HL Deb 14 June 1850 vol 111 cc1199-216

Order of the Day for the Second Reading read.


* I am now to solicit the attention of your Lordships while, according to my notice, I state the reasons which induce me to postpone the further proceeding with this Bill. I introduced it first in 1833, while a Minister of the Crown, and with the entire concurrence of my Colleagues. But I then stated that we were fully aware of the great difficulties which surrounded the measure, that we by no means pledged ourselves to abide by it after fuller consideration should be given by Parliament and by the legal profession, that we presented it as the result of the attention which we had been able to bestow upon the very difficult subject, and that we desired to have it stand over for more deliberate discussion during the approaching vacation, The other Bill which we presented in the following year contained new provisions; but the measure of 1833 is the one which I lately reintroduced, and which now stands for a second reading.

It was a deep sense of the existing evils, and a conviction that some remedy ought if possible to be applied, that influenced the Government of 1833 in bringing the subject before Parliament; and when the retirement of the Chancellor and the appointment of Commissioners to hold the Great Seal, seemed to give a favourable occasion for again considering this important matter, I was naturally led to press it upon the attention of the Government, in the hope that some arrangement might be made for meeting the great exigency of the case. This led to my reintroducing the Bill of 1833. I must now ask your attention to this subject—if it be possible, your patient attention. For I am well aware that it is none of the most attractive, although it is one of the most important. It is surrounded by none of the flowers which recommend other questions to the sense of public assemblies; it is unconnected with personal matter, unmixed with party topics, unadorned by amusing details—in a word, it is of a dry, of a forbidding, even of a repulsive aspect. It is only of vast importance to the country and to the constitution. It is one of those questions, therefore, which being of all others the most important, are exactly those, according to a well known pleasantry of Mr. Canning, which nobody at all ever cares anything at all about. As, therefore, I have nothing to recommend my subject but its intrinsic value, stripped of all outward charms, I have but a moderate chance of engaging your attention to its details. Nevertheless, it is my duty to explain those details; because at the present moment the greatest ignorance of them prevails both out of doors and within. The subject is known only to professional men; others are wholly unacquainted with it. Such of my noble Friends opposite, and such of the House at large as may honour me with their attention, will very soon perceive both the importance of the question, and the difficulties that encumber it; both the reasons for applying a remedy, and the obstacles in the way of its application.

The complaint is not of yesterday that the Lord Chancellor has more duties cast upon him than can be satisfactorily performed by a single individual. As long ago as the days of the Bacons and the Cokes, the same grievance was complained of, and loudly. Early in the seventeenth century, Lord Coke said that there was more for the Chancellor to do than could be got through satisfactorily by him and the Master of the Rolls, his helpmate. He spoke from observation; and Lord Bacon, speaking from experience, gave the same opinion. Yet in those days the claims upon that great officer's time, his industry, his ability, were not a fifth part equal to their present amount. First of all he presides nearly ten months in the year, and presides sole Judge, in the Court of Chancery; next he presides in the House of Lords as Speaker, in which capacity he is chief Judge of all appeals from England, Scotland, and Ireland—and I may observe in passing that the weight of the Scotch and Irish Appeals has been cast into the scale since the days of Lord Coke; then he is a Minister of the Crown, a Member of the Cabinet, with great authority and influence among his Colleagues, who accordingly expect, and justly expect, that he should with them give his best attention to the arduous concerns of the realm; again, he is the Minister of Justice, whose high office it is to select the persons fit for the Bench, and for whose learning, capacity, and integrity as Judges he is solely responsible. But further, upon all matters connected with criminal and civil jurisprudence he has to counsel the Sovereign, for it is to him that on all such questions the Crown and the Cabinet looks Lastly, as by a strange anomaly, this highest of the Judges, but that he exercises himself no criminal jurisdiction, is removable at pleasure, and as a member of a political party, the party in power for the time being, he must bear his share, and an ample one it is sure to be, in the contentious and not seldom fatiguing debates of this House.

