Lords Sitting of 12 March 1852

MINUTES.
Sat first.—The Marquess of Bath, after the Death of his Grandfather.
PUBLIC BILLS.—1a Commons Inclosure; Law of Wills Amendment.

THE POLICY OF THE NEW GOVERNMENT—A DUTY ON CORN.
LORD BEAUMONTgave notice that, on Monday next, he should present a petition to their Lordships, complaining of the injury which the petitioners suffered in consequence of their uncertainty as to the intentions of Her Majesty's Government with regard to the importation of foreign corn; and, in presenting that petition, he should avail himself of the opportunity to ask the noble Earl at the head of the Administration, whether or not it was the intention of Her Majesty's Government to recommend to Parliament any alteration in the present policy with reference to the importation of foreign corn as soon as the opinion of the country could be taken, and another Parliament assembled?
The EARL of ESSEXwould venture to detain their Lordships a few moments, while he expressed his regret that indisposition on the evening when the noble Earl at the head of Her Majesty's Government stated his views and intentions to the House prevented him from then saying how cordially he agreed with what fell from the noble Earl near him (the Earl of Aberdeen), when he declared in so frank and straightforward a manner how entirely unchanged were his opinions in regard to the commercial policy transmitted to us by that great and eminent man Sir Robert Peel. The noble Earl, on that occasion, expressed his belief, that few or none of those who then followed the standard of the right hon. Baronet had since changed their opinions on that subject. He (Lord Essex), for himself, at least, could truly aver that such was the case—that the opinions he had at that time deliberately adopted, he had not since seen reason to

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repent of or to recall. On the contrary, with the noble Earl, he believed many benefits had arisen from the adoption of that policy—many as regarded agriculture, many more as regarded the country at large. And, although be frankly admitted that those benefits had not been unaccompanied by much distress and anxiety, yet he believed that had arisen, not so much from those measures themselves, as from the not unnatural alarm and uncertainty dependent on such a great and extensive change; and also from other causes, which he would not then detain the House by dwelling upon. In regard to all general questions he would most gladly give his humble and most disinterested support to Her Majesty's Government, as he would to any Government be it Whig or Tory, whenever he felt he could do so with perfect and entire satisfaction to himself. When he could not do so, he should, as he had hitherto done, as freely withhold it. Most gladly would be give it to a Government in any measures they might bring forward for the relief of the agricultural interest, by removing from them or alleviating any of those burdens which might be proved to press unduly or exclusively on them. Most firmly, most constantly, would he oppose them, should they endeavour (which he prayed Heaven they might not) to reimpose any duties on corn, now or at any future time, be they great or small, whether under the name of revenue, or under that of protection. The time was, he believed, when a small fixed duty, had it been accepted, would have been beneficial to all parties, and scarcely injurious to any. That time he thought was in retrievably past, and any such attempt now, I by keeping men's minds in a disturbed and unsettled state, could only tend to mischief, and to neutralise or indefinitely to postpone the full measure of those benefits which he conscientiously believed bad arisen, and would continue to arise, from the adoption of a liberal commercial policy and the abolition of the corn laws.

LAW REFORM.
LORD LYNDHURSTsaid, he wished to call the attention of their Lordships to various important measures connected with the reform of the law, then pending in the other House of Parliament. He was induced to take this step partly by a report which had gone abroad of what bad passed at a certain gathering which had occurred yesterday, and partly, also, by a report of
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what had passed at a congregation of certain agitators—he used that term because they assumed it themselves—assembled I for the purpose of endeavouring, by the influence of large numbers, and by the parade of pecuniary subscriptions, to enforce, if possible, the speedy termination of the existing Parliament. Now, it was evident that if this Parliament should terminate in April, it would be impossible for the future Parliament to reassemble for serious business till the close of June or the commencement of July, and, in that case, all those measures for the reform of the law to which be had referred, or, at least, the greater part of them, must be inevitably postponed to another Session. Such a result would be considered by the nation at large as a great misfortune. And, first, with regard to the private business before Parliament, it happened that it was much heavier this year than on any former occasion. Already 250 Bills of a private nature were before Parliament. Their Lordships were not to consider that those Bills merely related to private individuals. Some of them applied to local districts of considerable extent—others to local societies or associations, involving pecuniary interests to an enormous extent. I He, therefore, left it to their Lordships to consider the great mischief and inconvenience which would accrue from postponing measures of this description to another Parliament, and the great delay and expense which would be occasioned in consequence. He passed, however, over this as a matter, comparatively speaking, of little importance. He would request the attention of their Lordships to public measures of the deepest importance; and, first, as to that most important measure for the reform of the Court of Chancery on the footing recommended in the report of the recent Commission. Their Lordships were aware that the public looked to that measure with eager and intense interest. Now, the Bill for carrying that measure into effect was at that moment in progress of preparation under the auspices of his noble and learned Friend on the wooksack, who was in every way so well qualified to insure success for it; and he (Lord Lyndhurst) was convinced that if no abridgment of the usual length of the Session took place, it would come into operation as law before the close of it. But if the Session should lie curtailed, and if Parliament should be dissolved in April, then, from the multiplicity of details incident to such a mea-

