HL Deb 14 July 1851 vol 118 cc640-9

, having moved the First Reading of this Bill,


said, that as he should not have an opportunity of again addressing their Lordships during the present Session, he would take this occasion to state his approval of this Bill. It was certainly unusual to make any statement on the first reading of a Bill, but he had had occasion to deviate from that practice more than once with respect to Law Bills, in order to obtain a discussion, and, as the result of that discussion, the opinion and assistance of professional men in various parts of the country. He approved of the Bill as far as it went, and considered it a step in the right direction; but in Committee he trusted some changes would be made; and there was one change to which he wished particularly to call the attention of his noble and learned Friend on the woolsack, namely, with respect to the branch of the Bill that referred to the administration of justice in the appellate tribunal of the Privy Council. There were two matters which ought to be carefully considered respecting the Judicial Committee, before passing this Bill into a law. The first was whether the quorum ought to be reduced, as this Bill proposed, from four to three. He entertained a very strong opinion in favour of four. All the experience of Westminster Hall was strongly and clearly, and upon the soundest reasons of practice as well as of principle, in favour of four Judges, in preference to three; and the reason was this, that on all great occasions, where there was a decision at all, there was the great authority of a majority of three to one. If that was reckoned essential in Courts of the first instance, how much more material was it to clothe with authority the decisions of the Court of Appellate Jurisdiction, deciding in the last resort the most important questions, and whose decisions nothing short of an Act of Parliament could affect? The other point, which he hoped would not fail to receive attentive consideration, was the propriety, not to say necessity, of giving a constant President or presiding Judge to that Judicial Committee. A lay President of the Council, although admirably discharging his functions where no very nice or difficult question of law arose, could not be expected to feel any confidence in his own opinion, or take any part in discussions of that description. That there should be a President answerable, more or less, for the regulation of the proceedings, the attendance of the Court, and the distribution of the business, had been admitted from the first time that he proposed this measure, and obtained the concurrence of their Lordships and the other House to its passing. A Vice-President of the Council, or some such officer, had been more than once recommended, but the recommendation had not been carried into effect. His noble and learned Friend who succeeded him (Lord Lyndhurst), had been so clearly of this opinion, that he and the noble and gallant Duke, in 1841, had done him the honour to press the acceptance of this place upon him, which he had declined merely for reasons personal to himself, as indeed both Lord Lyndhurst and himself had formerly stated to their Lordships. With regard to the former point he had omitted one subject, namely, that when the Court consisted of an even number, the decision might be two against two; but during a sitting of eighteen years in the Judicial Committee, that accident had happened only once, and nothing would be easier to prevent such an accident than by calling in of one or more other members, a facility not enjoyed by the Courts of Westminster Hall. With respect to the other parts of the Bill, he generally approved of them. There might be some difficulty with respect to the Court of Chancery. When only two Judges sat on an appeal from the Vice-Chancellor or the Master of the Rolls, the decision might be formed in such a manner as to lead to an appeal. There were some other difficulties, such as taking the Chancellor away from his court for the purpose of attending the House of Lords or the Judicial Committee; but these defects might be remedied in Committee. There was one defect in the Judicial Committee still unsupplied, to which he begged the attention of his noble Friend. No provision whatever was made with respect to cases which indeed rarely occur, but which have occurred, and which he feared were likely to be more numerous than they had hitherto been—he meant cases involving spiritual questions of a highly important nature, of an exceedingly difficult kind, and, without speaking irreverently, he might add, of an exceedingly obscure nature. The members of the Judicial Committee were admirably adapted to deal with questions of Common Law; well conversant on others with the doctrines of the Consistorial Courts and with the learning of the Civil Law; well adapted to deal with questions of evidence, whether that which was deserving of the name, the evidence taken at Common Law, or that which passed under the name which was taken, or which appeared to be taken, in courts of another description. But with regard to those other matters to which he had adverted, which his noble Friend opposite, the Lord High Commissioner of