§ LORD LYNDHURSTsaid, by the Votes of the House of Commons he perceived that the noble Lord at the head of the Government had obtained leave to bring in a Bill for the purpose of regulating the mode of conducting the business of the Court of Chancery, and the duties and privileges of the noble and learned Lord at the head of that Court. Their Lordships knew from other sources that another Bill was to be introduced in this House with respect to the appellate jurisdiction possessed by their Lordships, and having reference to the duties of his noble and learned Friend who presided over their deliberations. Now, with all deference to noble Lords opposite, it did appear to him singular and unaccountable that these measures having reference to the Court of Chancery, to that Court over which his noble and learned Friend on the woolsack presided, with which the judicial establishment of this House was intimately connected, should have been introduced in the other House of Parliament, and it was also most strange that a subject which was really one should have been divided—that a question which ought to have been dealt with as a whole, should have been branched into two separate Bills. Now, the two Bills were so closely connected that it was impossible to dissever them, or to adopt the one without at the same time accepting the other. It was plain, therefore, that as one Bill had been introduced into the House of Commons, and as the other was about to be introduced in this House, that their Lordships, as well as the Members of the House of the House of Commons, would have to discuss this grave and important question with only one part of the measure before them. Now, he objected to this course. If his noble and learned Friend on the woolsack was to continue to be in substance, and not in mere form, a member of the Court of Chancery,' the extent of the duties he would be able to perform in that Court, must depend in some measure on the extent of his duties in this House. And, upon the other hand, the extent of his duties in their 771 Lordships' House would, in a certain degree, be connected with and dependent on the weight of his labours in the Court of Chancery. How, then, was it possible, fairly and properly to discuss the merits of a measure, one half of which was brought into the other House of Parliament, and one half in this? But there was another possible contingency to which he begged to draw the attention of their Lordships. Possible, did he say?—nay, in the present state of parties elsewhere, far from being an improbable case, namely, that one of these Bills might be lost and the other carried, the consequence of which would be that the whole judicature of the country would be involved in inextricable confusion. Now, what were the reasons that had been urged for the adoption of this singular course of procedure by the Government? He thought that the reasons for this extraordinary and very singular course of proceeding had not yet been stated by the proposers of the measures. It had been said, and said with great justice, that the Bill with reference to their Lordships' appellate jurisdiction could not originate in the House of Commons—that such a course would be inconsistent with the privileges of their Lordships. To this proposition he agreed; it was perfectly accurate and true; but, unless he was very much misinformed, there was in the Bill brought into the House of Commons a clause with respect to the appellate jurisdiction of their Lordships, most distinctly trenching and infringing on their Lordships jurisdiction, curtailing it in a most important particular. He would, however, pass over this for the present; and he would again ask why it was that the whole measure had not been introduced in their Lordships' House? What was the object of this deviation from the usual course? What was the reason why this great and important question should be thus divided when such a division must be attended with the manifest inconvenience and hazard to which he had referred? Their Lordships, had it been introduced here, could have embraced and dealt with the whole subject; and, if permitted, he would make this further observation, that he did not believe there was a single instance with respect to Bills relating to the jurisdiction of the Court of Chancery which had not originated in their Lordships' House. When the question of appointing a Vice-Chancellor for the purpose of assisting the Lord Chancellor was raised, the Bill was first introduced in the House of Lords. 772 Subsequently, when it was considered necessary still further to augment the judicial force of the Court of Chancery, he (Lord Lyndhurst) introduced the Bill for that purpose here; at a later period, when it was desirable to make alterations in respect to the jurisdiction of the Court of Chancery in matters of bankruptcy, his noble and learned Friend (Lord Brougham) brought that Bill into this House; and when it was proposed to extend the provisions of that measure to the different counties of this kingdom, he (Lord Lyndhurst) being in possession of the Great Seal, proposed that extension to their Lordships. What, then, was the reason why this principle was departed from in this particular instance? Was not their Lordships' House competent or qualified to discuss this question? There was not, perhaps, an assembly in the world so fit to discuss and perfect measures of this kind, as that which he had the honour of addressing. For of whom did that assembly consist? His noble and learned Friend on the Woolsack had great experience in law, and was now presiding over a Court of Equity. There were two other learned Friends of his in that House who had held the high office of Lord Chancellor—one of whom, his noble and learned Friend (Lord Brougham) had from the moment of his retirement up to the present time, been most assiduous in his attendance at the hearing of the appeals to their Lordships' House—sometimes sitting with the Lord Chancellor, and not unfrequently sitting alone. There were, in addition, his noble and learned Friend, who had retired with great honour and reputation from presiding over the Rolls Court: an individual more perfectly, more closely conversant with the practice of the Court of Chancery, in all its details, and in applying them, could not be found, than the noble and learned Lord to whom he referred. There was, moreover, his noble and learned Friend who had recently become a Member of their Lordships' House (Lord Cranworth), who, with the exception of three or four years, in which he distinguished himself as a Common Law Judge, had spent his whole life in Courts of Equity. Another noble and learned Lord, who now filled the eminent office of Chief Justice of the Queen's Bench, was for a few days, as