of the obstruction to justice, both in the House of Lords and in the Court of Chancery. Others considered that the arrears might be effectually disposed of, and the growing business kept down, by inducing the Master of the Rolls to take upon himself a greater proportion of duty than he then performed; by taking from the Lord Chancellor the business in bankruptcy; by separating the office of Speaker of the House of Lords from that of Chancellor; or by making the office of Chancellor of the Duchy of Lancaster efficient.
The Bill at length passed without any material alteration. In the course of its progress through the House of Lords, Lord Eldon had said, "that according to the mode of proceeding theretofore acted upon, the arrears then on the table could not be disposed of for eleven years from that time;" and Lord Redesdale had said, "Either that measure must pass, or the House must abandon its appellate jurisdiction. Which was the most constitutional course," he said, "it needed no argument to point out." The preamble stated, that
"The number of appeals and writs of error in Parliament had of late years greatly increased, and it had become necessary that a larger proportion of time should be allotted for hearing and determining such appeals and writs of error, than had usually been employed for that purpose, and therefore, as well as for the better administration of justice in the several judicial functions belonging to the offices of the Lord High Chancellor, Lord Keeper, or Lords Commissioners for the custody of the Great Seal of the United Kingdom, it is expedient that another Judge should be appointed to assist in the discharge of such judicial functions, Be it therefore enacted, &c."
Throughout the proceeding, it was assumed, that delays in the Court of Chancery arose from the absence of the Chancellor to attend to the' business of the House of Lords; and that the judicial business of the House pf Lords could not be transacted
460
without withdrawing the Chancellor from his own Court, to an extent which would be injurious to the suitors there, if other assistance were not provided.
The Bill having become a law, the Vice-Chancellor took his seat in the Court of Chancery, and the House passed the order which in the book is numbered 182, for hearing causes three days a week. The predictions of the opponents of the measure were fulfilled in this, that the Lord Chancellor became almost entirely a judge for rehearing the orders and decrees of the Master of the Rolls or Vice-Chancellor; but in other respects the result did not answer the expectations of either supporters or opponents. A great deal more business was done, both in the House and in the Court of Chancery, but the business was by no means cleared off; and ten years afterwards the House was told by Lord Liverpool that "when the measure was proposed in 1813, for hearing appeals during the whole morning, three days in the week, in that House (and which had been rigidly adhered to), it was expected that when the then existing arrear of appeals was got rid of, the number would be so kept down, that one day in the week would suffice for hearing them, and that the Lord Chancellor might then be enabled to devote the other two days to the business of the Court of Chancery. So far, however, from this being the case, the number of appeals had actually increased since that period, the number lodged being 570, considerably more than the number heard and decided." A Select Committee was consequently appointed, to consider of the best means of facilitating the administration of justice as connected with the hearing of appeals, writs of error, and other judicial business. In June 1823, the Committee made their Report, and after adverting to the establishment of the Vice-Chancellor's Court, and the 182nd order of the House, they stated that all the exertions which were used had at length been found ineffectual; and then they expressed themselves in the remarkable words already quoted by my noble and learned Friend on the Woolsack,—"There is now a manifest impossibility, that any person holding the Great Seal can find the time which is requisite for the business of the Court of Chancery and the House of Lords, and for all the other great and arduous duties of his high office." Nobody can read the report without acknowledging that the

461
Committee took a great deal of pains, and investigated not only the immediate objects of their inquiry, but some other important subjects connected with them. The Committee, however, came to singularly weak conclusions. They recommended the appointment of Speakers by Royal Commission for the hearing of appeals, and a compulsory proceeding to enforce the attendance of Peers.
It was not difficult to procure the appointment of Speakers, and, perhaps, not very difficult to induce the House to make orders to compel the attendance of Peers, but some discussions took place. In proposing the orders, which bear date the 7th of July, 1823, and are numbered from 200 to 209, Lord Liverpool felt the difficulty of his subject; he intimated his opinion, that there were strong reasons for removing the Scotch appeals to some other jurisdiction, and stated "that he objected to the separation of the office of Chancellor from that of Speaker of the House of Lords, and was unwilling to see that high and ancient office frittered away by regulations for reducing or dividing its duties." Lord Eldon took occasion to say, "that he had never known any man in the profession who had not deprecated the separation of the two offices of Lord Chancellor and Speaker of the House of Lords. Against that project, therefore, he opposed not merely his own individual opinion, but the collective opinion of an acute and intelligent profession." Your Lordships will perceive that I make no attempt to conceal or disguise the weight of authority which there is against my argument.
It is to be remarked, that in the course of the debate, Lord Colchester stated, that "prospective measures were in contemplation to prevent the future growth of appeals, and, amongst them, he mentioned his understanding that a revision of the practice of the Court of Chancery had already reached the first stage of its progress, and that a complete report had been made to the Chancellor of all the regulations established, from time to time, by those who had held the Great Seal; and that upon the foundation of that Report the Chancellor, in conjunction with the other two judges of his court, might proceed to make great improvements in the administration of justice in that court." Whether any material progress was made in that very important work does not appear, but Lord Speakers were appointed,
462
and the orders (200 to 209) providing for the compulsory attendance of Peers were made. They continued in operation till the 1st of February, 1828, when one of them was vacated, and the rest of them were suspended; it being, I believe, found more troublesome to enforce the process for compulsory attendance, than to induce particular lords to attend by solicitation.
Whilst the House proceeded to hear appeals under the presidency of Lord Gif-ford as Lord Speaker, the attention of the House of Commons was strongly directed to the delays of the Court of Chancery; and the task of revising its practice being probably found more difficult than was expected, in the year 1824 a Commission issued, to inquire whether any and what alterations could be made in the practice of the Court, or in the offices of the Court, by which expense and delay might be diminished, and also whether any business could be usefully withdrawn from the Court and committed to any other Court. The Commission diligently and fairly pursued the objects of their inquiry—they examined many witnesses, and made a report, which, though in my opinion it fell short of the exigency of the case, did nevertheless recommend many useful regulations, and in useful efficiency exceeded the then expectations of the public. There seems no reason to doubt, that the Government of that day was desirous to act bona fide upon the recommendation of the Commissioners. My noble and learned Friend opposite, who then held the office of Attorney-General, brought a Bill for that purpose into the House of Commons; he resumed it in the following year, when he was Master of the Rolls, and would probably have persevered, if he had continued a member of that House; but being elevated to the office of Chancellor, he had occasion to consider the subject in a new point of view. I can bear witness to the anxious attention which he paid to the propositions which had been recommended by the Commissioners; but no new orders were published till April, 1828; and at last it became, I believe, perfectly manifest to his mind, that an increase of judicial power in the Court of Chancery was absolutely necessary to give the suitors the full benefit of any other regulations which might be adopted; and accordingly in May, 1829, and afterwards in May, 1830, he brought Bills (for there were two, and not one Bill

