Lord Lynd-hurstMy Lords, I rise to call your Lordships' attention to the subject of the Court of Chancery, and to the present state of business in that court. I have, my Lords, undertaken this task with very great reluctance, but I have been urged by representations from gentlemen at the bar, practising in the Court of Chancery, from respectable solicitors in that court, from suitors, some of whom have been victims to the proceedings in that court; and I consider the subject to be of such deep interest to the community at large, that I feel it to be my duty to comply with the request thus pressed upon me, and to bring forward this question in the hope of devising some remedy for the evils complained of. I have, my Lords, been the more anxious to do so, in consequence of the speech of her Majesty at the commencement of the session. Her Majesty in that gracious speech directed our attention—our anxious attention, for such were the words—to measures that were about to be submitted to us, having for their object the more certain and speedy administration of justice. Now, my Lords, there is no part of our judicial system more requiring amendment than the practice of the Court of Chancery; not merely from the position it is now placed in, but also from the immense extent of the interests 41 involved in the judicial decisions and proceedings of that court. But months have elapsed since Parliament assembled, and not one single word as yet been said in this House with respect to the Court of Chancery; and no bill, as I have been informed, is now pending in the other House of Parliament on this subject. Therefore, my Lords, I feel it to be more strongly my duty to call to the recollection of her Majesty's Ministers, that which perhaps they have already forgotten, namely, the gracious communication made by her Majesty at the commencement of the session. But, my Lords, this point does not stand entirely by itself; for, adverting to that speech for the purpose which I have mentioned, I find other great and important and almost overwhelming considerations pressed upon our serious attention. Notwithstanding this, I repeat it again, we have here assembled, night after night, for upwards of four months, and not a single bill, on any subject of the slightest importance, has originated with Ministers in this House, or has come up to us from the other House of Parliament. I do not mean to say, my Lords, that we are without a Government, for I see several noble Lords opposite who hold high and responsible situations under the Crown. But it does not appear to me that there is any substantial difference between the position of a country having no Government and that of a country having a Government, which, from negligence, or want of vigour, or want of power, is unable to bring forward, and to carry through Parliament, those measures which the great interests of the country require. My Lords, passing by this consideration, I beg to call your Lordships' attention to the limited course which it is my intention to pursue on this occasion. I do not mean, my Lords, to enter generally and at large into the considerations of the whole subject of the courts of equity. That would involve me in a discussion too wide and too entangled for the object which I have in view. My object is, to point out what I consider to be a crying grievance of the Court of Chancery, and to endeavour to apply to that grievance an adequate remedy. I hope, therefore, that I shall not be charged with taking a narrow and circumscribed view of this great subject, when I state that my object is to apply a practical remedy to what I consider to be an enormous practical evil. Having made these few preli- 42 minary observations, your Lordships will allow me to state what is the actual condition of the Court of Chancery with respect to cases at this time. There are now, my Lords, upwards of 850 cases standing for hearing in the different branches of the Court of Chancery. There are 550 between the noble and learned Lord on the Woolsack and the Vice-chancellor; and there are 300 before the Master of the Rolls. I am informed by persons of eminence in that Court, that many of these causes have been standing for a period of three years. I am told that in the court over which the noble and learned Lord on the Woolsack so ably presides, and in the Vice-chancellor's Court, the average period after a cause is set down and is ready for hearing, before it is heard for the first time is two years and a half. Yes; the long period of two years and a half elapses before that step is taken. I am further informed, that with reference to cases before the Master of the Rolls, a period of a year and a half elapses prior to the first hearing. Therefore, taking these courts together, I may be considered as not making an outrageous statement when I say, that on an average, two years elapse before a case comes to be heard. Now, my Lords, this is the grievance of which I complain. It is a grievance of great magnitude; and, in order that your Lordships may understand the nature and effect of that grievance, allow me again to explain, what has frequently been explained in this House— namely, what is the meaning and nature of a hearing in the Court of Chancery. A hearing does not finally dispose of a case. In the greater number of cases a decree is pronounced, by which certain other proceedings are directed to be taken. Thus, for instance, an issue may be sent to try a question of fact in a court of law, or an inquiry on certain points may be sent before the Master. The cause then is in the Master's office a year, perhaps more. The cause is then brought back again into the court upon the Master's report, and if both parties are satisfied, which is the most favourable supposition that can be made, then the cause is again to be set down and heard on further directions, and then the same interval takes place as before. If it happens, which is the more common case, that the parties do not concur in the Master's report, then exceptions to it are taken. Those excep- 43 tions are set down to be argued. A long time elapses before the argument and hearing come on and a still longer before the cause is decided. I think that the statement which I have already made is sufficient to satisfy your Lordships of this, that if the case involves any very considerable interest, and is at all of a complicated description, several years roust elapse between the commencement of a cause, the issuing of a subpœna, and the final decision of it. The mischief is the delay which takes place between the first hearing of the cause and the time when the Court is able to have it called on for decision. Allow me to point out the obvious inconveniences which arise from this course. Your Lordships are aware, in the first place, that, in a cause in the Court of Chancery, all the parties who are interested in the matter, must be on the record, either as plaintiffs or defendants. In every important cause, there are many parties in this situation. What is the consequence? Parties on the record die. One life falls in, and then the cause abates. It must be revived by a new bill. It often happens, that some three or four of these abatements take place in the course of a suit. Your Lordships will see at once the evil this produces in a suit. Another evil, which is felt by all the courts in equity, arises from the term fees. There are now 850 causes standing for hearing in the Court of Chancery. Suppose that each cause takes two years before it is heard, the mere term fees, will amount to 7,000s. This, however, is not the only evil; for, not only are the term fees to be paid to the officers of the court, but also to the solicitors of the parties; so that, in proportion to the prolongation of the period before the cause is heard, is the amount of term fees paid to the officers of the court, and to the solicitors. Then the situation of parties changes, and therefore it becomes necessary to file a supplemental bill, in order to shape the case to meet the new state of things, previous to the hearing. That, however, which is the greatest grievance of all, not only upon the public, but also upon the Court of Chancery, is, that the lapse of time renders motions necessary. These are supported by affidavits on one side, and opposed by affidavits on the other; and in them are involved questions of the most entangled description. All these motions arise out of delay. Accord- 44 ingly, in the time of Lord Chancellor Hardwicke, he said, "I will not bear your motion, but the cause. The cause must he in progress, so that I can dispose both of the cause and of the motion at once." But the state of the business in the Court of Chancery, in the present day, will not allow of such a course; for parties would evidently invent motions, for the purpose of advancing their cause, to the prejudice of other suitors. I have endeavoured, my Lords, to state these evils with as much moderation as possible. I appeal, for confirmation of what I have said to my noble and learned Friend on the Woolsack, to my noble and learned Friend opposite, (Lord Brougham), and to my noble and learned Friend, the Master of the Rolls. I ask them, one and all, whether, in the statement which I have just made, grievous as it may appear to be, to many of your Lordships, there is any exaggeration. I rather think, that I have understated the case, because I have not entered into details upon it; The fact is, that the evil is great—is grievous—is intolerable. I could state cases of this description over and over again; but I will be content with stating one. A party is entitled to an annuity, charged upon property. That property is encumbered with debts. The trustee is unwilling to discharge his duty, and appeals to the Court of Chancery for protection. Years elapse; and, in the mean time, the family of the party entitled to the annuity cannot draw a farthing from it. They are, in consequence, either involved in want and misery, or are induced to raise money upon usurious interest—a practice ultimately leading to their ruin and destruction. It is the duty of your Lordships to provide, not only for the effectual, but also for the speedy, administration of justice. One of the earliest, and one of the most revered maxims of our laws, is that justice must not be sold—that justice must not be denied—that justice must not be delayed. The delay of justice, as my noble and learned Friend opposite, on one Occasion, pointedly remarked, is equivalent to the denial of justice; and I believe, that there are cases in which it would be much better for a party to have a decision at once against him than to be hung up for years for a decision of his claims, even though at the end the decision should be Favourable. I beg, my Lords, that in the observations I have made, and am about to make, that it may not be understood as 45 casting any reflections on the noble and learned personages now presiding in the Courts of Equity. I am sure, that the evil is not to be ascribed to them. My noble and learned Friend on the Woolsack, and my noble and learned Friend the Master of the Rolls, I know perform their duties meritoriously and successfully. I make the same observation with regard to their learned coadjutor, the Vice-Chancellor, who devotes all his time, all his learning, and all his energies, to the business of his court. I do not ascribe the evils now prevailing in the different Courts of Equity to them. I believe, that they work most successfully in the administration of justice. I believe, that they employ more time, and exercise more energy in performing their duty than any country ought to require of its judges. I am one of those persons who think, that a judge should not occupy his mind wholly with the administration of justice. There is not any pursuit which does not tend, if a man devotes himself exclusively to it, to narrow the intellect and contract the understanding. A judge ought to look abroad, and to cultivate literature and science, for the lights they so acquire reflect back on the bench, and afford force and vigor to the judgment there pronounced. When I say, that this state of things is not to be ascribed to any want of learning or energy on the part of the learned judges now presiding in the Courts of Chancery, I will endeavour to fortify what I have just stated by a reference to facts. I will not go back for them for more than twenty years. I will read an extract from a return made to an order of the House of Commons, and your Lordships will see from it what has been the state of things for the last twenty years. I find, that in the year 1819, at the