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sure, it would be impossible to procure its being passed now, and it would of necessity be postponed to another year. He could not conceive any greater disappointment of the public mind; it would naturally be considered as a great public misfortune. There was another measure of scarcely inferior importance at that moment in the House; he meant the Bill for the Amendment of Procedure in the Superior Courts of Common Law at Westminster. Their Lordships were no doubt aware that a considerable transfer of business from the Superior to the County Courts had recently taken place. They must also be aware, if they reflected on the subject, as he knew that they had done, that the establishment of sixty independent tribunals must give rise, and had given rise, to many conflicts of opinion, and to much uncertainty of decision. The object of the Bill to which he had just referred was to simplify the proceedings of the Superior Courts, and to render them less expensive, in order that they might serve as models and guides to the inferior courts. A perfect judicature had two objects in view; not only the administration of justice in the causes brought before it, but also the laying down of certain rules to regulate transactions between man and man, and to avoid the evils of expensive litigation. A third measure of great importance was a measure which had passed through the House of Commons in the last Session—he meant the Charitable Trusts Bill. Throughout the country, in every portion of it, there existed a number of small charities, involving property to an immense amount, but individually they were so small as not to be worth pursuing in any court of justice. It had been considered important to establish a cheap tribunal to remedy the abuses to which such small charities had been found liable. The Bill to which he referred was introduced on the report of a Commission appointed by the Crown, and was well calculated to rectify those abuses—a Bill called for by all classes of Her Majesty's subjects, and now in such a state as would enable it to become in a few months the law of the land. There was also another measure of importance to which he must advert, as involving the interests of a numerous class of persons—as, for instance, all parties connected with machinery, with civil engineering, and, indeed, with science in all its branches—he meant the Bill for improving the law regarding Patents for
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Inventions. Their Lordships were doubtless aware that the present mode of deciding on and of granting these patents was open to various objections—it was ineffectual—it was attended with enormous expense—and it checked the very object for which it was established. For the purpose of remedying these evils, a Bill had been introduced into that House, but had been lost in the other House of Parliament last Session, owing to the lateness of the period at which it arrived there. His noble and learned Friend on the opposite benches (Lord Brougham) had introduced a corresponding Bill into their Lordships' House that Session, It had been read a first time already; but no other proceedings had yet been taken upon it. The Vice-President of the Board of Trade of the late Government (the Earl of Granville) had promised on a late occasion to lay another Bill for the same object on the table; but that promise had not yet been performed. It was of great importance to all the classes whom he had just mentioned that a measure of that kind should become the law of the land as soon as possible. From the very nature and character of the Bill it could not become so, if any interruption was given to the Session by a dissolution; whereas, if no such interruption took place, it would be very easy to make it law before their Lordships separated. Then there was the Registration Act. That Bill would take the usual course if a dissolution were not forced on by proceedings out of doors. There was also another most important measure, which he could not leave out of consideration at presents—he meant the system for the military defence of the country. A most important consideration indeed this was. Every one admitted that the present state of our military defences was defective. The present system was not sufficient to protect us from insult or invasion; it was not sufficient to support the authority and influence of the country with foreign States. It was, therefore, necessary, for the honour and dignity of the country, that a remedy should be applied to its defects as speedily as possible. The late Government had indeed introduced a Bill to accomplish that object; but, somehow or other, that Bill had been the ostensible cause of its retirement from office. He conceived it to be impossible for any man who felt for the honour and dignity of the country to press for the dissolution of Parliament without having that

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question settled. Now, such a measure could not be passed without legislation; and he must state that any man who, under such circumstances, should force the Government to a dissolution would be guilty of weakness, folly, and indifference to the public security, such as, he was sure, would never meet the approbation of their Lordships. The law measures to which he had previously referred were merely samples of the reforms which were now in contemplation; but there were other questions behind them of much importance. There were the questions of sanitary reform, of water supply to the metropolis, of extramural interment, of the registration of assurances. There was also a Bill in the House of Commons for the further relief of suitors in the Court of Chancery. All these measures would be lost or postponed to another Session, if this Session were to be curtailed in April. I He must also refer to another circumstance of no mean importance, namely, the administration of justice in their Lordships' House. There were a vast number of appeals now standing for judgment Their Lordships had already sat many weeks, and had made but very little impression on the list. If two months were now unexpectedly taken out of the midst of the Session, these appeals must stand over till another year. He left their Lordships to judge of the anxiety and distress which would thus be occasioned to suitors, and of the delay and expense which would be their inevitable result. The principles of the constitution provided that as little delay as possible should occur in the administration of justice. He, therefore, called upon their Lordships to treat these circumstances with the consideration which they deserved. There was one circumstance which affected this metropolis, and this metropolis alone, which ought not to be left entirely out of view while speaking on this subject. The tradesmen of the metropolis did not like a dull season and an unproductive harvest. In the course of last year there was the Great Exhibition; but the harvest which they reaped from it was not an abundant one. If you stopped the Session now, before it had reached its middle term, you would add greatly to their loss, and would throw a great pressure on a very respectable and valuable class of men. The combination of all these facts pressed heavily on his mind, and he must say that a dissolution of Parliament under such circumstances
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would, in his opinion, be a great national calamity. If any man from personal feelings, or factious motives, or party or political interests, should press forward such a dissolution, he was quite sure that he would excite the indignation and resentment of all sober-minded and intelligent members of the community. His Lordship then moved for a return of the number of Private Bills then pending in the House of Lords.
