§ LORD LYNDHURSTsaid, with reference, to the Common Law Procedure Bill, he had read it over with great attention; and it appeared to involve questions so nice in their character, that the discussion of it in the House would be impossible, consistently with a due regard to the Bill itself; and he, therefore, suggested that it should be referred to a Select Committee, to be there discussed in the first instance. He might mention that, having compared it with the Report of the Commissioners on which it professed to be founded, there seemed to be a great omission in the Bill. The Commissioners had proposed a great variety of alterations in the practice in the Common Law Courts; and had followed up their recommendation with a schedule of fees to be paid in the progress of a suit. This revision of the fees could not but be regarded as an essential part of any measure; it was, however, omitted from the present Bill; and if the Bill were to pass without it, the result would be to produce in the administration of the law the greatest possible confusion; because the fixed system of fees—partly founded on statutes, and partly on the authority of the Courts—could not be applied to the course of proceedings suggested by it. It, perhaps, might be said that their Lordships could not, consistently with the privileges of the other House, send down a Bill enacting the payment of fees. But that was not necessary, according to the usual course of proceeding adopted by their Lordships; for when fees or any money clauses formed part of any measure originating with their Lordships, those clauses were—although introduced in the first instance, and agreed to in that House—always afterwards struck out on the third reading, but printed with the Bill; so that the other House could, of course, see what had been the intention 419 of their Lordships upon the subject, and could exercise their own judgment as to the propriety of inserting the clauses. He would remind their Lordships, that if the other House inserted money clauses, their Lordships had no opportunity of altering them. The usual course would in this instance be for the benefit of the Bill, and he suggested that upon the Committee his noble and learned Friend could ascertain the fees suggested by the Commissioners, and move the reference of the Bill to a Select Committee.
The LORD CHANCELLORsaid, it did not appear to him to be necessary to refer the Bill to a Select Committee; but he was not at all surprised that his noble and learned Friend should have suggested such a course; on the contrary, he had anticipated it, and he had no objection to that course being adopted. And as his noble and learned Friend had on a former occasion intimated an opinion that the Bill did not go far enough, if his noble and learned Friend would suggest any clauses carrying the reform further, he should be ready to give them his best consideration. But at present his impression was, that his noble and learned Friend would find it extremely difficult to do so. Since the subject was last discussed—when his noble and learned Friend had expressed an opinion that it might be possible to adopt the proceedings of the County Courts into the Superior Courts—he had made himself acquainted with what that course of proceeding was, and had found that there was a statement by the plaintiff in a general sort of way as to what was his demand, but there was no such statement on the part of the defendant as to what was his defence; and so the causes actually went down to trial without anybody knowing what the question at issue was. He did not know whether his noble and learned Friend really had been aware that such was the course of proceeding; nor did he know whether his noble and learned Friend thought that the heavy business of this country could be carried on on such a system—causes going down to trial without the plaintiff knowing what the defence was. It struck him (the Lord Chancellor) that it was probable their Lordships might not adopt that view. Their Lordships would recollect that (as had been stated by the former Commission on the reform of Common Law Procedure) formerly the greatest inconvenience, and injury, and expense were incurred, the "general issue" 420 being allowed in almost all actions to put the plaintiff to the proof of everything in his case, material or not to the merits of the question really at issue. Great pains were taken to put an end to that system, and, unquestionably, considerable time was saved, and certainly great benefit attained, by the introduction of the New Rules (of 1835), which required that the defendant should state in particular what he meant to object or to rely on as his defence. If his noble and learned Friend was of opinion that the present Bill could be carried further, he (the Lord Chancellor) should be happy to receive his suggestions. As to the question of fees—it being the object of the measure to simplify the proceedings of Westminster Hall, and, as far as possible, to economise and expedite them, the Bill travelled through the whole course of a suit; and it was impossible to frame a list of fees before it was known what might be the opinion of their Lordships (especially of his noble and learned Friend), and until the Judges had been consulted as to what fees ought to be exacted, and the stages of the suit at which they should be paid. After the measure had proceeded a certain degree, he would be enabled to form a table of fees; which could not, indeed, go down to the House of Commons included in the Bill, but could, as his noble Friend had stated, be printed with the Bill, so that the other House would quite see the views and intentions of their Lordships on the subject.
