Lords Sitting of 19 April 1852

MINUTES.
PUBLIC BILLS.—1a Master in Chancery Abolition.
Reported.—Bishoprick of Quebec.
3a Mutiny; Marine Mutiny.

MASTER IN CHANCERY ABOLITION BILL.
The LORD CHANCELLOR: I rise, my Lords, to lay on the table of the House a Bill to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make Provision for the more speedy and efficient Despatch of Business in the said Court. My Lords, after the statement which I made on a former occasion, it will not be necessary for me to detain your Lordships at any length in stating what are the provisions of the present Bill. They have been very anxiously considered; and I have had the great advantage of con-

799
suiting with the four Judges in Equity, the Master of the Rolls, and the three Vice-Chancellors, in preparing it: these are the Judges by whom its provisions will be worked, and upon whose exertions it will mainly depend whether the plan will be successful or not. I am sure it must be a great satisfaction to your Lordships to know that it would be quite impossible to find four persons more learned, more able, and more willing to grapple with the difficulties which they will have to encounter; and with such assistance, I hope to put this new scheme completely and well before the public. There are now nine Masters in Chancery—one office being vacant. The Bill proposes, in order to bring the new scheme into execution as quickly as may be, but still with a careful view to the public interest, and as the commencement of its operation, which is fixed for the first day of Michaelmas term, this year, to abolish the office of four of the Masters. It is proposed that the four senior Masters shall then be released from the duties of their office, leaving five Masters to the duties which will still devolve upon them. These duties will be, winding up all matters which shall then be before them, and such other matters as, until the new scheme shall be in perfect operation, the Lord Chancellor may think proper to devolve on them. They will also have, from the moment that the Bill passes, powers which they never before possessed. It has always been a complaint, and a very just complaint—and the reason why the Masters have themselves been visited with the consequences of the delays which have taken place in their offices—that they have no power to compel suitors to proceed with the matters which had been brought before them. However anxious they might be to wind up a matter, they were utterly powerless to compel parties who were not diligent to proceed. I propose to supply by this Bill the want of that power; and at once to invest the Masters, subject to an appeal to the Court, with power to compel the parties who have matters depending in the Masters' Offices to go in and to wind them up, and thus entirely to discharge the Court from any further interference with them. I believe this will be found to be a very considerable step towards remedying the delays and abuses of which so much complaint has been made. I am disposed to give the same power to the Court of Chancery itself—that is, in future, to compel parties before the Court to
800
proceed with their cases, and not to permit them to wait from year to year, and for many years. I have tried already the efficacy of such a system when I presided in the Court of Chancery in Ireland, by orders which I had power to make, and by which I compelled parties who had cases standing over for twenty, thirty, or even forty years, to bring them on within a given time; arid I have the satisfaction of knowing that before I left that country every single old case was finally disposed of. Under the existing system in this country, the Court of Chancery is stigmatised as creating delays which it cannot prevent, and which it is most anxious to avoid. I have already stated that the present scheme at once dismisses the four senior Masters. I have taken great care in framing the Bill, that there shall be no favouritism in the dismissal of the Masters. They are to be dismissed according to their seniority, and in accordance with what is considered the general opinion, they are to have the whole of their salaries when so dismissed. The remaining five Masters will continue to carry on the business of the Court under the new powers proposed to be given, until all matters in their offices are wound up. The new scheme, as your Lordships are aware, is this: That the four Judges in Equity, namely, the Master of the Rolls, and the three Vice-Chancellors, shall have under them each a chief clerk, and each chief clerk a second clerk under him. They are to carry on in chambers the whole of the business of their respective Courts hitherto transacted by the Masters. There are to be no references to any other officer not attached to them. There are to be no References to the Master, which create great expense. There are to be no Reports from the Master, which also create great expense. There are to be no States of Facts, which necessarily create great expense. All these matters of form are to be entirely abolished, and the Judge himself, with the assistance of his chief clerk and his second clerk, is to transact in chambers so much, of the business before him as may not be proper to be heard by himself in public. The effect will be, that the Judge will go to chambers at whatever hour he may think necessary, or for the whole day, if he thinks it expedient, and he will there confer with his own officer, and consider with; him the different points on which it may be necessary to make inquiry. If it is necessary that there should be a report to proceed upon (sometimes that must hap-