The LORD CHANCELLORsaid, he rose to state the intentions of Her Majesty's Government with respect to the various measures for a reform in the law which had been recently brought under the notice of Parliament. He believed there never was a time when a man who had reform of the law at heart had a better opportunity than the present for carrying his views into effect. It was not only that the cause of law reform was supported by the general opinion out of doors, and by the nation at large, but even within the Parliament on this subject there was no division of parties. Her Majesty's late Government, and the law advisers of that Government, were quite as anxious and ready as he could presume to be in endeavouring to carry into effect measures for a reform of the law; and he felt confident that as he had been at all times ready to give his humble assistance towards carrying any legal measure that would tend to advance the public good, he should now have as full a measure of support as he himself had been at any time ready to render to others. But in bringing forward the measures to which he was about to refer, he wished most carefully to guard himself from the imputation that he was taking credit to himself for those measures. Those measures really emanated from the recommendations of the several Law Commissions—commissions which had been wisely sent forth, and wisely executed by learned men in whom the confidence of the country had been justly reposed; and these recommendations had been to a considerable extent matured by the subsequent consideration of noble and learned Friends. So far, therefore, though the Government was ready to adopt those measures, they could not take credit for originating them; but assuredly this credit he might take for the Government, that he believed no set of men ever existed who were more warmly disposed to facilitate, or more anxious to carry into execution, measures for a reform not only of our judicial institutions

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and proceedings, but of the laws which affected property, and which in affecting property affected the happiness and the home of every man. One measure to which he would refer, was called the Suitors in Chancery Relief Bill. That was a Bill which was now in the House of Commons. It greatly curtailed the number of officers usually in attendance on the Lord Chancellor; it lowered the salaries of those officers who remained; arid it ratified the determination of the late Government to diminish by one third the amount of the salary paid to the Lord Chancellor himself. That Bill was not yet before their Lordships, and he should be sorry to bind himself to every letter of its provisions; but he readily bound himself to every portion of it that affected him (the Lord Chancellor) either personally, or in reference to any office to which he had the appointment. He had not appointed, nor did he intend to appoint, to any office which it was proposed to abolish by that Bill; and as to those offices which were retained, he should adhere to the precise scale of allowances which was laid down in that Bill, as much as if it were already the law of the land. As regarded the Lord Chancellor, he would make one observation. He had stated to their Lordships the reduction which had taken place in the Chancellor's salary. To that he made not the slightest objection; but he hoped that not only he himself, but his successors, might have the moral courage not to attempt to surround themselves with the state and circumstance which had been deemed becoming their office under different arrangements, but would accommodate themselves to the altered position in which they were placed by Parliament. There was one other circumstance regarding the Chancellor and his judicial labours to which he would advert. It was supposed that, because the Lords Justices had been appointed, the Lord Chancellor had now so much time that there was no longer any pressure upon him. The appointment of the Lords Justices had indeed removed from the Lord Chancellor one pressure—a most painful pressure—which every man in such a position must feel who devoted himself to the discharge of his duty ardently and sincerely. It was, that of sitting in the House of Lords upon appeals, and knowing that the suitors in Chancery were neglected—or of sitting in that Court, and knowing that the suitors at their Lordships' bar were neglected, and that their cases could not be
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heard. The Chancellor of the present day would not have that painful feeling to struggle with, because he knew that whilst he was sitting in their Lordships' House, the business of his own particular court was being conducted by able and enlightened Judges to the satisfaction of the suitors. But it should be known that the Chancellor was not relieved from the arduous duties and responsibilities which were still incident to his office, in the discharge of which he must always find his time fully occupied six days in the week, "from morn till noon, from noon till dewy eve." He did not therefore know that the Chancellor had by this measure obtained any personal relief from labour. He would now call their Lordships' attention shortly to a Bill which had been mentioned by his noble and learned Friend (Lord Lyndhurst); that for the amendment of Procedure in the Courts of Common Law, brought into the House by his noble and learned predecessor. That Bill was without doubt a Bill of the utmost importance, and so far from any impediment being thrown in the way of it, it was now before a Committee of their Lordships' House; and the noble and learned Lords who were upon that Committee had but one object in view, and that was to adapt it to the public good, and to make it consistent with the report of the Commissioners. In reference to that Bill there was no difference of opinion, except such as would of necessity arise on the details of all