the General Assembly of the Church of Scotland (Lord Belhaven), would admit were spiritually difficult questions, the Judicial Committee had a great authority, no doubt, but moderate sources of information; and his brethren of that Committee had authorised him to confess that with those subjects they felt themselves little fitted to deal. Upon this class of subjects they desiderated not control, but help. Their Lordships did not want a body established which should dictate to them; but they wished to have, what it was right they should have, the aid, the inestimable benefit, of the assistance of men learned in that branch of learning. He hoped, in the further progress of the Bill, or afterwards by a separate measure, the Judicial Committee would be furnished with some such assistant tribunal in spiritual matters, some such aid as Courts of Equity found in the Courts of Law; and that as the Courts of Law were ancillary to those of Equity in this respect, so some Spiritual Court would be ancillary to the Judicial Committee of the Privy Council in their province. When he said that the present measure was a step in the right direction, he must add that it was not a very long step—it was not at all a stride: but if any man thought that this, or any other structural alteration in the Court of Chancery—if any man dreamed that such a measure laid the axe to the root of the greatest and most grievous of the many crying evils that afflicted the subjects of this country, as regarded the administration of justice, not the Judges or the practitioners, but the unhappy suitors of the court, although he admitted that it would, nevertheless, do justice to the suitor, and enable him to obtain that which he had a right to obtain at a reasonable cost of money, of trouble, and of time—if any dreamer, he repeated, believed that any structural alteration of the Court of Chancery would do all that was wanted, such dreamer was in a fool's paradise, and would awaken to a sad reality that would belie all he had fancied in his slumbers. Why, it would alarm their Lordships to hear some of the proofs which the Committee over which he presided had lately been receiving, of the state of things in all the Courts of Equity, and in all the branches of these Courts. Their Lordships had victims among themselves; and he saw a noble Friend of his then present on the cross benches, who went into Chancery to recover a sum of 500l., and who had the misfortune to deal with an insolvent party and his professional adviser. There being fraud connected with the case, he had to go into Chancery, and 1,200l. for costs were expended in obtaining that 500l.! The noble Lord succeeded, and perhaps on tolerably cheap terms, considering what the Court of Chancery was—certainly he had heard of cases where the rate of charge was far higher. But the noble Lord would have been better off by 700l., had he put up with the loss of the 500l., and declared that he would not, in order to recover it from the fraud-monger, resort to the law-monger, who had thus turned out far the worse of the two, taking 700l., when the other had been content with five. In another case, 38,000l. had to be distributed—merely distributed. There was not a single debt, and there was no dispute; and nineteen out of twenty of the claimants would have been alarmed at the very idea of going into Chancery. It was requisite to take an account; and they said, "Let it be taken by a common accountant, and on no account go into Chancery." But, unhappily, one of the number became bankrupt, and his assignees insisted upon carrying the case into Chancery, It lasted eleven years, from 1840 till 1851, and the costs were 2,827l.! The system was not confined to great cases—it was equally oppressive in the smallest. An infant was entitled to an income of 155l. a year. Four years were consumed in Chancery without any opposition or contest, simply in the infant obtaining the income which was his own; and in getting paid out to him those four years' income, 68l. a year, on an average, was expended in the costs of "common orders, and motions of course." Thus altogether, 270l. had been expended in costs in a case in which there was no contest, in order to get 620l. In another case, 10,000l. were claimed. It went into Chancery in 1835. In 1840, after it had been there five years, a respectable solicitor found it in the Rolls, "set down to be heard," in some way, at some stage or other. It had actually, in five years, by the "forcing process" of the Court of Chancery, ripened so prematurely, that it was "set down for a hearing," in 1841; and the solicitor gave evidence of the case in that year, before the Committee of Lord Cottenham. Well, their Lordships would scarcely credit it, that same solicitor was, last Tuesday, examined before the Committee, over which he (Lord Brougham) had the ho- nour to preside, about that same suit; and stated that it was "in the Rolls;" just set down again for a hearing—another hearing of some other sort! And it would take at least five years more before it was "ripe" for final settlement. Why, just conceive the claimant to have been a young man wanting the money to start in life—unable to obtain it—obliged to start without it; suppose for India. In 1840, let it be supposed, the man starts for India, having learnt that the cause, after five years, has just been "set down for hearing in the Rolls." Eleven or twelve years elapse, the man comes home, after much service, and having escaped the risks of sea, and of climate, and of war, and inquires about his 1,000l. and the cause. "Oh, it is just set down for hearing in the Rolls!" "In the Rolls!" he might exclaim; "why, I left it there twelve years ago." "Well, at all events, I hope it is ripe for final decision now?" "Not at all; it will take at least five years further to settle it!" "Oh, I may as well go back to India again!" might the poor claimant exclaim. And nearly 2,000l. had already been expended in recovering that 1.000l.