COURT OF CHANCERY AND JUDICIAL COMMITTEE BILL. (Hansard, 31 July 1851)

The LORD CHANCELLOR
moved that the Bill be now read 2^a. His Lordship said, that their Lordships were already fully aware of the nature of the Bill, from what had before occurred in the House upon it. In consequence of the increase of business in the Court of Chancery by reason of certain Acts of Parliament which had of late years been passed, and the consequent accumulation of business, arising chiefly out of the affairs of public companies, it became necessary to add to the judicial staff of the court. There was a considerable arrear of appeal business, both of that House and of the Court itself, arising out of the unfortunate indisposition of two of its inestimable Judges, and from other unfortunate circumstances; and it was most desirable to facilitate and expedite as much as possible the hearing of appeals, by providing means for an increased number of sittings in the Court of Chancery. It was, besides, much to be wished, that the individual who held the Great Seal, whoever he might be, should be enabled to devote more time to the appeal business of their Lordships' House. The means of effecting the proposed alterations had, it was true, given rise to much difference of opinion in the profession; but after the best consideration which the Government could give to the subject, they were of opinion that some such provisions as those contained in the present Bill were indispensable; and it bad, he was happy to say, received almost universal approbation. The main object of the Bill was to establish a Court of Appeal, sitting separately or with the Lord Chancellor. The noble and learned Lord then adverted to the provisions of the Bill, which are, that two barristers of at least fifteen years' standing should be appointed Judges of 1769 the new Court of Appeal in Chancery—that this new Court should have the jurisdiction now exercised by the Lord Chancellor, statutory and otherwise—that the jurisdiction in bankruptcy, at present exercised by the Vice-Chancellor Knight Bruce, should be transferred to this new Court—that the decision of the majority of the Court was to bind, and if the Judges were equally divided in opinion, the decree or order appealed from must be affirmed, or re-heard by the full Court—that power of appeal should be given from the decrees of the new Court to the House of Lords—that one of the Judges so appointed, sitting with the Lord Chancellor, or both Judges sitting apart from him, should form the Court of Appeal; but that the Lord Chancellor sitting alone was to have co-ordinate jurisdiction with the Court of Appeal. The other provisions of the Bill went on to enact that the Lord Chancellor was to have the power of regulating the sittings and business of the Court of Appeal—that certain ministerial and other powers were to be reserved to the Lord Chancellor—that one of the Judges of the Court of Appeal might sit for the Master of the Rolls, or either of the Vice-Chancellors, during his temporary absence—that the Judges of the new Court were to be Members of the Judicial Committee of Privy Council—that three members of the Judicial Committee were to form a quorum—that the Equity Judges were to give their attendance in the House of Lords when required; and the Bill finally provided for the salaries of the Judges, namely, that the Lord Chancellor should have 10,000l. a year, the Master of the Rolls and each of the Judges of the Court of Appeal 6,000l. a year. A noble and learned Lord then in the House, whose opinion on any subject was always estimated highly, had already expressed his approbation of this Bill; and so had another noble and learned Lord, who had been obliged to leave the country from indisposition, and whose absence they all lamented. He believed that all the legal profession were satisfied with the Bill; and he therefore trusted that their Lordships would assent to it. He would avail himself of the present opportunity to correct an impression—or he should rather say, a misimpression—created by certain speeches and articles, that no attempt had been made of late years to improve the administration of justice in the Court of Chancery. Attention had been paid to that subject for more than twenty years, 1770 and improvements had been made in the administration of justice there to a great extent indeed. Few of their Lordships were aware of the multiplicity of suits, of the mass of property, and of the complicated interests of that mass of property, which came under the consideration of that Court. He would, therefore, enter into a short statement, in order that their Lordships might be apprised that