large and important measures. There was another and most important measure to which the attention of the country was directed, and wisely directed—he meant the Bill for improving the jurisdiction and procedure of the Court of Chancery. That was indeed a measure of very great importance, and had long been justly called for by the country. The whole subject was referred by the Crown to a body of very able and learned Commissioners, who had made an elaborate and excellent report upon it; and he (the Lord Chancellor) had understood that a Bill had been prepared in pursuance of their recommendations. He found, however, no trace of such a Bill, but that the work yet remained to be done. He had received within the last two or three days a sketch of the heads of so much of the proposed Bill as related to the Masters' Offices. He should feel it his duty to introduce such a Bill, or, if the details required it, more than one Bill into their Lordships' House, and to take charge

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of and endeavour to carry it or them into execution as speedily as possible. A long course of practice had made him well acquainted with this subject, and he should willingly fall in with the stream, which was now leading them, he hoped, to a safe conclusion. The great object was to dispose of the Masters' Office. The Masters' Office had never given satisfaction. This was owing partly to the nature of its jurisdiction; and partly to the fact that the Masters wanted this great power, namely, the power to compel parties to proceed with their matters without delay. Hence arose extensive and unnecessary loss of time, for which the suitors themselves were really responsible, though the blame was charged upon the Masters' Office. The great proposal of the Commissioners was the abolition of the Masters' Office; and those who understood the subject knew that the difficulty was not in abolishing the Masters' Office, but in providing a substitute for it. The proposition absolutely was—and he had never objected to it—to abolish the Masters' Office. He believed that the abolition of the Masters' Office was at the root of all reform; but in abolishing the Masters' Office it would be necessary to consider how and in what manner it should be effected. In the sketch that had been furnished to him, it had been proposed that after a certain day to be named in the Act, the Masters should cease to exercise their functions and should retire on their full salaries. That was a matter which required great consideration; and as at present advised, he thought it was his duty to make such use of the Masters themselves as would tend to the better administration of justice as long as they received their salaries. How then was this to be done? The Masters were men of high character, and performed high judicial functions; and nothing would be more unjust and nothing more repugnant to the feelings of Her Majesty's Government than to do any act which would have the effect of lowering or degrading their dignity in the administration of justice, or of placing them in a lower range of office. He would be no party to a measure of that sort. But the Masters, or a sufficient number of them, ought to remain till the matters now before them should be disposed of. If the new system was to work well, it was absolutely necessary that the Judges should begin upon an entirely new foundation; if otherwise the system would fail. They must not have an accumulation
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of arrears to get rid of. They must have fair play and a fair start. The Masters, therefore, must be left, or a sufficient number of them, to dispose of the business now before them. There was a number of matters now in the Masters' Offices under the Winding-up Acts. The Masters had original jurisdiction in those matters, which occupied much time. There was no other tribunal by which the business could be executed, and they must he left to complete it. He was not certain, without further consideration, whether there were not other important duties which no Master would feel himself degraded in executing if still required to do so. Whilst the present scheme was in its infancy there might be a sufficient number of Masters left in office to superintend cases of receivership, the management of estates, and other matters of great importance which had always been within the province of the Master. Those were matters on which be would for the present reserve his opinion, for they required great consideration. But it was to be distinctly understood, on the part of Her Majesty's Government, that Masters were to be abolished; that no vacancy was to be filled up—[Lord BROUGHAM: And no new references,] That could not be avoided, for they were to finish the matters which they had now partially executed: but no references would be made to any Master in any new matter of which a Judge of the Court takes cognisance. But it would be impossible to be working two different systems of procedure at once. We could not say to one man. whose suit is already in Court, "You shall have interrogatories—you shall go before the Master;" and then say to a man who files his bill to-morrow, "You shall have no delay in your way, but shall get to your journey's end by the speediest road possible." He proposed, therefore, immediately after the Judges commenced their operation in chamber to abolish at once the whole course of proceedings now used in the Masters' Office, and that the Master should adopt the same rules as would govern the Judge in chamber. Then the question was, what was the new system to be adopted. Their Lordships were aware that by the present constitution of the Court of Chancery, the Judge transacted no business in chamber. He sat in Court, heard the cases, and gave his judgment; and it was necessary, for the due administration of justice, that the judgment should follow as speedily as might be upon the