a "postulant," in the Irish Court of Chancery, in which he spent his noviciate, and who had been since then, and up to the period of his last appointment, most diligent in his 773 attendance on the appeals to that House. All these noble and learned Lords were, it could not be denied, eminently qualified for the consideration of this question. They could also secure the co-operation of a noble and learned Friend of his, not now present, who had for years filled the office of a Master in Chancery, and after-wards sat at their Lordships' Table as Clerk-Assistant of the Parliaments, who was intimately conversant with the practices of the House, as well as with the whole question to which those Bills referred. Now, all those persons, besides many noble Lords whose judicial habits and custom of investigation fitted them for such discussion, that House supplied, including his noble Friend the Chairman of Committees (Lord Redesdale,) who had an hereditary claim to legislate upon such a subject. But their Lordships possessed important supplemental powers of another description—he alluded to the power of appointing Committees to examine witnesses on oath—enabling them, therefore, to ascertain with the greatest precision and accuracy everything connected with the administration of justice in those Courts. Under these circumstances, he asked if, instead of taking the course which the Government had taken—instead of dividing the measure—introducing it piecemeal—first one branch of it in one House, and then another branch of it in another—it would not have been better to adopt that course which was consistent with precedent, and bring the whole question, in one Bill, under the notice of their Lordships in the first instance. But how had the Government acted upon this matter in other respects? This Bill was promised during the last Session of Parliament. The Government had the whole of the vacation to consider and mature it. It was promised again in Her Majesty's Speech from the Throne. But upwards of two months had elapsed, and it was only just upon the eve of Easter that some intimation was given as to what was to be the nature of the Government scheme. From the course pursued, three months, at least, of the Session must pass away, before even one Bill could come from the House of Commons before their Lordships. Now, would not the preferable course have been, to bring the Bill into this House at the beginning of the Session, and to send it down well considered, digested, and matured, to the other House of Parliament, at the same period that one of the 774 Bills would then be brought here, and leaving abundance of time for its consideration and discussion by the House of Commons? He found, therefore, nothing to justify this course of proceeding, and was anxious to know why the Government had taken a line of conduct which, he repeated, was unprecedented and extraordinary. He had looked about for reasons, but confessed he could not find any that were at all satisfactory. One mode of accounting for it might be the natural repugnance of his noble Friend on the Woolsack to usher such a Bill into their Lordships' House. A parent looked with complacency even on its rickety offspring, and he supposed that was the reason why the noble Lord at the head of the Government had himself brought in this Bill. His noble and learned Friend on the Woolsack was, probably, unwilling to take the conduct of a measure which he must have foreseen would be universally scouted by the whole profession of the law. The Bill professed to give additional judicial strength to the Court of Chancery, but would, in fact, embarrass and weaken the strength and power of that Court—one of its objects was to diminish the number of appeals to the Court of Chancery, but its effect would be to augment them. A gentleman of great respectability, he admitted, had recently been raised to the position of Master of the Rolls, and he was to act as appellate Judge with a Common Law Judge, which Common Law Judge might be totally unacquainted with the course of proceedings in the Court of Chancery, and yet this tribunal would have to decide these appeals. Appeals from whom? Why, from four men of the highest eminence, and of the greatest experience in the judicial proceedings of the Court of Chancery—men of undoubted ability and long standing, and ox great practical knowledge. What would be the consequence, supposing the decision of the court below to be reversed by this new tribunal? Did they suppose that the party against whom the decision was pronounced would acquiesce in it? No, he would immediately appeal from that decision to their Lordships' House; so that the upshot would be that this power of immediate appeal would be utterly useless. He had heard it stated, but it was impossible that it could be correct, that for the purpose of obviating this inconvenience—this great evil—there was to be a power vested in this intermediate appellate tribunal of 775 curtailing the right of appeal to their Lordships' House; to infringe, in fact, upon the high and admitted privilege of their Lordships' House; and he was told that one of the reasons for bringing in the second Bill was, because the House of Commons would not deal with the privilege of their Lordships. But such was the strange anomaly in the present proposition, that by the Bill which had been already introduced by the Government in the House of Commons, provision by a clause was made that the power of appeal to their Lordships' House should be restricted. Thus, while the Government professed to respect the privileges of their Lordships, they specifically introduced a clause by which the right of appeal to their Lordships was restricted. He hoped to hear some explanation on the subject, and that he had been misinformed. As matters at present stood, and as he understood the nature of the measure, the unsuccessful party could appeal to one or other of the tribunals. But, after all, he could not guess at any adequate reason why this Bill had been introduced, in the first instance, in the House of Commons; why it should not be allowed to originate with their Lordships. He had to call the attention of their Lordships to another—a new, a strange, a singular provision in this Bill, which had been brought into the House of Commons in preference. One of its enactments was to transfer, by a kind of sleight-of-hand movement, all the patronage of his noble and learned Friend on the Woolsack, into the lap of the First Lord of the Treasury, already sufficiently laden with patronage of this description. The noble Lord at the head of the Government had of late been worsted in contests with his foes, and he now trenched upon his friends, and sought to signalise his doings by the plunder of his colleague.
