THE COURT OF CHANCERY. (Hansard, 20 February 1851)

LORD BROUGHAM,
after explaining that he wished to avoid bringing forward the measure for extending the jurisdiction of County Courts to cases of Bankruptcy until it should have undergone consideration by the Judges in Bankruptcy, as well as the Judges of the County Courts, and that the measure which he had intimated his intention of bringing under the notice of their Lordships to-morrow related to other extensions of the jurisdiction of County Courts, proceeded to state, that he wished to ask the noble and learned Lord on the woolsack a question with reference to the Court of Chancery. The question did not relate to general changes in that Court, still less to changes in the course of the proceedings. It related simply to the present vacancy in the office of the third Vice-Chancellor, created by the unfortunate state of Sir J. Wigram's health. He (Lord Brougham) was certainly one of those with whose concurrence—he was the person, indeed, at whose instigation—a noble and learned Lord, not now present, inserted a provision in the Bill of 1841 to the effect, that, when a vacancy occurred, the office of the third Vice-Chancellor should not be filled up. It seemed to him perfectly fitting (and their Lordships concurred with him) at that time, that the number of Vice-Chancellors should be so limited. Looking to the state of the business in the Court, to the history of that business and its increase, to the history of the Court, and the great increase in its judicial power, it appeared, from a review of the subject, which went back to 1813, when the first Vice-Chancellor, since designated the Vice-Chancellor of England, was appointed, that the judicial power had then increased in a greater degree than the business. The business had undeniably increased between the creation of the office of Vice-Chancellor in 1813, and the appointment of the additional Vice-Chancellors in 1841. Several modifications had occurred in the arrangements, with reference especially to the Master of the Rolls, who, since his (Lord Brougham's) Bill of 1833, sat in the day, instead of in the evening only; and the creation of the new Courts of Bankruptcy had taken the Bankruptcy 836 business from the immediate cognisance of the Great Seal: so that when by the Bill of 1841 two new Vice-Chancellors were to be added to the Court of Chancery, doubling or tripling the judicial force, it appeared advisable that, unless there were a permanent increase in the business, the third Vice-Chancellor should not be continued. He was bound, however, to say—not that he thought either himself or the noble and learned Lords wrong who approved the arrangement for restricting the number of Vice-Chancellors to two—that there had been a most material change in the circumstances of the Court since 1841; there had been the greatest change, not in the number of bills, yet in the kind of business. It was more operose, and led to much greater obstruction. To mention only one change which had occurred in the business in the ten years between 1841 and the present time, the railway system had brought to the Court of Chancery a totally different class of cases, a class of cases which were of a most laborious, as well as of a difficult, description. That circumstance, as well as the number of claims under the new orders, met objections to the continued appointment of a third Vice-Chancellor, which had force in 1841, but which no longer existed. The obstruction in the Court of Chancery, to the Court and to the suitors alike, from the want of the third Judge, was now become really almost intolerable. He wished to ask whether the noble and learned Lord on the woolsack could give their Lordships any assurance that steps would be taken to enable the Crown to appoint a third Vice-Chancellor? and he hoped his noble and learned Friend would not postpone that measure, which every one acquainted with the circumstances of the case felt to be one of absolute necessity, and that he would not wait the event of any larger changes which might be in contemplation with reference to the Keepership of the Great Seal or the Chancellorship, because the appointment of a third Vice-Chancellor was only the continuation of an office necessary for some years at least, and the question relating to it was totally independent of any of the larger changes to which he referred.

The LORD CHANCELLOR
said, that the necessity of meeting the evil to which his noble and learned Friend had referred, had been much pressed upon Her Majesty's Government, and it would have their attention as early as possible. But many 837 important alterations in the establishment and in the forms of proceeding in the Court of Chancery were in contemplation; and in the course of next week a Bill would come under the consideration of Parliament for the purpose of effecting these objects. Her Majesty's Government were averse to make any alteration in the present judicial system until that Bill came under the consideration of Parliament. That Bill would embrace the appointment of an additional Vice-Chancellor, which had now become absolutely necessary. He thought, however, that that appointment could not be thus delayed, for that Bill must occupy the attention of Parliament for a considerable time, and the state of business in the Court of Chancery was such as to require relief before that Bill could become law. It was not that there had been an increase in the number of bills filed, but alterations had been made in the law which enabled parties to bring matters to a hearing summarily which before could only be disposed of in the ordinary course of a Chancery suit. Questions with respect to the liabilities of parties to contribute as railway shareholders could formerly only be discussed by the institution of a suit; but the parties were now called upon to come to the office of one of the Masters in Chancery, and their liability was there determined by a petition presented to one or other of the branches of the court. Many important questions were now able to be decided summarily, which formerly required the institution of a suit. He believed he was correct in saying that 400 or 500 causes had been added to the Vice-Chancellors' paper since Michaelmas Term last; and that, added to a considerable number that were there before, would present occupation for a considerable period. If their Lordships were aware of the number of cases that had been heard and disposed of, they would be far from thinking that there had been any delay in the business of the Court where that business had been done; but their Lordships would perceive the great length of time that must elapse before the number of eases now before the Court could be disposed of, independently of the daily and almost hourly accumulation of business that was taking place. He, therefore, thought that the Government would find themselves of necessity compelled to appoint a third Vice-Chancellor, before they were able to carry the larger Bill into effect.