463
only, as might be collected from his statement to-night) into this House "for facilitating the administration of justice in suits and other proceedings in equity." Both of these Bills authorised the appointment of an additional judge in the Court of Chancery, subordinate to the Lord Chancellor. The first contained a proviso, enabling the Master of the Rolls to dispose of business not usually transacted in his Court. This proviso was omitted in the second Bill, which contained a clause enabling his Majesty to discontinue the new judge, if he should think fit, in case of vacancy.
Nothing can be more clear than that my noble and learned Friend opposite, was well founded in his opinion, that there was a want of judicial power in the Court of Chancery. When he brought in his first Bill, he proposed that the master of the Rolls should sit in the morning like other judges, and that the equity jurisdiction of the Court of Exchequer should be transferred to his proposed new judge. I believe that I am right in supposing, that if an increase of judicial power had been obtained, the noble Lord meditated other changes to a considerable extent: amongst them, some changes carried into effect by his successor, such as diminishing the number of the London Commissioners of Bankrupt, and taking from the masters and other officers of the Court, all interest in copy-money; and a most important change, which I hope will become the subject of more consideration hereafter, viz., the establishment of local ministerial authorities, to perform, at less expense, many important functions now exercised by the Masters in London, and by special Commissioners in almost every suit: I say, that I have reasons to believe that such objects as these were meditated by the noble Lord; but undoubtedly he did not develop the whole of his plans, and they were not well or clearly understood by the public, or by the House of Commons; they were most vehemently opposed, and most languidly supported by everybody but himself. Tonight, if he will excuse me for saying so, he has shown some irritation in noticing the manner in which his proposal was treated by his opponents; to me it seems, that he has at least as strong ground of complaint against many of those who were ranked among his friends. Both his Bills passed this House, but the Bill of 1829, after one reading in the House of Com-
464
mons, was postponed till the next session: and the Bill of 1830 was not resumed in the House of Commons after the death of the late King, (Geo. 4th.) which happened during its progress. Before the end of the Session, the important statutes generally known in the profession by the name of "Sugden's Acts" were passed under the auspices of Government, and effected important improvement in the process, and in the administrative power of the Court of Chancery.
In November, 1830, there was a change of Administration, and, before the attention of the new Government could well be directed to the subject, Sir Edward Sugden took occasion to state his view of the question of Chancery reform. His speech on the subject was delivered on the 16th December, 1830. He made a great variety of useful practical suggestions, which it would be well for every judge, and for every practitioner in the Court to give serious attention to. He did not propose the appointment of a new judge, but to make the Vice-Chancellor independent of the Lord Chancellor, to make the Lord Chief Baron exclusively an equity judge, and assimilate the practice of the equity side of the Court of Exchequer, to that of the Court of Chancery, and to create an intermediate Court of Appeal, consisting of three out of the four equity judges intended to remain: and he declared, that the intention to remove the equity jurisdiction of the Court of Exchequer, had never for an instant been entertained by him.
The idea of such a court of intermediate appeal was taken from the Court of Exchequer chamber. Every thing which proceeds from the very learned and eminent person by whom this scheme was recommended, is entitled to attention and respect; but on the best consideration which I have been able to give to the subject, it does not appear to me that his plan could have succeeded. Whilst three judges were occupied in hearing appeals, one only could have been left to hear original causes, and such an impediment would have greatly increased the obstruction.
When the noble and learned Lord now absent (Lord Brougham) became possessed of the Great Seal, he contemplated, and soon afterwards effected many important changes. At first he was so far from supposing that the appointment of a new

465
judge was necessary, that he seems to have thought the. Court stronger than enough, and he actually expressed his opinion, that by the changes he was to bring about, he should be able to dispense with the office of Vice-Chancellor. This was in February, 1831. In July, 1833, further experience had so far altered his Lordship's views, that he laid on the table of the House a Bill, entitled, "An Act for appointing a Chief Judge in Chancery, and for establishing a Court of Appeal in Chancery." The proposed new judge was, with certain exceptions, to have in the Court of Chancery all the powers and jurisdiction of the Lord Chancellor; and the new Court of Appeal was to be constituted by letters patent, and to consist of the Lord Chancellor, the new Judge, the Master of the Rolls, the Vice-Chancellor, and the Chief Baron of the Exchequer, any three of whom were to form a Court: and there was to be a right of appealing from this Court of Appeal to the House of Lords, if the three judges did not concur, or if they did not confirm the judgment appealed from. The proposed intermediate Court of Appeal was evidently framed on the model of Sir Edward Sugden's plan, and was liable to the like objections. By the appointment of the new judge, it was intended to reserve to the Lord Chancellor his political functions, his ministerial functions, and his functions as a Judge of Appeals in the House of Lords, in the Privy Council, and in the Court of Chancery, and his jurisdiction in matters of lunacy.
In the course of the next year, another plan was proposed by the noble and learned Lord, and in August, 1834, he laid upon the table of the House a Bill, entitled "An Act to alter and amend the appellate jurisdiction of the House of Lords, and for certain other purposes." The principal object of the Bill was, to enable the House of Lords to refer matters of appeal to the Judicial Committee of the Privy Council. The Bill was printed, but the subject of it was never discussed in the House.
It is right to observe, that during the Chancellorship of the noble and learned author of the two Bills I have last mentioned, Acts of Parliament were passed, which took from the Chancellor all interest in fees, and took from the Masters in Chancery and Registrars all interest in fees and copy money, and thus effected
466
an object previously contemplated by my noble and learned Friend opposite, and which more than any thing which I am aware of, has cleared away obstructions to future improvement. Some inconveniences may for a time arise from them. The gain on each particular step in a proceeding is taken away; with the gain are lost, at the same time, the stimulus to advance, and the temptation to multiply steps. The temptation to multiply steps and increase the number of fees to be received, seems to me more likely to produce bad consequences than the loss of the stimulus is likely to do; and I think that regulations may be adopted to secure due exertion without resorting to the interest of the purse.
My Lords, after the detail, which I am afraid may have been thought tedious, it seems scarcely necessary to say, that it would ill become me to dogmatise on a subject of so much importance and difficulty. I shall not err by over confidence; and having used my sincere endeavours to find an adequate remedy for grievances admitted to exist, I may, perhaps, be excused for hoping that blame will not be imputed to me if I should, after all, be unable to produce a plan which meets the views of many of your Lordships. I ask of your Lordships to give me credit for having examined the subject, and for stating frankly to your Lordships what has occurred to me after careful consideration.
Consider, then, how the case stands. You are possessed of and now legally exercise the functions of the highest and last Court of Appeal. Your decision is absolutely conclusive. It not only finally binds the right of the parties immediately interested in the case before you, but it fixes the rule which is to guide the decision of inferior Judges in all cases of the like kind. In the anxiety which often presses on the mind of an inferior Judge, knowing that in some cases, after he has done every thing in his power to decide justly, he may nevertheless commit an error, he has at least this consolation, that his error will probably be detected by an acute, intelligent, and enlightened bar; and that when detected it is open to correction, on rehearing or appeal. But your Lordships, when you decide in judicature, have no such refuge; if, in the frailty of human judgment, injustice should be done by your decision, it is