So much, 'tis safer through the camp to go,And rob a subject than despoil a foe.But perhaps this provision with regard to the patronage was in itself a kind of answer to the question, why the Bill had not been introduced into that House. The noble Lord had taken it under his own protection, because he could not call upon the Lord Chancellor to commit so suicidal an act. Of one thing, he (Lord Lyndhurst) felt sure, that had it contained such a provision, it would never have received their Lordships' approbation. And surely, in all the experience of any public man in that House, a more flimsy reason for mak- 776 ing so great a change had never been presented to the public. The first great charge preferred by the noble Lord against those who had held the high office of Lord Chancellor, and had the distribution of this patronage, as a reason for transferring this patronage to the Treasury, was, that such patronage had been distributed for party purposes. He (Lord Lyndhurst) emphatically denied the truth of that imputation. Nothing could be more sacred than the trust reposed in the Lord Chancellor with respect to the distribution of ecclesiastical patronage; and this he could not help saying, that he believed the men who had held the office of Lord Chancellor, had dispensed their ecclesiastical patronage without reference to party purposes. It had been felt as a trust of a most sacred nature, and the principle on which he and his predecessors had acted was detur digniori. Nothing could be more unpleasant to him than to speak of himself, but he could conscientiously say that, in the distribution of the patronage attached to the office which he had filled, he had not been influenced by any such ideas. After he was entrusted with the custody of the Great Seal, so it happened that the first important piece of preferment which he had to dispose of was a prebendal stall at Bristol. Did he give that vacancy to one of his own party? So far from it, he had conferred it upon a gentleman who, from his earliest years, had been active in the support of the Whig cause; but he knew him to be a man of great learning—he knew that he was beloved by his parishioners—he knew him to be an excellent parish incumbent; the gentleman to whom he alluded was the Rev. Sydney Smith; but he had always been an active Whig partisan, and therefore could not have received patronage from him on any other ground than his real merits. But let him ask their Lordships one question. The present objection to the ecclesiastical patronage being vested in the Chancellor was, that it was conferred from party motives. Now, granting that even there was such a suspicion, did their Lordships believe that such a motive would be less likely to influence the First Lord of the Treasury than the Keeper of the Great Seal? Why, it was obvious that all this patronage would go into the Treasury vortex; the Secretary of the Treasury would be the man, he it was who would then distribute it, probably for party purposes of the most objectionable character, with a view to the favour of certain constituencies—with a view to 777 the carrying of certain elections—in short, for party purposes more objectionable than any other whatever. But there was another reason assigned. It was gravely urged as a reason for taking away this patronage from the Great Seal, that the Lord Chancellor was oppressed with the weight of his judicial business, and that it was necessary to relieve him from a portion of his burden, by transferring it to the First Lord of the Treasury. Now, as a relief, it would only be a relief in the sense that it was the last feather which broke the back of the camel; for ecclesiastical patronage was certainly only a feather in the scale of the burdens of the Lord Chancellor. The whole of the correspondence was conducted by the Secretary of Presentations, and when a vacancy occurred the Lord Chancellor had nothing to do but to decide upon the claims of the respective applicants. That occupied him but a very short time. If, therefore it was necessary to relieve the Lord Chancellor from any burdens of office, this certainly was the very slightest. But the House would give him leave to observe, from his observation and experience, that as far as mental work and anxiety were concerned, the First Lord of the Treasury was, or ought to be, as much burdened as the Lord Chancellor. Another reason assigned for this extraordinary measure—but the veil was so flimsy that it was easily seen through—was that, after all, it was not the office in which the livings ought to be vested—that it was not right to confer them upon the nomination of the Lord Chancellor, who might not be conversant with the routine of office, and that the Sovereign was the fitting source from which such gifts should spring. Why, such a reason would not impose upon the humblest understanding of the humblest public clerk in the lowest public office in the country. Everybody knew well enough how those transactions were conducted, and how the first Lord of the Treasury would act. When a living was vacant, the First Lord of the Treasury would write a short letter stating the fact, and the name of the individual recommended. That letter was sent to Her Majesty who, as a matter of course, returned it with the words added—"Approved, Victoria Regina." In point of fact, these livings would be as much in the gift of the First Lord of the Treasury as any other patronage which he possessed. But it was said that this change had been recommended by a Committee of the House of Commons. That was to say, a Com- 778 mittee, many of whom were appointed by the First Lord of the Treasury, or were his partisans, had investigated the matter in the absence of the Lord Chancellor, or of any one to represent him, and then came to the conclusion that it was desirable the patronage should be transferred from the First Lord of the Treasury. What was the injustice of this patronage? Their Lordships all knew that the Lord Chancellor was originally an ecclesiastic, and that this patronage had been conferred upon him as one of the rewards of his office. No ecclesiastic had held the Great Seal for a period of more than 200 years, but during the whole of that time the patronage still remained with the Great Seal. It was therefore aright prescriptive in the office. Usage and prescription sanctioned it; and if after a period of 200 years this right was given up, he would like to know what office, or patronage, or gift, or title, would be secure if so dangerous a precedent were established. At all events, he felt sure that their Lordships would not sanction such a proposal. Did their Lordships suppose that when the Great Seal was held by Lord Hardwicke, by Lord Thurlow, by Lord Eldon, that any attempt of this kind would have been made, or that his noble and learned Friend near him (Lord Brougham) would have stood still like a caged bird while such an invasion wag made on the privileges of his office? But he (Lord Lyndhurst) entertained so high an opinion of the spirit and independence of his noble and learned Friend on the Woolsack, that he felt sure he would not submit to such a degradation. He knew no person more unselfish than his noble and learned Friend, no one more indifferent to personal interests; but let his noble and learned Friend recollect that he ought not to consider himself only, but that he ought to regard the question in the light that he was merely a trustee for his successors—that as he had received from the gracious bounty of his Sovereign this high office, with all its dignities, patronage, and emoluments, he ought to transmit it unimpaired to those who were to follow him. He had felt it to be his duty to state these views to the House; and the questions he would now put were, why the usual practice had been departed from in the mode of introducing this Bill?—why the measure had been divided into two parts?—why it had originated in the other House of Parliament?—how the provision stood that the right of appeal to their Lordships' House 779 was to be curtailed, and whether the Judidicial Committee was to be absorbed in the newly-constituted tribunal?—and, finally, why the measure had not been introduced sooner than the very eve of the Easter holidays?