close of Michaelmas Term, 950 causes were set down for hearing. I find, that in the year 1824 the number was 906. I find, that in the war 1829 it was 700. I find, that in the year 1834, at the period when my noble and learned Friend opposite retired from the Woolsack—a period to which I shall presently advert more particularly—it was only 491. I find, that in the year 1835 it was 630, then 746, then 773, and now it amounts, as I have already told your Lordships, to 650. You will find, my Lords, from these returns, that on an average of twenty years the Court of Chancery has always laboured under the some aggravation of business so 46 for as regarded causes standing for haring. I have adverted, my Lords, to the period of 1834 as the period when the smallest number of causes was standing for hearing. I ascribe it in part to the able superintendence of my noble and learned Friend opposite (Lord Brougham), and to the extraordinary powers of dispatching business enjoyed by Sir John Leach, who heard more causes in a given time than any judge who ever preceded, and I believe than any judge who is ever likely to succeed him. I ascribe it also to another circumstance of the greatest importance—I mean that in the year 1832, just two years before the period I am speaking of, the bankruptcy business, which formed no inconsiderable portion of the business of the Court of Chancery, was transferred to another tribunal. Yes, notwithstanding this, such has been the increase of business in the court, that the arrears are again augmenting, and there still remain 850 causes for hearing. I know, my Lords, that it has been said—and I am most anxious to vindicate the Court of Chancery on this points—that these evils did not exist in the time of Lord Hardwicke. I beg leave to say that that is an entire mistake. There are various publications of that period which describe the Court of Chancery of that day as deserving of the same complaints which are made against it at present. It is therein stated, that great delay prevailed in the process, and that there was the same evils now complained of. One of these publication entitled Animadversions on the Court of Chancery, appeared in 1756. But the answer usually given to this is, that the Court of Chancery was then in a different state from that in which it is now. It is true that there is now an additional judge in that court. It is true that the court of the Master of the Rolls has been new modeled, and that the business in bankruptcy has been removed from the Court of Chancery. This is well worthy of consideration on one side; but then again on the other, the business of the court has greatly increased. According to a statement made from the woolsack, by my noble and learned Friend, about three years ago, it appears that the number of cases now set down for hearing exceeds by three times the amount of there set down for hearing in the time of Lord Chancellor Hardwicke. It appears 47 that petitions, a very important part of the business of the Court of Chancery, now exceed the number of petitions in Lord Hardwicke's time by seven to one; and that the motions, which now form so heavy a part of the business of the court, exceed the motions of Lord Hardwicke's time in the very same proportion. I think that this statement, which I have taken pains to verify by looking at the original documents, forms a complete answer to the complaints now made against that court, and to the averment that a Lord Chancellor, having the learning, vigour, and energy of Lord Hardwicke, would soon get rid of the accumulation of arrears now pressing so heavily upon it. That accumulation of arrears, my Lords, has existed as long as the Court of Chancery itself. We are told that when Wolsey gave up the great seal there was an accumulation of arrears in the court over which he presided. I know from the life of his distinguished successor, Sir T. More, that he devoted himself day and night, at the commencement of his judicial career, to get rid of that accumulation. We know, by reference to the celebrated speech of Lord Bacon, in the reign of James 1st., that the same evil existed then, and we know also that he pointed out a way in which he conceived that it might be remedied. We have also a right to draw the same inference from a statement of Bishop Williams, who said that whilst he presided in the Court of Chancery he had decided more causes in one year than had been decided in seven by any of his predecessors. I say nothing as to the satisfaction which his decisions afforded either to the public, or to the parties affected by them. In the time of Charles 1st we find the same complaints respecting the delays and arrears in the Court of Chancery brought forward in the House of Commons. We find that Lord Coke declared that there was more business in the Court of Chancery than the Lord Chancellor or the Master of the Rolls, with all their industry, could possibly dispose of. We find likewise that a bill was then brought in, and read a first time, for the purpose of appointing two additional judges to the Court of Chancery to get rid of that arrear of business. What was the history of that bill? It was abandoned, but for what cause is not clearly ascertained. In the reign of Charles 2nd we find by reference to Roger North's life 48 of his brother, Lord Keeper North, that the same complaints then existed; indeed, he attributes the death of the Lord Keeper to the vexation which he felt from being unable to keep down the arrears of his court. The same complaints continued to be repeated in the time of Lord Somers, of Lord Cowper, and of Lord Hardwicke. There are persons now present, my Lords, who can carry back their recollection fifty or sixty years, and who can inform your Lordships that the same complaints have continued from their earliest memory down to the present hour. Why have 1 stated this, my Lords? To show that there is nothing personal in my motion—to satisfy you that there is no hope by any change of the judge to get rid of the evils of the system. Your Lordships are, therefore, bound to apply a remedy to them forthwith. Why it has not been sooner applied it is not for me to say. A trial to apply a remedy was made, as I have already stated, in the time of Charles 1st, but was abandoned subsequently, for some reason or other which has not been distinctly transmitted to us. But is that any reason why we should give up for ever the hope of a remedy? Here are a number of causes too great for the number of judges to hear and decide on. Here is a mass of business beyond their physical strength and energy to perform. No three judges could do it, and it goes on regularly increasing. What would you do, my Lords, in any similar affair? Take, for instance, the case of manual labour, where a quantity of work is to be executed in a given time. If you had not hands sufficient to execute it, you would put on more hands; you would call for greater power, until you had got power adequate to the emergency. Now, I maintain that the judges should be above their work, not oppressed by it. No man can decide rightly who is always teazed to decide speedily. A judge ought to have time for deliberation, in order to satisfy the public and the parties on whose interests he is called to decide. When I had the honour of holding the great seal I acted on this principle. I found it impossible to keep down the arrears in the Court of Chancery. The first thing I did was to see whether I could remodel the Court of the Master of the Rolls. At that time the Master of the Rolls sate four times-a-week, but only three hours each evening, or about twelve hours in the week. 49 In substance, he did not sit twelve hours in the week; for, the Court of Chancery broke up earlier than it would have otherwise done, in order to let the counsel practising in it, attend before the Master of the Rolls at six in the evening. I applied to my hon. and learned Friend, the late Sir John Leach, on the subject; and I asked him, if he would give up his evening sittings, and sit in the morning, as the other judges were accustomed to sit. I owe it to the memory of that learned Judge, to say, that he agreed promptly, and at once, to my proposition. The effects of that change were soon discovered. The arrear was kept down; but still the measure was not, I contend, adequate to the occasion. I thought, that it was necessary that something further should be done. I considered, that permanent improvement was hopeless, without a legislative measure. I, therefore, brought in a bill on the subject, which I renewed in a subsequent session, and which, fortunately, received the unanimous approbation of your Lordships. It was supported by those great lawyers, Lord Tenterden and Lord Eldon, and, I believe, by Lord Redesdale also. It went down to the other House of Parliament. I know not from what cause—whether it was from party, or from some other cause—but my worthy Friend opposite took no part in it. But, I believe, from some motive of party, it was there violently opposed. An hon. and learned Gentleman, a former colleague of mine, Sir C. Wetherell, distinguished himself by the strenuous opposition which he directed against it. The terms which he applied to the bill itself and to the prospective judges under it, were of the most extraordinary description. By-the-by, I recollect now, that my noble and learned Friend opposite (Lord Brougham) did take a part in that opposition. He said, that it would make the office of the Lord Chancellor a sinecure—that the Lord Chancellor would have nothing to do but to take the fees of his office, and that he would soon devolve all its duties upon his deputy. Whatever was the motive, the opposition to my bill was carried on for two days with great vigour. A vote was, however, come to at last, in its favour. In a few days afterwards, the demise of the Crown took place, and the bill was, in consequence, abandoned for the session. I merely state this, to show that my views on this subject 50 have always been the same, and that I have long thought, that there were more causes to be decided in the Court of Chancery than the Judges of that court were physically able to decide. Then, my Lords, if this be the case, you ought to have, and you must have, a greater number of Judges. It is true, that it may be a great inconvenience to establish a new court. It is true, that it may be an inconvenience to the bar, and many persons connected with it. But let us look, my Lords, at the other side of the question. There may be an inconvenience, such as I have stated; but, that inconvenience bears no proportion to the evil which exists now, when causes of the deepest importance to the interests of families remain unheard and undecided, from the want of sufficient physical force in your Judges. One objection to the bill which I proposed was continually brought forward in the other House of Parliament, and to it I beg leave, for a moment, to advert, because it is material. At that time, the business of bankruptcy was connected with the Court of Chancery; it occupied a considerable part of the time both of the Chancellor and Vice-Chancellor, and a gentleman now no more, who took the Court of Chancery under his protection for a great many years, always said—" Why not detach the business of bankruptcy from the Court of Chancery? That will give sufficient relief; it is unnecessary to appoint an additional judge; the object will be attained by relieving the Court of its bankruptcy jurisdiction." I objected to that course—first, because I thought the relief would be altogether insufficient; and next, I objected to it because I considered, that the appellate jurisdiction in cases of bankruptcy was better vested in the judges of the Court of Chancery than in any other tribunal. The experiment, however, was tried by my noble and learned Friend opposite (Lord Brougham) very soon after he accepted the Great Seal. I say not whether the appellate tribunal that has been substituted in lieu of the Court of Chancery be or be not an improvement, because it has nothing to do with the present question; but I advert to the separation of bankruptcy from the Court of Chancery for this purpose— to show that I was right in the opinion I then gave, that the relief thus afforded would not be sufficient. The separation undoubtedly relieved the Lord, Chancellor 51 and the Vice-Chancellor to a considerable extent; bat the increase of business was more than commensurate with that relief: and the change made no alteration substantially in the amount of the arrests. Three years ago my noble and learned Friend on the Woolsack brought forward his measure