—rabout200 percent. Why, well might the man exclaim, "Let me go back to India! They have cobra de capello there, they have boa constrictors, they have tigers and jungle fevers, and all sorts of horrid chances, but, at all events, they have not this dreadful place, which, as he dared not name, should be nameless. In another instance, stated by one of the taxing masters, Mr. Follett, breather to his late loved and lamented friend, Sir William Follett, there had been 90l. costs incurred about a question whether 10l. should be expended in repairing part of a house—a certain necessary place which he would no more name than he would the Court to which he referred. In another instance there had been a reference to the Master for impertinence, that is to say, for the insertion of matter wholly unnecessary to be set out in the proceedings, which, of course, increased the expense. It was a gross and glaring case, and the Master allowed 20l. to the party complaining, in order to compensate him for the needless costs. The other party appealed to the Vice-Chancellor; the order, after sending the matter back to the Master, and annulling reports, was affirmed. The appellant carried his appeal to the Chancellor; the decree was affirmed. But the matter had now been carried on nearly three years, and at an expense to the respondent, the original complainant, of 800l., of which he only got allowed by the taxing officers, as against the opposite party, 750l., leaving 50l. to be paid by himself; so that, deducting the 20l. allowed by the Court for the impertinence from the 50l. the party had to pay who had complained of the impertinence, it appeared that he was 30l. out of pocket, and had better have left the matter alone, to say nothing of the delay and the heavy costs to the other party found to be in the wrong. These were the sort of cases constantly occurring. He need not remind their Lordships of the case mentioned by his noble and learned Friend (Lord Lyndhurst), in which that able Judge, Vice-Chancellor Knight Bruce, had held up the voluminous affidavits in a case—nineteen-twentieths of which were superfluous—to the execration of all honest, right-minded men. Nor need he remind them of the case of Day and Martin, in which, out of a fortune of 400,000l., from 70,000l. to 80,000l. had been spent in costs! Was it possible that their Lordships could longer resist the conclusion to which the people had already arrived, that the axe must be laid to the root of these crying and intolerable evils, and that if, to use the words of Lord Chatham as to reforms of another description, "you do not consent to reform yourselves, the people will come in upon you and reform you with a vengeance?" He was not, however, one of those rash and unreflecting reformers to whoso outcries he had often adverted. He had constantly maintained that to make reform salutary you must make it safe, and that to make it safe you must leave it to men of skill, and to men well informed and experienced, and not allow the ill-informed to interfere. But of this he was certain, that in proportion as you delayed reforms which were wanted, and delayed the execution of the duty of looking to the administration of the relief and redress required, the result would be, that by rash and wholesale changes the good would be swept away with the bad, and there would be realised, in respect to our jurisprudence and judicature, not only the vanity and instability of human institutions, but the ruinous folly of those who, from fear of granting a moderate and safe reformation, risk the hazard of rapid and reckless demolition. He would not then consider in what direction the knife should be used, or indicate the measures which he might deem necessary, or describe those which were before their Lordships, of some of which he approved (as the Bill now before them, and another before a Select Committee), and as to which he was sanguine in the hope that they would apply a great though not sufficient remedy to the evil. He hoped, however, that instead of stopping there, much time would not elapse before, in addition to those most valuable measures which had been sent from that House during the present Session, and were now passing, he trusted successfully, through the Commons (the Registry Bill, one of the most important ever proposed, the County Courts Extension Bill, and the Law of Evidence Bill)—all of them measures which would greatly diminish the evils to