§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR, in moving the second reading of the Testamentary Jurisdiction Bill, said, that about three weeks since, on the occasion of introducing the Bill, he had explained so fully the nature of the evils which required to be remedied, the attempts which had been 765 made by successive Governments to find a remedy, and the recommendations of the last and previous Commissions on the subject, and how far he coincided with, or differed from, those recommendations, that he did not feel warranted in trespassing on their Lordships' time in the present stage of the Bill. Upon that occasion their Lordships appeared to receive the statement which he made with their general approval, and permitted the Bill to be read a first time. The measure had not been unfavourably received by the country in general; for, although he could not expect that in the present excited state of the country, a large amount of attention would be bestowed upon questions of this character, still there were many persons whose attention would necessarily be directed to the subject—namely, those whose interests were, or were supposed to be, affected by the proposed alteration. He might venture to say, that had the Bill been regarded by such persons as not entitled to a favourable reception by the Legislature, there could be no doubt that numerous petitions would have been presented against it. On the contrary, he was not aware that, with the exception of those presented that evening, there had been a single petition presented against the Bill. Let their Lordships examine the nature of these petitions. One of these petitions had been presented from York. Now, it was the misfortune of all those who attempted to effect legal reforms, that they felt of necessity that they must cause individual loss to persons who had profited—he did not say improperly—by the system which was proposed to be altered; and probably there was no place in the kingdom to which the alterations proposed in the Bill would apply more stringently, and with a more injurious effect upon the interest of a particular class of persons, than at York. He was not, therefore, surprised that a petition against the Bill should have emanated from that city. But what did the petitioners propose? If he understood the petition aright, they proposed that their Lordships should continue throughout the whole country the system of district registrars for contentious as well as non-contentious business. Now, who would be the individual who would venture to propose such a measure as this to their Lordships? To call into existence a body of courts which would not possess an adequately learned and efficient bar or bench to dispose of contentious business, 766 would be a mockery, and would lead to nothing but difficulty and disappointment—it was a system which no one would venture to propose. His noble and learned Friend (Lord Lyndhurst) had once, he thought, made such a proposal, but it was received with such universal disapprobation, that it was dropped. A second petition had been presented by a noble Lord from various leading houses of business in the City of London. He was not aware what particular interest they had in the Bill; the names were those of firms of high standing and of great weight in the commercial world as enlightened and intelligent individuals. But what they proposed was, not that the matter should remain as before, or be distributed in district courts, but an entire alteration of the present system by the constitution of a new court of probate. A court of this kind was recommended by the Commissioners. He did not know whether the noble Lord was present when this matter was discussed:—it was then thought that no more inconvenient mode of disposing of the matter could be adopted than to constitute a new court which would be occupied only for sixty days in the year, and endeavour to find the necessary amount of work for it by thrusting on it the decision of other matters which had no relation to the subject-matter of its jurisdiction. The argument of the petitioners was, that by taking cases of this sort to the Court of Chancery, the suitors would be involved in the unnecessary and proverbial delay of that court. Now he might be thought a very silly person, but he believed that in none of the Superior Courts of Westminster was business despatched with so much rapidity as in the Court of Chancery. There were, of course, cases which could not be disposed of with so much rapidity—such as cases of very complicated accounts or trusts, which, from their nature, were to endure for twenty or thirty years, and unless they continued in the Court for that period, the Court would neglect its duty; but in all cases where despatch was necessary, there was no court where speedy process could be more easily obtained than in the Court of Chancery. What reason was there to suppose, that in testamentary affairs the same rapidity of decision would not be found to exist? The whole body of practitioners of the existing courts would come to that Court; the practitioners would, in the first instance, teach the Court, and he hoped the Court would in 767 turn soon teach the practitioners, a better and more efficient mode of procedure. It seemed to him that the objections of the petitioners to the Court of Chancery were founded upon the erroneous and somewhat vulgar notion that everything was