MASTER IN CHANCERY ABOLITION BILL. (Hansard, 28 June 1852)

The LORD CHANCELLOR
moved, that the Commons' Amendments in these Bills he considered. The noble and learned Lord, having described the Amendments, said that, although he dissented from many of them, he did not propose that the House should reject them—with one exception, however. He understood that a learned person was represented to have stated that the proposal to dispose of the Masters' offices, in Southampton-buildings, and provide chambers elsewhere for the Equity Judges, was a romantic whim. On the contrary, it was founded upon a knowledge of human nature; and the only way to make the scheme answer, would be found to be by bringing the clerks into immediate and personal communication with the Judges, and that could only be done by providing accommodation for them in the same building. His (the Lord Chancellor's) object had been to come as near to that result as he could, and have the chambers as near the Judges as possible. He regretted to find that the House of Commons had struck out a clause which would have given power to a court of law to send a case for the opinion of a court of equity, and vice versâ. He had proposed that, where a Judge found the objection raised that the plaintiff's title was only equitable, then, instead of all the expense of the action being thrown away, the Judge should have power to ask the opinion of a court of equity whether the plaintiff had a right to the legal estate; and if that court held in the affirmative, the Judge might order a verdict to be entered for the plaintiff, notwithstanding that objection. The Commons had also inserted a clause, of which he highly disapproved, taking away from courts of equity the power of sending cases for the opinion of the courts of law—a power which would be peculiarly advantageous under the new system, because the Judge in his chamber with his clerk could at once settle the case. It was seldom that in equity you could get a pure decision upon a pure question of law unembarrassed by the facts; and the abolition of the power in question would add much to the expense to which parties would be put. But, though he disapproved of these Amendments, he was not disposed to risk the Bill by asking their Lordships to 1344 refuse to agree to them. It was represented that when the Master in Chancery Abolition Bill was read a second time in the House of Commons, the Attorney General of the late Government stated, "that the Bill had been mutilated and entirely spoilt by the Lord Chancellor, and that it was now a different measure from that introduced in conformity with the recommendations of the Chancery Commissioners." That was a strange statement, for it was under his (the Lord Chancellor's) direction that the measure was framed. He was deeply indebted to Sir J. Graham for vindicating him, and stating that the recommendations of the Commissioners had been fully and fairly carried out. After that he hardly expected to find the late Prime Minister speaking thus: Having, in his review of the measures which had been pushed forward during the present Session, stated that most of the measures of the present Government had their origin with the late Government, the noble Lord said— Of these, Chancery reform was one of the most important. That was no party question. I am far from asking credit for it as a party measure; but a Commission having been instituted by the late Government, made their report upon the subject, and it was announced in the Queen's Speech that on that subject a measure would be introduced; the [present] Government introduced a Bill, but even at the last moment there were clauses in it so objectionable, that my right hon. Friend the Member for Ripon, who belonged to the Commission, had to insist on the Report of the Commissioners being carried into effect, in order to make it a good and useful measure."—[3 Hansard, cxxii. 640.] He (the Lord Chancellor) would not indulge in a single word of recrimination; but he would say that all this was a direct misstatement. He would state that the new measure had been most fully considered, not only under his own authority—for he devoted much time to the subject—but he had had the assistance and advice of the four Equity Judges, who had gone through every clause word by word, and had given their approbation to the whole of its provisions. In considering the second Bill, he had had the additional assistance of the two Lords Justices; and he must say that no Bill had over been more thoroughly and attentively considered than that measure. Though he differed from some of the alterations made by the House of Commons, that House was competent in every way to form an opinion, and he could not find fault either with its power or disposition to make the alterations which had 1345 been made. He had undertaken to carry out the Report, and he had done so, not servilely tying himself to every word of its recommendations, but honestly taking their sense and meaning. No one was more ready than himself to thank those Commissioners, and they deserved all the compliments paid them; but, though great respect was due to the report of such eminent men, their report was not law, and it was not to be expected that every single proposition of theirs was to be carried out exactly in the way they proposed. The noble and learned Lord concluded with moving that the Commons' Amendments be agreed to, subject to a slight alteration in the form of one of them.

§ LORD LYNDHURST
said, that when the present Administration came into office, he despaired of the success of these measures, at least in the present Session of Parliament. But his noble and learned Friend the Lord Chancellor, notwithstanding that he had been suffering from illness, had earnestly applied himself to the task, and, by his extraordinary industry and entire mastery of the subject, bad finally accomplished that which he (Lord Lyndhurst) had thought almost impossible; and he must congratulate the country on these great and important measures being brought to a successful issue. He might mention also that there was a very heavy arrear of judicial business in that House when his noble and learned Friend took office, and that that arrear had now been, to a great extent, removed, owing to the industry, learning, and experience of his noble and learned Friend.