for the reformation of the Court of Chancery. I then again suggested, few the last time, what I have always considered the most simple and appropriate remedy; but I was told, that my measure was too narrow; that it was mean and scanty in its object; that my noble and learned Friend had a much more extensive scheme to new-model the Court of Chancery and the whole appellate jurisdiction; his plan, however did not meet with your Lordships' approbation, nor even of my noble and learned Friend's opposite. My noble and learned Friend on the Woolsack would not accept my proposal, and nothing from that time to this has been done upon the subject. I will tell your Lordships what has always been my course upon this question. The noble Viscount opposite (Melbourne) introduced the other evening the phrase "progressive reform," which most appropriately described the coarse which I have always pursued with reference to the Court of Chancery. My object was to carry into effect all the recommendations of the commissioners for inquiry into the administration of the court, which were directed to simplify the progress of the cause op to the time of hearing; but I said, and Most naturally, what is the advantage of expediting a cause up to the time of hearing, unless you afford further facilities for hearing? The cause would stop, though at another stage. Accordingly the next step I took was to suggest further means for the hearing of causes. There I was defeated. My next object, as I over and over again stated, would be, if that immediate object had been, accomplished, to direct my attention to the appellate jurisdiction of the Court. I considered it premature to endeavour to reform the appellate jurisdiction until I had first taken the means for reforming the great and grievous defect—the deficiency of the power for hearing causes. When it was suggested that a new judge should be appointed for the purpose of facilitating the hearing of causes, it has been met by this observation:—" What good would you do by it? You will only, increase the number of ap- 52 peals, and the Court of Chancery is already blocked up with its appeals." I never considered there was the least weight in; that objection, for this reason:—Suppose there are 800 causes to be heard, and a certain proportion, fifty, the subjects of appeals; by hearing them all, 750 we disposed of, and the other fifty remain for appeal; but it is just as well for them to remain in that stage upon appeal, as for original beating; because they still would have been left for hearing. There is no validity in the objection, even if it applied at all; but it does not apply; for the appeals are, to a very great extent, disposed of. To ray noble and learned Friend opposite (Lord Brougham) we are mainly and entirely indebted for this. When he took the great seal, there was at great arrear of appeals; and when he left, there was only twenty-six appeals remaining; which I understand are now reduced to sixteen or seventeen. My noble and learned Friend disposed of 140 appeals in one year. I know he sat up day and night, and worked most laboriously, for the purpose of accomplishing that object; and that object he did accomplish. There is, at this moment, no arrear with respect to appeals; and, therefore, the argument to which I refer does not now apply. Bui it is said, that the Chancellor can now devote his the to original causes. I believe that last year my noble and learned Friend on the Woolsack heard between sixty and seventy causes, but I don't believe that he has lately heard many original causes. I am told that appeals we on the increase, and I know, from the state of business in this House, that it is impossible to give any effectual attendance on original causes. There ate 100 appeals undecided; forty, or nearly forty, have been heard, and are waiting for judgment; and sixty remain to be heard, with only about sis weeks of the Session before us. I have now, my Lords, pointed out the evil, and what appears to me the practical remedy. What makes the went of the application of this remedy the more extraordinary is, what I am now about to mention—the state of The Court of Exchequer. The Exchequer is a court of equity as well as a court of law; they are separate and distinct from each other. The Court of Exchequer in equity has all die machinery of the Court of Chancery—it has all the offices, all the officers, every thing necessary for the purpose of consti- 53 tuting a proper court; but there is no judge. You have a court without a judge, as far as equity is concerned. Let me not be mistaken. My noble and learned Friend, the Lord Chief Baron, when he can be spared from the common law business, sits in equity; Baron Alderson, too, when he can be spared, sits in equity, and both administer justice On the equity side, to the perfect satisfaction of the bar and the suitors. But this is done to the great inconvenience of the common law business of the Court, and in the next place not one-third of the time which a permanent judge could give in equity are they able to devote in consequence of their other duties. Not only go, it is productive also of this great inconvenience:—There is as much common law business in the Court of Exchequer as in the Queen's Bench; there is the same establishment of judges; how inconvenient, then, the judges of the Queen's Bench not being too numerous, to draw away one of the judges from the Exchequer for the purpose of administering justice in a court of equity? I have conversed with those learned persons, and they tell me that the inconvenience to the Court on the common law side is extremely great. It is extraordinary, that they should not have five judges devoted exclusively to common law, when the Common; Pleas, so greatly inferior to the Exchequer, has five judges entirely occupied with the common law business of that Court. What then is the obvious remedy? To appoint a permanent judge on the equity side of the Exchequer. Leave the fire common law judges to administer the common law of that court, and appoint an equity judge to preside over the equity side. Is not this an obvious remedy? Why not adopt it? What can be more plain, simple, and rational? What objection can possibly be urged against it? It is not the first time I have made this proposition. I have made it over and over again; but by some fatality, when the Court of Chancery is concerned, no two persons can concur in opinion, and nothing is done. But I am not wedded to this particular mode of getting rid of the evil. If my noble and learned Friend on the Woolsack, or my noble and learned Friends opposite (Lords Brougham and Langdale), think any other means better calculated to attain, the object in view,—if they think it better to have another judge of the Court of Chancery, instead of hav- 54 ing a complete equity judge in the Exchequer, I will accede to their proposition. I will do still more I say, that such it the state of equity business, and such would be the increase of equity business if there was the power to carry it on, that there would not be too much force if there were both an equity judge in the Exchequer, and an additional judge in the Court of Chancery. This would be attended with the additional advantage, that it would enable one of those judges to act as permanent president of the Judicial Committee of the Privy Council. That court will never be a completely effective court, palatable to the bar and to the suitors, until you have a permanent judge presiding in it. My noble and learned Friend (Lord Brougham), whenever his important avocations admit, presides there With great advantage to the suitors and the public; but that is merely temporary; we are to look forward to the future; we shall not always have the assistance of my noble and learned Friend in that department and I think, therefore, one of the most important and beneficial consequence bf the measure I propose is, that it would give a permanent president to the Judicial Committee of the Privy Council. This is necessary above all things from a consideration to which I must for a moment allude. The consideration is this:—The Judicial Committee, of the Privy Council is conversant not in equity alone, not in common law alone, but it has to administer Spanish law, two different kinds of French law, and Dutch law; it has to direct its attention to all these various departments, bow important, then, is it, to have a permanent president, in order that he may feel it his duty to qualify himself to administer justice in such complicated matters with satisfaction to the suitors of the court. Another practical advantage of he inconsiderable importance, which would result from this, would be, that the bar of the learned judge would follow him from his equity court to the Privy Council. The bar would also became possessed of that information which was necessary to the administration of justice; there would thus be a permanent bar, and a permanent judge to administer justice in one of the most important tribunals of the country. It would appeal to the noble Marquess, the Lord President of the Council, who had had the opportunity of witnessing the proceedings in that court, and the nature of 55 the business which comes before it, whether what I have stated is not correct, and whether benefits the most important would not result from the adoption of the measure which I have proposed. I have endeavoured, my Lords, to confine myself, according to what I stated at the outset, to one point. I have not gone into the various considerations that present themselves as connected with the Court of Chancery. They are complicated beyond measure. But here is one evil on which I place my finger—a grievance the most heavy that prevails in that court—namely, the arrears of causes set down for hearing. It is to that I apply my present remedy; and I trust I shall be successful in proportion to the simplicity and singleness of my view. If I had entangled it with other matter connected with the Court, your Lordships would have lost sight of my real and main object. It is because I am desirous of obtaining a practical remedy to a great practical evil, that I have confined myself to this view of the case. I know there are persons connected with the profession who say you should begin at the other end; that you should, in the first instance, consider the appellate jurisdiction and new model the whole system. I say, I will not embark in that course, different opinions exist with respect to it, and the best means of attaining the end proposed, and if we once engage in a controversy of that kind the object I have in view never will be attained. My noble and Learned Friend, on the Woolsack three years ago, brought forward his plan for a reform of the Court of Chancery. It was not approved of by my noble and learned Friend opposite (Lord Brougham). He also had a plan much more comprehensive and much more extensive than my noble and learned Friend on the Woolsack. My noble and learned Friend, the Master of the Rolls (Lord Langdale) has also a plan for the reformation of the appellate jurisdiction of the Court of Chancery. I say nothing as to the merits of these respective plans. I don't wish to interfere in this war of giants, I don't think myself safe within the wind of such commotion. I wish to take a more humble course. Cautus minium may be said of me, I admit the timidusque procellœ it is because I fear the storm that I have not taken a more extended course; and now, having pointed out what I consider the proper remedy for the practical evil 56 which I have exposed, I leave the case in the hands of her Majesty's Ministers. I shall be asked, "Do you mean to introduce a bill?" I answer distinctly no, I might succeed in carrying a bill through this House; but I fear the probability is, it would somehow or other share the fate of my former bill, in another place. I wish it should have a father that can better support and protect it in the warfare in which it must engage. I think my noble and learned Friend on the Woolsack, or some Member of the Government, if they agree in the general view I take, ought to bring in a bill upon this subject. If they do so, the measure shall receive my most cordial support, because, I own, I am anxious for the attainment of the great object I have in view, not merely as a member of a profession with which I have been long connected, but, above all, because I think it of the utmost importance to the interests of the suitors and of the community at large. My Lords, I beg leave, in conclusion, to move, as a matter of form, for certain returns, of which I gave notice on a former occasion.