slow in the Court of Chancery; the contrary of this was, however, nearer the truth. Another petition had been presented from the College of Advocates, who founded their objections on the fact that, according to the present constitution of their body, questions of international law were, nearly exclusively, confined to them, and it was said that if this Bill deprived them of one branch of their profession, it would make it unprofitable—drive them away—and then there would be nobody left devoted to the study of the international law. Now, it seemed to him the oddest thing in the world, that the knowledge of international law should be the solitary exception to all other subjects of knowledge, and that the demand for it in this country would not produce persons who would devote themselves to its study, and make themselves masters of it. But it also seemed to him strange, that it should be thought necessary to keep up a number of courts to see whether people made their wills properly, in order to keep up a school for the study of international law. It might with equal propriety be argued that the whole subject of marine insurances, which certainly bore a greater resemblance to questions of international law than those which affected testamentary matters, should be exclusively confined to these courts. The last petition proceeded from the registrars and proctors, and the petitioners complained that the Bill would affect their interests. In all reforms there were necessarily some persons whose interests would be affected, and it was difficult to speak of giving compensation to persons whose claim for it arose only in consequence of your placing matters upon a better footing for the interests of the country at large, and by so doing diminishing the call for their services. He believed that the best mode to adopt in this case would be to allow the body of proctors and registrars to be gradually absorbed in the other branches of the profession; and by a provision in the Bill such persons would be permitted to enter into partnership with solicitors and others, where their peculiar knowledge could not fail to meet with success. These were the only objections which had been urged against the Bill, and he ventured to 768 hope that their Lordships would have no hesitation in giving it a second reading. He proposed, if the Bill were read a second time, to refer it to a Select Committee, in order that its details might be fully and fairly considered. The Bill had necessarily been framed in a hurry, and there were, no doubt, many points upon which it would be desirable that the careful opinion of a Select Committee should be taken. The Bill came before the House backed by the almost unanimous recommendation of the Commissioners, and he hoped their Lordships would give it their sanction. The noble and learned Lord concluded by moving that the Bill be now read 2a.
LORD BROUGHAMsaid, his noble and learned Friend had correctly stated that the Bill which he (Lord Brougham) introduced more than twenty years ago contemplated the abolition of the local jurisdiction and the transfer of the testamentary jurisdiction, not to the Court of Chancery, but to another court, namely, a court of probate. He stated on that occasion that his reason for objecting to the transfer being made to the Court of Chancery was that it would be a transfer from a bad to a much worse judicature, and would therefore meet with almost universal condemnation. But, happily, the Court of Chancery was not now what it was in those days. Their Lordships were aware that very great improvements had taken place in that court by means of measures sanctioned by the Legislature, altering its constitution in some of the most material respects, increasing the judicial force of the court, and by the labours of his noble and learned Friends (the Lord Chancellor and Lord St. Leonards), and especially of the latter, by the orders which they had so wisely and judiciously framed to improve the practice of the Court. He must, however, state that there was an argument in favour of a separate court of probate which appeared to have escaped his noble and learned Friend (the Lord Chancellor). He did not see how the Court of Chancery could afford sufficient time to the effectual performance of the additional amount of labour this Bill would cast upon it. He must remind his noble and learned Friend that he ought to take into account not only the days occupied in court in hearing testamentary causes, but the days occupied out of court by the Judge in disposing of causes which he had heard in court. As to the amount of time which would be required for the performance of business of 769 this nature he had a very great authority. Sir John Nichol, one of the most learned and also most industrious Judges that ever adorned the bench, asserted that, on an average, beside the sixty days which he sat in court to hear causes, the reading the papers especially, and the considering the arguments in those causes, occupied on an average three days more for every day in court, making the total amount of time consumed in disposing of the testamentary causes, not sixty days, but 240 days; and if the learned Judge, before whom those causes were to come, after the transfer, gave the same degree of attention to them, and occupied the same time in their disposal, the consequence would be, he was going to say, a bankruptcy of the court to which