HL Deb 24 March 1854 vol 131 cc1251-7

moved for Returns of all Causes now depending in the Court of Chancery commenced in or before 1852, and of their present state; of all matters now in the several Masters' offices; of all writs, &c., in or since 1852, and in which final orders or decrees have been made. The noble and learned Lord said, it would be in the recollection of their Lordships, that a few nights ago he took the opportunity of vindicating the Court of Chancery from some aspersions which had been frequently cast upon it. The observations which he then made were drawn from him in consequence of certain complaints which had been made both publicly and privately against that Court, and he had thought it right to state, what he believed to be the case, that these complaints were not well founded, and he had no other object now in moving for these Returns than to give an opportunity of investigating these charges and seeing whether they had been properly made or not. At the same time, if it appeared that any of the complaints made against the Court of Chancery were well founded, and that matters had improperly occurred in connection with that Court, he thought an investigation should take place so that such occurrences might be prevented in future. The object he had in introducing a Motion for the Returns he asked for was to show what was the actual state of the Court of Chancery, and the condition of those suits in it which had been depending for some time. If, upon a Return made in compliance with this Motion, it should appear that there were matters which ought to be inquired into, he should feel himself called upon to move their Lordships, for the appointment of a Committee to investigate the state of the proceedings in that Court, as he was quite satisfied there could be but one object in that House—namely, not to let the Court of Chancery be accused without just cause, and, if there was just cause, to take steps to remedy the evils which might be found to exist. There was one matter which had been publicly spoken of which reflected upon the office of one of the Masters in Chancery. It had been stated that no appointment could be fixed with that Master in Chancery except in the case of certain solicitors, and this was said to fall very hardly upon the solicitors as a body. He had been in communication with the Master in Chancery alluded to, who had written to the solicitors, but had received no reply at the time he (Lord St. Leonards) communicated with him. The Master, however, stated that he was not aware of any cause or matter to which the complaint which had been made could refer. He (Lord St. Leonards) would take this opportunity of making an observation or two upon a complaint which had been made as regarded himself, in which it was endeavoured to show that he had been actuated by a desire of oppressing the solicitors as a body. He could assure their Lordships, and the profession to which he had had the honour of belonging for so lengthened a period, that that accusation was entirely without foundation. The complaint was that upon one occasion he had made a solicitor pay costs because no counsel was prepared to go on with the case. He had never done any such thing. What he did was this—he made a solicitor pay costs, because neither he nor any counsel, nor even a clerk or any other person, was ready to appear when a cause was called on. In that case he made—and he apprehended that he acted very properly—he made the solicitor conducting the suit pay the costs; but certainly that was no reflection upon the solicitors as a body. In fact, he had never made any remark which could at all tend to cast a reflection upon that body. He hoped the result of any investigation that might be entered into with regard to the Court of Chancery would prove satisfactory.