801
pen), the Judge will have the power to draw it up in his own chambers, or to send for his registrar, who would do so; and thus there would be a constat on which the Judge might afterwards proceed. This Bill also defines the powers, without restricting them, which the Judges are to have in chambers, and those which are to be exercised by them in Court. I must, say it has always appeared to me, if any new scheme of this kind is to have a fair chance, you must condescend to work it out yourselves, and see how it is likely to work under the separate clauses which have been prepared; and not merely to issue General Orders for regulating the details of procedure—a course which I do not think the proper means to bring any such new scheme to a fair test. When the Judge gets into his chambers, the chief clerk and the clerk under him will give him their assistance. I have thought it right that each Judge should have the appointment of his own chief clerk, so that he should have a person of whom he himself approved to conduct his business; and upon a like principle I have given the appointment of the second clerk to the chief clerk. In that way, I hope there will be a strong feeling amongst the parties, which will enable them to execute the duties imposed on them in a manner satisfactory to themselves and the public. It will, of course, be necessary, when the Bill comes into operation, that there should be some place provided where the four Judges can have, without delay, the benefit of the assistance of their clerks. I am most anxious that the measure should not be delayed until such places can be erected; and I therefore propose that the Master of the Rolls shall accommodate his chief clerk and the other clerk at the Rolls Office, and that the three Vice-Chancellors shall each have a set of commodious chambers furnished for them in Lincoln's Inn, in which they can carry on their business until the country makes further provision for them. Ultimately, the Masters' Offices will be altogether relieved from their present uses; and as the building which they now occupy belongs to the Crown, I propose that, with the consent of the Crown, that property shall be sold, and the money which will be produced, I believe, will be sufficient for the erection of commodious Courts for the three Vice-Chancellors, with rooms annexed in which their officers can be accommodated. I make a great point of this. I am most anxious that the new Claris shall not find their way to South-
802
ampton Buildings. I feel satisfied that at such a distance from the Judges, and from old associations, and from the class of persons they will be likely to meet there, they will act as if they were Masters and not clerks; and I am afraid that the scheme would never answer. I am, therefore, anxious to find other and more convenient means for the temporary accommodation of these Judges and their officers. It would be idle to go into further details, after the statement which I made on a former occasion. But I may as well state that, as the law now stands, there is no power in case one of the Vice-Chancellors should cease to occupy his office—there is no power in the Crown to appoint a new Vice-Chancellor. I propose that, by this Bill, there should be a power given to the Crown, if it thinks fit, to appoint a successor from time to time to any Vice-Chancellor vacating his office, for I am of opinion that the plan I now propose cannot be worked out with less than the present judicial staff of the Court of Chancery; but I hope the scheme will be enabled to work without the appointment of other and additional Judges. Nothing can work better than the Court is now working with the two Lords Justices—one of whom (Lord Cranworth) sits near me, with the Master of the Rolls, and the three Vice-Chancellors. I must, therefore, confess that I should be very sorry to see any addition made to the number of the Judges. I am ready to admit that there may be this inconvenience in the new scheme: When at Common Law one of the five Judges of each Court leaves to attend at chambers, there is still a full Court remaining; but in the Court of Chancery, when a single Judge breaks off his sitting, either in the middle of the day or for the whole day, as it may be found necessary, his Court will be wholly closed, and during the time that he is sitting at chambers, the public business of his Court cannot be carried on. This inconvenience may be experienced at first; but I hope that the facility, the cheapness, the speed, and the ease to the suitor and to the Judge with which the business will be carried on, will more than compensate for this disadvantage. Whilst on the subject of the reform of the Court of Chancery, I must say a word with respect to the manner in which independent measures of law reform are constantly brought forward by noble and learned Lords who take an interest in the subject. I regret that my noble and learned Friend (Lord Brougham),