The LORD CHANCELLORsaid, he had not had the honour of being long enough a Member of their Lordships House to render him perfectly familiar with all the rules which governed their discussions; but from what he had learnt of them, and from all he had heard of them, he could not help thinking that his noble and learned Friend must have entirely forgotten them all when he permitted himself to take the course he had just adopted—when, under the form of asking a question, he considered it was competent for him to discuss two things called Bills, neither of which he believed was at that moment in any way legitimately before the House. The Bill to which the noble and learned Lord had first referred, had not even been introduced into the House of Commons yet; and with regard to the other measure, there had not been a suggestion with respect to its introduction into either House; nevertheless his noble and learned Friend was not only disposed to question the propriety and almost the right of a Member of the House of Commons, the head of Her Majesty's Government, to bring in a Bill in that House, in place of allowing it to be brought into their Lordships' House, but had actually gone through the supposed clauses of the Bill in question, and attempted to invite a discussion into the merits of each of them. What could be more inconvenient than such a course? This was a very striking instance; because he could tell his noble and learned Friend that some of the clauses he had been discussing were not in the Bill, and were not intended to be in the Bill at all; but various Bills—or rather, he should say, various draughts of a Bill—had been prepared, and he supposed his noble and learned Friend had, somehow or other, got possession of one of those draughts, and had therefore been discussing, not the clauses which had actually been adopted, hut those which had merely been proposed for consideration, but which were never likely to find their way to either House of Parliament. He could assure his noble and learned Friend that it had never been intended, by any Bill to be brought into the House of Commons, to interfere with the appellate jurisdiction of their Lordships' 780 House. Soon after he had the honour of communicating with the noble Lord at the head of the Government, the subject of the appellate jurisdiction of their Lordships' House came under his consideration, when it was arranged that he should take the earliest opportunity of moving for a Committee of their Lordships' House for the purpose of taking into consideration how far the administration of justice in their appellate jurisdiction could be improved. Since that communication his mind had been engaged on the subject. One point requiring consideration was the great expense of appeals in that House. He had collected all the bills of costs in a number of cases, for the purpose of seeing what could be submitted to a Committee of their Lordships' House upon the subject of reducing the expense. Another important branch was the constitution of that tribunal when sitting and exercising appellate jurisdiction. It remained with him, and with him only, to move their Lordships to appoint a Committee to take these important matters into consideration; but, he repeated, it never was the intention of the noble Lord at the head of the Government to interfere with the appellate jurisdiction of their Lordships' House. Should he the (Lord Chancellor) act consistently with their Lordships' rules if he were uselessly to occupy their time by going into a discussion of the several clauses of the Bill his noble Friend had obtained leave to bring into the House of Commons? The subject of the Court of Chancery had occupied a large portion of the attention of their Lordships' House, as well as of the other House of Parliament. Several Bills, as the noble and learned Lord had stated, had been brought before their Lordships, but had never found their way to the House of Commons. Was it, therefore, surprising that the opinions of the Commons of England should be taken upon a subject which their Lordships' House had repeatedly discussed, and upon which the House of Commons, he presumed, had as good authority to exercise its judgment and discretion? He owned it appeared to him extraordinary to hear discussed whether or not it was right and proper to bring in a Bill into the House of Commons upon a subject which their Lordships had already expressed their opinion upon. He thought it would be a most dangerous course if each House was to discuss the propriety of Bills being brought into the other, and if, even before a Bill was brought in, the individual 781 clauses of that Bill, as conjectured, were to become the subject of discussion. What course could be more convenient than to introduce a Bill with a suitable statement of the principle upon which it was founded, and the evils which it proposed to cure, and of how far the remedy proposed was applicable by way of cure? But what could be more inconvenient than for the opponents of a measure to begin by imagining the clause of a Bill, and decrying them by anticipation? He confessed this seemed to him to be a most inconvenient course. He was most anxious at all times to give his noble and learned Friend the fullest information he could desire upon all subjects upon which he could afford him information; but he should be more anxious, in conformity with the rules of their Lordships' House, not to allow himself to be misled, even by the very high and esteemed authority of his noble and learned Friend into the monstrous irregularity of discussing the merits of a Bill which had not even yet been introduced into the House of Commons, and of going through it clause by clause. An amendment of the administration of justice in Chancery had long been much desired. His noble and learned Friend had remarked upon the delay which had occurred in this attempt to improve it. Had his noble and learned Friend never been engaged in the task himself? He (the Lord Chancellor) was sure he had. Had he been able to produce a measure which he or any other person could recommend to their Lordships? No; he believed his noble and; learned Friend had not succeeded; although he, like various other persons less gifted than himself, had doubtless been extremely desirous to do so. Still he (the Lord Chancellor) denied that time had been lost or misspent, for it was, as their Lordships must be aware, a subject of extreme difficulty. It had been desired to remove the Lord Chancellor