§ LORD LYNDHURSTsaid his noble and learned Friend appeared to have forgotten that the table of fees had already been proposed by the Commissioners, and formed part of the Report. With respect to the remarks he had made regarding the comparison between the Courts of Common Law at Westminster and the County Courts, his remarks were founded upon an assumption of fact. The County Courts had jurisdiction in certain cases to the extent of 50l.; and he was told (and had heard it from his noble and learned Friend himself) that the jurisdiction had been exercised to the entire satisfaction of the suitors. Now, his (Lord Lyndhurst's) remark upon that was, if in that class of cases in which jurisdiction was given to the County Courts, by the simple machinery to which he had adverted, no inconvenience had resulted, he could see no reason why the same machinery should not be applied in the Superior Courts of 421 Justice in the same class of cases to a larger amount. The whole argument, however, rested on the assumption that there had resulted no inconvenience from the County Courts' machinery, and that the jurisdiction had been exercised in a manner perfectly satisfactory to the suitors and to the public. There was a question to which he desired to advert, on a different subject, but still connected with the administration of the law. He found by the Votes of the other House that the Bill for the Reform of the Court of Chancery, which had been the subject of so much conversation, was to be laid on the table on Monday next. He wished to ask his noble and learned Friend whether he could undertake to state that the Bill was in such a state of preparation as to render it possible that it could be laid upon the table by that time? He would mention that a report was in circulation in Westminster Hall, and in the profession generally, that his noble and learned Friend had great objections to that part of the Bill which related to the Master's Office. Perhaps this rumour was founded upon a misapprehension of what had fallen from his noble and learned Friend on a former occasion, and a consequent mis-statement in the newspapers; he therefore gave his noble and learned Friend an opportunity of setting himself right. As his noble and learned Friend had before this had ample time for considering the Report of the Commissioners, he would, doubtless, be able to express a distinct opinion upon the subject.
The LORD CHANCELLORdid not know what opportunity his noble and learned Friend might have had of considering the Report—he, no doubt, had leisure time which he could devote to the subject. He (the Lord Chancellor) had for his own part given to it the utmost time he could withdraw from the judicial and ministerial duties of his office; but he could not pretend that he had been able to make up his mind on every part of it. With regard to the rumour referred to, he begged to state that he had not expressed disapprobation of any part of the Report. he had expressed doubts whether certain parts of it could be carried out as desired by the Commissioners, not at all being indisposed to adopt their recommendations if they were practicable; as to which he repeated that he had doubts. The notice to which his noble and learned Friend had referred—as to the Chancery Bill—had 422 been given under some misapprehension, not by the Solicitor General, but by Lord John Russell upon mistake and misinformation. There was not, there could not be, any possibility of the Bill being in such a state as to be presented to the House by the time mentioned. It was a matter of great difficulty, requiring great consideration. It was in the hands of a gentleman well fitted to prepare it; and he (the Lord Chancellor) would do his utmost to expedite the preparation of it, and to adopt so much of it as could be carried out with benefit (though he was not prepared to say that the whole could be); but he was persuaded that the gentleman could scarcely have yet formed, even in his own mind, the shape of the Bill, and that it could not possibly be in a state to be produced to Parliament by the time which had been stated. With regard to the remark of his noble and learned Friend as to the present Bill, for reform of common law procedure not going far enough, he had understood the remark had been general, and had not understood it with the qualification alluded to by his noble and learned Friend as to the County Court system having worked satisfactorily and without inconvenience. But, he repeated, he had made inquiries, and had found that the County Court system had been found to involve very serious inconvenience—inconvenience which was likely to increase in the Courts of Westminster Hall if the same system were adopted. The inconvenience he alluded to was this: When the plaintiff had stated his case, the defendant, it not un-frequently happened, brought forward a defence quite unexpected; whereupon an application was usually made on the part of the plaintiff to adjourn the case, and such adjournments were not uncommon. His noble and learned Friend could form his own opinion how far it would be convenient in Westminster Hall that causes should be part heard and then adjourned. And it would be observed, that the class of cases which came to Westminster Hall would be far more complicated and difficult than those which went into the County Courts; and, therefore, it appeared probable that the number of adjournments in proportion to the number of cases would be greater in the Superior Courts. The inconvenience and injustice would be extreme if the plaintiff's case having been heard, the cause was then to be adjourned. Even in the class of cases common to the 423 Superior Courts and the County Courts, the inconvenience of the County Courts' system was great; and, if carried further, although the difficulty might not he greater in point of principle, it would he productive of far more injury; and he could hardly imagine that his noble and learned Friend really thought that such a system should he carried further.