467
fatal; there is no redress; the brand for ever regains: for why should I speak of the power, (though theoretically power there be) in the High Court of Parliament. By so much the more, then, is it incumbent op your Lordships to take all possible care to avoid any error or mistake; to see that those things which (I hope I may say without offence) most of us do not know and cannot understand, be committed to the agency of persons who do know and understand, and have the means of satisfactorily performing those most important duties, for which we are all responsible.
It may be said, and truly, that little of public and general complaint is heard. It is so. Of all the grievances which afflict a country, none are so pernicious, none tend so certainly to unfasten all the bands which hold society in peace and harmony together, as those which are found to prevail in Courts of Justice; but there are none which excite so little clamour or alarm; none, perhaps, which attract so little of public attention, Whilst the suit is in progress, both parties are afraid to excite an unpleasant feeling in the mind of the judge. When the suit is decided, the successful party if he thinks his cause right, boasts of the triumph of justice; if he is conscious of wrong, and thinks that he has prevailed by the error of the Judge, he will at least enjoy his unjust success in silence; whilst the unsuccessful party, whether he suffers justly or unjustly, is overpowered by the authority which decides, against him. If he complains at all, it will be in vain. A disappointed suitor meets with even Jess attention and regard than a discarded servant; and thus it happens, that in cases of even serious grievance the truth may never be known. In matters of judicature, therefore, you often want the index which is afforded you in other cases of grievance, and on that account again it is the more incumbent on you to take care that all just ground of complaint is removed.
In order that this House, as the highest and last Court of Appeal, may be able adequately and satisfactorily to perform the great and important functions with which it is invested, I submit to your Lordships, that the most eminent lawyer who can be found, eminent for learning, for integrity, and for judicial character, should permanently preside over it in all business of appeals or writs of error. That he should hold his office during his good
468
behaviour, and be thereby wholly exempt from political excitement, or the effect of political changes.
And recollecting that the cases which come here are cases of equity, cases of common law, and cases of Scotch law, and that in these days you scarcely find any lawyer who is particularly conversant with more than one of these different systems of law, I submit to your Lordships that the learned Judge, whom, for the sake of discussion, I propose to call "Lord President of this House in matter of Appeal and Writs of Error," should have Assistants, to be selected from amongst the persons most eminent in the different branches of the law administered here. What I submit is, that the assistance should be regular and constant; that the learned persons who afford it should not necessarily be Peers, but should be called "Lords Assistant of the House of Lords, in the matter of Appeals and Writs of Error," and should be seen and known by the public to be steadily engaged in that important service; and for that purpose should hold their offices during their good behaviour; that they should always be found here, and always be called upon openly to give their advice to the House, before the judgment is pronounced.
My Lords, I do not propose to deprive the House of the valuable assistance of the learned Judges of the Courts below, or of the other persons who are summoned here as of the King's Council in the House of Lords. It may often be most important to ask their opinion as is now done, but their employment elsewhere is too important and pressing for them to attend here with the frequency that is requisite for the daily administration of justice.
Having submitted to your Lordships, that it is necessary to provide a Chief Judge and proper Assistants in this House, I have next to submit to your Lordships, that provision should be made against any unnecessary delay.
It is too obvious for argument, that the course of justice ought not to be checked or in any way impeded by the political reasons which determine the prorogation or dissolution of Parliament. Why are appeals to be delayed or suspended from the end of one Session of Parliament to the commencement of another, sometimes interrupted and cut off in. the middle, to the enormous expense and injury of the