the transfer was given, for 240 days amounted very nearly to the whole of the judicial year. At all events very great pressure would exist in the court after the transfer; and the question was, how that pressure was to be got rid of? It might be done in this way: Sir John Nichol's calculation was founded on the nature of the proceedings in those courts, and more especially on the immense mass of papers which it was necessary to read. He (Lord Brougham) hoped the proposed transfer would be accompanied by a material substitution of oral for written evidence in the court to which the transfer was made. He confessed, too, that he really felt, as an old friend of the profession and of the courts in question, and of the individual practitioners in those courts—many of whom he had long known and highly esteemed and admired for their talents and learning, and for their great integrity as professional men—no little vexation and sorrow at the blow which this great change in our judicial system must inflict on those most respectable persons. It was impossible not to see that by this measure they were striking at the very roots of the professional fortunes of all those men. They had purchased their present position, eminent in point of practice and of worldly wealth, not only by a great outlay of money, but by that which was still more precious to labouring men, by long years of industry devoted to the pursuits of their profession; and now came this measure ruthlessly to attack and cut off the very sources of their prosperity, and in many cases the very means of their livelihood. He greatly doubted that the remedy proposed by his noble and learned Friend would be found effectual for their 770 relief. He did not think that the ten years of only half-monopoly which was to be continued to them, nor their power of becoming partners in solicitors' firms, would be at all effectual to meet the evil which the Legislature was about to inflict on those two bodies of men—the advocates and proctors of the ecclesiastical courts. On the other hand, he saw great difficulties in providing another remedy, and in giving compensation in a case of that kind, because it was introducing a new principle which might hereafter become liable to abuse. Nevertheless, when he considered the infinite importance of providing a bridge of gold for a retreating evil, he hoped and trusted that every effort would be made to lessen and to lighten the blow which this great change in the law and our judicial system was about to inflict on those bodies of men. It was the highest interest of the community to give compensation where changes in the law and in our judicial system inflicted loss on bodies of men; and the worst economy—he would not call it the greatest want of economy, but he would say the greatest extravagance—was committed by the country when it grudged that compensation; because such a course tended to prevent reform and to perpetuate abuse. There was no doubt whatever that this measure would prove the origin of other changes in the law; and, among these, he hoped a place of deposit for wills and other instruments would be established—he meant a place where parties might deposit conveyances and wills merely for safe custody; for at present we were in this position, that no man could be certain, in very many instances, that his will would be effectual, because he had left it in the hands of those who were interested in his property on his decease, or with persons who had no interest to keep them safe and produce them when necessary, and who might very probably have inducements to allow them to become lost. He would, therefore, suggest the absolute necessity of providing a place for the safe custody of documents of that important nature. He spoke in the presence of some noble Lords who now possessed a very large part of their incomes in consequence of the testamentary documents which devised or bequeathed those incomes being saved from destruction by the merest accident. He knew an estate of upwards of 30,000l. a year that was possessed by the devisee, to the exclusion of the heir-at-law, both Members of their Lordships' 771 House—and by the merest chance that could be imagined; the instrument which disinherited the one of his noble Friends and put the other in possession, was saved from destruction by an accident. There had been a fire in the house, and it chanced that an old desk, containing the will in question, had been, in a journey, put into an old post-chaise, standing in an adjacent yard, and which was afterwards on the point of being broken up for firewood, when the will was found, which, as he had said, disinherited one of his noble Friends, and gave the property to the other. Again, in another case affecting a Member of their Lordships' House, a will was set up in an appeal, which came on for hearing in the Judicial Committee, where he (Lord Brougham) had sat upon the cause, that cause involving property to the amount of no less than 160,000l.; and by what accident did it appear that the will was saved from destruction, and the 160,000l. distributed according to the wishes of the testator? It was supposed that the deceased had executed a will, for a groom boy had a recollection of being a witness to such a document; but for a length of time it could not be found. One day, however, a paper dropped from below the mattress of a bed in the house occupied by the deceased, and