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hearing. Judgments long delayed made the heart sick. If a Judge sat fire hours in a day hearing cases, and gave his whole mind to the arguments of counsel, he would venture to say, that no man's physical powers were more than sufficient to answer the exigency, and to prepare and deliver his judgments thereon. The proposal was, that the Judge, who does not now go into chamber, should follow his own business into chamber; that he should have two chief clerks to assist him; that he should, if he might use the expression, become his own Master, and sit in chamber to dispose of that portion of the business which had hitherto been transacted by the Master in chamber. This, no doubt, would lead to difficulty, because, unlike the similar sittings of one Judge at Law, when the Equity Judge was in chamber his Court would be closed. He could not well approve of a proposition contained in the sketch that had been furnished to him, by which it was suggested that the Judges' clerks should have the same powers as Masters in Ordinary: that he thought was objectionable. It was proposed that they should transact the business in the present Masters' Offices, until other offices were procured; and he confessed that he saw the likelihood of bad consequences arising from that. The consequence would be that those clerks would be sitting in Southampton Buildings without any control or check; and the objections which applied to the peculiar position of the Masters' Offices would be found to attach themselves in a still greater degree to those persons who, although of a lower grade, would affect to be Masters. They would be likely to assume the same powers, and to feel an independence which was inconsistent with what he understood to be the object of the new regulation. He objected to expose them to the influence of the atmosphere of Southampton Buildings. He doubted whether the new scheme could efficiently work, unless each Judge could have attached to his court sufficient rooms, whereby he could have his superior officers under his own eye in the room next his own, and their clerks in the room next to theirs. What he understood of the new scheme was, that the Judge should not be absolved from taking care in pronouncing the decree that the minutes were properly prepared, and pointing exactly to the inquiries to be made and the accounts to be taken, and the like; and when that was done that
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he would go into his own chamber and direct his own chief clerk how to take the account, for example, and would assist him if during the argument any question of difficulty was raised. Suppose, for instance, in a question of heirship the chief clerk felt any pressure, he should, instead of referring it to the Judge, by making a report upon it, call the attention of the Judge to the point, and tell him what he thought. They then would talk the matter over, and the clerk would have the knowledge of the Judge to assist him, which the Master has not now. That was the way the business ought to be transacted. If the Offices were thus put on a satisfactory footing, there was every reason to hope that the scheme would work; but there should be this golden rule with regard to the working of the plan, that nothing should be heard in chamber that could be heard in Court. The present Vice-Chancellors and the Master of the Rolls, who had dedicated so much time with so much ability to the consideration of the question, were perfectly willing, for the first time since a Judge in Equity had been created, to devote their time in the manner pointed out, so as to transact not only the business in Court, but the business in chamber. He (the Lord Chancellor) hoped and trusted that this union of characters would not be found to lower the judicial character of the Judge; it was difficult, however, to find united in the same man the power of administration, if he might so call it, and the judicial powers that were necessary for the discharge of the duties that were to be performed in open Court. The man who succeeded in one department might fail in the other; but he trusted that this union of powers, by the exercise of great diligence, would bring them to a happy result. The Commissioners had made proposals on other branches of the subject which had not yet been worked out upon paper—they had made several proposals of the utmost importance, and did that which the Americans, with all their enterprise, had failed to do; they provided against unnecessary parties to suits, which led to more expense and delay than any other proceedings. The anxiety of Courts of Equity to do complete justice in every case, and to prevent the possibility of fraud, had led to the evils of which we now complain. In order to protect particular persons, and to impose additional restraints upon others, they put them to expense which turned out perhaps to be

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in that particular case utterly useless. It was impossible to deny, that in relaxing the system hitherto in operation, in forming a new code, and proceeding in the summary manner they proposed to do, with a new sort of evidence, it might and would open the courts to certain cases of fraud—cases which the greatest diligence could not guard against; but unwilling as he should be to allow a single case of fraud to take place, yet in the general regulation of human affairs they must have rules applicable to the generality of cases, and they could no longer, in order to guard one man against a possible fraud, expose all men to great expense and delay. The next point to which he wished to call their Lordships' attention was one of the deepest importance. The mode of examining witnesses in the Court of Chancery was by written interrogatories. The officer was called an Examiner, and before this Examiner the witnesses attended; they were asked different questions by him