469
parties? Suppose the course of justice in full flow, the parties, for instance, come from Scotland or Ireland with their agents, counsel, and documents, and the cause in the paper for hearing. Whilst they are waiting in suspense and anxiety for the hearing and the judgment, some party or political reason occurs to occasion the dissolution or prorogation of Parliament, and they are sent home disappointed, and for the time denied that justice to which they are clearly entitled. My Lords, it is impossible to justify such a state of things.
From the statute of Edward 3rd, which has been before referred to, it appears, that the tribunal thereby constituted was intended to sit and decide in the interval between the sitting of Parliaments, though the tribunal itself had power to refer difficult matters to the next Parliament.
The Court of Exchequer Chamber, which was established in the time of Elizabeth, to correct errors of the Court of King's Bench, was created because the High Court of Parliament was not so often holden as in former times it had been, and because, in respect of greater affairs of the realm, the erroneous judgments complained of could not be well considered and determined during the time of Parliament. Your Lordships will, therefore, see, that it has been an object of the Legislature to prevent delays of justice by the intermission of the sitting of Parliament. These statutes, providing what may be called intermediate Courts of Appeal, carefully preserve the ultimate authority of Parliament.
What I submit to your Lordships, however, is not to create an intermediate Court of Appeal, consisting of Judges who have other sufficient employment, but to add strength and vigour to the machinery of this House, and, when the occasion shall require, to extend the time of sitting for judicial purposes beyond the ordinary Sessions of Parliament; and this extension of time, I submit, should be allowed by authority of the King on the address of the House.
My Lords, I do not concur with my noble and learned Friend on the Woolsack upon the propriety of striking out the word dissolution from his proposed Bill. Justice is not to be stopped by political causes, whether they occasion dissolution or prorogation; and what I should propose would be, that if on, the
470
occasion of any prorogation or dissolution, there should be any appeals or writs of error depending in the House and undisposed of, it should be lawful for His Majesty, by proclamation to be issued with the advice of the Privy Council, to summon the Lords, for the purpose only of hearing and adjudicating on such appeals and writs of error: that the Lords might then meet for that purpose, and act in their judicial capacity only; and that, it should be lawful for the King to discontinue and put an end to their sittings; whenever he should think fit.
My Lords, in considering this subject, I have given myself no trouble about questions of politics or party. I have thought of the patronage which may be created and of the expense which may be incurred, but I do not trouble your Lord-ships with that subject on the present occasion. I say that the course of justice ought not to be impeded by any party considerations; nor by any considerations of patronage or expense. I shall willingly abandon my own suggestions if better can be proposed; and if it be made out that any proposed plan is required for the due administration of justice, I say without hesitation, you must lay aside your party and your politics, regulate the patronage as you best can for the public service, and provide for the expense: because, above all things, you must not deny justice, which, if obtained, is above all price, and which it is the first duty of Government to secure to the public.
It has given me great satisfaction to hear my noble and learned Friend opposite, declare his willingness to support a proposition for the appointment, not only of an additional Judge in Chancery, but also of an Equity Judge in the Court of Exchequer. I entirely concur with him in thinking that an increase of judicial power to that extent is required. When the arrears are cleared off, you will have a great increase of causes; a resort to the. Court by many persons who require its sanction and indemnity for their own safety, and yet are deterred from asking for indemnity, by the long and expensive process, without which it cannot be obtained. There are, for instance, trustees who have to act under complicated or ill-expressed instruments, and under circumstances so little foreseen or provided for by the authors of the trust, that the most experienced lawyers cannot confidently ad-

471
vise what conduct ought to be or can with safety be pursued. Cases of this nature very often occur. The interests of the persons who claim to be, and perhaps are, beneficially entitled require an immediate or very speedy determination. The delay of two or three years may bring ruin on them all, yet it may be, that the decision of a Court of Equity cannot be had sooner. The feelings of the trustees are acted upon; they take the risk on themselves, and many years afterwards, they, or their representatives, have (perhaps, to their own ruin) to pay for the error, which may have been unconsciously committed.
The propriety, nay, the necessity of having Courts strong enough to give speedy attention to cases of this sort, and many others of a like nature, is apparent, and I am fully persuaded, that the increase of judicial power of original jurisdiction, which is recommended by my noble and learned Friend, will not be too much. I cannot, however, agree with him in thinking, that the judicial business of the House of Lords would not be sufficient to occupy the full attention of a competent Court of Judicature, or that it is necessary to have a Judge of Appeal employed also as a Judge of Original Jurisdiction. As matters stand now, if you take an equity lawyer for your Chancellor, he has no experience in the common law of England or in the Scotch law, which is at all to be compared with the experience of the Judges of the Courts of Common Law, or of the Scotch Judges: if he be a common lawyer, what is or can be his experience in equity as compared with the experience of the fixed Equity Judges? If the argument of my noble and learned Friend in this respect were valid, the Chancellors would always be objects of contempt to the Judges and Counsel of the Courts at the bars of which they had not practised, or on the benches on which they did not sit. As to the sharpening of the intellect, keeping up knowledge, and the habit of applying it, I confess, my Lords, that if the quantity be sufficient, I see no reason to think, that Appeal business may not have effects at least as salutary and as likely to invigorate and improve the judicial character as any original business can be. And as to the quantity, look at past experience, without being influenced by the small amount of arrears now existing, and which may be, though hitherto it has not been, fully explained; consider also the additional busi-
472
ness which might and, as I conceive, ought to be brought here, and it seems, to me at least, that there will be plenty to do. My noble and learned Friend on the Woolsack thinks, that the quantity may be so great as to choke up the House. I am not deterred by that remark, because if the event should turn out to be so, adequate provision may hereafter be made for it; but in the mean time, I cannot assume that the business will be so small as not to give sufficient employment to the House. The idea of the whole appellate business of the United Kingdom, to which the appellate business of the Colonies might also be added, not giving such employment to a Court as to afford the Judge fitting exercise for the preservation of his legal faculties, does not seem to rest on a very sure foundation.
To resume shortly, I propose to make the Lord Chancellor a more efficient Judge for hearing original causes in the Court of Chancery, by confining his judicial functions to that Court, and taking from him the custody and use of the Great Seal. I propose to make this House a much more effective Court of Appeal, by securing to it such assistance as the nature of the case requires; and I propose that the Lord Keeper of the Great Seal, being exempt from judicial functions, should be able to devote his whole mind and attention to the superintendence of the law and the administration of justice. I would not have proposed a change so extensive if it had appeared to me that any thing less would have answered the exigency of the case. To propose less than the case requires would be a mockery.
The Lord Chancellor, as newly constituted in the Court of Chancery, would, with the other Judges, be able to dispose of the existing arrears of original causes, and if the Court of Exchequer were made a more effective court of equity, would probably be able to dispose of the accruing business as it comes forward, and also of the business now transacted by the Court of Review in bankruptcy.
The House of Lords, provided with effective assistance and sufficient machinery, might, if you should think fit, have transferred to it the whole, or at least part of the appellate business of the Judicial Committee of the Privy Council. There would, I think, be great convenience in transferring the whole; but with regard to the Colonies which have Legislatures of