§ LORD CRANWORTH
observed, that, 838 as he had the honour of holding the office of one of the Vice-Chancellors, he would add his testimony to the testimony already given, that it was necessary with the least possible delay to introduce a measure, such as the noble and learned Lord (Lord Brougham) had suggested. He knew not whether their Lordships, and the country generally, were aware of the nature and extent of the difficulty arising from the want of judicial strength in the Court of Chancery. The business of the Court of Chancery might be divided popularly into two classes. The first brought cases into Chancery which were proverbially subject to great delay, and occupied a great length of time; but there was another class of business which was not so well understood by the public, and which brought a vast I quantity of interlocutory applications and questions before the Court. These would popularly be called causes; but, instead of being matters determined after great delay, or occupying a great deal of time, they were brought on rapidly and decided more quickly, he ventured to say, than any other causes before any other tribunals in the country. For instance, a party complains of something done by a neighbour on lands adjoining the house of the complainant, whereby the security of that house is endangered. Within twenty-four hours after the act done, an application would be made to the Court of Chancery on the subject. The hearing would occupy half a day, and immediate redress would be obtained. There were other cases which occupied enormous time. Railway companies took land, and gave compensation. The money was in certain cases paid into Chancery. A petition was presented, and the result was, that the question came to be discussed, with respect to the parties concerned, who was entitled to receive for life, and who afterwards. These were questions which brooked no delay, and were disposed of as soon as they were reached. He was perfectly persuaded that his statement would be accurate, when he said that two-thirds of his time were occupied in what he called these summary proceedings. What was the consequence? He had only two days in the week to bestow on other cases. Supposing he were the only Vice-Chancellor, the effect of adding another Vice-Chancellor would multiply the period allotted to those other cases, not by two, but by four; because the summary business would occupy himself only two days, and his colleague two 839 days; and each of them would have four clays to give to the ordinary business of the Court. An application had been made to him by the counsel in his Court, asking him to sit for a limited number of days in the evenings, as well as the mornings. But, with every anxiety to assist in relieving the present pressure, he had said he could not do it; he had neither physical strength nor mental energy to undergo the labour. Any man whose mind was devoted uninterruptedly to questions of this sort from 10 o'clock in the morning to 4 o'clock in the afternoon, would find, that having to look in the evening at those matters on which he could not make up his mind before, and having to consult authorities, the plan of sitting four hours longer in the evening would lead to the result that a greater quantity would be heard, but that papers would only accumulate at the Judge's house, and nothing more could be done to dispose of the business. He bore the tribute of his testimony to the truth and justice of the observation, that the want of the new officer alluded to by the noble and learned Lords was most urgently and severely felt. He could not see that the appointment would in the slightest degree interfere with any arrangement which might be contemplated by Her Majesty's Government with reference generally to the Court of Chancery.

LORD STANLEY
said, it was clear from what had fallen from all the noble and learned Lords who had spoken upon that subject, that the present Court of Chancery was inadequate to deal with the business brought before it; and as the important changes in the administration of justice in the Court of Chancery which were contemplated by Her Majesty's Government would lead to considerable inquiry and discussion, he could not help thinking that it would be necessary to keep separate the measure for carrying out those changes, and the measure for the reappointment of third Vice-Chancellor. But he had risen principally for the purpose of putting a question to the noble and learned Lord on the woolsack. The noble and learned Lord announced that it was the intention of Her Majesty's Government to introduce forthwith a measure for dealing with the larger and more important question. Now he wished to ask the noble and learned Lord in which House of Parliament Her Majesty's Government proposed to bring forward the measure in the first instance? He could 840 not help thinking that it ought to be introduced in their Lordships' House for many reasons. In the first place, they had always but little employment at the commencement of every Session, while they were overburdened at its close; in the next place, there was at present a pressure of business in the other House; and, finally, the Bill related to a matter confessedly within their Lordships' jurisdiction, while in that House were to be found all the; main authorities upon the subject.

The LORD CHANCELLOR
said, that no determination had yet been come to as to the House in which the Bill should be introduced in the first instance. But the facts stated by the noble Lord would no doubt receive due consideration from Her Majesty's Ministers.

LORD BROUGHAM
said, there could be no doubt but it was necessary at present to appoint a third Vice-Chancellor; but that was a question altogether distinct from the policy of making any general change in the administration of justice in the Court of Chancery.