fell on the floor, when the housemaid, who was making the bed, picked it up, and thrust it into the fire-grate. There it was afterwards found; and the paper turned out to be the will of the testator. But its preservation depended solely on the accident of its being summer, and not winter, when it was found by the housemaid, for there being no fire in the grate when she thrust it there, it remained quite safe until it was discovered and brought to light by another mere chance. The will was found in the bars of the grate; and by that accident that sum of 160,000l. was distributed according to the wishes of the testator. He could mention other similar instances, but those two were quite sufficient to show the absolute necessity of having a place in which wills and other kindred instruments might be deposited for safe custody. The consequence attendant upon this measure, which could not be too deeply deplored, he had adverted to, the loss and injury it would inevitably entail upon proctors and advocates—a class of men in every way deserving of favourable consideration. He hoped that their Lordships would not hesitate to consider what might be a fair and 772 honourable compensation to them; and, in the consideration of the same, he had every reason to believe that their Lordships would not allow these gentlemen to suffer an injustice out of any regard for what might be considered, but which never proved to be, an economy in such matters. There was another branch of the subject on which discussion might arise. It might naturally be thought that when this Bill had received full consideration by the Select Committee, and when it had been reduced to the most perfect state, their Lordships ought to apply to the learned Judges of the ecclesiastical court for their opinions, I first (following the precedent of his noble and learned Friend with respect to the criminal digest) upon the principle of the measure, and next upon its details. If such a course was taken, he could answer for the learned Judges of the ecclesiastical courts—whether the Arches Court, the Consistorial Court, or the Admiralty Court—though the Admiralty jurisdiction was not now in question—that they would bestow the greatest pains on the examination of the Bill, going through every provision calmly, and cautiously, and respectfully to their Lordships as well as to the subject, forming their opinion of the measure, both as to its principle and its details; above all, they would carefully avoid giving any rash opinion against the principle, or any portion of those details; but most of all would they refrain from giving any opinion condemnatory of any one of its provisions, without looking at other correlative provisions which might, three lines before, be staring them in the face, as part and parcel of the measure. They would never judge without full and fair examination. Rash and sweeping criticism they would eschew like the pest. He might answer for those learned, cautious, and prudent Judges—those calm inquirers into the matters to them referred—that they would not suffer themselves to be misled by any precedent into such an unbecoming course as that.
THE BISHOP OF ST. ASAPHsaid, he hoped the question of expense would be seriously taken into consideration, because he thought some of the provisions of the Bill would inflict injustice and hardship on poor people, who were interested in wills which bequeathed small sums, or property of inconsiderable value, and which consequently could bear but very small law expenses. He found on inquiry that in the year 1852 there were 264 wills proved in 773 his diocese, very nearly one-half of which were, each of them, for sums under 100l.; and there were nineteen wills for sums under 20l. The necessity of proving wills of the latter class, or taking out letters of administration, arose from the practice of humble people depositing money in the savings banks. By this Bill, non-contentious testamentary cases in his diocese would have to be taken to two places, Chester and Shrewsbury; so that a poor man might have, in some instances, to travel a distance of fifty or sixty miles to prove a will which disposed of property to the value only of 20l.; whereas at present there were six places in his diocese at which any poor man might prove a will twice in the year. Unless, therefore, the executive arrangements were made such that people of that character might be enabled to prove their wills almost at their own doors, he should feel it is duty to oppose the Bill at a future stage.
§ THE EARL OF HARROWBYthought it very important that there should be a separate court and a separate bar for the adjudication of these matters; and said, that if this were admitted, very much of the difficulty which had been experienced with respect to compensation for the learned and intelligent gentlemen who had been referred to would be removed. Surely there was some virtue in the status quo, and he did not think that it would be desirable to destroy a whole and important portion of the civil bar. He could not think that it would be for the advantage of the testamentary business of the country that it should be transacted partially in one court and partially in another, in such a way as that it would be difficult to secure uniformity of practice; but he saw great advantage in giving all this business to one tribunal where it would be sure to receive immediate attention.