473
their own, it might be better to wait till the approbation of those Legislatures can be obtained; though it would be strange if they should prefer the Judicial Committee of the Privy Council, constituted as it is, to the House of Lords, with such assistance as I submit to your Lordships it ought to have.
The Lord Keeper of the Great Seal, though divested of judicial power, would still be the King's principal adviser in matters of law, a Privy Councillor, a Cabinet Minister, and a Great Officer of State, responsible in all matters, ministerial and political, which are connected with the custody and use of the Great Seal. He would still be the head of the law, the connecting medium between the state and the profession; he, as Lord Keeper, would have the nomination of Magistrates, and, as I submit to your Lordships, should be responsible for the appointment of all Judges and judicial officers.
In order that new laws or alterations of old laws may be made consistent with one another, or with the general plan of the system already existing, it is plain that every proposal to change should undergo most careful consideration. To secure this, I submit to your Lordships that the country ought to have a responsible authority, possessed of appropriate knowledge, and so situated as to have no excuse for neglect of duty. An arrangement for this purpose, important at all times, is most especially so in times when there may be wanted a firm, temperate, and not hostile check to urgent demands for change, well meant, perhaps, but not always founded on sufficient knowledge and experience.
It would, my Lords, be the duty of the Lord Keeper to conduct and direct inquiries into the state of the law, for the purposes on account of which Commissions have lately been appointed. It would be his duty to prepare and bring forward all Bills introduced with the sanction and approbation of Government; and to examine and report upon all Bills brought into Parliament by individual Members of either House. To him might be brought back some of the duties which now properly belong to the office of Lord Chancellor, but which under the circumstances which I need not repeat, have slipped into the office of the Secretary for the Home Department. To him might be committed a superintendence over the general orders from time to time made by Courts of Jus-
474
tice for the regulation of practice and pleading—for the alteration of fees—and the regulation of salaries and emoluments in Courts of Justice—and it might be made his duty to make annual reports and give information in respect of all such matters to the King's Government and to Parliament.
I conceive it to be clear, that the great and important functions which I have but slightly mentioned, and the various duties annexed to them would, for their adequate and satisfactory performance, require a man of pre-eminent talents and learning, and would occupy his whole time—and to me, at least, it seems that the establishment of such a political and legal authority would be in the highest degree beneficial to the country.
My Lords, in stating what appears to me necessary to be done in relation to the office of Chancellor, I have abstained from saying any thing on many other important subjects connected with the Court of Chancery. They deserve the most careful attention, but are not necessary, or perhaps proper, to be considered now. I feel much indebted to your Lordships for the attention which you have been pleased to afford me, and the rather because I am aware, that the line of argument which I have thought it my duty to adopt cannot be popular here. If I could hope that my proposal would be received with favour, I would willingly bestow the labour necessary to produce it in a form adapted to the consideration of its details. Not being able to flatter myself with any such hope at present, I shall think it my duty to vote for the second reading of the Bills now before your Lordships.
I have no doubt, that they have been brought forward by my noble and learned Friend on the Woolsack as the best which, in his view of the subject, could be carried. They will not effect all which I think ought to be done, and they will for a time maintain some inconveniences which I think ought to be removed at once; but if carried, they will afford some considerable present relief to the suitors of the Court of Chancery, and they will not in any way impede those further changes which I think ought to be adopted. For these reasons I shall vote for the second reading.
Lord Abingerexpressed his entire concurrence in the views of his noble and learned Friend (Lord Lyndhurst), and declared his intention to support the amend-

475
ment. He was somewhat surprised, after the many objections which his noble and learned Friend (Lord Langdale) had made to the Bill, that he should conclude by stating his intention to vote for the second reading. Entertaining, as he did, the highest respect for the opinions of his noble and learned Friend, still, if he were to pronounce a judgment upon the essay which his noble and learned Friend had just delivered, he should say that there was something more of a love of theory in it than of an attention to practice. It appeared that his noble and learned Friend expected more from human institutions than they were capable of affording. When he complained that the progress of justice was interrupted by the prorogations of Parliament, and that great evils arose from it, he might, in the same way, have complained of the interruption of justice arising from the illness of a judge, or even by his death. Some theorists had gone so far as even to provide against these occurrences. One of the most eloquent and most profound of theorists had proposed that a judge should be constantly sitting to administer justice, hot and hot as was required. That ingenious gentleman maintained that speedy justice was so essential, that no system of judicature could be perfect unless there was one judge eternally sitting, so that when one was fatigued another should take his place. That certainly was the very perfection of theory. But human affairs would not admit of its application; he therefore must request his noble and learned Friend to mix up with his theory a little more of his experience in practice. He was not disposed to agree with the opinion of his noble and learned Friend that it would be desirable to separate the judicial from the political functions of the Lord Chancellor. On the contrary, he was rather inclined to concur in the opinions delivered by almost all the gentlemen of the profession, that it would be impossible for a person holding the office of Chancellor apart from the judicial functions, to preserve and give validity to that authority which was so essential to the decisions of their Lordships' House. He thought it would be a most fatal thing not only to the public and to their Lordships' House, but to the Crown itself, if the Lord Chancellor, presiding in the House of Lords, were not to be selected not only from persons of the highest rank and talent in the legal profession, but also if he were not to preside in the highest judicial situation in the country. It was essentially necessary
476
that this should be the case, in order to preserve respect from the public, and the veneration and dignity of their Lordships' House. It was also necessary, in order to give the Chancellor full opportunity, by daily practice, of keeping alive in his mind all the decisions and principles of law which were essential to the efficient discharge of his functions in their Lordships' House and in his Majesty's Councils. What was the ground of apprehension that the judicial decisions of a Chancellor would be influenced by his having political duties to discharge? No case had ever occurred in which the decision of a Chancellor as judge had been suspected on account of his belonging to a political party in the State. He believed that ever since the institution of the Court of Chancery was known, no such partiality had been suspected. His noble and learned Friend was perhaps aware that even Lord Chancellor Jeffries, in all the decisions that he pronounced, was considered as high authority as a lawyer. No one of his decisions in equity had been questioned since, or suspected to have been at all founded upon his political partisanship. The best mode to guard against any cause of suspicion of that kind, was to Select the best and most talented men in the profession. He believed that the most distinguished and the most learned men Were those the least inclined to barter their honour for any been that party might bestow. He was not afraid that any man in Westminster-hall, who was of eminent character in his profession, would be biased in his judicial decisions because he combined with his office certain political duties. What had the judicial functions of the Lord Chancellor in his own Court, or in their Lordships' House, to do, either directly or indirectly, with his political duties? Even his noble and learned Friend had said, that the appointment of justices of the peace was properly a judicial function; if so, why should not the Lord Chancellor be allowed to exercise that function, and all those other functions of purely a judicial nature, notwithstanding his being allied to a political party? Sure he was, that a Chancellor who was a gentleman and a man of honour would disdain to receive any suggestion on political grounds, as to the mode of exercising those parts of his judicial duties. Again; a great many of the deliberations in the Cabinet were not of a political or party nature, but had regard to the public interests in general. He begged to know whether the presence in the Cabinet of the