those who had attended to the administration of justice in the Court of Chancery had not been inattentive to its improvement. In the year 1824 Lord Eldon, who then held the Great Seal, issued a commission to inquire into the state of business in that court, and appointed twenty or thirty Commissioners to conduct the inquiry. They were persons of great learning, and possessed every qualification that could render them fit for the duties which they had to discharge. For two years these Commissioners sat and inquired into the practice of the Court of Chancery, the result of their inquiries being an immense folio volume, containing a vast number of most valuable suggestions. In 1827 Lord Lyndhurst succeeded to the Great Seal, and his Lordship immediately took up the report of the Commissioners with a view to the carrying their recommendations into effect to the utmost possible extent. In 1828 the noble and learned Lord, after mature consultation with other Judges, issued a great many orders having for their purpose the expediting of business in the Court of Chancery, and the diminution of expense to the suitors; and the result of these orders was very materially to advance these most important objects. In 1830 an Act was passed known as Sugden's Act, the aim of which was to effect certain alterations in the jurisdiction of the Court of Chancery with relation to the commitment of persons for contempt, under the operation of which Act a number of individuals who had been imprisoned for contempt were discharged. In 1832 Lord Brougham became Chancellor, and in 1833 the noble and learned Lord issued a number of orders in furtherance of the objects which his predecessors had endeavoured to promote. Altogether, since the accession of Lord Lyndhurst to the Great Seal, no fewer than between 500 and 600 orders had been issued, all having for their object the practical improvement of the procedure, and the diminution of the expense of the Court of Chancery, 170 of them having been issued by Lord Lynd- 1771 hurst, upwards of 100 by Lord Brougham, a considerable number by Lord Cottenham, and the remainder by himself. The Six Clerks' Office had been abolished, and many other useful reforms accomplished. In 1837 Lord Cottenham called the Equity Judges together, and with their aid, and more especially with the aid of Lord Lang-dale and Vice-Chancellor Wigram, promulgated a great number of useful orders. In 1840 there was another Act passed, having for its object the simplification of the practice of the Court of Chancery, and the diminution of cost to the suitors; and since that year several other statutes had been enacted to the same purpose. Since his own accession to office, his most diligent attention had been paid to the whole subject, and he had invited the counsel of a certain number of gentlemen of very high rank in their profession as lawyers, who had been for the last year assiduously inquiring into every point connected with the procedure and jurisdiction of the Court of Chancery; these Commissioners had, by the wish of the House of Commons, lately been joined by two eminent laymen (Sir James Graham and Mr. Henley), whose assistance would doubtless be of material value. From the combined deliberations of these gentlemen the most valuable suggestions might be expected. But at the same time he must remind their Lordships, that sweeping and wholesale alterations were not always the best, and that in a system of jurisprudence so large, so intricate, and so complicated, great caution must be exercised lest the effect of change might be—not improvement, but grievous detriment. He could promise, most conscientiously and heartily, that his own earnest attention should continue to be, as it had been, applied to the whole question, in the resolute purpose to do all that could be done to improve and expedite and cheapen the system of the Court over which he had the honour to preside. Were he to go into the details of what the series of orders of which he had spoken had done, their Lordships would be surprised at the result though much, no doubt, remained to be done, the complaint that as yet nothing had been done, was simply and ridiculously untrue. When he considered the enormously extended and infinitely complicated nature of the interests which the Court of Chancery had to administer, he was only amazed how much had been done towards the simplification of the procedure in so short a time. The former Commissioners had had their atten- 1772 tion chiefly directed to the practice of the Court, but the present Commissioners were applying their inquiries and their consideration also to the jurisdiction of the Court.

