CHANCERY REFORM. (Hansard, 6 May 1856)

§ LORD ST. LEONARDS
said, that in putting the Question of which he had given notice to his noble and learned Friend on the woolsack—whether he intended to introduce any measure founded on the last Report of the Chancery Commission?—he would take the opportunity of setting right a question of fact—whether the two Acts for abolishing the Masters' Offices, and for amending the jurisdiction of the Court of Chancery passed in 1852, had been framed—as they had undoubtedly 10 been brought in and carried—by the Government of which his noble Friend (the Earl of Derby) was the head, or by the Government of Lord John Russell. Their Lordships had heard several times the great anxiety with which Lord John Russell's Government had claimed whatever merit might belong to those who laboured to carry those important measures through Parliament. Now, what were the facts? On the 3rd of February, Her Majesty, in Her Speech from the Throne, stated that she had directed Bills to be prepared for the reform of the Court of Chancery, founded on the report of the Chancery Commissioners; and, on the same day, Mr. Hayter announced that the Solicitor General would, on the 16th, move for leave to introduce a Bill respecting the Court of Chancery. But, in answer to a question put in that House two days afterwards, it was stated that no Bill had been framed, the Lord Chancellor not having had time to consider the Report. And the next evening, in reply to an observation of Lord Lyndhurst, Lord Truro, (then Lord Chancellor) said he heard with considerable surprise of the notice which had been given of the introduction of a Bill for the reform of the Court of Chancery into the other House of Parliament on the 16th, because he thought that such a Bill, founded on the report of the Commissioners, and embodying certain of their recommendations, would require a very great amount of thought and arrangement in order to make it available for any purpose he, and did not see how a well considered measure could be possibly prepared by that time. On the same day, in the House of Commons, the Solicitor General said that the Bill was not reduced into such a shape that he could entertain any reasonable expectation of being able to offer it on the day named, but there would be no delay. Six days later, that is, on the 12th February, upon the question being again mentioned in that House, the Lord Chancellor (Lord Truro) said— He had given to the Report the utmost time he could withdraw from the duties of his office; but he could not pretend that he had been able to make up his mind on every part of it. With regard to a rumour referred to, he stated that he had not expressed disapprobation of any part of the Report. He had expressed doubts whether certain parts of it could he carried out as desired by the Commissioners, not at all being indisposed to adopt their recommendations if they were practicable; as to which he repeated that he had doubts. The notice as to the Bill had been given under some misapprehension, not by 11 the Solicitor General, but by Lord John Russell, upon mistake and misinformation. There was not, he said there could not be, any possibility of the Bill being in such a state as to be presented to the House by the time mentioned. It was a matter of great difficulty, requiring great consideration. It was in the hands of a gentleman well fitted to prepare it; and he (the Lord Chancellor) would do his utmost to expedite the preparation of it, and to adopt so much of it as could be carried out with benefit (though he was not prepared to say that the whole could be); but he was persuaded that the gentleman could scarcely have yet formed, even in his own mind, the shape of the Bill, and that it could not possibly be in a state to be produced to Parliament by the time which had been stated. He then showed the difficulties in the way of abolishing the Masters' Offices, and that he had not made up his mind on the subject; and he added— That he had not anticipated the recommendation for the annihilation of the office of Master in Chancery, and when a vacancy occurred he contemplated filling it up; but having communicated his intention to a Member of the Government, he was asked, 'Are you not aware that the Commissioners are contemplating the abolition of the office?' Whether (he said) those who almost stifled the Report with their commendations were prepared to go the whole length of it, he did not know; but he could at present give no decisive opinion as to the abolition of the office of Master one way or the other, and could only say, that if the advantages anticipated could be secured, he should be well satisfied. And he afterwards added— That he had considered that part of the Report which related to the abolition of the Masters Office; he was not satisfied as to the mode in which their places were to be supplied—he could not say that he knew of any plan by which the object of the Commissioners could be accomplished with advantage to the public. ^∗ ^∗ ^∗ He said, he repeated once more that he doubted how far the plan of the Commissioners, as regarded the abolition of the Masters' Office, could be carried out. He was not to be satisfied by mere declamation that this or that plan could be accomplished; he required proof. This was the last time that Lord Truro spoke on the subject. On the 16th of February, the day named by Lord John Russell for the production of the Bill, of course no Bill was produced, but the Solicitor General stated, that the Lord Chancellor, when in possession of the Report, gave instructions to have a Bill prepared to carry into effect the recommendations of the Commissioners. Thus the matter stood when the change of Government took place; and, on the 12th of March, he (Lord St. Leonards) stated to that House what legal measures the new Government proposed. He gave to the 12 Commissioners the full credit due to them, and he gave also to the then late Government the credit due to them for their intention to carry out the Report. He added that he had understood a Bill had been prepared. He found, however, no trace of such a Bill, but that the work remained to be done. He had, however, he then stated, received within the last two or three days, a sketch already prepared of the heads of so much of the proposed Bill as related to the Masters' Offices, and he then pointed out his objections to the mode in which that was proposed to be carried out. He might now state that he had reason to believe that Lord Truro never saw that sketch. On the 22nd of March the late Solicitor General made a statement in the other House, from which it appeared that the late Lord Chancellor had been desirous that the Commissioners themselves should prepare the Bill, but they thought the Government ought to do so. He referred to the sketch already mentioned, and appeared to have stated that the most material clauses were first sketched out and afterwards fully prepared. Now, he (Lord St. Leonards) had no wish to say anything injurious to the memory of Lord Truro. He regretted he was not present in the House when some