Lord Broughamsaid, that in presenting himself thus early to take part in this most important discussion, he had to acknowledge, as he was always ready to do, the great ability of the statement of his noble and learned Friend who had just addressed their Lordships. As no man expressed himself more clearly, he believed he might say, few men thought so well on any subject to which his noble and learned Friend applied his vigorous understanding, and on a matter which had occupied his thoughts so long, on which his own experience was so large, and which now, for the third or fourth time, he had brought under the attention of the House, it might well be expected that vigour would not be applied in vain. He had but one objection to his statement, and that applied solely to the latter two or three sentences. He grieved, that his noble and learned Friend did not take the matter into his own hands. He was convinced, that a measure matured by him, digested under his own immediate inspection, with the lights he had, and the assistance out of doors he could command, would have the certainty of insuring the respectful consideration of Parliament, and every chance of its final sanction. He was not quite so sure of its fate if left to his noble and learned Friend on the Woolsack, It was 57 true, undoubtedly, as his noble and learned Friend (Lord Lyndhurst) had stated, that the subject had been recommended generally in the Queen's Speech: but so had many other matters. For his own part, he was rather alarmed, that the subject had been mentioned in the speech from the Throne. If it had not been referred to at all, there would, perhaps, have been a better chance of something being done with respect to it. His comfort, however, was, that it had not been the subject of a royal message. If it had, he should not have been much surprised if some of his noble and learned Colleagues had proposed to put off his measure till the year of grace 1842. However, as it had not been messaged as well as speeched, the subject of Chancery reform had still some chance of being taken up within some reasonable time. It was impossible to exaggerate the importance of this question. Far from overstating, his noble and learned Friend had indeed understated the case. His noble and learned Friend had mentioned the different plans which had been before Parliament at various times; his own, the measure introduced by his noble and learned Friend on the woolsack, and the proposition of his noble and learned Friend the Master of the Rolls, which was never embodied, he believed, in a bill. Having been much blamed, he would take that opportunity of stating, that he had many reasons for not pressing on Parliament any larger measures of Chancery reform than he had propounded, and some of which had been carried into effect. One reason was this:—He had undertaken to attempt the reform of that court on a large scale, but he had a very great inclination of opinion, he would not say before trial, but as strong an inclination of opinion as speculatively and prospectively he could entertain, that part, and a very great part, of the delay in the Court of Chancery, was owing to their neglect, God knew he could not say, the incapacity, of those who administered it—but rather the multiplicity of their concerns, and a habit which some of them had got into of not deciding the causes when brought before them. He was now stating, after the death of one of the greatest, perhaps the greatest lawyer that ever lived, what he had said repeatedly during the life of Lord Eldon, and in the hearing of his celebrated brother, then a Member of the other House of Parliament 58 —that he had all the great faculties of a most illustrious judge, the most profound learning any lawyer in this country ever possessed, the utmost possible subtlety with which a human mind could be armed, the greatest industry and perseverance with which it was possible for mortal man to be gifted; but that he had, not originally, but acquired, a very bad habit, which grew on him, of not attending, such was the real truth, to the arguments of counsel who were arguing before him—the prolixity of counsel securing the inattention of the judge—the inattention of the judge increasing by reaction the prolixity of the bar, till at last he decided cases at a great interval of time after hearing the arguments, not so much upon those arguments as upon his own judgment, formed by reading the whole papers in the cause. That, undoubtedly, was a great misfortune both to Lord Eldon and the profession; but it became latterly an inveterate habit, which he could not get the better of. His opinion therefore was, that a judge of infinitely less learning and capacity might get through more work by applying his mind more closely to the business of the court, and adopting a more judicious arrangement, by sitting a greater number of hours each day, by acting on a maxim that might be applied to time as well as money—take care of the minutes, and the hours will take care of themselves; by not coming into court when the clock struck 3, but regularly when it struck 10. He had stated this in the House of Commons, and it was on these grounds that he had assisted in throwing out his noble and learned Friend's bill. His noble and learned Friend was much mistaken if he thought he had not taken a share in throwing out the bill; he had taken an active part against it, because he thought it a needless measure, and he took to himself the principal share of the praise or blame to which its rejection might give rise. During the recess which ensued on the demise of the Crown, he was asked, whether he would renew his opposition in the event of the bill being brought forward again. He answered, that he certainly should, and the bill was in consequence withdrawn.
§ Lord Lyndhursthardly remembered the circumstance, but he knew there was a majority of 41 in favour of the second reading.
Lord BroughamOh, that was no very 59 great majority; that was in the days of efficient majorities, and would be reckoned but small. When he (Lord Brougham) took the great seal, he was bound to act according to his own feelings of what was proper, and if he had proposed to create a new judge for the relief of his own court and his own case, it would have been said at once, "Oh, you have totally changed your opinion; you were against the creation of a new judge formerly, when you were at the bar and had no interest in the matter, but now, when you are overwhelmed by the load of business, you confess that you were wrong, and that we were right; you fly for help to the quarter; whence no help was to be sought, and hasten to increase the number of judges."; It was quite clear that he could not do any such thing; but he had another reason, for his opinion remained unchanged, and further reflection and nearer acquaintance with the state of matters only confirmed his opinion. What, then, was his bounden duty? He apprehended no one could deny that it was to act on his own principles, and try all means, however feeble, and however inferior to those of his predecessors his own energies might be, to grapple with the giant evil and keep down: the arrears, and thus prevent the business from becoming entirely unmanageable. That was the principle on which he proceeded, and if he had failed, he would then have bad recourse to the remedy of his noble and learned Friend, because he should then have become convinced that there were fatal objections against the system, not of a personal nature, and that there must be another judge. He agreed with his noble Friend, that they ought not to be deterred from adding another judge by, any consideration of expense, for the expenses incurred, from the number of arrears, would much more than support another judge. The fees levied by the court, independently of the expenses of the solicitor employed by the parties, and the expenses of additional motions made in court, would more than defray the salary. It was not very pleasant to refer to his own experience while he presided in the court, and it would be intolerable if he were obliged to make invidious comparisons between himself and others; but, as it might facilitate their coming to a just conclusion on the question of the necessity of additional judges, he would shortly state what he had himself done. 60 When he took the great seal there were 125 appeals in arrear. Original causes had not been heard by the Chancellor since 1814, when the Vice-Chancellor's Court was created. During the first year, in order to prevent a further arrear and satisfy the suitors, he heard the enormous number of 140 causes, besides a great number of motions. The result was, that the list was gone through; and at the end of the year only eight appeals were set down. When he asked if there were any of those which could be heard, the reply was, none whatever, and if he had forced any of them on, it might have had the effect of causing an appeal which would otherwise have been compromised by the parties. Thus, by a year's exertion, all the arrear was got rid of in the Chancellor's branch of the Court of Chancery, as well as all the arrear in the House of Lords. The number of appeals from his judgments in the Court of Chancery had been unprecedentedly small—only seven or eight out of the enormous number of causes he had heard, and of these, three only had been reversed. He had a right therefore, to say, that there had been no overhaste, that the business had been fully done; all this had been done in the old state of the powers of the Court of Chancery, and he had sat five or six weeks in bankruptcy that very year, there being then as much bankruptcy business as there had been under any of his predecessors. He mentioned these things, rather as bearing on the question before their Lordships, than for the purpose of controverting the grossly ridiculous assertions made out of doors by some Members of the profession; such as that his noble and learned Friend on the Woolsack was the first Chancellor since the institution of a court of equity who had heard original causes. This had been stated by a Member of Parliament and of the bar; yet the fact was, that Lord Eldon was the first Chancellor who did not hear original causes, the hearing of such causes having been discontinued only since 1814. Grosser, coarser, more stupid ignorance, than these learned persons had been guilty of he could not conceive; and yet he was sorry to say, that the statement had been made in the presence of some officers of the Court of Chancery.