Such are the various and heavy duties of the Great Seal; and hence the wonder is not great that working under the pressure of such a load, few Chancellors are equal to cope with the business of their courts and to keep down the arrears whether of Chancery or of the Lords. When I took the Great Seal in November, 1830, I found above 150 appeals that stood for hearing, with a heavy arrear, I believe of near 100 causes, in this House. By great exertions on my own part and on that of the Bar this heavy arrear was got rid of; 147 Appeals having been heard and determined in Chancery, besides other business to a great amount, and above 80 causes in the Lords. But not only had I to sit early and late, sometimes till past midnight, during those eleven months; from the controversy on the Reform Bill this House sat till the middle of October, and hence, after the Court of Chancery had adjourned for want of fresh business, I could sit for six weeks or more to hear causes in this House—I remember coming down at twelve o'clock on the 12th of October, having only left the woolsack at seven that morning, when the five days' debate closed on the Reform Bill. It is true that we thus overcome the arrear, and I was enabled to keep it down during the four years I held the Great Seal; but it is no less true that exertions like these cannot be often made either by the Bench or the Bar—they cannot be undergone twice by the same individual—and no individual expects to be called on to make them once. My noble and learned Friend (Lord Cottenham), not now present, ascribed my bad health in 1836, which prevented me from attending the service of the House, to these labours; but this was a mistake. I felt fatigued during the winter of 1831–2; but in 1833–4 I had completely recovered. However, the case is quite strong enough in its true colours and just proportions, and needs no exaggeration to prove how grievous a load the Great Seal lays on the shoulders of him who undertakes to hold it. The general impression on men's minds is, that something must if possible be done for his relief. But then arises the question—what is that something? How are you to apply remedy which will be both effectual and safe—will relieve the grievous pressure, without occasioning other evils yet more serious?

Having stated the mischiefs complained of, I am now bound to state the difficulties we have to grapple with in remedying it—difficulties which form my reasons for asking your Lordships to postpone the Bill on your table—difficulties which I shall do a good service to the State, by describing them in connection with the proposed remedies, not as believing them to be insurmountable, but as convinced that they must receive a calm and deliberate consideration from well-informed men, before any plan can be safely adopted for meeting the evil, whose existence and magnitude all confess.

The first expedient that presents itself, and which is supposed to be so easy as to be deemed quite a matter of course, is the division of the Chancellor's office into two—separating his purely judicial duties from his functions partly judicial, partly political, depriving him of his place in the Court of Chancery, confining him to his seat on the woolsack, and his duties as Minister of Justice. As the bulk of his labours are those in Chancery, and the arrear chiefly arises there, nothing can be more natural than this suggestion. As he is a sole Judge in Chancery, and therefore should be irremovable like all other Judges, nothing can be more plausible than the plan of a permanent Chief Judge in Equity, while the Speaker and the Minister, and the President of the Judicial Committee, continue removable—I say nothing of the anomaly of having a Chancellor minus the Court of Chancery—a Chancellor to sit every where but in his own Court—a Chancellor admitted to judge in the Lords and in the Privy Council, but expelled from the Court of Chancery—for all this I should not value at a rush, were there not more substantial difficulties in my way. But such unhappily there are, well known to Chancery men, easily apprehended by all the profession, and which I hope to make also comprehensible by your Lordships. There must be an appeal within the Court of Chancery. At present the appeal is from the Rolls and from the Vice Chancellors to the Chancellor; from him to this House. I say an appeal from these Equity Judges there must be. No one can have a greater respect than I have, in common with all the profession, for the Master of the Rolls—his great learning and long experience—for the profound knowledge and practical ability of the Vice-Chancellor of England—for the talents, assiduity, and learning of the Vice Chancellors Knight Bruce and Wigram—and the integrity of all these eminent Judges stands wholly un impeached and unsuspected. But no Judge, whatever be his accomplishments or his industry, can be safely trusted without the control of superintendence, to stimulate if tardy, to curb if hasty, to correct if mistaken. An appeal then there must be, were it only that each may sit and judge with the knowledge that his decisions are subject to review elsewhere. Nor can this appeal be to your Lordships' House direct, because many causes will not bear the labour, the expense, and the delay of this resort to the highest Court. Then motions often raise most important questions, and interlocutory orders made upon motions, regulate the course, and may determine the fate of the most important causes. Yet, though by law an appeal lies to this House on every interlocutory order, as well as final decree, I have hardly the recollection of above one or two motions, brought here by appeal in the last 30 years. Numberless motions are constantly disposed of with great forensic contention by the four inferior Judges in Equity, often being on mere points of practice, but important points, as I have shown. It is necessary that there should be a superintending power over the Judges who deal with and decide upon them. Hitherto appeal motions have come before the Great Officer at the head of the Law, first of all Judges, as well as first of Equity Judges, and clothed with the respect which distinguished eminence in various kinds is fitted to command. Such an appeal involves no inconsistency or absurdity—it is not from a Judge to his equal or co-ordinate, but to his superior. From one Vice-Chancellor to another—every one at once perceives an appeal would be preposterous: still more from the Master of the Rolls to a Vice Chancellor. Then so would an appeal be from the Judges to the new Chief Judge in Equity, whom it is proposed to create; for it is quite manifest that this new Judge will be only a kind of Vice-Chancellor—a Vice-Chancellor whose higher salary will not more than make up for his lower antiquity. Nay, certainly, he will stand in lesser estimation than an ancient officer who sits at the Rolls.