477
man exercising the highest judicial functions in the State, did not give to those deliberations a great additional importance and respect? Besides, it was absolutely necessary that his Majesty's Ministers should possess amongst them a man of high rank and character, who was capable of being their legal friend and adviser in the Cabinet. It would not be considered constitutional, perhaps, for a Minister of the Crown to receive advice from those who were not connected with his party. The King had on numerous occasions the need of advice and authority in the law. Now, he must receive that advice from his Chancellor, and not from any body else. Therefore his Majesty's Ministers were bound to provide for the King a person in whom he might have confidence, and by whom he knew that his own safety and honour would be fairly and duly consulted. It appeared to him, therefore, that the moment they adopted a measure which would have a tendency to make the Chancellor a mere political officer, they would not only derogate much from the dignity of their Lordships' House as a tribunal for the administration of justice, but also from the interest and security of the Crown itself. If any inconvenience existed at all in the union of the political and judicial functions (but which he believed was more in imagination than in reality), still he thought that inconvenience was in no degree sufficient to counterbalance the advantage of having the office of Lord Chancellor as it was now constituted. The Chancellor of the Exchequer, the President of the Council, and the Privy Seal, were now merely political offices. And why? Because their judicial functions had been taken from them, and these offices became objects of desire to mere political parties. If the political were separated from the judicial functions of the Lord Chancellor, they would soon find that the Chancellor would be selected, not on account of his legal knowledge, but on account of his success as an eloquent political debater, either in this House or in the other. For these reasons he should give his cordial support to the amendment of his noble and learned Friend.
Viscount Melbournesaid, that if the noble and learned Lord who had last addressed their Lordships, and particularly his noble and learned Friend (Lord Langdale), with such mastery of all the details, and of all those general and enlarged principles upon which a question like this should be considered, and who had stated to their Lord-
478
ships many opinions which, although they were not at present called upon to adopt them, he was sure their Lordships must think they were worthy of deep and serious consideration—if those two noble and learned Lords thought it necessary to apologise for addressing the House, how much more did it become him to do so when speaking of a subject upon which he could have no practical knowledge whatsoever? But having been a party to the bringing forward this Bill, he thought it necessary to state in a few words his reasons for voting for its second reading, and for thinking that their Lordships would do well to send the Bill to a Committee. He had listened with great attention to the speech of the noble and learned Lord (Lyndhurst), in which he stated his objections to the measure proposed. He shared in the satisfaction felt by that noble and learned Lord, that their Lordships were entirely agreed upon the basis and foundation of this measure—that they were entirely agreed that a great evil was to be corrected, and a great grievance remedied. There was a great accumulation of business in the Court of Chancery, and he agreed with the noble and learned Lord when he stated that it was a shame and a disgrace, that in a great country like this, there should not be a court to hear a case when a case was ready for hearing. But the noble and learned Lord objected to the remedy now proposed to correct that evil. In the first place, he said that if they separated the political from the judicial functions of the Chancellor, and took from him the discharge of the duties of the latter, the House of Commons would not endow him with sufficient emolument to induce gentlemen at the bar to give Up their profession and accept the office. Now he did not believe there was any authority for such an opinion. On the contrary, he believed that the House of Commons were too anxious for the adoption of some measure of this kind Upon enlarged and enlightened principles to hesitate for one moment on making a suitable grant for this purpose. The noble and learned Lord then stated another objection pretty much of the same kind. He said that the situation would be of so precarious a nature, and the remuneration so inadequate, that men of eminence in the profession would not accept the office. Surely the noble and learned Lord remembered the circumstances under which Sir Edward Sugden accepted the Chancellorship of Ireland. If the circumstances under which the late Chan-