803
to whom the country is indebted for very material and important measures of reform, is not in his place; but my noble and learned Friend has introduced in the present Session a Bill for the extension of the jurisdiction of the County Courts; and that Bill I found nearly ready to leave this House when I took my seat here. I had no time to look into it, and the Bill passed and went to the other House, where it now is. I am now perfectly convinced that it will interfere with the regulations contained in the present Bill; and I believe that it will be impossible to pass that Bill without seeing how far it would square and dovetail with the provisions of this Bill. As there is no man in the country more anxious than my noble and and learned Friend now absent that this Bill for the abolition of the Masters' Offices should pass, he will, I am sure, be the first to agree that the Bill I have referred to should wait until this Bill has been passed, until it can be seen how much of that Bill can be with propriety passed, so as to be an assistance and not an hindrance or obstacle in the way of the working of this Bill. This measure relates wholly to the abolition of the Masters' Offices, and the commission of their duties, to the Judges of the Court of Chancery; but there is still a very important portion of the Report of the Commissioners to be carried into execution—that which relates to procedure and practice of the Court of Chancery—that practice, I mean, which is the very essence of all procedure. The recommendations of that part of their Report will shorten and cheapen proceedings in Chancery. A Bill to carry out those recommendations is now in progress of preparation, and I hope in the course of about three weeks, with the assistance of my noble and learned Friend near me—(Lord Cranworth), and the other Judges of the Courts of Equity, which I know I shall have—that I shall be able to lay on the table of this House a measure which, with the Bill now before your Lordships, will carry into execution all the propositions which have been made by the Commissioners for the reform of the Court of Chancery. I will not detain your Lordships further by going through the clauses of the present measure in detail; but I am sure that you will agree with me that, as far as these legal measures go, no time has been lost in preparing them, and that as far as the general question of law reform extends, the assurance given by the noble Earl (the
804
Earl of Derby) that no delay should be suffered to take place in submitting to the consideration of Parliament those measures which he deemed to be of utility and public interest, has not been lost sight of by Her Majesty's Government; and, for the purpose of redeeming to some extent that Assurance, I am happy to have the opportunity of laying this Bill on the table of your Lordships' House.
LORD CRANWORTHsaid, the question of remodelling the whole principle and practice of the Court of Chancery was of extreme importance, and it was impossible at the present moment to express any opinion on the measure intended to be introduced; but he was anxious not to lose the opportunity of expressing his entire concurrence in the mode in which his noble and learned Friend proposed to carry into effect the recommendation of the Commissioners as to the abolition of the Masters' Offices. He believed the great abuses in the Masters' Offices had arisen from the circumstance of their being too much of an independent tribunal, and not under the immediate daily or weekly supervision of the heads of the Court; and from the statement of his noble and learned Friend, he understood it was the object of his Bill to correct that abuse, by giving an efficient control over those who were henceforth to exercise the duties which up to this time had been performed by the Masters. In stating that he considered the Masters' Offices too much of an independent tribunal, he wished to speak with the most perfect respect of the gentlemen who had filled the office of Masters, many of whom were distinguished lawyers; but it was in the nature of things that those who had been meant only as auxiliaries should have come to form what too much resembled independent tribunals. He did not wish to see any increase in the number of Chancery Judges; for that increase would lead to an inconvenient multiplication, and perhaps even to a diversity of decisions. The way in which his noble and learned Friend proposed to abolish the offices of the Masters, was in his opinion the best that could be devised.
LORD CAMPBELL, having paid much consideration to the subject, conceived this Bill to be well worth the consideration of their Lordships; he therefore rejoiced that it had been brought in under such high auspices as those of his noble and learned Friend on the woolsack. These Masters had drawn down upon the Court of

805
Chancery all the obloquy which now rested on it. Whatever assistance might be given to the Lord Chancellor by the Master of the Rolls and the Vice-Chancellors, so surely as a Bill in Chancery got into the Master's Office did it sleep on from year to year, or rather from generation to generation. All attempts to reform these offices had hitherto been ineffectual; and nothing remained but the course which had now been taken by his noble and learned Friend. He would not enter into the question of the fusion of law and equity which had lately been much discussed; but he would lay down this principle, that one Court should decide a cause from its beginning to its end, and that the suitors should not be sent from one court to another, almost at the caprice of the Judges. When an action had been commenced in a Court of Common Law, what could be the necessity of resorting to a Court of Equity? Why should not the Court of Common Law do complete justice between the parties? He thought that the Courts of Common Law should be empowered to grant injunctions especially in cases of copyright, infringement of patents, and nuisances, when the case had once been established by the verdict of a jury. In a recent case, tried at the Surrey Assizes, a verdict was obtained against a Roman Catholic establishment for ringing bells. As soon as the verdict was obtained, the ringing began again, and an application was obliged to be made to the Court of Chancery to stop the nuisance. He (Lord Campbell) should have thought that the Court of Common Law, on the production of the judgment in such a case, should at once have the power of granting an injunction to prevent the repetition of such a nuisance. So, too, in cases where a copyright was once established, the Courts of Common Law should have at once the power of issuing an injunction to prevent all future violation of it. He would merely add that he hoped that the present measure would be successful under the auspices of his noble and learned Friend.
The LORD CHANCELLORsaid, that he would not enter into the large question which had just been opened by his noble and learned Friend the Lord Chief Justice. He would, however, take the liberty of stating that the second Bill which he proposed to introduce for the improvement of the proceedings in the Court of Chancery, would, in a great measure, prevent the necessity of sending
806
cases from the Courts of Common Law to the Courts of Equity. He proposed to introduce a clause for that purpose; and if, for instance, in an action of ejectment, the Common Law Judge should think that the estate was an equitable one, in which case he could not decide it, then he proposed to remedy that defect by giving the Common Law Judge the right to send a case to the Court of Equity to ask whether there was such an equitable estate as ought to be clothed with the legal estate. This would simply cost nothing, and would be done expeditiously. As to the power of granting a perpetual injunction, that was so much a creature of equity, and so much affected in its use by surrounding circumstances, that he was afraid to say it would be practicable to transfer it to a Court of Law.
Bill read 1a.
House adjourned till To-morrow.