To meet this obvious difficulty, it has been proposed to have the Court of Appeal in Chancery composed in each case of three Judges, from whose decisions the appeal does not come, preserving the analogy of the Common Law, which gives to the Judges of the two Courts jurisdiction in writs of error from the third; so that the Common Pleas and Exchequer decide in error from the King's Bench, and the King's Bench and Common Pleas in error from the Exchequer. But then see the other difficulty to which this apparently plausible scheme leads. The experience of the last five and thirty years shows that there are always appeals in Chancery fully to occupy one Court. Since the Vice Chancellor was created in 1813, as Sir Samuel Romilly foretold, the Chancellor became a mere Judge of Appeal. I had full experience of this in the four years of ray office—exactly four years—for I took the Great Seal on the 22nd of November, 1830, and quitted it November 22nd, 1834. I heard no more than some eleven or twelve original causes, the rest were appeals. Many motions I heard no doubt, but chiefly appeal motions. There is, therefore, quite appeal business enough for one Court, especially since the creation of two new Vice-Chancellors. Thus the now Chief, sitting with two or three of the inferior Judges, would form a Court of Appeal all the year round; or, in other words, all the Courts but one would be closed against original causes; and the Great Seal would be permanently in Commission—an arrangement which would at once create an arrear far greater than ever en-encumbered the Court in the worst of times.

This difficulty throws us back on the House of Lords; but no prospect of relief from its appellate jurisdiction can be afforded, even if expense were out of the question, because the Appeal Court must be constantly sitting, at least for motions, and your Lordships only sit half the year. It has indeed sometimes been proposed to sit for judicial business during the Parliamentary vacation. But to this there are the greatest objections. If the House is sitting at all, though only for causes, how can you prevent any person having privilege of Peerage from interfering with questions and motions upon seeing the Chancellor in his place? And if a statutory prohibition of all business, except judicial, is enacted, it is plain that a very awkward division is, for the first time, made of the House's functions, and it can hardly any more be Said, either that the Lords are Judges indiscriminately, or that an Appeal lies in Parliament. An arrangement of this kind seems very much akin to a transition from our present constitution to a new and untried one; if it be not in itself an abdication of our judicial functions. However, I would by no means be understood to give a final and positive opinion, even on this part of the question. I avoid above all things speaking dogmatically. It is my purpose to express the difficulty, and suggest the doubts which experience and reflection have pointed out to myself and others. My noble and learned Friend (Lord Lyndhurst) now absent from, I rejoice in common with your Lordships to think, a temporary indisposition, has fully gone into all these questions with me; and our last conference upon them was aided by a most learned and able Common Law Judge, who had formerly exercised equitable jurisdiction. We felt the pressure of the difficulty; we did not wholly despair of being able, by apt provisions, to overcome it; we were only quite assured of one thing, that further inquiry and fuller discussion were absolutely necessary before a plan could safely, or, in any manner of way, usefully be framed and adopted.