said, he was exceedingly glad his noble and learned Friend had moved for these returns, because it was a matter of justice to the court to show that the individuals who complained were labouring under mistake, and that great improvement had been effected in the mode of conducting equity proceedings. He was also glad to hear his noble and learned Friend announce his intention, if it should be found that the new rules, both by statute and under the authority of the court, had not fulfilled the expectations of those who had promoted those great changes, to move the appointment of a Committee. He (Lord Brougham) was decidedly of opinion that a vast improvement had been effected in the courts of equity; and, although he approved of inquiry, he was convinced it would not lead them to retrace their steps, however necessary it might appear to introduce further improvement. His hope and trust, however, was that further inquiry would not be found necessary, and he entertained a strong expectation that when these returns were made they would show that recent complaints were groundless, and that the utmost their Lordships were called on to do was to examine how far it was possible, in one or two particulars, to make that improvement more perfect and complete. He could not allow this occasion to pass without stating to their Lordships one or two particulars connected with the great cause of legal reform, in justice to those with whom it originated. It was not in the year 1852 that the present Amendments were first propounded; neither was it in the preceding year, 1851, when a Com- mittee of their Lordships' House entered into a full examination of matters connected with the Court of Chancery. It was not even in the year preceding, in 1850, when the Chancery Commission first began its labours, that those great changes, which had entirely altered the pace of proceedings in the Court of Chancery were first propounded to the profession. In justice to an honoured and learned relative with whom that proposition originated, Master Brougham, and for the sake of drawing an important conclusion in behalf of the amendment of the law, he felt it his bounden duty to mention that it was not in 1850, 1851, or 1852, but in 1842, ten years before that great measure for the reform of the Court of Chancery was enacted; that, almost in every detail, the measure was stated by Master Brougham, in a letter which he addressed to his immediate superior, the Master of the Rolls, the late Lord Langdale, stating that his eleven years' experience as Master in Chancery proved the evils of the system which he detailed and described, and proved also that there was but one remedy for these evils—an entire change in the system, by abolishing the masters' office. He stated, also, in what manner that abolition should take place; he described the consequent changes in the jurisdiction of the Court of Chancery; and he showed how necessary it was that the Judges of that court should not be satisfied with performing half the business, leaving the masters out of court to perform the rest of it, but that the Judges should sit partly in court to perform what was properly the judicial business of the court, and act as chamber Masters or chamber Judges to perform the residue of the business. These changes, strongly recommended and illustrated by examples, were pressed zealously upon the Master of the Rolls, Mr. Pemberton Leigh, and Sir James Wigraim, afterwards Vice-Chancellor, the three gentlemen appointed by Lord Lyndhurst to examine into the whole matter. The masters having been called upon to give their opinions, Master Brougham stated the particulars in detail; and added, he was only afraid it was too powerful a remedy for the admitted evils, but he was thoroughly convinced, from his experience of eleven years, that it was the only remedy which would be found to have any material effect in mitigating those evils. Unhappily, those three learned persons did not immediately report to Lord Lyndhurst in such a manner as to produce any immediate proposition. The master thus finding it impossible to carry out the whole scheme, proposed a middle course, embodied in the Judge Masters Bill, which he (Lord Brougham) had the honour of introducing. That was only a half measure, but they still thought a half measure was better than none at all. That Bill their Lordships were pleased to sanction with their approval. It went to the other House, where it shared the fate of many measures, several of which he was inclined to think were valuable measures, and fell into entire oblivion. He moved the Bill again the following year, which gave rise to the Committee of 1851; before which Committee the letter of the master was given in evidence relative to the proposals he submitted nine years before. But let their Lordships remember the consequences of the delay. There was no reason whatever why a Bill founded upon the suggestions of Master Brougham should not have passed in 1843, instead of in 1852. Ten years had passed from the time those suggestions were first made—years of great suffering to the suitor, of grievous obstruction, to the court, and of great vituperation, not unjustly addressed to that court. Although they were judicial officers of that court who saw the mischief of the system, who were aware of the remedy, who propounded the remedy, and were anxious that the remedy should, without delay, be applied, ten years were suffered to elapse before any effectual steps were taken to apply the remedy, which all men agreed had produced the most blessed change in that jurisdiction which, since its existence, had been known, He drew from this the conclusion, that, whilst they ought not rashly and inconsiderately to make changes in their judicial establishments, at all events they ought not to delay them more than was absolutely necessary for giving due and deliberate consideration to those changes; and if they had had in the Court of Chancery the benefit of that which Lord Langdale always considered indispensable to complete any judicial system—a Minister of Justice—he (Lord Brougham) was thoroughly certain, instead of ten years, possibly not ten months would have elapsed before these salutary changes would have taken place.


said, the noble and learned Lord had done well in bringing before the public the obligations they were under to his learned relative, because he had no doubt whatever that the abolition of the Masters offices was the origin of all the improvements in the proceedings of the Court of Chancery. He considered his noble and learned Friend (Lord St. Leonards) had done well in moving these Returns, because he was sure they would prove that at present no grievances whatever existed in the equity courts. But for their Lordships to appoint a Committee on account of some paragraphs in newspapers was, he thought, derogatory to their Lordships' House. He trusted that, on these Returns being made, all would concur in testimony favourable to the courts of equity which, if not perfect, because no human institutions were perfect, required very little more to be done to them.


said, he could assure their Lordships that had it been the custom in their Lordships' House to require a Motion to be seconded, he should have been the first to second the Motion of his noble and learned Friend. He was sure their Lordships would do him the justice of acknowledging that it was not his object, as the head of the Court of Chancery, to screen anything connected with that Court. There was nothing of which he should be more glad than to have that Court laid open to the fullest possible extent, and, if anything should be found to be wrong, to have it corrected. When he said that nothing was wrong, the assertion must be taken with some little qualification, as errors would be found to exist in any system that might be adopted; and the returns in this case might show that there were some old causes, as they were called, still hanging on hand, and such cases might probably be hanging on hand to the end of time. He referred to causes such as, for instance, a suit concerning persons who had died and left property in the West Indies, Australia, Scotland, or Ireland. When such cases got into the Court of Chancery, it sometimes took years before they got cleared up. They could not properly be called suits, for they were rather the administration of the affairs of deceased persons, and required communication with all parts of the globe, and a long time must necessarily elapse before they could be settled. But he saw no reason why these causes should not be forced on as much as possible. He might say that he had been in communication with the Masters in Chancery upon this subject, and he believed their Lordships would find from the returns that whatever there had been of delay was owing, not to the Court, but to the parties concerned in suits, who got wearied, went to sleep, and did nothing. It was not that the Court did not help them, but, on the contrary, it forced them on.

Returns ordered to be laid before the House.

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