from the Court of Chancery; but when the question came to be deliberated upon, when they considered how it would operate upon the appellate I jurisdiction of their Lordships' House, that was to say, how far the Lord Chancellor, in presiding only in the appellate department of that House, would have his judicial authority diminished, and thereby diminish their Lordships' authority and the high esteem and respect in which the judgments of that House were always held, and which, he ventured to say, it was of the deepest interest to the country they should always 782 be held—for he maintained that of all the things most to be guarded against was that of doing anything to diminish the judicial authority of their Lordships' House—but when, as he had said, the question of removing the Lord Chancellor from the Court of Chancery came to be considered, it was felt that although it was desirable to obtain the undivided services of the Lord Chancellor in the other departments which had hitherto rested upon him, it would be impossible to carry the plan into effect. It was felt that it was of the greatest importance that the Lord Chancellor should remain in the Court of Chancery, for, if he were not there, how would: he be able to advise the Crown as to the appointment of the Judges and the various judicial officers? Where could he become acquainted with the state of the profession, and with the character and competency of those whom it was proposed to elevate to the bench? If he presided only in their Lordships House, his acquaintance with the bar would necessarily be limited; he would have little opportunity of becoming acquainted with the profession, and he would be unable to give the Crown the advice, or to sustain the responsibility of that advice, which the best interests of the country required. It was, therefore, found necessary to retain the Lord Chancellor in the Court of Chancery. But there was another evil. How were they to expedite the appellate business of the Court of Chancery? This was also attended with great difficulty. When the noble and learned Lord alluded to what passed in the other House of Parliament, perhaps he was not aware of the extreme jealousy with which that House looked upon any increase of the expense of the judicial departments of the State. There lay the evil. The temper of the present time was not disposed to make the necessary sacrifice for the expense of the administration of justice. The business of the Court of Chancery had greatly increased. It was, in fact, extremely heavy. There was not sufficient judicial power there, and it was very doubtful whether the House of Commons would add to that judicial power. It being then desirable as far as possible to retain the Lord Chancellor in the Court of Chancery, and at the same time to allow the appeal business of the Court of Chancery to go on while the Lord Chancellor was sitting in their Lordships' House or in the Judicial Committee, it was thought to be the least inconvenient course—he would 783 not use a stronger expression—to get the Master of the Rolls and a Common-Law Judge (if an arrangement could he made to that effect), to preside in the Court of Chancery. His noble and learned Friend said that a Common-Law lawyer was unused to Chancery business. Where, he would ask, had his noble and learned Friend attained his own high character and eminence? Did the Court of Chancery suffer from the Common-Law lawyer, Sir J. Copley, presiding in the Court of Chancery? The Common-Law lawyer was found fully competent to possess himself of all the knowledge that was necessary for that situation, and efficiently, honourably, and most advantageously to discharge the duties of it; and, much as he admired his noble and learned Friend, that there were yet Judges on the Common-Law bench who were equally competent to administer justice in equity, he would answer without the slightest hesitation. He would say, that not only would these Judges in a very short time become acquainted even with the rules of practice to which his noble and learned Friend had alluded, but that they were already familiar with all the great principles of equity, which were frequently under discussion in the Common-Law courts. He (the Lord Chancellor) was ready to maintain at the proper time and opportunity that the Common-Law Judges would afford most useful assistance in aid of the Master of the Rolls or the Lord Chancellor. He could not conceive any objection arising on that score. It was quite true, as his noble and learned Friend had surmised, that the new tribunal would not give that facility which was desired to advance and expedite the business of the Court of Chancellor unless they added to the number of the Judges. If the House of Commons, however, would not do that, the next best thing, perhaps, was to enable the Court of Chancery to go on while the Lord Chancellor was engaged elsewhere. He (the Lord Chancellor) was not precisely himself of opinion that experience had dictated the necessity of the proposed arrangement. He did not see the advantage of the Court of Chancery having two or three Judges instead of one. Whoever looked and saw how the administration of justice inequity had proceeded, would not have reason to find that it suffered at all from the Appeal Judge sitting alone. But he knew that his noble Friend at the head of the Government had not been influenced in mak- 784 ing a different proposal by any fancy of his own, but by suggestions from some of the most learned and able men at the bar, who thought that some such plan was desirable. His noble Friend yielded to those suggestions. In so doing expedition would probably be checked, because, when the Master of the Rolls was withdrawn from his own court, and sitting in the Court of Chancery, his own court would be closed. But surely this subject would be more fitly discussed when the Bill was before their Lordships. Would it not tend to destroy the confidence of the public in their judicial impartiality and the calmness of their judgment, when they saw their Lordships so eager that they would not wait till a Bill came regularly before them, hut would begin impugning the propriety of the Bill being introduced there at all, and furnishing the House of Commons with their judgment by anticipation upon each clause? He felt sure that such a course would not add to the respect which the House of Commons was disposed to feel towards their Lordships' judgment at all times. His noble and learned Friend had asked why