which he had adverted—he hoped that in addition to those the public mind would be directed—as the attention of the most learned in the profession was pointed towards its adoption as far as possible—to the fusion or combination of the systems of law and equity. His hope was, that those who were younger would live, without living very long, to have the happiness of seeing, among others, this great improvement in our jurisprudence, and to find real progress made in the amendment of the law. He apologised for speaking at such length on this stage of the Bill. Nothing should have tempted him to take so unusual a course as to address their Lordships on the Motion that this Bill be read a first time, but that during the last five or six weeks he had with very great difficulty, and against the opinions of his medical advisers, attended the service of their Lordships' House. During the last week or ten days this difficulty had increased, and become more insurmountable. In the hope of assisting in the passing these measures in a cause to which his life had been devoted, he had struggled to the last, until he found that he could struggle no longer. It was with great pain that he was compelled to withdraw himself from their Lordships' House before the close of the Session, when he considered that the great cause of religious liberty, in more shapes than one, was in danger, and when he desired to co-operate in the philanthropic measures of his noble Friend (the Earl of Shaftesbury). It was a great pain to him to leave the service of the House at such a time, but it was his bounden duty no longer to incur the risk which he had not hesitated to run when he thought it absolute- ly necessary. The Bills which he had brought in for amending the law had either passed their Lordships' House, or been, from circumstances unconnected with himself, postponed of necessity till next Session. He now had nothing more to do than to thank their Lordships for having heard him so attentively, and respectfully to take his leave of them for this Session.


was extremely glad to find that the Bill now on their Lordships' table met with the approbation of the noble and learned Lord. He would not follow the noble and learned Lord through the statements he had made on other important matters, because the present was not quite the proper occasion for doing so; but he wished to observe, that as he was aware of the many defects in the Court over which he presided—defects which were the growth of time, and which had existed during the period when his noble and learned Friend and others had held the great seal—immediately upon his entering upon the duties of his present office, a selection was made of gentlemen among the most informed at the Chancery Bar, the most alive to the defects in the court, and the most fitted to suggest a remedy; and those gentlemen were called upon to act as a Commission to review the whole system of Chancery practice. They had since been most diligently employed; and his noble and learned Friend being aware of the character and ability of those gentlemen would doubtless derive considerable comfort from the confidence he must entertain, that an inquiry conducted by such gentlemen must be followed by some effective measure of reformation. There was already a report on the table from the Commission, which had reviewed the whole proceedings at Common Law; and a Bill, which he hoped to present to their Lordships before the close of the Session, was being prepared from the materials of that report. It was not likely that a report from the Chancery Commission could be so far advanced as to allow of a similar step being taken with respect to it in the present Session; but it would, so far as it might receive their Lordships' approbation, be most carefully carried into effect. The noble and learned Lord's suggestions with respect to the present Bill, would receive the most careful attention. They had principal reference to the Judical Committee of the Privy Council; but the present Bill addressed itself to the remedy of a particular evil, namely, to prevent the recurrence of the inconvenience which was felt to arise last year from the absence of several of the learned Judges in the Courts of Equity in consequence of illness. It did not profess to go further, because, as the commission to which he had alluded was in actual operation, it was thought better to wait for the report with a view of then applying a general remedy for existing defects. Considering that the noble and learned Lord had presided over a Court such as he had described, the details which he had given certainly entitled him to great sympathy.


said, that be had endeavoured to apply as much remedy as he could to the defects which were justly complained of. He should like to know when steps would be taken to turn to public account the Criminal Law Digest. It was thirteen months since that he received a letter from the Chancellor of the Exchequer, stating that no time would be lost in doing so. Were proceedings in respect to that to be conducted with the same snaillike pace as business in the court to which he had just directed their Lordships' attention?

Bill read 1a.

House adjourned till To-morrow.