§ LORD CRANWORTH
said, that having been consulted by his noble and learned Friend on the woolsack, he thought that there must be some misunderstanding with respect to that which was said to have occurred in "another place." The statement was that his noble and learned Friend had "mutilated" the Bill. Such a statement carried its own refutation on the face of it, for it was his noble and learned Friend's own Bill. He (Lord Cranworth) thought that there were one or two provisions recommended by the Commissioners which were very objectionable. There was one clause in particular which he had wished to have withdrawn. A most unfortunate alteration had been made by the other House in omitting the clause giving power to the Court of Chancery of sending cases to the Courts of Common Law. The 1346 result would be that instead of a cheap and speedy mode of getting a decision on a case stated, and argued by one counsel on each side, there must be an action brought, and the parties would be put to great loss of time and heavy expense. But as to the power to send cases the other way (from Law to Equity Courts), he did not think that would have been an improvement. Upon the whole, he believed these measures would be of most essential use, and, though objecting to one or two Amendments, he thought it would be well not to risk the fate of the Bill by pressing such objections.

LORD CAMPBELL
was anxious to see the power retained in the Court of Chancery of sending cases to a Court of Common Law. He spoke with some disinterestedness on that point, because some of the most laborious duties which the Judges in the Common Law Courts had to perform, arose in consideration of eases sent to them from the Court of Chancery, he had had some experience in Courts of Equity; and he doubted very much whether cases of that nature would be better dealt with in such Courts than in those of Common Law. For one thing, they would be argued by more counsel—perhaps by seven or eight on each side—whereas in the Courts of Common Law it was rare in such cases that more than one counsel appeared on a side. The Common Law Bench, therefore, came speedily to a decision,

LORD BROUGHAM
concurred with his noble and learned Friend in thinking that it was unfortunate that the Bill, as it now stood, took away from the Courts of Equity the power of sending to the Courts of Common Law questions of law arising in causes in which these points were mixed up with matters of fact and matters of equity. It might be said that the Lord Chancellor or the Vice-Chancellor might now have the assistance of a Common Law Judge; but it was much more satisfactory to have points of law deliberately argued in a Court of Common Law, where they could be taken altogether, freed from the mixture of facts and of equity. He thought the present practice of sending cases to a Court of Common Law was an excellent mode of getting a clear, neat, and distinct opinion upon the matter of law. In the Courts of Common Law, too, they had the authority of four Judges, and it was much less likely that 1347 the party against whom a decision was given would appeal against their judgment than against the decision of one Common Law Judge sitting with one Judge in Equity. He therefore thought, with his noble and learned Friend, that it might be advisable to disagree with the Amendment. He could not close those few remarks without joining all who had already expressed themselves in stating the strong opinion he entertained of the invaluable benefits which these measures would confer on the jurisprudence of this country. He did think, with all the improvement the law had received of late years, that there had not been any measures sanctioned by the Legislature which would bear comparison in point of importance with those measures of which he was now speaking. Praise had been bestowed on those connected with the preparation and carrying into effect of those important measures by much higher authorities than himself; but he could not help saying that all parties concerned were well deserving the endless gratitude of the country. It was impossible to name the Commissioners without feeling the respect and gratitude which the country owed to them for their enlightened and valuable labours. The late Government deserved the greatest praise for the pains which they had taken to give effect to the reports of those Commissioners whom they had appointed, and whose plan they entirely adopted. His noble and learned Friend the present Lord Chancellor no sooner came to the woolsack than he also adopted the Report. His noble had learned Friend had also applied himself again and again to the whole subject, and given to the preparation of the measures recommended by the Commissioners all the benefits of his long experience, his great learning, and his distinguished talents. He (Lord Brougham) believed there must be some mistake as to what had taken place elsewhere; for there would not surely be any attempt to deprive his noble and learned Friend of the praise which was justly due to him. He was now performing what he knew to be a superfluous and he believed also an unpopular task—that of general commendation; what he said was little likely to meet with acceptance either in Parliament or out of doors from those whose judgments were warped by party connnexions and party views; but it was the happiness of those who act unfettered by the trammels of party to enjoy at all times the privilege 1348 which the Roman historian described as only an occasional felicity—rara temporis felicitas—that of thinking as they please, and speaking as they think.