§ The EARL of ABERDEEN
said, that in consequence of a reference made by the noble and learned Lord to a noble and learned Friend of his (Lord Lyndhurst), he begged to state that his noble and learned Friend wished it to be known, that, although he approved of the Bill entirely as far as it went, he considered it a very small step in the right direction. He thought this not an unfit opportunity to say a few words on the subject of Scotch appeals. Their Lordships might be aware that two-thirds of the appeals which came before that House came from Scotland. Great satisfaction had been given by the manner in which those appeals had been dealt with; but at the same time it was, so to say, wonderful that such satisfaction should have been felt, considering that the law which noble and learned Lords administered had not been the subject of their early studies. Nevertheless the state of the appeals from Scotland could not be looked at with entire satisfaction. He believed that the whole history of those appeals was attended with some obscurity. The Articles of Union did not provide for their being heard in that House. He supposed that it was never intended to deprive the Scotch Courts of any right which they possessed formerly when the Scotch Parliament existed; but it should be remembered that the Scotch Parliament was very differently constituted from their Lordships' House. He knew that many changes had been introduced, and much light had been thrown upon Scotch law, by several of the Judges of England, especially by Lord Mansfield; but at the same time it was unsatisfactory that that law should be administered by persons who, in spite of the best intentions and the highest integrity, frequently entertained feelings somewhat at variance with that system of law which they were expounding. What would be said if a man had to appeal from the Courts of this country to the Parliament at Paris? and yet it was undoubtedly true that the French law was less removed in spirit and principle from the English law, than the law of this country wss from the Scotch law. There was one other point to which he wished to draw the attention of his noble Friend on the woolsack. Formerly it was the rule in English law that 1773 an appeal did not stop the execution of the sentence. That was not the case at present; but in Scotland an appeal did stop the execution of the sentence in very many cases, and that rule manifestly operated as an encouragement to appeals. He hoped that his noble and learned Friend would take this subject into consideration.

§ LORD CRANWORTH
thought that the question of Scotch appeals was attended with so much difficulty that it would be well for their Lordships to deliberate well before they should attempt to make any alteration in that respect. He believed that the mode in which appeals from Scotland were disposed of in this country, gave satisfaction to the people of Scotland. The noble Lord had said that it was an anomaly that parties should be compelled to appeal to a Court which did not administer the law to which the appellants were subject. No doubt that did seem to be an anomaly; but it should be observed, that the questions which were daily brought before the ultimate Court of appeal in this country were not matters of every-day practice, but questions that almost invariably depended upon the general principles of law; and having practised before the Privy Council, his experience enabled him to assert, that the general principles of the laws of different nations differed very much less than at first sight it would he supposed. The Judicial Committee had to adjudicate upon questions involving ecclesiastical, admiralty, and civil law, the Code Napoleon, Dutch law, and, in short, every law existing throughout the earth; and yet his belief was that their decisions had given satisfaction. With reference to the measure before the House, he did not conceive that by any imaginable system could they make the administration of such complicated rights of property as those intrusted to the Court of Chancery very expeditious or very cheap; but still every one was bound to make it as expeditious and as cheap as possible. He was quite satisfied that his noble and learned Friend on the woolsack was earnestly applying his efforts to that purpose; and he could assure their Lordships that in that purpose his noble and learned Friend would be zealously aided by the other Equity Judges.

The LORD CHANCELLOR
believed that the decisions on appeals from Scotland had given as much satisfaction as those upon English and Irish appeals. Attempts had, however, been frequently 1774 made to procure the assistance of a Scotch lawyer on the hearing of appeals from Scotland. During the last few weeks a deputation upon the subject had come from Scotland, and the opinions of the Faculty of Advocates had been submitted to the Government. The most obvious plan of meeting the evil complained of by the people of Scotland appeared to be to obtain the attendance of a Scotch Judge on the hearing of Scotch appeals; but the deputation said that Scotland could not spare a Judge for the purpose of attending Scotch appeals in London. The loss to Scotland would be greater than the gain. Then what was to be done? After giving their best attention to the subject, the deputation said that they had come to the conclusion that the most reasonable plan of remedying the evil complained of would be, to appoint a Scotch lawyer of eminence to some legal situation in this country which should be compatible with his attendance in their Lordships' House in cases of appeals from Scotland. But a gentleman so removed from the daily practice of Scotch Courts would not, in the course of some time after his appointment, be able to speak authoritatively upon questions of Scotch practice. The Government had therefore come to the conclusion not to adopt the suggestion of the deputation. Nevertheless the subject would continue to occupy the consideration of the Government. The greatest deliberation should be observed in making any alteration upon so important a question. With regard to the observations of the noble Earl as to the evils resulting from the law of Scotland which prevented the enforcement of judgments in cases of appeal to this country, he would make diligent inquiry into the matter, for the purpose of applying a remedy.