479
cellor of Ireland accepted the Great Seal of Ireland were not sufficient to deter him from that step, he was sure there was no lowering in the political horizon that would deter any future lawyer from doing the same thing on a similar occasion. He would not be responsible to their Lordships for much, but he would be responsible for this, that if it pleased them to constitute this office, there would be no difficulty in finding men of sufficient eminence at the bar perfectly ready to take it. He thought it would not be difficult for any government whom it might suit, to obtain the services of the noble and learned Lord himself, if their Lordships thought proper to constitute the office. The noble and learned Lord then stated that there was not business enough in their Lordships' House to keep a lawyer in wind; that he would entirely lose all practice in his profession, and become inferior to those judges from whom appeals were made to him. That might be so; but the objection was entirely fanciful and supposititious. It was entirely metaphysical, and altogether arguing upon the minds of men. He, for his part, did not believe, a single word of it. He did not believe, if a general lawyer, eminent in his profession, sat to hear appeals, not only in equity, not only from Scotland, but from every part of the empire—he did not believe, if such a man, being a master of the general principles of jurisprudence, and being well grounded in his principles, was placed in that situation that by desuetude he would in any respect be wanting in the authority requisite to the due discharge of the duties of his office. The noble and learned Lord had quoted a great many speeches which were delivered in the debate in 1813, on the establishment of the Vice-Chancellor's Court. But what was the fact? Now he would ask the noble and learned Lord whether all the predictions that had been made to-night with respect to the manner in which the character of the Chancellor would be affected by this measure, were not predicted upon the Vice Chancellor's Bill?—[Lord Lyndhurst: That is not what I stated] No, it was what he stated.
Lord Lyndhurst: The noble Viscount has asked me a question, and I beg to be allowed to answer it. What I said was, that Lord Redesdale and Sir Samuel Romilly were at issue upon the fact. Sir Samuel Romilly said, if they passed the Bill, they would make the Chancellor merely an appellate judge in the House of Lords. Both agreed that such a result
480
would be pernicious, but they disputed as to the fact. Now the present Bill actually adopted that which was admitted by Lord Redesdale and Sir Samuel Romilly would be pernicious.
Viscount Melbourne: Did they not state, that that would be the consequence of that Bill? Yes, they did. The only prediction made on that occasion which had since been fulfilled was, that the Chancellor would not hear any more original causes. But then the noble and learned Lord who spoke last had said, that the Chancellor would no longer be chosen on account of his legal eminence, but on account of his being an eloquent and successful debater; as if being successful in debate had never yet been one of the qualifications on account of which a man was selected for that high station. My Lord Eldon was made Solicitor-General because he was successful in debate, and he, of course, rose up and became Lord Chancellor. But he need not mention particular instances; he would only say, that it was the possession of the qualification of being a good debater which placed men upon the Woolsack more than any other circumstance. Instances of the truth of that position were very numerous and very recent. Most undoubtedly, therefore, it would not be a new thing, or a new evil. Then the noble and learned Lord said, that this proposition had been scouted by every body. He said, that it was opposed by Lord Hardwicke, but he produced no authority for that statement. The Court of Chancery in Lord Hardwicke's time, was perfectly competent for the discharge of the business before it. The noble and learned Lord also said, that it was opposed by Mr. Pitt, and he quoted the authority of Lord Redesdale in support of that statement. But Lord Redesdale had no right to quote the authority of Mr. Pitt against this Bill. It was mere conjecture on the part of Lord Redesdale. In conclusion, he would again remind their Lordships that, as they were all agreed that a great practical evil required to be remedied, he conceived that if their Lordships were really disposed to remove that evil, they could not do so more effectually than by the adoption of the present Bill. At all events he hoped that their Lordships would agree to the second reading, and allow it to go into Committee.
The Duke of Wellingtonsaid, that certainly from his habits he could have but little knowledge of the business of the Court of Chancery; but he had served his Majesty for a considerable time, particu-

481
larly in his councils, and he must say, and he defied any noble Lord to say otherwise, that it was most important for his Majesty's service that one of the first—nay, the very first and most eminent lawyer in the kingdom—one the most connected with the proceedings in the courts of law and in the proceedings of their Lordships' House, should be the Lord Chancellor, and should perform the political functions of that office. The noble Viscount had disputed some of the arguments of his noble and learned Friend—that was to say, he had contradicted them; and first of all, whether or not this Chief Justice, as he was called, in the Court of Chancery would be paid by the House of Commons; and next, whether any person would be found to accept the office. Certainly the noble Viscount had discovered that there was one person at least qualified, who would accept the office. But he fancied that the noble Viscount would find himself mistaken upon that subject, as he was upon many others. But there was another position which the noble Viscount thought proper to dispute, and that was, that so many persons after having at different times considered this scheme, had thought proper to object to it, and had laid it aside altogether. His noble and learned Friend never stated, that it was considered in 1813. What he stated was, that the arguments used against the appointment of the Vice-Chancellor, applied to the separation of the office of Lord Chancellor from the Chief Justice in Chancery; that the arguments then used, and those now used, rested upon the same principle, and that Sir Samuel Romilly, Lord Redesdale, and Mr. Pitt had used those arguments all in the same sense. He believed if the office of Lord Chancellor was separated from the office of Chief Justice in the Court of Chancery, it would soon become a mere political office, to the great detriment of the dignity of the first officer in their Lordships' House, and, above all, to the detriment of his Majesty's service. The noble Viscount had dwelt much upon the opinion that prevailed that there was an evil to be remedied, but he had not at all adverted to the remedy proposed by his noble and learned Friend (Lord Lyndhurst) —namely, that an additional judge should be appointed in the Court of Chancery. His noble and learned Friend had also proposed that the equity side of the Court of Exchequer should be made efficient. Were not these two measures as well calculated
482
to remedy the actual grievance complained of, as the measure proposed by the noble and learned Lord on the Woolsack? He begged to know whether it was not the fact that, at this moment, there were fewer appeals remaining undecided before the Lord Chancellor in the Court of Chancery, and in their Lordships' House, than there had been for years? Besides that it had been proved, that by common attention to the business of their Lordships' House, seventy days in a year were fully sufficient to transact all the judicial business of the House. Let the evils then complained of be remedied by the appointment of another Chancellor but not by degrading an officer whose high dignity was equally necessary to the service of the State, and to their Lordships' honour.
The Lord Chancellorreplied. The object of the Bill was not, as his noble and learned Friend (Lord Lyndhurst) had contended, to separate the judicial from the political functions of the Lord Chancellor, but merely to take away from that officer those judicial duties which experience proved he had not time to perform. When his noble and learned Friend stated, that the making the Lord Chancellor a Judge only of Appeals would be to degrade the office, and to render it difficult to obtain men of sufficient eminence to fill it, he (the Lord Chancellor) would only remark, in reply, that since the year 1813 the Lord Chancellor, had, in fact, been nothing more nor less than a Judge of Appeals, and a Judge of Appeals only; and yet he thought no man would contend that, within that period, the office of Chancellor had not been filled by men of sufficient eminence. The noble and learned Lord seemed to suppose that the Lord Chancellor would have nothing to do, and would postpone all the judicial business of the House during the Session, that he might amuse himself by hearing appeals in the recess. The conclusion appeared the more extraordinary, because it was well known to him that a Lord Chancellor had sat three days of the week in that House, and three days in the Court of Chancery, without finding any indulgence for that idleness of which the noble Lord spoke; and that the Committee appointed to inquire into the appeal business of the House, believed it necessary to have persons appointed to assist the Lord Chancellor in disposing of it. From that time, indeed, the Lord Chancellor had the assistance of Deputy