§ Lord Lyndhurstno person at all acquainted with the Court of Chancery could make such a statement.
Lord Broughamcertainly, no person 61 acquainted with the Court of Chancery in England. It had also been said, that his judgments were beacons which succeeding Chancellors ought to avoid. No mis-statements could be more gross; the wildest imagination, the most reckless disregard to truth, could not go further. What increased, if that were possible, the Utter absurdity and falsity of this assertion was, that the very same person who now talked of his judgments in this way had on the 25th of May, 1838, in a company of 4,000 persons, and in his own presence, stated that he was the first judge of equity of—a gross exaggeration, God knew—who had ever shown the suitors in Chancery that they might have good judgments with speedy despatch of business together, This was the person who, because his public conduct had been commented upon by him, had now discovered that his judgments were only good as beacons to warn future Chancellors. He had pronounced no new judgment between May, 1838, and March, 1839, so that this dictum must have been uttered after a reconsideration of those volumes of judgments with which he had encumbered the shelves of the profession. When holding the great seal, he had formed a determination never to lose half an hour at the beginning of the day or an hour at the end, by avoiding going to court, for Surely nothing could be more absurd than for a Chancellor to dance attendance on drawing-rooms—to avoid as much as possible Cabinet meetings, and confine himself to the judicial business. These were the means by which he had got rid of the arrears. It did not at all follow that this could be done every year. It had been very kindly said, by his noble and learned Friend on the Woolsack that this close application to business had occasioned his illness and absence from Parliament; but his noble and learned Friend was in error. He was perfectly well in 1333, in 1834, in the early part of 1835, he had never been better in his life; it was the hard work he had gone through in that House in 1835, and especially when the Municipal Corporations Reform Bill was before it, which had broken his health. Some of his noble Friends opposite might be inclined to consider it as a judgment upon him, but the five or six weeks of unremitted exertion through which he had passed and the great pains which his noble and learned Friend opposite had taken to thwart him and defeat 62 the bill, thus far more than repaying any service which he had rendered his noble and learned Friend by causing the loss of his Chancery Bill in 1830, had caused his subsequent retirement from that House. If the arrears of appeals were now got rid of altogether, and the Chancellor could hear original causes, then the Chancellor was restored to his pristine functions, to the title of an original, not an appellate judge, and the judicial power of the court was increased one third. He hoped his noble and learned Friend opposite would not suppose he was obstinately adhering to an opinion which experience had proved to be wrong; all that he wished was, that both sides of the cause should be heard before it was decided. His noble and learned Friend had said, that the business of the Court of Chancery had been increasing constantly and greatly since the time of Lord Hardwicke. No doubt there had been a great increase in the number of bills filed. But he wished to press on the attention of their Lordships, that some of the sources which had formerly produced a vast amount of business had been cutoff. They must not look on the present judicial powers of the Court of Chancery as being the same as they had been in former days; they had been very greatly increased; so much, that even if the amount of business had been doubled, powers would have increased in the same proportion. Thus by the creation, of the Vice-Chancellor's Court the judicial power had been increased more than 50 per cent. within the last twenty five years. He said more than 50 per cent., because the Chancellor had it not in his power to devote his whole time to his functions as head of the Court of Chancery; his political duties and those of the appellate jurisdiction occupied great part of his time; his noble and learned Friend would bear him out in saying that much less than half the business was done in the Chancellor's branch of the Court of Chancery before the creation of the Vice-Chancellor's Court. So that by the new court the judicial power was increased at least seventy per cent. But that was not all. His noble and learned Friend had made a great reform in the Rolls' Court. Formerly that court only sat in the morning, four weeks in the year, and never on Saturday evening; O n an average it had sat three days and a-half in the weak, and four hours 63 each day, or fourteen hours a-week. But his noble and learned Friend sat six days in the week, and six hours a-day, or thirty-six hours a-week. [Lord Langdale said, the whole weekly time of sitting was thirty hours.] Well, thirty hours. Thus, taking into account the creation of the new branch, and the changes made in the Rolls, the judicial powers of the court had been very nearly trebled. The business of the Recorder's reports was withdrawn, which used to take up very many hours, but that was a trifle compared with the change he was about to mention. The Chancellor was relieved from the bankruptcy business, which formerly occupied six or seven weeks a-year, and he was not deprived of the power of sitting a greater number of hours daily than Lord Eldon was wont to sit. Taking all these things into account, he could not exaggerate when he said, that the judicial power had been very considerably more than trebled since the commencement of the present century. That was surely a pretty large addition, and to this must be added the assistance which was now given in the master's office, by an arrangement, trifling indeed, but very convenient, that saved an hour daily of the master's time. When he came to take the great seal, it was necessary that the Chancellor should be attended at the court by two masters. A more useless form had never existed; yet, when he abolished the custom, it was said to be a horrid innovation to do away with the attendance of the masters, who added so much to the dignity of the Chancellor, and aided the court so much in matters of business. If this aid were really given, it must have been given at the distance of Chancery-lane; for all that was done was, that the master came down to the court, bowed to the Chancellor when he came in, received an obeisance in return, and then went back to Chancery-lane. Thus, however, at least an hour of their time daily was generally wasted, which, by doing away with this custom, was gained for more important duties. He thought all these changes sufficient, after he had once reduced the arrears, to prevent the business from becoming in future at all overwhelming to the Chancellor, and, therefore, he saw no reason for increasing the number of judges. On the contrary, it appeared to him that, if his noble and learned Friend now on the Woolsack, but then Master of the 64 Rolls, continued to preside in that court so ably as he did, and that some arrangement could be come to with the Vice-Chancellor by which that judgeship might be abolished, and things placed in the same position as in the beginning of Lord Eldon's time, it did appear to him, at the time he was speaking of, that it might be possible for the Chief Judge in Chancery, by means of great exertion certainly, to go on without arrears, as had been the case under Lord Thurlow, and also under Lord Loughborough. He was aware of the immense number of causes in the inferior courts. He was aware that his noble and learned Friend behind him (Lord Langdale) heard at the Rolls on the average of several years as many as 507 causes per annum, and that, in one year, he had heard 1,000 causes. He was also aware that the Vice-Chancellor heard a great number of causes yearly—he believed he fully kept up to his average; he was aware of all this, but his opinion was not materially altered in respect to the plan he had adverted to. The making of more judges was, in his mind, a clumsy, and he would say, vulgar mode of remedy; at all events, in contemplating any such remedy, never let it be forgotten that it was not till after the establishment of the Vice-Chancellor's Court that the increasing pressure of business began to be most seriously felt in the Court of Chancery, by reason of the appeals from the Vice-Chancellor.
§ Lord LyndhurstThe increase of business coming into all the equity courts, was very great subsequently to that time.