§ LORD FEVERSHAMsaid, there was a party whose feelings ought not to be overlooked in this matter, and that party was the people of England. He believed that if the noble and learned Lord on the woolsack would give the people time to make known their opinions upon the measure, he would find that their Lordships' table would be covered with petitions from all parts of the country against it. He felt persuaded that the public generally did not wish that their wills should all be transmitted to this metropolis, and that the whole of our testamentary jurisdiction should be made over to the Court of 774 Chancery. He believed that public opinion was already against increasing the jurisdiction of the Court of Chancery, and that, while the people at large were disposed to pay every proper respect to the Court, and to the noble and learned Lord who at present presided over it, they considered that its jurisdiction ought to be curtailed rather than extended and enlarged. He thought it desirable to offer these few observation to the consideration of the House, and having done so he should not trespass at greater length upon its attention.
§ LORD ST. LEONARDSsaid, that he had already expressed an opinion in favour of the transfer of the testamentary jurisdiction to the Court of Chancery; but he was very much inclined to think that it would be very desirable that it should be so transferred as that it could be kept together in one court, instead of allowing each Judge in Chancery to take a portion of it just as it might happen; at all events, for some time to come. It would be very easy, constituted as the Court of Chancery at present was, to make such an arrangement without the appointment of a new judicial functionary. In point of fact, the Lords Justices of Appeal did not appear likely, for some time to come, to have a great pressure of business. The number of appeals at present was very small, and there was no reason to suppose that there was likely to be any increase in this class of business. The great pressure which had hitherto existed upon the Court of Chancery had been occasioned by business of a temporary nature. The Winding-up Acts, for instance, and railway cases had occasioned a very great resort to the Court of Chancery; but the winding-up cases must necessarily soon come to an end, and the railway cases must diminish as the law on the subject became better understood; and he believed it would be found that the Court, as now constituted, had more judicial power than was necessary for the transaction of its ordinary business. The noble and learned Lord (the Lord Chancellor) had estimated the time occupied by the contentious business of probate in cases which would come under the jurisdiction of the Court of Chancery at sixty days; and his noble and learned Friend (Lord Brougham), in allusion to a distinguished Judge, had stated that he occupied three days in considering cases out of court for every day that he was occupied in court. He (Lord St. Leonard's) could only say 775 that every other Judge with whom he was acquainted never had, whatever might have been the pressure of business, a single day afforded him in addition to the days of sitting, but had to eke out the time as best he could from the hours of the night for the consideration of cases out of court. His noble and learned Friend had likewise stated, that that excellent person, instead of hearing the evidence in court, took it home and read it there. He thought that there must be a mistake in that statement, because anything more repugnant to justice, or that could prove more fatal to the suitor, he had never heard. It was most essential that the evidence should be heard in open court and before the full bar; and those persons very much misunderstood the objects and duties of a bar who fancied that they had no weight and use beyond the addresses which they delivered to the court. Consisting, as the bar did, of the most able men who had not been called to the bench, their presence and opinions must always be most valuable in correcting any errors into which the Judge might be apt to fall. He repeated, then, that he saw no reason to doubt that, by proper arrangements, the whole business of the Court of Probate might be transacted in the Court of Chancery. Their Lordships had taken every possible means to insure despatch in the Court of Chancery; they had given it full judicial powers, and if there still continued to be delay, they ought to take steps to remedy it immediately; he contended, therefore, that there was no court in which business of such importance could be conducted with greater speed than in the Court of Chancery; that was, as far as was consistent with doing justice between the parties. He had, indeed, seen with regret some letters in the journal which he was in the habit of reading in the morning, in which complaints were made of cases which had lasted twenty or thirty years. He staked his existence upon this—that, if they were of that duration, they were cases in which it was desired that the funds should be left in the Court either for the benefit of children until they came of age, or for the benefit of persons upon the demise of some life interest not yet determined. In such cases it might be the very object of the suit to bring those funds into the Court, and it was clear, if that were so, that the object of the suit would not be accomplished unless the funds remained there. It was out of the question, then, to mention these cases 776 as a reproach to the practice of the Court of Chancery. But if any man had a suit in the Court of Chancery which should be wound up, but which was not, he begged to tell him from that place, that it was his own fault or that of his solicitors, if it remained another week undisposed of. The Court had never had the power to make people active in the prosecution of their suits until the Act which he conducted through their Lordships' House; but now, if a case of this kind, where delay arose from the dilatoriness of the parties, was brought before the Court, the Court had power