But suppose this difficulty overcome, and by a satisfactory arrangement: I proceed now to one of a more general nature, and the extent of which, in all its relations, has formed the chief cause of postponing further proceedings for the present. The question which now occupies us is of a general nature, affecting not only the whole equitable jurisdiction, but the whole judicial system, the whole law, and the constitution itself of our mixed Government.

First, to sustain our judicial system, and to secure the due administration of justice, it is necessary that great powers, great learning, capacity and integrity on the Bench, should be met by eminent talents and accomplishments at the Bar. If the judge is the dispenser of justice, the advocate is its minister. And from among the practitioners at the Bar must the Judges themselves be selected. Now, if anything is more clear in our system than another, it is this—that the character of the profession at large is bound up with the dignity of the Great Seal, its powers, its privileges, its splendour—but, above all, the high character, the professional eminence, the transcendent qualities of him who holds it. If you do anything to lower that dignity, to obscure that lustre, you remove from the eye of the profession the great prize, the sight of which in prospect, remote and precarious though it be, quickens and invigorates every man who wears the advocate's robe—everyone who toils in the humble walk of the profession, the special pleader, the equity draftsman, the students who labour at their desks, the youths not yet admitted to share that toil; you veil from their eyes that lofty and dazzling summit, the view of which sweetens their daily and nightly toil, consoling them under all privations, cheering them in the disappointments to which our profession is peculiarly exposed. No longer do those laborious and deserving men proudly exult in feeling that they belong to a body from whom must be chosen, not only the ordinary Judges, but the supreme of all, the Lord High Chancellor, endowed with title, fortified with power, exalted by rank, strengthened with emolument, "by merit raised to that good eminence," because called to the discharge of duties which only the able and the learned can perform. The character of the profession is lowered with that of its chief; the body from which all the other Judges are chosen is deteriorated in quality; these Judges are lessened in estimation with the exalted functionary who stands at their head, whose fiat planted them on the bench, and whose name protects and sustains them. These Judges shine much by their own lustre, but much also by the splendour of their great chief, which they share while they reflect. It is a vain and empty error which they commit who talk of the useless splendour and expensive dignity of the Great Seal. I am here using no romantic fanciful language, when I describe the vast practical importance of its being clothed with the utmost splendour which exalted station and eminent merit can invest it withal. It is a matter of constant and actual experience that the whole profession of the law, as well Bench as Bar, is affected by the splendour and qualifications of its chief. But then both must combine, both personal merit and political attributes; individual eminence and official supremacy. It may be hoped, that by retaining great income, high station and ample power, the office of Chancellor, though stript of its judicial functions, will still hold out a dazzling prize to the legal body. That is not sufficient; if it no longer is held by truly worthy men, if it is either bestowed upon party zeal and subserviency, or upon mediocrity favoured by personal connexion with the distributors of favour—the name may remain—the substance is gone. The Great Seal may glitter, but it becomes a bauble. That which men revered, because a Bacon, a Nottingham, a Hardwick, an Eldon, had once held it, they will no longer observe with respect in the hands of a race, successors of Shaftesbury. They had been wont to fix their eyes on the great men themselves, at least as much as on their names and their robes. They will turn away from the externals of the office when no longer sustained by internal merit and enduring renown.