Lord Broughamresumed, by remarking, that no doubt the increase in the general business was very great, but hardly sufficient, he was disposed to think, to account for the whole of the increase which then began to be so much felt. But, however this might be, still he was not quite convinced yet, that exertion would not keep down the arrears in Chancery. But to an increase of judges his objection was insuperable; among other reasons was the extension of patronage which would thereby be conferred on the Crown, for extension of patronage was one of those things to which he objected still, being still a Whig, whatever others might be. But, besides, he thought this was a dangerous remedy, for this reason—it was teaching a very bad lesson to judges to teach them that, if they did not exert 65 themselves strenuously, they would always get help from Parliament by means of a legislative increase of their numbers. He had reason to know this; he knew it right well; for he had not been six months upon the Woolsack before he was applied to by some of the common-law judges to sanction a measure for increasing the number of judges, in consideration of the great increase of arrears of business in the common-law courts. But he said, "No, no, no more judges must be made. Let the reaction increase as the pressure is augmented, and greater exertion be made in proportion as the business to be discharged grows greater. Do this, and don't fly to that baneful remedy—that mala praxis—of adding to the numbers of the bench." This was what he said. What was the result? They had got rid of the arrears in those courts, and, as he was told, there were no symptoms of similar arrears getting up again. He thought this went to show that the practice of increasing judges was a bad one, and he was only now more confirmed and more steady in that opinion than he had been heretofore. However, he did not lay down this as a peremptory opinion: he wished the House, and especially his noble and learned friend, to weigh well this part of the subject, with a view to coming to some deliberate determination on it. He came now to another point. They must either give the new judge an ultimate jurisdiction, without appeal—which no man will maintain they ought to do, for there ought to be no court of such a nature constituted with ultimate jurisdiction—or they would give a right of appeal. But by this plan they would most materially increase the total number of appeal cases in equity; and these must come either to the Chancellor or to the House of Lords, and, if they followed the present practice of an appeal to the first, followed by an appeal to the other, they would increase the arrears of appeals both in the Court of Chancery and before the House of Lords. Now, one of his plans, with which his noble and learned Friend seemed to have made merry in his absence in 1836, though not on very sufficient grounds, as appeared to him, was to give an election in appealing. Under the plan of having three judges—a chief judge in Chancery, a Master of Rolls, and a Vice-chancellor —was the new judge to have an appellate jurisdiction over the Master of the 66 Rolls and the Vice-chancellor? If so, they would first fall into the same evils, to a great extent at least, with respect to delay and expense, as they suffered from at present: he meant the evils of a double appeal. And the effects of this would be felt much more by suitors in the courts below than in the House of Lords; for the sort of appeals which took place below were numerous beyond measure, as compared with those which came up to their Lordships' House; but still they would be overwhelmed with appeals in that House. But if, on the other hand, they did not give an appeal jurisdiction to the Lord Chancellor, then parties who might be dissatisfied with the decisions of the courts of equity, whichever of them it might be, must come immediately to that House, a course which would amount, in many cases, to an absolute denial of justice; for the unsuccessful suitor would often sit down under a decision with which he was by no means satisfied, rather than encounter the delay and expense attendant upon an appeal to their Lordships under the present system. While, therefore, on the one hand, to give dissatisfied suitors in the equity courts no resource but an appeal to the House of Lords would often work, under the present system of administering justice there, as a denial of justice; on the other hand, if there were no appeal at all, it would be found that the judges would at length come to act with less care, or if there were certain, classes of cases in which an appeal lay, and certain others in which it did not, judges would always apply themselves with more attention and care to those cases in which they knew that their decisions were liable to come under the review of another and superior court, than they did to those cases over which they had an ultimate jurisdiction. He had himself had occasion to observe instances of this in the decisions in bankruptcy of some of his predecessors on the woolsack, who, though, unquestionably, very learned judges, had certainly come to conclusions in some cases which displayed a remarkable inferiority in the qualities he had mentioned as compared with their judgments in other cases, where they were not, as in the former, exercising an ultimate jurisdiction. This, or something like this, must be the case, if all the courts of equity were to act without any right of appeal within themselves. His 67 plan, therefore, was, either to give an appeal to the chief judge in Chancery, or to come to the House of Lord's per saltum, a course to which, be it remarked, under the operation of the rest of his plan, the objections he had just made to appealing immediately to the House as at present constituted as a judicial tribunal would not apply; for all appeals on minor cases would come before the chief judge in Chancery; all the important ones would come before their Lordships presided over by the Lord Chancellor. But if the table then groaned under an accumulation of appeals, a stoppage would take place? No, for this over accumulation would relieve itself, acting like the governor of a steam-engine, which opens a valve when the pressure is too great. Whenever the appeals became too heavy, then those suitors who wanted justice, and not delay, would go away, or go to the appellate jurisdiction below. Whenever, again, the appellate jurisdiction below became overcharged, it, in like manner, would right Itself; those who wanted justice, and who did not come to an appeal court only for the purpose of delay,—those, in fact, who were bonâ fide appellants, would come to their Lordships. But it might be objected, "We should be afraid of increasing to a vast amount the pressure of appeals here." His answer was, that the plan which he spoke of gave great judicial force to the House, because the judge who presided in that House' would give' his whole time to that duty and to the presidency of the judicial committee Of the Privy Council, and not in a court of his own. He was glad that his noble and learned Friend had named the judicial committee, for it gave him an opportunity of saying that he admitted as much as any man its defect in wanting a head; it was a defect in its Original constitution, and he had always Said, that they ought to have a vice-president of if, who should be paid an adequate and fixed salary, this system he was convinced would not have the effect of increasing the appeals either before their Lordships or the inferior courts. Having thus stated his views, and touched upon some of the doubts and apprehensions he felt in dealing with this part bf the subject, he how cattle to what appeared to him the two most important questions bf all—he meant the question Of the propriety of separating the judicial 68 from the political character of The Lord Chancellor, and the question of a better construction of the court of appellate jurisdiction. With respect to the former, no person went further than he did. If it could be done, in his opinion it ought to be done. As regarded the judicial functions, the only difficulty with him was, that the Speaker of their Lordships' House, as being appointed by the Crown, could never be permitted by their Lordships to take that position with Respect to the control of the proceedings of the House which the Speaker in the other House of Parliament, as being elected by the Commons, was invested with, and Exercised there; and if the Speakership were made an independent and permanent office, and were well paid, it might soon possibly fall into the hands of persons who were of no talent, but only able to do that which an automaton might do almost, namely, to put the question, and declare whether the ayes or the noes had it, the House saying the trouble of deciding that. The Speaker of that House must, therefore, he thought, be a person invested with the judicial character; he must be a judge, because their Lordships' House was a judicial body; and, as the majority of their Lordships were not lawyers, the principal part of the judicial power exercised by their Lordships must be placed in the hands of the president of their Lordships' House. This officer ought, therefore, to be a judge's but if the three judges in equity were constitution according to his plan, then this officer, whenever he saw fit, would have the power of calling to his aid, while Sitting on appeals there, any one or two of the three judges in equity below, to assist the judgment bf the House, just as they occasionally now summoned the common-law judges to assist them. Now the other difficulty related to the politics position of the Lord Chancellor, and was such as to render the separation he aimed at scarcely possible he was afraid for such a separation would be quite overthrowing what had been from early periods an invariable custom of Government. However, it ought to be done. It was quite anomalous to see a judge sitting in Westminsterhall, and deciding alone, having no certain rule in the statutes, nor even uniform guidance from precedents, to help his decisions, but deciding almost wholly upon his own discretion, governed only by his 69 own conscience, questions not merely of the most important nature, but questions of the utmost delicacy, and this, too, knowing that he was liable to be removed by the Crown at any moment. Many cases occurred in which the interests of the Crown were directly concerned, and which were questions of the utmost delicacy for a judge so placed to be called upon to decide, inasmuch as the interests of the Crown were often directly involved. He himself very well remembered a case coming before him when he held the seals, in which the interests of the Crown were involved to the amount of 60,000l. or 70,000l. the question actually being, whether so much should be put into the privy purse on account of the revenues of the Duchy of Cornwall or not. He felt the delicacy of his situation, and suggested to the counsel of the defendent, that he should be glad to have the assistance of another judge, or, if he chose, two judges. But the counsel thought it much better for his client, that the cause should go on before him alone, because the learned Gentleman said he was sure, that he (Lord Brougham) would lean, as it were, against his allegiance to his master, rather than allow himself to be swayed by it in his judgment. It was quite necessary, therefore, where there were not only so many questions of great delicacy, of a political but of a personal nature, such as questions relating to wards and guardians, to married women, and various other matters, that the two characters should be separated. He could tell them of Chancellors who had given political judgments in certain cases which had come before them—judgments which did not admit of a doubt as to their political bias; these had been thought to be wrong, yet they had long been felt to be very difficult to get rid of—indeed they were hardly got rid of yet, because they formed precedents. Hence he was entirely for separating the political from the judicial functions of the Chancellor, The second point was the construction of a better court of appeal; but he felt the difficulty of arranging the right of appeal between the intermediate court, and the court of first instance. He was inclined, however, to give it to the second of these, in order that the court of appeal might be well qualified to settle causes satisfactorily, and to do its duty with sufficient experience, and with a daily knowledge of matters of practice—a 70 knowledge, that was to say, which should be kept up by practice from day to day; in short, that that judge might establish claims to the public respect and confidence, as well as acquit himself to his own satisfaction, by his mode of discharging business. It was difficult, in his mind, to imagine how a court could be constituted properly if the judge who presided, sat there to adjudicate appeals alone. It was not in the law as in the accurate sciences, where great principles and their applications once learned, were not readily forgotten. His noble and learned Friend near him (Lord Langdale) was probably just as able to solve a problem in mathematics then, as when he took his degree as senior wrangler at Cambridge, and so was his noble and learned Friend opposite (Lord Lyndhurst); but nothing similar to this, held respecting questions of law. Thus he doubted, that if they were to take the most experienced and able lawyer in Westminster-hall, where the statutes were so much studied and so well known, and where discretion was so much less exerted, and place him alone as judge in a court of equity, whether he would not be found to have forgotten his law in a short time, and he doubted also, whether his judgments on such points would give much satisfaction in general, or whether he would feel much satisfaction in his own judgment, if he did not keep up his habits of technical and practical acquaintance with the details. If he did not keep up such habits, he