to compel the parties to proceed, and not to permit their suit to continue to encumber the files of the Court. People often chose to let their causes lie over from unwillingness to bring them to judgment; and the consequence was, that when he was in Ireland, and was determined that there should be no old causes, there was the greatest difficulty in getting them to move in theirs; there were many of them that had remained in the Court for thirty or forty years, and the parties wanted them to be allowed to slumber on. Nor was this indisposition to bring causes to judgment confined to those before the Court of Chancery. An instance occurred only the other day, in which an appeal had been for a long time before their Lordships' House, without either of the parties proceeding in it; and when they were called upon and compelled to proceed, the result was, that an arrangement was made by which the appeal was withdrawn. He should not at the present stage enter into the details of the measure. As at present advised, he was in favour of the transference of the testamentary jurisdiction to the Court of Chancery; but his ultimate support of this Bill must in a great measure depend upon the shape which it took in the Select Committee to which it was to be referred. To one part of it he certainly did entertain a strong objection—that which would render landed estates subject to probate—because he thought that its effect would be to force on contentious suits with reference to devises of lands, which would not otherwise arise. He could not sit down without expressing his regret at the breaking in upon the practice of a number of learned persons who had devoted their lives to the practice of this particular branch of the profession. At the same time he was bound to say that he did not see his way to give them any compensation. It seemed perfectly 777 impossible to compensate advocates or barristers for any loss of practice consequent upon a change of judicature. If, however, they confined the exercise of the jurisdiction transferred to the Court of Chancery to one court, they might give civilians a pre-audience in cases referring to testamentary matters.
LORD WYNFORDsaid, he would have preferred the erection of a peculiar court for the exercise of the testamentary jurisdiction, to transferring the business to the Court of Chancery. He feared that the result of the contemplated change would be to destroy the civilian branch of the bar. In this opinion he had the support of Dr. Lushington, who, in his evidence before the Commissioners, said that he feared the inevitable consequence of the transfer of the testamentary jurisdiction to the Court of Chancery would be the extinction of that branch of the bar. He seemed to think that if the remunerative branch of business was withdrawn from the ecclesiastical courts, there would be no great reward for superior talents in the pursuit of the study of the civil and international law; and that, therefore, the civilians would not in future be so distinguished for learning and ability as they had been. Now he could not but think that this would lead to great public inconvenience, when they considered how often questions of the utmost importance with respect to international law arose, not only in war, but also in peace; and that the Foreign Office then required the advice of persons of the greatest experience and knowledge.
THE EARL OF DONOUGHMOREsaid, he should not have presumed to say a word upon a subject so purely legal, had it not been evident that this Bill would inflict great injustice on two most deserving classes of men, namely, the advocates and the proctors; and he could not understand why this should not be a fit case for compensation. He could see no difference between this case and others in which compensation had been given. He offered no opinion with regard to the general scope of the measure; but, if this change was to be introduced for the purpose of obtaining a great public advantage, the noble and learned Lord who proposed it was bound to see that he did not inflict a private wrong by means of it. Both the advocates and the proctors had, by great industry and expense, qualified themselves for the performance of certain duties connected with one of the fixed institutions of the country; 778 and surely they were entitled to some compensation, if their prospects in life were destroyed by a legislative enactment. The Judges and the salaried officers of these courts were treated in a very different manner, for the Bill contained clauses most carefully providing compensation for them. He would allude to one of those gentlemen, upon whom he looked with great respect, but who had been made the subject of strictures in the public press—he meant the Rev. Mr. Moore. That gentleman held an office, the duties of which were performed by deputy, and the emoluments of which were enormous; but his interests had been carefully guarded. He was a drone in the hive, and held a lucrative office by the favour of a bygone Archbishop of Canterbury; but he was protected, while the men, who by great labour and reading had qualified themselves to become advocates, had the sources from which they derived their income abolished, and were utterly uncared for. He admitted the difficulties of the subject; but he hoped the House would not sanction such an injustice towards a body of deserving men, while another class of mere sinecurists, whe were certainly not entitled to favourable consideration, were provided for most carefully. Another objection he felt to the Bill was, that it would bestow increased patronage upon the Lord Chancellor, and, although he had no doubt that noble and learned Lord and his successors would distribute it with the greatest regard to the public service, still he thought there was some justice in the complaints which had been made with regard to the amount of patronage already placed in the Lord Chancellor's hands. He therefore asked their Lordships to pause before adding to that patronage, which many of the public considered as already too great.