This it is that makes me hesitate to sever the Lord Chancellor from his proper functions and expel him from Chancery. I can no longer see any security against party zeal, or favoured mediocrity clutching the Great Seal. While no one can hold it without sitting continually in open court, alone and unassisted, to answer whatever motion may be made, often without the security of having both parties before him, in the face of an able, astute, jealous Bar, without time for consultation, without the possibility of applying in any quarter for help; while he must in like manner, though less suddenly, dispose alone of the most difficult cases, whether original causes or appeals; we have a reasonable security against any one venturing to seize the great prize by climbing to this perilous height, if he feels that he is likely to expose his incapacity, and be tumbled headlong by public scorn; but we have a perfect security against any Government consenting to elevate such an one, though his own blind presumption should tempt him to run the risk. Hitherto we have never seen any such promotion of known incapacity, and very rarely indeed, perhaps not above once in a couple of centuries, mediocrity, whether personal or professional, thrust into the place consecrated to eminent merit. But how will it be with the place of Chancellor stripped of equitable jurisdiction? I see nothing so very appalling in the Speakership of this House as would necessarily deter ambitious mediocrity from climbing or crawling to the woolsack. Different, far different from the functions I have feebly pourtrayed—functions that may stagger the boldest aspirants to office—are the judicial duties that devolve upon your President. He can never by any possibility have to dispose of any matter which has not been long before him, and with full materials for deciding it. Every cause has been printed in all its details, with all the arguments of counsel on either side, the cases relied on, and the opinions and reasonings of the Judges who have decided in the court below. All this has been in his hands for many weeks, generally many months. And in any case of the least difficulty he may have the assistance of the Common Law Judges (it is now proposed to give him also the aid of the Equity Judges) who not only fully inform him, but relieve him from the whole responsibility of the ultimate decision. It plainly requires very little of the courage which vaulting ambition is proverbially endued withal, to covet so safe an elevation—a position as little attended with hazard as it is greatly clothed with powerful attractions; it requires also but little firmness of purpose in a Minister thus to elevate his adherent, at once repaying servility with promotion, and securing the advantages of patronage for his other tools.

But the Chancellor is, by Lord Lyndhurst's judicious suggestion, ex officio to preside in the Judicial Committee of the Privy Council. I can assert that this will make no material difference in the question, and in no degree get rid of the difficulty which meets us in such formidable shape. By the rule which I originally laid down, when I founded that most important and useful Court, the course pursued is this: the four Judges take the causes in rotation, turn and turn about. All four thus work equally; for each assists, to the best of his ability, the one who is in his turn: but each in his turn prepares and gives the judgment which is written, according to a wholesome practice which I introduced also into the Court of Chancery and this House sitting in Appeals. The judgment is then revised by the other three; and so it is, when pronounced, the judgment with the reasons of all four. It needs hardly be observed that this course, though it is highly beneficial to the administration of justice by securing the fullest consideration of each particular in every case, a thing the most essential in a tribunal of the last resort, whose decision can only be altered by an Act of the Legislature, yet is calculated to remove all peculiar weight from the presiding Judge's shoulders, and to leave him with no greater individual responsibility than any one of his brethren. Hence I am, I fear, too well warranted in the ap- prehension that the newly endowed and commissioned Chancellor will have no material addition made to the difficulties of his position, the responsibility under which he is laid, the anxiety which he may feel on undertaking the office, by his Privy Council duties; and that he is still left in a very different situation in all these material respects from his present position of first Equity Judge presiding in the High Court of Chancery, as well as Chief Judge of Appeal, in this House. I dread the effects of this change, then, in lessening the security both that inferior men will fear to take the Great Seal, and that Ministers will fear so to bestow its great privileges. I look with much anxiety to the probable result that a very different succession of Chancellors will be found to bear the name of the high functionary illustrated by the great men who have presided over the law, aye, and over the Lords—a succession of Chancellors whose principal claim to the remembrance of after ages may be the office they held, peradventure, degraded by coming into comparison with their renowned predecessors.