from the written interrogatories, and he took down their statements. It was a slow and expensive process, and it was not a satisfactory process; and what was fatal in such an examination was, that they never could effectually cross-examine the witness. As the opposite party could not know what the witness had said, they dare not attempt to cross-examine him, for by so doing they might damage their case instead of serving it. The mode of examination was unsatisfactory and expensive, and unfortunately was open to another imputation—that though it did not tend to perjury, it did not lead directly to truth. He understood it had become the practice in some quarters to give the witness his answers ready written, to enable him to deliver his answers to the Examiner. It was now proposed, and, though not without hesitation and some misgiving, he was prepared to accede to the, proposition—that written interrogatories should be abolished. We were now invited to imitate the example of the United States, which was represented to us as being the most perfect system of law, the two courts of Equity and Law being blended together. The Americans had abolished their Masters, as we proposed to do; they had abolished the mode of examination and the examiners, as was also proposed to be done by us. But the Americans had not done what was further proposed to be done in this country, namely, for written interrogatories and answers, to substitute
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written affidavits. In the United States they had very nearly discarded affidavits—they gave no credit to affidavits—and except on a few motions they would not permit affidavits to be used; but in every common case of specific performance, for example, there was a jury sworn, and professional men and others were brought from their homes, and without any remuneration beyond a common mileage had to remain in attendance on the Court, and give their evidence. In this country it was proposed to use affidavits; and if the proposition was adopted it would be his earnest desire by every means in his power to prevent the mischiefs that otherwise would inevitably grow up from depending upon affidavits only. If interrogatories were dangerous on the grounds he had stated, it would be seen how dangerous affidavits might also be, when it was known that every affidavit was prepared by the attorney; the language was his language; he put forward the case and the points which he thought desirable, and the suitor in many cases necessarily swore to what he did not and could not know the effect of. There was also this feature in affidavits—that there never was any issue arrived at. To have an issue, was the great object of pleading and of the examination of witnesses. If their Lordships had two parties disputing before them in a common matter, they would find in all probability that neither of them understood the point in dispute; and when they had brought them to an understanding of the real point in dispute, it was very probable it would turn out that there was no dispute at all. Nothing was more difficult than to make men understand the real point for discussion in the dispute between them; and the proper object of a court of law was to bring that question to a clear issue, so that each party might understand it. It was often very difficult to do that. It would be more difficult if affidavits were to be used, and great expense must be incurred in order to get at the facts. We had formerly great experience of affidavits in Bankruptcy. The business in Bankruptcy in former times had been wholly conducted by affidavits; he had never seen larger briefs nor any from which it was more difficult to ascertain the point at issue, and yet it was this very system of using affidavits which was now sought to be established. In abolishing the Masters, it was worth while to see how that matter of the mode of taking evidence had been

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dealt with in America. The public in this country were led to believe that in the United States legal institutions are perfect, and that we have nothing to do but to imitate them. Now they had abolished the Masters in America; the Courts referred everything; and who did their Lordships think was the person who now sat constantly every hour of every day, to whom were referred all accounts and all questions of fact and of difficulty—and who was chosen above all others in those cases to act as referee, and to do the business of the old Master?—The old Master himself! He (the Lord Chancellor) had no objection to allow a reference on a scientific question to a scientific person—to an accountant, or to an engineer; but he wholly objected to a court of justice delegating to another its own duties; and in America, in case of a reference, the referee was in fact the judge in the matter. In our own well-conducted courts of justice, if a long case came into a Court of Equity, it was heard patiently and decided by the Judge; but if a long case came on in an American Court, the Judge was compelled to refer to another individual what he ought to have heard himself; and the suitor was driven by the force of circumstances, however unwilling he might be, to consent to his cause being referred, which he had a right to have heard and decided by the Court itself. Nothing could be more injurious to the public interests, and damaging to suitors, than such references. And this happened even in our own Courts of Law at nisi prius. It appeared from a statement made by Mr. D. Field—a gentleman possessed of considerable information on the subject—that when they began to reform the Court of Chancery in the United States, there were between 3,000 and 4,000 cases waiting to be heard, and that judgment was seldom delivered in any case until two or three years after the case had been heard. When Mr. Field was asked what the consequence would be under their new system in a long case of complicated accounts, he stated that no law could provide for that—in case there were 1,000 items, and that each was to be proved and disproved by fourteen or fifteen witnesses, it might occupy 1,000 days. It was not therefore to be supposed that intricate matters could be speedily disposed of even in America. It was desirable that they should facilitate every step in the proceedings in a Court of Equity. One of the first things which it