LORD CAMPBELLsaid, he would not take part in the discussion on the Chancery Bill—at least at present—leaving it to his noble and learned Friend on the woolsack, and his noble and learned Friends who had occupied it. But having the honour to hold the office of Lord Chief Justice of England he felt it incumbent on him to express his earnest desire that the Bill for the amendment of procedure in the Courts of Common Law might pass with as little delay as possible. There were crying abuses which would he remedied by that Bill, which did more than had been done to alter and amend our legal procedure since the reign of Edward I. He was astonished when he heard his noble and learned Friend opposite (Lord Lyndhurst) say he was not satisfied with the immense length to which the measure would go, and that he would wish all regular or written proceedings to be abolished, and that the Courts of Westminster should return to the system of pleading ore tenus. He believed it was of the greatest importance, while we had trial by jury, to ascertain before the jury were impanelled what were the points they had to determine, and this could not be done without written statements of the case on the part of the plaintiff—of written answers on the part of the defendant, and the written reply of the plaintiff thereto. That was provided for by the Bill now upon their Lordships' table; which he hoped would soon be sent down to the other House, believing, as he did, that it would be productive of great good. He was anxious that it should not he delayed until the schedule of fees was finally arranged. The reform would not, certainly, he completed until there were a new arrangement of fees, the present system being discreditable; but the subject was one of great difficulty, and was not necessarily part of this Bill. Indeed, he had understood that it had been the plan of the Government to pass the Bill brought into that House, and to introduce into the other House a Bill for the regulation of the fees, which could only be fitly considered in the other House. He implored their Lord- 424 ships to allow the Bill to pass, with all the improvements possible, without waiting for the settlement of the fees.
§ LORD LYNDHURSTremarked, with reference to the County Courts and Common Law Courts procedure—if in the Select Committee it appeared—comparing the two systems together as to the class of cases in which they had a common jurisdiction—if it were found that the course of procedure proposed in this Bill was preferable, and that it obviated the inconveniences alleged by his noble and learned Friend to exist in the County Courts—it would be material to consider whether the inconveniences alluded to ought not to be obviated in the County Courts by the adoption of proceedings similar to those proposed in the Common Law Courts Procedure Bill. With regard to the reply given by his noble and learned Friend as to the Court of Chancery, he had never supposed it possible that his noble and learned Friend had made himself master of all the details of the Report, so as to make up his mind completely; but the particular point to which he had directed his noble and learned Friend's attention was one of such paramount importance that he supposed his noble and learned Friend must surely have made tip his mind upon it by this time; he meant as to the Master's Office. His noble and learned Friend, however, had given no answer upon that point.