Aye, and the Lords! For it well becomes you, my Lords, to give this topic your best attention. It is not merely the law and its practitioners that are deeply interested in the question. Tua res agitur, I say to this House. Whatever lowers the high judicial officer of whom we are speaking, lowers the Lords' House of Parliament in the most important of all its high functions. Let it not be supposed that I am romancing or declaiming—indulging in fanciful speculations, or in empty or unprofitable talk—when I express my apprehension of anything that can lower your estimation in the country, or your authority in the Constitution as the Supreme Judicature of this realm. On your judicial character mainly rests that estimation and that authority. Strip the House of its judicial attributes, you endanger its very existence. Judicature is to the Lords as important as money to the Commons. Strip either of their peculiar attributes, and the virtue has departed from it. But I protest I rather think the loss of those functions altogether is less to be dreaded than the lowering of the capacity worthily to perform them. If you are converted into an inferior Court of Justice, no longer looked up to with awful reverence, no longer declaring the law of the land with the universal acceptance of the people, you become worse than a blank—you may be a blot on the Constitution—instead of that venerable body, its strength and its ornament, in respect for which I have grown old, and of which I am proud to be a Member.

These considerations it was that induced me, with the concurrence of my Colleagues, to make a material addition in 1834 to the measure of the preceding year. The Chancellor was to be the Chief Judge of Appeal in Chancery, sitting with one other Judge and a Baron of the Exchequer, then a Court of Equity, which it afterwards ceased to be. But there was this unanswerable objection to that arrangement—it got rid of one difficulty in a certain degree, not entirely; it gave the Chancellor more duties to perform, and prevented his entire separation from his proper Court. But then in proportion as it effected this, it lessened the value of the change; for it failed to relieve the Chancellor, whose over burthened state is the very ground of all our attempts to new-model his office. The Court of Appeal in Chancery would have as much labour cast upon it as the single Judge now has cast upon him; and you would thus lessen his industrial responsibility, while you left him with the same amount of labour to undergo. I think, therefore, that the answer to the objections which press us is not to be found in this direction.

All the considerations to which I have adverted, will, I hope, indeed I am sure, meet with the attention their importance so well deserves in the proper quarter, both from your Lordships and from the Government. My noble and most esteemed Friend at the head of the Government has announced elsewhere that the subject now occupies its attention; and the moment for the inquiry is most opportune. The Great Seal is to be put in Commission. This will give ample time fully to discuss all the measures which learned and experienced men can propound for remedying the evils complained of. They are exceedingly ignorant of the subject who object to this Commission, and deprecate it even as a temporary measure—for temporary, of course, it only can be. The judicial force in Chancery is so greatly increased since 1835, when the last Commission continued for nine months, that no material inconvenience can now comparatively be experienced. In. fact, the creation of two Vice-Chancellors in 1842 makes a Commission of which two Equity Judges form part, exactly the same thing as the Court of Chancery without any Commission before that year. There are always three Courts of Equity sitting, only instead of one of them being under a single Judge, it is under three. Some practitioners may be injured to the extent of a few hundred pounds, by having, in 1850, only the same number of courts that they had in 1841, and fewer than they had in 1849—that is really the whole difference, and I am sure of that they will never be heard to complain. Compared with their gains in 1841, they have no shortcoming by possibility to lament. Therefore the Commission gives a very favourable opportunity for dealing with this most important subject, and examining it in all its bearings. The great object of our endeavours, the problem in jurisprudence to be solved, is, that the attributes of the Great Seal may be so moulded as to give the requisite relief to the officer who holds it, without lessening his just importance in the law and in the constitution; above all, without lessening our security that he shall be fully adequate to the discharge of his duties, including, among the most essential of these, his functions as Minister of Justice. The difficulties which beset this problem, I have endeavoured to describe; and very far indeed from despairing of success, when time shall have been taken for the investigation, I again express my satisfaction at finding it in the hands of my friends and former colleagues, from whom I expect a diligent care of the matter they have undertaken, but from whom I also exact a very anxious regard to all the difficulties of the question. For what I have shown in detail, though I am far indeed from despairing of success, is abundantly sufficient to warn against every thing like precipitate legislation—that great haste which proverbially is nothing like good speed.