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appeared to him necessary to do, was to abolish or rescind all the present Orders of the Court of Chancery. These Orders, framed at different times by his noble and learned predecessors, though most excellent in themselves, had followed each other until the system had involved much difficulty. The best plan, he believed, would be to wholly rescind every one of the existing Orders, and to frame from them an uniform set of rules, adopting and retaining those which had worked best. If he were to go more into detail, he feared he should weary their Lordships; but holding the position he did, he had felt it necessary to make the statement which he had addressed to them, it being the wish of Her Majesty's Government that their Lordships should be early informed what their intentions generally were with regard to the several measures which had been contemplated. The measure to which he had referred with respect to the jurisdiction of the Court of Chancery was not yet prepared; but when prepared it would be laid before their Lordships' House. The Chancery Commissioners had said at the end of their Report that the adoption of the new system might render it necessary to appoint new Vice-Chancellors. There was no step he should deprecate more; and he thought such an appointment should not be made unless there was an absolute necessity for it. They could not have an additional Judge without an additional Bar, and either the Bars would be too numerous, or, if not, and the Bar were to go from one Court to another, nothing could be more injurious to the administration of justice. Besides, if there were new Courts and the new measure were in operation, the clerks of the Judges in their chamber could not transact their business without the presence of solicitors. The more they accumulated Courts, the more business in Court would be thrown on solicitors, and they would be rendered less able to attend to the business in chamber. It was scarcely necessary for him to add another word, except to express his sincere desire to assist, with all the energy and ability he possessed, in making such amendments as would be of utility. He begged leave further to say that he had never neglected, at the expense either of time or of exertion, to improve any portion of the law that appeared to require amendment. There was a subject that required early attention, and to which he had lately called attention, namely,

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the necessity for reforming the law with regard to testamentary dispositions. The law with regard to those documents stood thus: they were formerly required to be signed by the testator in the presence of a certain number of witnesses; but it was held that if a man wrote his own will, and described himself at the beginning, suppose as "Edward So and so," and then proceeded with his will, that was equal to a signature at the foot of the document. From that decision no evil ever arose; but it was thought to be an anomaly that when it was intended that the name should be signed at the foot, it should he sufficient to write the name at the beginning. It was therefore required by the Wills Act passed in the first year of the Queen, that every will should be signed by the testator at the foot or end thereof, and attested by two witnesses. By the simple words "at the foot or end thereof," hundreds, nay, perhaps, thousands of wills, without a single flaw on the face of them, had been held to be void. Hundreds of such cases had occurred that never met the public eye, because the wills were thrown aside as valueless. It was decided that at the foot or end meant immediately at the foot or end, and therefore if the testator's name were appended at any distance from the end of his disposition, it made the document void. Anything more calculated to disturb the ideas of people as to the justice of the law could not be. He would give their Lordships an instance of what had been decided, in reference to the will of a son of the late Vice-Chancellor of England. He was a barrister, and was so anxious about his will, that he executed four parts of it. He wrote the will upon a common sheet of note paper down to the bottom of the first page, and filled it. He then continued to write the will on the second page, and ended the second page by appointing his executors. There was rather more than an inch of space left between that and the bottom edge; he then went to the third page and wrote "Signed by me, &c." in the presence of the witnesses. He next placed his name immediately under that statement, and there was what is called the attestation clause, that is, the clause in which the witnesses state what was done in their presence, and the witnesses put their names to the attestation clause. Yet that will was, notwithstanding, declared to be void. That was
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the state of the law regarding those documents, and the reform of that law was a subject that required the early attention of their Lordships. He should, therefore, lay upon the table of their Lordships' House a Bill to correct the law in this respect; and he could, in conclusion, assure their Lordships, that whenever he found a law of property operating injuriously to the community, he would use his best endeavours to correct the evil. He had ever kept a vigilant eye on the operation of our laws of property, and he begged to assure their Lordships that he should continue to do so.