483
Speakers, by whom much of the business of the House had been done; and had it not been for the exertions of his noble and learned Friend (whose absence he lamented in common with their Lordships), they would not have been told, that there were no arrears of appeal, as at present. But he maintained that the Lord Chancellor should have full time to attend to his duty in this House, without calling in others to his aid; but if their Lordships were to take that assistance from him, they would find, that arrears would accumulate to as great an extent as they had ever done before. But he did not confine the attendance of the Lord Chancellor to that House; he would also preside in the Privy Council, to which appeals of the most important nature were continually brought for decision. The noble and learned Lord (Lord Lyndhurst) ridiculed the idea of the Lord Chancellor taking his seat in the Privy Council, as if the duties of that Court were beneath the dignity of his office; but their Lordships knew that the business of a Court whose proceedings could not be reviewed by any other—which had to determine on matters connected with the colonies, and with the Ecclesiastical Courts—that the business of a Court whose decision was final, and admitted of no further appeal—was not unworthy the attention of the Lord Chancellor? He must say, that he knew of no judicial business, next to that of their Lordships' House, which could be considered of so much importance as the business of the Privy Council? And what substitute did the noble and learned Lord propose? He borrowed a Judge from the Court of Chancery; he did not take the Lord Chancellor: no; that would not suit him—his object being to show that he would have nothing to do; and, therefore, he took the Master of the Rolls. He agreed with the noble and learned Lord, that a Court of justice should not be a fluctuating tribunal; that one Judge should sit at one time, and another at another; the only point in which they differed was that which related to the person to be selected for the Presidency of the Privy Council; and their Lordships could have no hesitation, he thought, in determining that the President should be the highest judicial officer in the kingdom. The question resolved itself into what the Lord Chancellor would have to do in that House? He apprehended the immediate consequence of the measure
484
would be, that the Court of Chancery would no longer form an intermediate Court of Appeal, and that the Lord Chancellor would have quite enough to do in disposing of the appellate business of this House and of the Privy Council. If their Lordships thought that it was possible for him now to discharge perfectly all the functions which appertained to his office, such an opinion would be contradicted by the experience of all those who had ever filled it. As to the business to be done out of the House, his noble and learned Friend (Lord Lyndhurst) proposed the appointment of another Judge in the Court of Chancery; therefore he admitted that the duty of that Court was not, at present, adequately performed. The noble Lord proposed the appointment of a new Vice-Chancellor. Was not that a little inconsistent with the authorities he quoted against the appointment of a similar officer in 1813? But the fact that the business was inadequately transacted, being admitted—the question came, what was the right course to be pursued. The business transacted in the Court of Chancery was of the most important nature; and with regard to property—of greater importance than that transacted in any other Court in the kingdom. Every man in the kingdom is interested in having a due administration of the Chancery business; and would not their Lordships believe that such a Court was as much entitled to the benefit of a permanent Judge as any other? Every inferior Court in the kingdom had the advantage of a Judge exclusively its own; but in the High Court of Chancery, alone, it was thought expedient that the Judge should constantly have his time occupied in the discharge of other duties, so that he should never have it in his power to set apart one uninterrupted day for those duties which specially belong to that Court! Was that a proper constitution for the Court? The noble and learned Lord (Lord Lyndhurst) admitted the grievance, and how would he remedy it? He would leave the Lord Chancellor to hear the appeals he already had to determine from the Rolls and from the Vice-Chancellor's Courts, and he would add those which would arise out of the decisions of the new Judge the noble Lord proposed to create. That was his proposition to help the Lord Chancellor out of his difficulty, which, if embraced, would considerably aggravate the inconvenience the Lord Chancellor now felt. The noble

485
and learned Lord might say, he did more —he appointed an additional Judge in the Court of Exchequer; but if that Court were not efficient already, it was not because it had wanted eminent persons to preside in it. The reason it had never risen to any eminence as a Court of Equity, was the difficulty attendant on the manner in which the proceedings were conducted in it, which was so great, that parties would rather wait, however long, to have their causes decided in the Court of Chancery. That was an evil which the appointment of an additional Judge would not remedy. There was no business in the Court which required such an appointment. There was not, at present, business sufficient to occupy the Judges of the Court, and yet the remedy proposed by the noble Lord, was to appoint another. Of the two plans proposed to the House, instead of that contained in this Bill, he preferred the expedient suggested by the noble and learned Lord (Lord Langdale); and ultimately that might turn out to be the best course to pursue. But as the noble and learned Lord was not prepared with his plan, and as this measure, if passed, would not prevent its future adoption, their Lordships had better take this which he proposed, as an intermediate step. Their Lordships had now to decide whether this Bill should be read a second time? He wondered that the noble and learned Lord (Lord Lyndhurst) had made up his mind to vote against it, because the noble and learned Lord admitted the principle of the measure, and if he would not find any difficulty in altering the details of a Bill in Committee, the noble and learned Lord could there introduce such clauses as he thought proper. He saw no reason why the noble and learned Lord should oppose the second reading. It was a question which should be considered apart from politics, and as it was admitted that justice could not be adequately administered in the Court of Chancery, their Lordships would consent to the second reading of the Bill, and endeavour to secure a satisfactory administration of justice, both in that House and in the Privy Council.
Lord Lyndhurst, in explanation, stated, that if he were to adopt the noble and learned Lord's suggestion, and to make such alterations as he thought expedient in Committee, the Bill would then go down to the other House of Parliament, not as the Government Bill, but as a Bill of his
486
(Lord Lyndhurst's) own construction; and in that case it would be easy to anticipate the result. He preferred, therefore, to give his decided opposition to the measure on the second reading.
On the Question, that the Bill be read a second time, their Lordships divided Contents 29; Not-Contents 94—Majority 65.
Bill postponed for six months

List of the CONTENTS.

MARQUESSES.

BARONS

Lansdowne

Holland

Northampton

Glenelg

Westminster

Dacre

Headfort

King

EARLS.

Stourton

Burlington

Foley

Charlemont

Hill

Ilchester

Duncannon

Minto

Segrave

Radnor

Templemore

Thanet

Cottenham

Meath

Langdale

Rosebery

Dunalley

VISCOUNTS.

BISHOPS.

Melbourne

Bishop of Chichester

Godolphin

Bishop of Bristol