The LORD CHANCELLORsaid, such questions as those put by his noble arid learned Friend scarcely admitted of an answer without entering into explanations longer than it would he expedient to give on such occasions. He must deprecate these endeavours to anticipate the discussion of the measure in a manner most inconvenient. However, he never wished to hang back in answering distinctly any question put to him in that House; although he was aware that in answering such questions much time was consumed, not at all to the advantage of the public. He had no objection to that part of the Bill which related to the Master's Office, if when he came to see the arrangement of the duties the Judges were to perform at chambers, the new arrangement appeared advantageous. If, however, Judges at 6,000l. a year were to be appointed to perform duties which Masters in Chancery now performed for much less—if the Judges were to discharge at chambers the duties which Masters in Chancery now performed, with sub- 425 ordinate officers, at diminished salaries—when he saw how these duties were divided, and what was to be done by the Judges—then he should be able to make up his mind. If his noble and learned Friend had made up his own mind upon the matter so soon after the appearance of the Report, he congratulated him; his noble and learned Friend had more facilities for making up his mind than he had. He, however, (the Lord Chancellor) laboured under rather heavier responsibilities; and be certainly had not yet made up his mind, though it had not been for want of applying himself to the consideration of the subject as speedily and as earnestly as possible. But the fact was, that he had not been party to the deliberations of the Commissioners, and knew nothing of their proceedings until the Report came out, with one exception alone. He had not anticipated the recommendation for the annihilation of the office of Master in Chancery, and when a vacancy occurred he contemplated filling it up; but having communicated his intention to a Member of the Government, he was asked, "Are you not aware that the Commissioners are contemplating the abolition of the office?" He (the Lord Chancellor) had not been aware of it, and had applied accordingly to the Commissioners to know whether they had formed such an intention. The answer was, that the intention was not formed, though the subject had been mentioned, and was under consideration. Of course he (the Lord Chancellor) did not choose to act upon that, and requested a more definite answer. The second answer, however, was much to the same effect as the former one. He then requested a meeting of the Commissioners to be called, and that they would be good enough to intimate whether they had the matter in contemplation. He received a general answer that they had such an intention, and upon that he had forborne to make the appointment. But he was not before aware, and had no suggestion as to what was under contemplation, and had no opportunity, therefore, of offering any suggestions for their consideration. When the Report came out a few days ago, in the midst of other business he had done his best to consider it; but as yet he had not been able to express a decisive opinion as to the details for carrying it out. It was certainly a most valuable Report, the result of great labour, and marked by great intelligence, and the public were much indebted to the Commis- 426 sioners; and he had no doubt that the measure would result in the greatest advantage. Whether those who almost stifled the Report with their commendations were prepared to go the whole length of it, he did not know; but he could at present give no decisive opinion as to the abolition of the office of Master in Chancery one way or the other, and could only say that if the advantages anticipated could be secured he should be well satisfied.
LORD BROUGHAMsaid, it had often fallen to his lot to hear questions put and answers offered both in that and in the other House of Parliament; but he had never heard a plainer question put than that of his noble and learned Friend (Lord Lyndhurst); nor had he ever heard an answer more unsatisfactory and obscure than that of his noble and learned Friend on the woolsack. It was composed of so many "ifs," and "untils," and "whens," and "thens," and with such a variety of other qualifications, that he defied any human being to comprehend the result of it—except, perhaps, this much—that when his noble and learned Friend (the Lord Chancellor) had time to peruse and consider the report—if he should be of opinion, upon so considering it, that he could agree with it, why then he would agree with it; but that until he found, upon consideration, that he approved of the report, he could not approve of it. His noble and learned Friend had really given no other answer whatever. If his noble and learned Friend were in such a state of entire doubt or of thick darkness upon the whole subject—why, until the light should break in upon him—until he could make up his mind upon the matter, of course their Lordships could scarcely expect any other answer. But then he felt bitter disappointment when be found a Bill announced in the other House of Parliament, in pursuance of a passage in the Speech from the Throne, as about to be submitted to Parliament on the Report of a Commission, and therefore it was to be presumed not to be against that report—and least of all could it be expected to be in the most important part of it opposed to that report—a report, too, which his noble and learned Friend almost stifled with his commendations! when he found such a measure propounded in the Queen's Speech, and yet his noble and learned Friend could not declare that he approved of this most important part of it—surely their Lordships and the country had a right to expect that on such a measure, resolved on by the Go- 427 vernment, there should not be so much difficulty and misunderstanding among the Members of the Government—and a notice given in the one House by the Prime Minister disavowed in the other by the Lord Chancellor. Why, there did not seem to be such good understanding between his noble and learned Friend on the woolsack and his noble Friend at the head of the Government as one would naturally have imagined—especially on a subject which was peculiarly in the department of his noble and learned Friend, and not in the department of his noble Friend (Lord John Russell) at all. A much better understanding seemed to prevail up to this period of the Session between his noble Friend here (the Earl of Derby), and his noble Friend and connexion elsewhere (Lord John Russell), almost equal to the mutual kindness of a pair—their namesakes—referred to in story for their domestic felicity. He wished the same existed between the Woolsack and the Treasury Bench. It was plain from the observation of his noble and learned Friend, that the greatest and most important part of the measure, although it consisted in making the Judges work out their own decrees with the aid of such officers as might be necessary, but without the Master's Office, yet his noble and learned Friend on the woolsack had not even arrived at an opinion upon the subject; and, though inclined towards the report, could not, until he had gone into it, give their Lordships any prospect of his adopting it. Really, after this, he must confess that his hopes as to this great measure of Chancery reform were dashed from his lips.