LORD BROUGHAMcould not delay one moment to express the great and hearty gratification which he felt at hearing the declaration of his noble and learned Friend, that he and the Government intended to adopt entirely the recommendations of the Chancery Commissioners, and to lend his own powerful assistance—for powerful and invaluable it must be—to carry into effect those most important recommendations. As to the particular details of the mode and manner in which the plan was to be executed, he (Lord Brougham) should not enter at all at present, not even for a moment; but he was rejoiced to hear the avowal of his noble and learned Friend that he was entirely of opinion that the plan of the Commissioners should, in substance, be carried honestly and entirely into full and effectual operation. He (Lord Brougham) might express some doubts upon one or more points in the beginning of the speech of his noble and learned Friend, as to the manner in which the change was to be made in the Masters'; Office, and with regard to the examination of witnesses; but he would defer giving his opinion until they saw the Bill. He thought his noble and learned Friend had not exactly stated the effect of the recommendation of the Commissioners, in regard to affidavits: it was not to substitute affidavits for interrogatories generally, but only in uncontested matters; and in contested matters there should be as little of those interrogatories or affidavits as possible. If possible, the evidence should be taken by the same person who was to pronounce an opinion upon it. The principles were quite clear on this subject, unless in uncontested matters; and to save the needless expense of witnesses, all evidence should be by vivâ voce examination; and whenever it is possible, the Judge, who is to decide on

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the evidence, should himself preside over the examination. He entirely agreed with his noble and learned Friend with respect to the great defect in the law in relation to testamentary matters, and he should heartily rejoice if he could provide a remedy for it. If they passed, the Bill or Bills that would be necessary to carry the recommendations of the Commissioners into effect, they would undoubtedly have accomplished a great amendment in the procedure of the Court of Chancery. He entirely agreed in the encomiums which his noble and learned Friend had passed on the Commission, which was excellently composed; and the able and learned men who gave their labour on that Commission had performed their duties with the greatest possible ability; and, in his (Lord Brougham's) opinion, with singular effect. They had acted with perfect impartiality and calmness, but at the same time with great firmness. He would also suggest that the Committee of their Lordships' House, by whom the subject was considered, was not without their share of credit. That Committee, over which he (Lord Brougham) presided, entered very largely into the matter, and received evidence of great importance, which they reported to their Lordships. There had been some difference of opinion amongst the witnesses examined. One of the Vice-Chancellors entertained great doubts with respect to the measure, which in truth is the main part of the Commissioners' Report, making the Judges work out their own causes, partly in court and partly in chamber, and with regard to abolishing the Masters' Offices; but on further inquiry that learned Judge had his doubt removed—had entirely agreed with his colleagues—and had signed the Report. If they succeeded in carrying the proposed measures through, and if the new system were brought speedily into operation, there would be an end of such abuses as he called the attention of their Lordships to last Session. They should no longer, in a cause for recovery of 500 l., have to pay—as a noble Friend of his, whom he did not then see in his place, had to pay—a bill of costs of 1,200 l. They should no longer hear of a case where a suit had been going on for eleven years for the mere distribution of a fund, costing the suitors those eleven years of anxiety and vexation, and 2,870 l. of money—of 270 l. being expended upon behalf of an infant, in order to obtain, from time to
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time, an alimentary provision of not more than double that amount in the whole—of 2,000 l. expended, and ten years' delay to obtain payment in the whole of 1,000 l. out of a larger fund; of 90 l. being expended in order to obtain an order in the Masters' Office (even then subject to an appeal to the Court) for a repair of 10 l.; of 70,000 l. to 80,000 l. being expended for the cost of one suit, no doubt a very heavy one, involving a sum of 350,000 l., but of which this cost was no small proportion—the case lately stated by his noble and learned Friend near him (Lord Lyndhurst); nor of a litigation of five or six years when the whole matter in dispute was whether a party should pay 20 l. for scandal and impertinence, in accordance with an order of the Master, the cost being 800 l.; of which no doubt 750 l., the stated cost, would be paid by the party against whom the case was ultimately decided, but the remaining 50 l. would have to be paid by the unhappy winner, who was thus 30 l. worse than if he had sat down with the original loss of the 20 l. These things we shall no longer have, to inflict pain upon the parties, bring contempt on the jurisdiction, and hatred on the institution from which such fruits can spring. He trusted when this great improvement was effected, that their Lordships, and amongst them his noble and learned Friend on the woolsack, would have leisure and inclination to apply themselves to further amendment of the law; and that he should not incur, in urging this, the blame of a proverbial denunciation, metrically expressed, against unreasonable persons to whom something is granted, and who wish for much more. He must strongly, amongst other things, recommend to his noble Friend at the head of the Government, and to his noble and learned Friend on the woolsack, not to allow the interposition of any longer delay in the renewal for a very limited period—for a very few months, certainly not more than a year, if so much, was all that was necessary—of that Criminal Law Commission, the fruits of whose labours had hitherto been wholly unavailable to the country, after the expenditure of many thousand pounds, and the delay of many years, although they had reported most ably and learnedly upon our criminal law and criminal procedure. This delay ought not any longer to be allowed.
House adjourned to Monday next.