ADMINISTRATION OF JUSTICE (COURTS OF EQUITY) BILL (Hansard, 6 September 1841)

Lord Brougham
said, that the present would be the most convenient time to state his objections to parts of this bill. He objected to the appointment of-two permanent judges. The Bill contemplated two judges, one permanent and the other for the life of the individual appointed. Now, it appeared to him that neither ought to be permanent, and that one appointment for life would afford abundant means of removing the evil complained of. It was now fourteen months since a bill, having an object similar to the present, was sent down by their Lordships to the other House, where it was allowed to fall through, and did not pass. He would not then enter into any of the reasons why it did not; but if the occasion for its being sent down were so pressing—if the relief which it was intended to give were so necessary as was said, he should have thought that so long an interval would not have been suffered to intervene as between that and the present time. So impressed was he with that opinion that he brought in a bill of his own on the subject, in which a remedy for the evil of arrears in some of the equity courts was provided for. That bill, however, was not allowed to pass. Parts of the present Bill he fully approved of—but he repeated that he strongly objected to the appointment of two new equity judges. He should, therefore propose, that in the 19th clause, instead of the word "two" there should be inserted the words "an additional judge," and such other changes in the phraseology as this first would render necessary, and in the end of the clause, the words "such additional judge."

§ Lord Cottenham
hoped their Lordships would not limit the relief proposed to be 489 given by the Bill to the suitors in Chancery by agreeing to the amendment proposed by his noble and learned Friend, who had not said one word respecting the transference of the business now transacting in the equity side of the Exchequer, which must of necessity increase the business in the Court of Chancery. Neither had his noble and learned Friend in any way alluded to the Committee, which reported upon the existing abuses in the Court of Chancery. Before that Committee, barristers, solicitors, and agents, and, indeed, all persons concerned in the business of that Court, were examined, and the opinion of all, without exception, was, that one additional judge would not relieve them from the pressure. The evidence indeed led many to doubt whether two additional Judges would be sufficient, because it was fully expected when the business in the Court of Chancery was freed from delay, that it would naturally increase, for they said it was now the constant practice for the profession to dissuade persons from coming into the Court, unless the cause was of some magnitude in consequence of the extreme delay in obtaining justice. The evidence given before that Committee had led many to change their opinions. They went in with an opinion that one judge would be sufficient, and were convinced that two would scarcely answer. An experience of forty years in the Court of Chancery satisfied him that one additional judge would not be sufficient.

Lord Campbell
wished to propose an amendment, for the purpose of removing all doubts as to the power of the Crown to appoint Irish barristers of 15 years' standing to any of the judgeships created by this bill. According to the way in which the part of the bill to which he referred was worded, there were doubts whether the Crown had such power, and it would be better at once to remove them by such an amendment as he proposed.

§ The Lord Chancellor (Lord Lyndhurst)
did not object to the proposed amendment, though he thought the bill did not require it, for to him it appeared that the words of the bill were quite clear, and that there could be no doubt of the power of the Crown to appoint Irish barristers of fifteen years standing to the judgeships named in it.

Lord Brougham
doubted much whether the matter was so clear as his noble and 490 learned Friend on the woolsack seemed to think.

Lord Campbell
said, there could be no doubt whatever that it was not the intention of the framers of the bill to exclude Irish barristers from eligibility to those appointments; but as there were some doubts whether (as the clause was now worded) the Crown had the power of the appointment, he thought it the safest way to put an end to them.

Lord Brougham
would suggest to his noble and learned Friend whether, if it were found necessary to name the two new vice-chancellorships as appointments which the Crown had the power under this bill to grant to Irish barristers of fifteen years' standing, it might not cast a doubt on the power of the Crown to appoint Irish barristers to the vice-chancellorship created by the act the 53d George III.

The Earl of Wicklow
thought the suggestion of the noble and learned Lord very important, and he trusted their Lordships would not pass the bill without due consideration; for certainly if amended as now proposed, it might have the effect of excluding barristers of the Irish bar from eligibility to the judgeship under the 53d George III., which he was sure never was the intention of the Legislature.

Lord Campbell
admitted the importance of the question, and would undertake to have a clause prepared on the third reading which would remove all doubts on the subject.

§ The Lord Chancellor
suggested, that the consideration of this part of the bill and the amendment might be deferred to the third reading. The amendment in its present state might be productive of great inconvenience, as there were many other acts similarly worded, on which similar doubts might be raised.

§ Lord Cottenham
then moved the omission of the compensation clauses, which would he restored in another place.

Lord Brougham
wished, on the subject of compensation, to read a note which he had received from his noble and learned Friend, the Lord Chief Justice (Denman). The noble and learned Lord read the note, which referred to the noble Lord's (Brougham's) doubt of the propriety of any increase of the judges in any of the courts; and said, that the writer concurred with him (Lord Brougham) in dissenting from the principle of compensation in all cases I where the parties appointed to the of- 491 fice intended to be abolished or remodelled had due notice of such intention at the time of their appointment. On this principle, he objected to compensation being given for the loss of his appointment to the master of the Court of Exchequer, to whose talents and high character he cordially bore his full testimony. Neither did he think his noble and learned Friend, the Lord Chief Baron was entitled to compensation for the loss of any patronage which he had in that high office, as he must have been aware of the contemplated changes at the time of his appointment. He would admit that compensations for legal and other civil appointments had been allowed under the Municipal Corporation Act, but these were under peculiar circumstances, which did not exist in the cases to which he referred. The noble and learned Lord was understood, in conclusion, to express his concurrence in the principles laid down in his noble and learned Friend's note.