LORD BROUGHAMremarked that the patronage of the Lord Chancellor had of late been much diminished by the abolition of the Masters in Chancery and other measures.
THE LORD CHANCELLORsaid, that with regard to one point which had been insisted upon by the noble Earl who had just spoken, and also by another noble Lord—namely, the injustice which it was said that this Bill would inflict upon the practitioners in the ecclesiastical courts—he quite agreed with them, that if the Bill would cause the commission of an injustice, it should not pass. We should not, in order to attain any advantage, do that 779 which was unjust. But in all these cases the question was, whether what was proposed was or was not unjust. Now, in the case of persons holding offices, it would clearly be unjust to deprive them by Act of Parliament of something to which they were by law entitled. With regard to the Rev. Mr. Moore, he quite sympathised with the remarks which had been made; he should be very glad if something, which it would be unjust to take from him, could be given to the proctors. But that was not the case. He had a right to his emoluments, and the State had no more right to take from him that which it had guaranteed to him than it would have to take his noble Friend's estate. It might be very convenient to have that for distribution amongst other persons, but it would be unjust. The only other matter to which he would allude was with respect to the observations that had been made as to the increased patronage given to the Lord Chancellor. Now he could conscientiously state that nothing would give him so much pleasure as not to have that patronage. But he thought that the Lord Chancellor was the person who, if made responsible for it, was most likely to select the fittest persons to fill situations connected with the law. The fact was, the appointments to those high places for which the Lord Chancellor was responsible were anything but patronage in the ordinary sense of the word. The head of a department might very well oblige a friend by giving his son a clerkship worth 100l. a year; but the Lord Chancellor would be scouted, and would lose his character, if he did not appoint to a judgeship, or an office of like importance, those whom the public voice would fix upon as fit to discharge its duties. These remarks would fully apply to the appointments which would be placed in his hands by this Bill. The civil patronage of the Lord Chancellor had, in fact, been reduced almost to nothing. All the patronage he had had since he filled the office had been occasionally to select the best persons for important places. But that which used to be considered the real patronage of the Lord Chancellor had been of late years almost entirely abolished. His noble and learned Friend (Lord Brougham), for instance, abolished seventy Commissioners of Bankrupt. Now, as hardly any gentleman who had been called to the bar was not competent to fill this office, nothing could be more agreeable than the power which the Lord Chancellor 780 possessed to give one of them to the son of a friend. He certainly made no complaint as to what had occurred; but let it not be imagined that the patronage given to him by this Bill was that sort of patronage which conferred influence. If the noble Earl could fix upon any person who was more likely than the Lord Chancellor to make good appointments to the offices created by this Bill, he would give him his most cordial support in transferring the patronage to that person.
LORD BROUGHAMremarked, with reference to a statement which had been made by the noble and learned Lord (Lord St. Leonards) near him, that it used to be the practice in these courts for the counsel to read the evidence, and then to comment upon the leading parts of it, but some of the learned Judges had since adopted the plan of reading the evidence, upon which, however, the counsel had still the liberty of commenting.
§ On Question, agreed to; Bill read 2a accordingly, and referred to a Select Committee.
§ House adjourned to Thursday next.