would probably soon quite get out of them. So much was this the cage, that he remembered having had to ask the opinion of Sir William Grant on a point of law, about a year and a half after he was made Master of the Rolls, and he with his habitual candour said "Probably the law is so and so; but my opinion is not worth a rush. I have been above a year out of practice." It was highly important, therefore, that the appellate judge should not sit on appeals alone. The judge who sat on appeals saw nothing but the great and important questions; nothing of practice ever came before him, and that consideration was one which he thought should have great weight with their Lordships. He had thus felt it to be his duty to refer to the difficulties which attended the great work of constituting an appellate jurisdiction. They had often been asked why they did not create a good and effici- 71 ent appellate jurisdiction; that object, he would observe, was much easier called for than accomplished. There had been no doubt, many attempts, many approximations towards it, and in the progress of those attempts, some improvements had been really effected. The Judicial Committee of the Privy Council had been called into activity. Four judges sat there and heard causes, nothing was heard without them, nothing was decided otherwise than by them; they were chosen from amongst the judges of the common-law courts, the equity courts, and those in which the civil law prevailed. Of those four judicial persons, although all of them were present, yet they presided in turns—they gave judgment in turn, and when they differed they delivered their opinions seriatim—when they agreed one pronounced the judgment, and further they adopted a practice which he had used in the Court of Chancery—they reduced their judgments to writing; the only thing now wanting to that tribunal would be the appointment which had been recommended of a permanent vice-president, without whose presence no cause should be tried, who should always preside, and who should always deliver the judgments of the court. That judicial committee would then be a most suitable tribunal to which to refer divorce bills— an object long and earnestly desired, and never yet effected. The Patents Act furnished in its working a practical evidence of the expedition and efficiency of the proceedings in that court; they had often disposed of three or four causes in the course of a morning, which if brought before Parliament would take as many months, with all the disgusting accompaniments of jobbing and canvassing. In conclusion he would say, that he should gladly assist any of his noble and learned Friends in promoting the great objects of Chancery reform. In justice to himself, however, he felt bound to add, that when it was supposed that he had brought in no bills for the reform of the proceedings in the Court of Chancery, a great error was committed. He brought in one bill which was a measure of the most sweeping change in the administration of the law of bankruptcy. It had been observed, that the Court of Review was now without any considerable amount of business before it; he admitted that that court was very much underworked, but it ought not 72 to be forgotten that that circumstance arose from the excellent working of the other part of the system, which in its effects had greatly exceeded the expectations that he himself had formed. It was because there were so few appeals from the six commissioners that the Court of Review found so little business to get through; this he confessed proved an agreeable surprise to him. He had not anticipated that the extraordinary merits of one part of the plan would have had the effect of preventing the other from coming into full activity. Experience had shown that the six commissioners did more business than the whole seventy to whom that business had formerly been intrusted. Then he begged further to observe, that the appointment of the official assignees was the great feature, and the greatest merit of the change which he had introduced. Those official assignees and commissioners created by the new system had been enabled to divide 2,000,000l. under old commissions of bankruptcy, which, had it not been for their exertions, would have remained in the hands of bankers and solicitors, who had no interest in seeing the creditors paid, and who, therefore, retained the money in their hands, but who, through the well-directed and zealous labours of the new officers and the new system, were compelled to render up those funds and make dividends to many creditors who would otherwise have remained to this hour without receiving a shilling. There were even instances of old commissions being superseded by reason of there being dividends to the amount of 20s. in the pound. This was the only observation he thought it necessary to add to the lengthened remarks with which he had already trespassed upon their attention.
§ The Lord Chancellorsaid, that he agreed in much of what had fallen from his noble and learned Friend upon this important question. He also agreed that it would be highly expedient, if practicable, to establish an appellate jurisdiction very different from that which was at present in existence. He also thought it would be highly advantageous that the head of the Court of Chancery should exclusively direct his attention to the business of that court. It would be in the recollection of the House, that in the year 1836, he had submitted to them a bill, the object of which was Chancery reform, 73 and it would be also recollected that extreme difficulty was experienced in the attempt to separate the appellate jurisdiction from that House. He was therefore compelled to abandon that plan, and so to modify his bill as to render it acceptable to their Lordships. It was his opinion that it would be highly desirable that a permanent judge should be appointed, who, holding the great seal, should preside over the proceedings of that House, and over the appellate jurisdiction of the Privy Council, but, unfortunately, as he thought, that suggestion was not adopted, and though his noble and learned Friend entertained a different opinion, nevertheless he still must be allowed to say, that it would afford him great satisfaction if a change of that nature could be effected. With respect to appeals, he thought it necessary to observe, that on the last day of term it was his practice to look at the number of appeals, and as a general rule, admitting of hardly any exceptions, to proceed in the sittings after term with the hearing of original causes. He was enabled from the present state of the business in the Court of Chancery to say, that there had not been recently any increase of appeals, nor was there any probability of their gaining head. The press of business, however, rendered it necessary for the Vice-Chancellor to take none but short causes; every cause of length, every cause likely to lead to protracted argument, was left in the list; all the short causes being taken out, the long causes being left in the list, precisely because they were long causes, and because they were difficult; that did not tend much to encourage him to deal with original causes. He trusted he need hardly assure their Lordships that when Parliament was not sitting he gave all the time which he possibly could to the Court of Chancery, but he frankly acknowledged that he did not find himself able to accomplish anything considerable, compared with the evils which existed; for it would be impossible for him in less than three years to get rid of the causes at that moment before the court; if he had nothing else to do it would take him three years to get through them. In the year 1836, he had stated his view of the whole system—he had expressed his conviction that an increase of judicial strength was required in order to grapple with the old arrears, and to prevent the accumulation 74 of new; he had always done his utmost so far as it depended on himself individually, but he was able to effect comparatively nothing. Their Lordships might rest assured, if they would credit his experience, that justice could not be as fully and as promptly administered under the present system as it ought to be, and that it was necessary to add to the judicial strength of the court. He should gladly accept anything as a palliative; he should not object to a proposition, merely because he did not think it sufficient; he should be glad to have it, if it did something, though more might be required. In listening to what he had heard that evening it occasioned him some surprise to find that an attack had been indirectly made on the Government by means of an attack upon himself. He had been accused of being slow in bringing forward measures of Chancery reform. If his noble and learned Friend reflected, he must, on a recollection of the circumstances, think that the accusation was not fair. His noble and learned Friend must have reason to know, that he contemplated bringing forward any measure which there was the least probability of carrying. He wished and intended to bring forward a measure of reform, not because he thought he could carry what he wished, but because he thought it was his duty to accept whatever he could get. Such certainly were his wishes and intentions before the present Session commenced. When he brought forward his bill in 1836, it was said that he lost every thing by seeking to do too much. Others again affirmed, that his want of success arose from asking too little; be that, however, as it might, he would take upon himself to say, that the remedy proposed by the noble and learned Lord was only a small part of that which the necessity of the case required, but he acknowledged that it was directed against that portion of the evil which most urgently demanded a remedy. The property involved in causes before the Court of Chancery was varied and enormous. The new mode of communication by railroads, for instance, recently introduced into this country, had added, in an inconceivable degree to the business of that court. During the recess of last year, he was obliged to return to town for the purpose of deciding contests upon that very subject. But that was only one of the many instances giving 75 rise to an increase of business. Every new scheme, connected in any way with property, immediately came before the Court of Chancery, in some shape or other. The noble and learned Lord (Lyndhurst) had alluded to the state of business in the time of Lord Hardwicke, who left the great seal in 1756. In five years from that period the average number of causes was 491, while they averaged between the years 1831 and 1835 no less than 1,283. In comparing the average number of petitions at those respective dates, he found that in the former it was 371, and in the latter, 1,300. The average number of appeals brought before Lord Hardwicke in each year was 12, while between the years 1831 and 1835 it was 55. The amount of money in the Court of Chancery in the year 1812 was 28,370,000l., and the number of causes 6,256. In the present year the amount of money was 40,600,000l., and the number of causes 10,914. From their Lordships' report in 1832, it was manifestly impossible that any person holding the great seal could get through the business of the Court of Chancery, and at the same time attend to that of their Lordships' House. If that were the case in 1823, their Lordships would see, by the comparative state of business between that period and the present, that the impossibility was rendered much more striking. He well remembered, that his noble and learned Friend used to commence business at ten o'clock in the morning, and conclude at twelve or one o'clock at night. His noble and learned Friend, and he himself, might be able to bear the fatigue of such continued labour; but that was not the question. The question was, whether it was advantageous to the suitors, or best for their interests. In his opinion it was not. In his opinion it would be unworthy of the country to ask for or expect it; but it did not. No judge could satisfactorily perform his duties without expending a large portion of his time out of court in referring to the authorities in the business that came before him, and making up his mind as to the decision he should pronounce. Those who exercised high judicial functions must do this. If they did not, they were not fit for the high judicial situations they held, considering what weighty and important interests depended on their decisions. There was no man who felt, that 76 by an error of judgment, he might be reducing a family from affluence to poverty, or from happiness to misery, who must not feel it a duty incumbent on him to exhaust all the means in his power to enable him to come to a correct decision before venturing to pronounce one. As an illustration of the engrossing nature of the present duties of the Chancery Court, he might mention a trifling circumstance. Having to communicate with his learned friend, the Vice-Chancellor, this morning, he found that he had commenced his labours of this day precisely at the time when he (the Lord Chancellor) was closing the labours of yesterday, namely, four o'clock in the morning. His learned friend had got up at that hour to attend to his business; and he (the Lord Chancellor) had sat up until the same hour to get through some business which he had felt it his duty to dispose of before retiring to rest; so that the Court of Chancery sat up all night. The public could not require more, and yet it was impossible to get through the business of the court. The present measure was good, as far as it went, but it was only a first step. He hoped his noble and learned Friend would concur with him in the necessity of going still further than he proposed to go, notwithstanding what had been said by his noble and learned Friend. It was quite obvious, that the reform proposed by his noble and learned Friend must take place; and the very step which was now suggested would lead to still further changes.