Let the long vacation be taken for reflection, and deliberation, and, above all, due inquiry. Don't fancy you can strike out at a heat plans of judicial improvement, which the most practised lawyers of the largest and most varied experience, find the utmost difficulty in conceiving. Dismiss from your minds the vain notion that the difficulties don't exist which their well-skilled eyes perceive, obstructing each step of their progress; nor imagine that ignorant men, being blind to them, proves them easily overleapt. With the exception of one learned friend of mine, formerly high in office, whom, by a mere accident, I have not been able to consult, I have discussed this subject with all the leading members of the profession, as well as my noble Friend already named, and other Judges. I well remember the phrase of one learned and able person, also once a high officer in the law. "It would be less absurd and less presumptuous to think of extemporising a Reform Bill than a Bill for new modelling the Chancellor's office." It may be said that the Government can throw out a plan, and let it stand over for consideration. But I dread this, because when once committed, a Government finds it difficult to retrace its steps. Take then time; the long vacation approaches; that season is very much fitter for the consideration of such matters than the hurried weeks of an expiring Session—a Session peradventure expiring in the throes of a Government assailed from many quarters. But in the recess, the strife of party has ceased; the noise of debate is still; the contentions of this House are over; the hum of the Commons no more fills the ear. ["Hear, hear!"] I protest, my Lords, that I use the expression without the least disrespect. Nay, that respectable body may well regard it as highly flattering to be compared with the most ingenious and industrious of insects, which never wastes its time in empty noise, but ever perseveres in its work, and allows no minute to pass without storing up the valuable produce of its labours. Drones there will be in the best regulated hive; a wasp or two may find its way into the abode of work and of sweets; but profitable labour undisturbed by strife is the characteristic of that scene—and the word which escaped me betokened not only respect but a disposition to somewhat hyperbolic eulogy. In the recess, then, when all is still in the House, when the business of office is relaxed, the din of the courts, the strepitus fori is heard no more, and the agitators of the popular assembly cease to trouble, when their ordinary occupations do not press on Ministers to absorb, or the claims of their suitors to distract their attention, let my noble Friends prosecute their inquiries.

Another reason suggests itself to show that the delay is accompanied with no real loss of time; but I reserve the mention of it until I add a word on what seems to me the proper course of investigation. For I don't wish to deal in generals; I have stated in full detail the difficulty, and I will now suggest what appears to me the fit and the safe way of endeavouring to van- quish it. The course which I shall propose is plain and simple, yet I hesitate to propound it, lest, coming from me, my noble Friends opposite should have jealous scruples about adopting it. However, I will state my proposal. Let a Commission be entrused with the important inquiry—well composed of three, or not more than five competent persons, not being Judges of any court. Let them examine all the heads of the Courts of Equity, both at present presiding there and those retired from the bench, all the Masters in Chancery, the other officers of the Court, the chief practitioners at the Bar, and the respectable Solicitors, a body deserving of all praise from me who know their valuable aid to the cause of law amendment—for they are my useful and disinterested coadjutors. From the examination of all these persons, from discussing with them the various plans propounded, and from receiving their suggestions, I entertain very sanguine hopes that the greatest benefit will result to the question, and that a body of information will be collected, on which the Government may safely proceed to ground their measures. Even if it should—which God forbid!—be found that the evils complained of unhappily admit of no safe and effectual remedy, at least we shall have the satisfaction of reflecting that all means have been fully and honestly tried, and that the causes of our failure have been fully explained. Let then my noble Friends pursue this safe and rational plan, and not be borne away by ignorant clamour, by the impatience of thoughtless and uninformed men, rashly and presumptuously to devise schemes that will not bear the test of examination by a learned and practised eye. To yield to the pressure from without—never a very creditable course—is absolutely fatal on a subject like this, which only experienced men can even pretend to understand.