the Bill had been brought into the House of Commons instead of the House of Lords? His answer was this: He apprehended that—more particularly when the subject had been repeatedly discussed in their Lordships' House, but their Lordships had sent no Bill to the House of Commons on the subject—his noble Friend at the head of the Government had thought it expedient to ascertain the feeling of the House of Commons on a subject which had not hitherto been before them. Without knowing the particular reason which actuated his noble Friend, and answering upon his own notion merely, he apprehended that such was the reason why his noble Friend had asked leave to introduce the Bill into the other House; and he apprehended further, that this was a perfectly legitimate course for him to take. He, therefore, could not conceive but that his noble and learned Friend's extraordinary question had been asked merely for the purpose of hanging a speech upon it against the Bill by anticipation. He hardly thought that this was a fair and generous course to take; he was sure it was not one which would add to the honour and dignity of that House, or insure respect for their future debates; and certainly, from what he knew of their Lordships' rules, he thought his noble and learned Friend was greatly indebted to 785 their forbearance for having been allowed at such length to indulge in irregular discussion.
LORD BROUGHAMwas unwilling, after the lecture which had been administered to his noble and learned Friend near him, by his noble and learned Friend on the woolsack, on the irregularity of their proceedings, to persist in what seemed to him an irregular course. But he thought that when his noble and learned Friend had been for some time longer a Member of their Lordships' House, he would find by and by that regularity did not so much prevail in that House as—he was going to say—elsewhere; and he could not say it was as it ought to be both here and there. His noble Friend on the woolsack had designated the question of his noble and learned Friend as "extraordinary;" but if that question was extraordinary, his noble and learned Friend on the woolsack had certainly given what he must permit him to call an extraordinary answer. His noble and learned Friend had asked why this Bill had been brought forward in the House of Commons, instead of being more conveniently introduced into the House of Lords? The answer of his noble and learned Friend was this—"It is so; but I do not know why"—and his noble and learned Friend went on to say—"But I have no manner of doubt that we shall have the reason assigned when that Bill is brought into this House." He did not wish to enter into discussion upon the Bill, for it was a Bill which did not seem to have any existence at all; and as it had not been brought in, it could not be said to be embodied in the form of a Bill at all, and he should be unwilling to discuss an unembodied form—not a substance but a shadow. But whatever it was, its advocate, his noble and learned Friend on the woolsack said it was no Bill of his at all—that he had no responsibility for it, no concern in it, but that it was a Bill introduced by his noble Friend at the head of the Government in the other House of Parliament, for which reason it would be premature to enter upon any discussion of the question in their Lordships' House, and it would be more convenient to reserve all debate until the measure had existence, which it now had not, for it was in a crude and formless state. He (Lord Brougham) had no opinion whatever to offer now on the subject; though if he had any intention of stating an opinion it would be almost impossible to find words to express the contempt which a measure so abortive 786 deserved. But he would say a word or two upon one point which his noble and learned Friend on the woolsack had avoided with the greatest care, and in which he felt sure his noble and learned Friend had borne no share whatever. He alluded to the proposition said to be contained in the Bill to strip the Lord Chancellor of his Church patronage, and transfer it into the hands of the First Lord of the Treasury. To such a design he would at least say that he should give his most positive and determined opposition. And he would say, too, that no Lord Chancellor—at least that he had known—had ever suffered his exercise of that patronage to be perverted to party or personal purposes. Their Lordships would permit him to add an allusion to his own case, when he had the honour of holding that high office, in regard to presentations of preferment to the church. But first he would remind their Lordships, as an instance of the dispensation of this patronage by Lord Chancellors, that the first living or stall—for it happened to be a stall—that was given by his noble and learned Friend near him (Lord Lyndhurst) on his accession to the woolsack, was presented to his reverend and much-loved friend Sidney Smith, who did not belong to his noble and learned Friend's political adherents, and therefore the circumstance was worthy to be remembered as an example of the impartial administration of this patronage by his noble and learned Friend. The first stall which he (Lord Brougham) had given away, and the first preferment he had given away upon his accession to office, was to one who was now a right rev. Prelate, but was not now present in his place in that House. He alluded to the Right Rev. the Bishop of Exeter. The next presentation he made was to the relative of a friend—not a political, but a professional friend—and now the Lord Chief Baron, but then the Conservative Member for Huntingdon. The third appointment was to one who might by accident have been a friend, a gentleman whose name was Coleridge, but who he believed was honestly and consistently opposed to him in political opinion. He would also say that he had made a wholesale sacrifice of his patronage, for he handed over to the Prelates all the livings held under the Great Seal, all the livings under 200l. a year to the Prelates—a proceeding which had been very much disapproved of by his political friends. He had been, perhaps, wrong, but he had done no harm to the Church. 787 This he knew, that this objection of his noble and learned Friend was very likely to be well founded, but it rather tended to show that the Church patronage of the Great Seal was far more likely to be perverted to party and political purposes when vested in First Lords of the Treasury than when dispensed by Lord Chancellors.