The LORD CHANCELLORreminded the House, that, at the commencement of the Session, his noble and learned Friends had complained that their Lordships had but little to do; nevertheless, from the prospect which they now had before them, he thought that their Lordships might discharge their minds from that misapprehension. His noble and learned Friend, who had just sat down, even before a measure which was only in contemplation, had been introduced into Parliament—for a purpose which could lead to no useful result, and which he nevertheless followed up with speeches after speeches, without any advantage to the country—had contrived to misunderstand the few words which he uttered in way of answer respecting that measure, and had complained that he (the Lord Chancellor) was not disposed to 428 bring in a Bill which would require amendment every year, and to substitute for an old system a new code, which year after year would require to be altered and improved. And all this was, first, because a report had been presented not more than ten days ago, reversing to the entire extent the whole system of proceedings in Chancery; and, next, because he had not made himself master of that report, involved as he was in other duties, both in that House and the Court of Chancery—a report, too, so voluminous that, if he had devoted to it all his time, both day and night, since its appearance, he would not have had more than sufficient time to appreciate its merits. Was it, then, fair or just to him personally that these two noble and learned Lords should be indulged nightly in the delivery of these speeches, or rather attacks against him? He asked their Lordships to judge what motives induced these noble and learned Lords to put these questions to him night after night? If their Lordships could not find any ground of public importance for them, he should like to know what other ground could be found for them? He hoped that he was not wanting in candour; but if a question was put to him when he had had no time for reflecting upon it—as both the noble and learned Lords well knew that in this instance he had not, whatever they might say to the contrary—it was unjust to him individually, and he submitted to their Lordships whether it was fitting and proper that his noble Friends should thus attack him night after night? He had considered that part of the report which related to the abolition of the Master's Office. He was not satisfied as to the mode in which their places were to be supplied—he could not say that he knew of any plan by which the object of the Commissioners could be accomplished with advantage to the public. No doubt it could be accomplished with advantage if his two noble and learned Friends occupied places, as they once did, on the woolsack. Their Lordships saw how they were now treated, merely because they had nothing to do. He repeated once more that he doubted how far the plan of the Commissioners, as regarded the abolition of the Master's Office, could be carried out. He was not to be satisfied by mere declamation that this or that plan could be accomplished; he required proof. In conclusion, he said, that if his noble snd learned Friends persisted in pursuing this course 429 on future evenings, he trusted their Lordships would not consider him disrespectful if he declined to answer them.
§ LORD LYNDHURSTsaid, that his noble and learned Friend had not experienced any attack from him. All that he had done was to ask a simple question.
LORD BROUGHAMobserved, that all their Lordships who had heard his noble and learned Friend's explanatory answer to Lord Lyndhurst must have seen that in point of fact it was no answer at all. If his noble and learned Friend had not made up his mind, as he said that he had not, no one could expect him to give an opinion. He (Lord Brougham) had then expressed the disappointment which he felt at having his hopes of Chancery reform dashed to the ground, and that disappointment was the more intense because the subject of that reform had been mentioned and the measure as prepared in Her Majesty's Speech from the Throne.
§ EARL GREYstated that the noble and learned Lord was not using the words of Her Majesty's Speech, but was making his own version of them. Her Majesty had not said that the Government had such measures prepared, but only that the Government had directed them to be prepared.
LORD BROUGHAMsaid, that the Speech spoke of measures prepared to be brought into Parliament—of measures founded on the report, and therefore in accordance with it. This was tantement to story that the measures recommended and the report were to be brought forward. Taking Her Majesty's Speech, and the notice of Motion given by a Member of the Government together, their Lordships had a right to expect that the substance of the measure, however he migth differ as to its details, had obtained the approbation of his noble and learned Friend on the woolsack.