I have said that the delay will occasion no real loss of time, because of a consideration of which I postponed the mention till I had stated my plan. Even if all were ready before the Session closed, and if a measure had received the sanction of Parliament, ample time must be given for selecting the men to whom you may safely entrust the working of the new scheme. It may be, that the profession does not at present furnish them—above all, the great officer who is to come in the Chancellor's place. But at all events, great deliberation will be required to make the choice. For of this you may be well assured, that suppose two new functionaries are to divide between them the duties of the Great Seal, the success of the plan, aye, the whole success of it, will depend upon the first choice. Men must be pitched upon who unite in their favour, to the greatest degree possible in the present state of the profession, the approving voices of their brethren, and the respect of the country. Woe to the Government, if yielding to the clamours of party zeal or subserviency, or even to the feelings of personal attachment, still more of private connexion, they select for either place, but above all for the highest, any whose known and acknowledged station at the Bar, as testified by the confidence of numerous clients, whose capacity and learning by all confessed, and above everything whose untarnished purity of character are not such as to make every voice join in approval as soon as their names are pronounced. Yes, woe to the Government! but also to the new measure—for assuredly such a choice, be it rash and careless, or be it the dictate of impure motives, will be the utter destruction of the plan. Pressed on all sides by the current of strong prejudices adverse to every change, labouring in the cloud of public suspicion, buffeted by the gales of professional discontent—on the rock of which I have now made bold to warn you, it is absolutely certain to make a total shipwreck.

Before I close my observations, I must advert to one point, which I omitted when speaking of our Appellate Jurisdiction in this place. Friends, in whose judgment I repose much confidence, are anxious that I should broach before your Lordships the notion, once a favourite with Lord Eldon, of giving you in your judicial capacity the aid of a Scotch Judge—whether taken from the Courts of Scotland, or appointed permanently as your assessor on cases from that part of the island. It certainly is an anomaly of our system, that in the great majority of instances those cases are decided by men not of the Scottish Bar. In justice, however, to this House, I must add that some of the most important decisions ever given here were upon points of purely Scotch Law, the law of real property—and reversing the judgments below. One of them was Lord Mansfield's, another Lord Eldon's, the third my own; and it is right to observe that however dissatisfied at first, the Scotch Bar and the Bench ultimately confessed that we were in the right, and had restored the Scotch Law to its real and original position by our reversals. However, I cannot deny that there may be cases in which we, sitting here upon the law of a Foreign country, are apt to hesitate before we reverse, and that sometimes we affirm when we ought not. One instance I know of, where a very large sum was awarded to the wrong party, as I always thought, and as I had distinctly stated the Session before, in contemplation of the pending appeal—awarded differently from what it would have been had I assisted—and awarded (as I told the Scotch Judges afterwards, in discussing the subject), because in my absence my noble Friend, not bred to the Scotch bar, had been too slow to interfere with a decision on a purely Scotch Law point. There is therefore some reason for the complaint. We may say that the Scotch Appellate Jurisdiction works better than might be expected; that the want of aid from Scotland produces less mischief than might be supposed—but this is a moderate justification of the defect. I remember Lord Lyndhurt saying that he found the absurd mode of taking evidence in Chancery practically far less inconvenient than could be expected—the mode of putting questions one after another to a witness in utter ignorance of his answer to the preceding ones. But when I asked if therefore he approved of this absurdity, he only said it got out more of the truth than might be supposed—in other words, that it was not quite as bad as it looked. This is a poor defence or even palliation. But I am ready to admit, as I always was in Lord Eldon's time, that serious objections exist to the appointment of a permanent Scotch Law asessor. One is, that the judgments given by us who are not Scotch lawyers, would always be supposed our assessor's judgments, not our own—an objection to which our consultation of the English Judges is not exposed. However, this, as all other matters, may well be examined by the Commission, which I hope and trust will be issued.

Then the Order of the Day for the second reading was discharged.

Back to