§ EARL GREYsaid, nothing could be more incorrect than to say that his noble and learned Friend had not answered the question. He had given a very good reason why the Bill was introduced into the House of Commons, rather than with their Lordships' House in the first instance; and that reason was, because attempts had been made to legislate on this subject, by various Governments, by Bills commencing in this House, and none of those Bills had gone down to the other House. That was a reason why the present Bill should begin in that House of Parliament; and the more he saw of the proceedings here, the more confirmed he was in the opinion, that the prospect of successful legislation, in a vast majority of cases, was greater, in regard to Bills introduced in the other House, in the first instance, than in this House. He believed, from the constitution of this House—and he had heard the same observation made by the noble Lord opposite (Lord Brougham)—it was essentially far more a House for the revision, than for the initiation of, legislation. He could hardly name a measure of any importance, passed of late years, which had not been begun in the other House; and there were many obvious reasons why that should be the case. The noble and learned Lord told his noble and learned Friend on the Woolsack, that, if he had been a little longer in the House, he would have known that their Lordships were not very regular in their proceedings. Undoubtedly that was too true; and he believed the noble and learned Lord might take credit to himself, almost exclusively, for having introduced that practice; because a disregard of the regulations of the House, which required that they should debate no question that was not immediately before them, dated from the period when the House received the advantage of the noble and learned Lord's presence. He had frequently attended the proceedings of the House, standing on the steps of the throne, in earlier days, and he had frequently witnessed that irregularities in their Lordships' proceedings were stopped with the almost universal assent of the Members, 788 which now-a-days were matters of ordinary occurrence. He could, if it were necessary, mention many instances of this. But he thought, irregular as they were, it was a very great inconvenience to discuss a measure which was not before them to the extent they had done to-night, and especially when it had been thrown out, in the course of that discussion, that the Bill which was to come before the other House had been disclaimed by his noble and learned Friend on the Woolsack, as if he were no party to it. He appealed to their Lordships if his noble and learned Friend had said anything of the kind. Indeed, his noble and learned Friend could not have said so; because he believed he was telling no secrets when he said that the Bill bore as much of the impression of his noble and learned Friend's mind as that of any other Member of the Cabinet. In short, he believed that his noble and learned Friend had the principal share in framing it. But the noble and learned Lord opposite seemed to think that the Bill was not in existence, because it had not yet been delivered in a printed form to the Members of the other House. It was only a few days since leave was given to bring in the Bill; and it was matter of everyday occurrence, that, after leave was given to introduce a measure, some interval elapsed before the printed Bill was delivered. In a very short space of time the Bill would be in the hands of Members of the other House, and in due time before this House. There was only one word more he would say on what he thought a most important part of the measure—that with reference to the Church preferment. On that point, when the noble and learned Lord looked back to the transactions to which he had referred, he would find he had made a little mistake—a very natural mistake at this distance of time—as to the transactions which occurred immediately after the time when he received the Great Seal, as to the disposal of an important piece of ecclesiastical preferment. But, with regard to ecclesiastical patronage generally, he must own he was surprised to hear from the noble and learned Lord that that subject occupied so small a portion of the time of the Lord Chancellor. He told them that all the Chancellor had to do was, to decide between the claims of individuals—that it was done in a moment—that it occupied no part of his time. He (Earl Grey) was sorry to hear it. He was sorry to learn from the noble and learned 789 Lord that that was the way in which he discharged this important and responsible duty. His opinion, on the contrary, was, that an individual holding that high office, when a living in his disposal became vacant, was bound to weigh the claims of the different candidates, and not to content himself with merely looking at the official letters, and then handing them over to his Secretary, deciding the claim with a scratch of his pen; no, he was bound to read the letters which he knew the Lord Chancellor received, stating the qualifications of the candidate, his past conduct, and the manner in which he had discharged his duty in other livings. If this were properly done, it ought to occupy a large portion of the Lord Chancellor's time. Besides, there was an obvious and clear advantage in uniting all the ecclesiastical patronage in the hands of one individual; and, as the Prime Minister was the individual called upon to advise the Crown with regard to the elevation of clergymen to the Episcopal Bench, he was bound to make himself acquainted with the character, the piety, and the other qualifications of the rising clergy; and as this was his duty at all events, the disposal of this patronage might, and would be, a very small demand upon his time. There would he, therefore, a clear economy of time in putting the whole patronage of the Crown into one hand; and he must say, further, that, on constitutional grounds, lie thought such an arrangement was highly desirable. They had not, to be sure, seen such things of late days; but, if they looked hack to no very distant period, they would find that there had been Prime Ministers and Lord Chancellors who wore seeking to strengthen their political influence against each other, and in that struggle ecclesiastical patronage was freely used. It appeared to him, therefore, to be extremely inconvenient that the ecclesiastical patronage of the Crown should be divided in the way it had been. But he had been led further on this point than he had intended. He meant, as far as possible, to adhere to the rule, which he thought was a wise one, that their Lordships should not discuss a Bill which was not before them; and, though he felt he had barely touched upon a point which could not have justice rendered to it, unless it was argued at much greater length, he thought it right, after what had fallen from noble and learned Lords, to guard himself to the extent to which he had done.