§ Lord LyndhurstI don't mean to say that what I propose should be final. My doctrine is not that of finality.
§ The Lord Chancellorwas glad to hear his noble and learned Friend say so. But then his noble and learned Friend, whose plan was only half a plan—not even half a plan—did not seem to have the necessary intention of meeting the evil entirely. Between the years 1813 and 1821, the Lord Chancellor heard nothing but appeals. At present he was not able to get through the appeals from two judges; and the proposition was, that he should get through the appeals from four judges. It was suggested, that there should be an equity judge. There was not business for an equity judge. They might take away the equity cases from the Court of Exchequer, and appoint another judge in the Court of Chancery, who would dis- 77 pose of those cases and be also able to devote time to the business of, the Court of Chancery. The first duty which would devolve on them upon any change being made would be to, get rid of the arrears of the Court of Chancery. So soon, as they found the means of having the business of that court done, then would the business be increased. When the Vice-Chancellor's Court was created in 1813, that was the immediate result. The average number, of cases for the three first years was 540, and for the three following 717. Under all these circumstances, it was evident that the public would derive very great benefit from some such change as was proposed, and, although it was far short of what they had a right to expect he willingly consented to it.
§ Lord Lyndhurstsaid, that it was his object to render the equity side of the Exchequer an effective court. He feared, that the proposition to appoint two new judges in Chancery meet with difficulties elsewhere. It would be best to try, in the first place, what would be the effect of creating one new judge.
§ Lord Langdalefelt the highest satisfaction at the course which had been taken on the present occasion, characterized as it was (with but little exception) by the absence of party, feeling, and by a concurrent desire to do that which would be most beneficial to the country. He could not say that the particular suggestion of his noble and learned Friend opposite (Lord Lyndhurst) was, in his opinion, sufficient to meet the occasion. He thought, indeed, very differently; but he altogether agreed with his noble and learned Friend in thinking that the arrears in the Court of Chancery constituted an enormous and intolerable grievance; and, notwithstanding what had fallen from the noble and learned Lord (Brougham) who had left the House, it appeared to him and, as he believed, to all who had most dispassionately given their attention to the subject, that those arrears could not be disposed of, and that fresh accumulations of arrears could not be prevented without a considerable increase of judicial power. The distress and misery occasioned by the delays in Chancery were much greater than was generally supposed, and he believed that his noble and learned Friend, notwithstanding the clear and forcible manner in which he had treated the subject, had understated his case. Cases of suffering occurred which, if fully detailed, 78 would greatly affect, their Lordships feelings. He would not, however, dwell on that part of the subject further. Amongst the many causes of delay and, expense which required remedy, the most obvious was, that when parties had prepared their causes for hearing, they could not be heard till after a great lapse of time, because the judges were occupied in hearing other causes which had priority in point of time. The simple remedy for this, as his noble and learned Friend had said, was to give an increase of judicial strength; and there his noble and learned Friend for the present, at least, would stop—but he, fairly admitted that an increase in the number of judges would lead to an increase in the number of rehearings and appeals, and that inconveniences requiring a future remedy might thence arise; and that if it should so turn out, he, would be willing to remedy that evil. He very much wished that his noble and learned Friend who saw so clearly what would happen, would rather consent to prevent the evil by making proper arrangements now, than wait till the evil arose and occasioned additional and unnecessary suffering before the remedy could be applied. However, as his noble and teamed Friend consented now to remedy the most prominent existing evil, and would, doubtless attend with candour to the future evils when they, appeared, he was content to take the benefit which seemed to be now conceded. He had, indeed, no doubt that very much more was required to be done. He had repeatedly considered and reflected upon the opinions which he had the honour of submitting to their Lordships on a former occasion, and had seen no reason to after them in any respect. He still thought that the judicial and political functions now exercised by the Lord Chancellor, ought to be altogether separated; the same man could not perform both efficiently; and the country was greatly in want of a high political functionary to superintend those matters connected with legislation and the administration of justice, the care of which is by the Constitution attributed to the Lord Chancellor, but which his other occupations make it impossible for him to attend to. Moreover, he remained of opinion that an adequate remedy for the grievances existing in the Court of Chancery could not be obtained without providing a constantly sitting Court of Appeal in this House, independently of the Judges of the Court of Chancery. But, notwith- 79 standing these opinions which time and reflection had strengthened, he was well satisfied to concur with his noble and learned Friends who could not yet agree with him, in supporting those immediate measures which had been suggested, and which would not interfere with the adoption, of more extensive measures here-after; and, for the present, he would confine himself to those appointments which he understood his noble and learned Friend to be willing to support, viz., the appointment of an additional judge in the Court of Chancery, and the appointment of an equity judge in the Court of Exchequer. And his noble and learned Friend being, as it seemed, willing to sanction the appointment of two new equity judges, one of whom is to have the equity business of the Court of Exchequer, be should wish, with a view to the preparation of the bills which might be required, to know clearly what mode of proceeding, with respect to the Exchequer, would be most likely to meet with the approbation of his noble and learned Friend. The appointment of an additional judge in Chancery was a simple operation, and would, no doubt, to a certain extent, be successful; but he doubted very much whether, having regard to the constitution of the Court of Exchequer, the simple appointment of an equity baron would be successful. He thought it probable that a mere equity Baron in the Exchequer would not have sufficient employment; and without special provision for the purpose, his court could not be made auxiliary to the Court of Chancery; and, besides, in proportion to his employment, the necessity for rehearings would arise; and, in the Exchequer, rehearings before the Chief Baron could not be had without materially encroaching upon the time required for the other business of his Court. It has been supposed erroneously, that in the Exchequer there is an advantage in having only one appeal from the decision of the judge. The mistake arises from confounding rehearing and appeals, and from the evils of what have been called intermediate appeals being so much less conspicuous in the Court of Exchequer, where so much less equity business is transacted than in the Court of Chancery but, in truth, the Courts are constituted nearly on the same principle. In the Court of Chancery, the Lord Chancellor rehears causes which have been previously heard by the Master of the Rolls and the Vice Chancellor. In the 80 Court of Exchequer, the Chief Baron may rehear causes which have been previously heard by himself or the other Baron appointed to hear causes in equity, and after such rehearing in either Court, there may be an appeal to this House; that is, in either Court there may be an original hearing, a rehearing which often answers the purpose of an appeal, and a real appeal; and no one who has attended to the administration of justice, can have any doubt of the importance of rehearings as distinguished from appeals. In long, intricate, and complicated cases especially, but in cases of all sorts, it often happens that the parties are taken by surprise at the first hearing; some facts are scarcely noticed as material which afterwards turn out to be of the greatest importance; some points are conceded which ought not to have been so; and the stress of argument may be directed to points which ought to have been abandoned. The party, not clearly understanding his own case till he knows the strength of his adversary's, is often unable, at the moment, to do all that his own interest justly requires; and without a rehearing there would frequently be no justice. Whether a rehearing ought not always to be before the same judge, is a question upon which he thought that doubts might reasonably be entertained; but if the Legislature thought fit to have rehearings of equity causes before different judges, and so give them the nature of appeals, though still materially differing from them, it was important that there should be only one judge of rehearing for all the Equity Courts. His noble and learned Friend seeming to consider that two new equity judges might be required, the question was how their services may be rendered most effective, and least productive of inconvenience. If both judges were appointed in the Court of Chancery, and the equity jurisdiction of the Court of Exchequer, and all the causes now subsisting there were transferred to the Court of Chancery, there would be ample employment for all; and uniformity of practice as well as uniformity of decision would soon prevail; but if it were determined that one of the new judges should be a judge in the Court of Exchequer, then he conceived that it would be desirable to provide means for allowing the causes coming on before him to be reheard before the Lord Chancellor, and to have the practice before him regulated by the Lord Chancellor, in concurrence with the other equity judges.
§ Lord Lyndhurstsaid, that he was willing to support the appointment of an additional judge in Chancery, or of an equity judge in the Exchequer, or the appointment of both judges if required; but he did not enter into any detail.
§ The motion was agreed to.