LORD BROUGHAMexplained, and quoted the dates when he conferred the ecclesiastical patronage he had formerly referred to.
§ LORD LYNDHURSTsaid, that he had never presented to a preferment without considering the letter of the applicant, and using every effort to make himself familiar with his case. But there was a great deal of formal correspondence; and that correspondence would take up a considerable portion of the Lord Chancellor's time if he conducted it himself: he threw it, therefore, as a matter of course, upon his Secretary; and if, after examining the claims of the different parties, he entertained a doubt upon the subject, he immediately addressed a letter to the bishop of the diocese, or applied to the College, for the purpose of obtaining information with regard to the claims of the party to the vacant preferment. So far as the Lord Chancellor was concerned, then, this occupied, comparatively speaking, but a small portion of his time. He now wished to know if there was a clause in the Bill of the Government to the effect that it should be in the discretion of the Master of the Rolls and the appellate jurisdiction of the Court of Chancery, whether appeals should be from them to this House, or not?
The LORD CHANCELLORsaid, it was at one time under consideration whether or not appeals in matters of practice should be restrained. They never thought of going beyond that. But when he (the Lord Chancellor) came to inquire how many appeals on points of practice had occurred, he found they were so few that they were not worth legislation, consequently no such clause would be inserted in the Bill.
§ LORD REDESDALEwould remind their Lordships that the reform of the Court of Chancery had formed part of the Queen's Speech, and yet two months had elapsed, while the Bill was not yet introduced into either House of Parliament. To comment upon such a circumstance in this House was perfectly regular, though to remark upon a Bill that was now before the other House of Parliament might not be strictly regular. But he rose to say that he thought the important point for consideration was the appellate jurisdiction of the House, and that, until that question was settled, for be presumed it was the intention of Her Majesty's Government to settle it, it would be useless to discuss what might be proposed in the Court of Chan- 791 cery. If they would make that House what it ought to be, an efficient appellate jurisdiction, they would materially alter the position of the noble Lord who presided in it. What he would suggest would be to make this House, not as a House, for that would be impossible, but as an appellate tribunal, sit to hear appeals all through the year; and he thought this might be done without any violation of constitutional principles. Their Lordships were aware that questions affecting the right of individuals to sit in this House were determined, not in the House, but were referred to a Committee of Privileges, which reported its decision to the House, and the House confirmed that decision. Now, what he would propose was, to bring the appeals before an Appellate Committee of the same character as the Committee of Privileges, and he did not see that there could be any constitutional objection to allow that Committee to sit after the prorogation of Parliament. If that were once established they might then transfer to it the jurisdiction of the Committee of Privy Council and other courts of appeal, and make this House one great court of appeal, thus effecting a great saving in expense both to the suitors and the public. It was very plain that such an extension of their Lordships' appellate jurisdiction must of necessity affect the Court of Chancery, and therefore he trusted that the subject would be brought before them in sufficient time for the consideration, not only of this House, but of the other House of Parliament. But the measure which the Government had intimated their intention to bring forward, was not yet before the House of Commons. What chance had it of coming before their Lordships before the month of July or August? and he would ask their Lordships if it was fitting that they should be called on to consider a measure of so much importance at that time? He, therefore, thought that the discussion to-night was not out of place: he did not think it was at all disorderly; and he had only to say further that he trusted the noble and learned Lord on the woolsack would bring forward the question of the appellate jurisdiction of the House at an early period, and that he would not only move for a Committee to consider the subject, but that he would he prepared with a measure to submit to the Committee, so that they might proceed with all expedition.
LORD BROUGHAMsaid, that though 792 his noble Friend was quite right in thinking that there was great convenience in broaching subjects which were not before them, because when a measure was brought formally before them it might then be too late for discussion, still he hoped it would not be supposed, because there was no argument in his noble Friend's plan for absorbing all other courts of appeal—even the Committee of Privy Council—and making this House the sole court of appeal; he hoped, he said, that because he (Lord Brougham) did not then state his fundamental objections to the whole plan, it would not be considered that he gave his assent to it in the slightest degree. An attempt of the same kind was made some years ago by his noble Friend the present Lord Chief Justice; but it was dissipated by the strong, powerful, and unanswerable arguments of his noble and learned Friend (Lord Lyndhurst), and there never had been an attempt to renew it since.
§ House adjourned till To-morrow.