observations were justly made in praise of that noble and learned Lord. But, it was but justice to him (Lord Truro) to say that he never during his life claimed to himself the labour involved in the preparation of these Bills. He had already said that when he (Lord St. Leonards) came into office he did not find the least trace of the Bills, as Bills, and he adhered to that statement. A sketch was shown to him, which had been prepared by a draughtsman, of what had been proposed with respect to the Bill for the abolition of the Masters' Office, but it differed fundamentally from the scheme carried into execution by him in regard to the abolition of the Masters' Office. The proposition, in fact, was to make the new clerks, in effect, the successors of the Masters in Chancery. They were to be called Assistants to the Judges, and they were to go back to the Masters' Offices. To both those plans he objected; and they were ultimately abandoned, and his proposal substituted, which he considered a very great point, namely, making these functionaries merely clerks, though men of position and considerable knowledge, and capable of affording assistance to the 13 Judges in the matters which came before them, and not allowing them to go even for a time to the old Masters' Offices. He had never denied the good intentions of Lord John Russell's Administration, and that they had had a sketch prepared of one important branch of the subject; but he said those intentions had never been carried out, though he had no doubt they would have been if the circumstances had proved more favourable. In short, he denied that a single clause of the proposed Bill had ever been framed. To his (Lord St. Leonards) knowledge, the whole work was performed under the Administration of his noble Friend (the Earl of Derby). No one could dispute that the second and larger Bill—that for the improvement of the jurisdiction in Equity—had been prepared after the change of Government. It was not a question between individuals, but one between two Governments; and whatever credit attached to the actual preparation and carrying through of the measures, it was certainly due to his noble Friend's Government, and not to that of Lord J. Russell. No Bills ever underwent greater deliberation or cost more labour, either in their preparation or in their final settlement out of the House, or required more time to be devoted to their consideration. No man's energies in fact were too great to be applied to the subject; and all this time and labour was given without stint by the persons who had to direct the preparation of the measures. Of course, he included himself. There could be no question, therefore, as to whom the merit of the labour belonged. The Master of the Rolls and the three Vice Chancellors afforded him (Lord St. Leonards) their assistance in the final settlement of the Bills, and every word of every clause was read aloud by one of them in the presence of all, and the Bills were afterwards referred to a Select Committee in that House, upon which were all the Law Lords. Lord Truro never set up the claim which was now set up for him. When the Bills reached the House of Commons, so little did Lord John Russell and the present Attorney General think they were Bills belonging to their own Administration, that they charged him (Lord St. Leonards), without the least ceremony, with having mutilated and entirely spoilt the plan of the Commissioners by his alterations. They, of course, did that in ignorance, for neither of them had then read a word of the Bills. If they had looked into them, they 14 would have found that they carried out the general views of the Commissioners fairly and honestly, though not servilely, but with such additions and alterations as, he would take the liberty of saying, his own great experience justified him in making, and those measures having passed into law, had been found to work admirably. The subject had been discussed in that House, and his noble and learned Friend now on the woolsack, in allusion to the charge made in the other House that he (Lord St. Leonards) had mutilated the Bills, said that there must be some misunderstanding as to what had occurred, for that the statement carried with it its own refutation, and that they were clearly his (Lord St. Leonards') own Bills. He then thought there was an end of controversy; but when on a previous evening the merits of Lord Truro were alluded to, the noble and learned Lord on the woolsack said he thought sufficient merit had not been given to Lord Truro in his lifetime for having prepared the Bills in question. When he read the report he took it for granted it was some mistake, and the noble and learned Lord, on having it pointed out to him, said he believed he must have made the statement, but that he would take care to put the matter right; and when he. (Lord St. Leonards) returned to his duties in that House, the noble and learned Lord did put it right. Since that time the controversy had, however, again been raised in a letter signed "A Friend of Lord Truro;" and, although he did not wish to take any credit to which he was not entitled, he thought it right to call their Lordships' attention to the plain facts of the case, in order that this question might once for all he set at rest. He had simply put his question on the paper in order to bring forward the matter in a proper form, and he had no wish to press for an answer. He had read the Report of the Commissioners, and he thought it deserved very great consideration. He hoped the Lord Chancellor would not introduce any measure with regard to damages, as much mischief might be done to the Court of Chancery by a general measure of that sort.

THE LORD CHANCELLOR
said, that the Third Report of the Chancery Commissioners contained some recommendations which would be carried out without legislation, and with respect to these he had given notice that orders should be prepared by which they would be carried into effect. He had thought it desirable 15 to take time to consider very carefully the character of the measures which it might be desirable to introduce into Parliament to carry out such of the recommendation of the Commissioners as required legislative sanction. With respect to the recommendation as to giving the Court of Chancery power to give damages in certain cases, he thought it was desirable that every court should have the means of carrying out finally its own decisions, and he had ordered a Bill to be framed on this subject, but he could not say whether he should adopt it till he saw what it was like. With respect to the observations he made on a previous occasion, he was sorry he should have said anything that should give rise to discussion; but still he thought he was pretty nearly right when he said that Lord Truro had not had quite justice done to him about his share in the Chancery measures introduced by the Government of Lord Derby. The Commission issued by his noble and learned Friend prepared the Report on which these measures were founded; and the Solicitor General of Lord John Russell's Government had introduced one Bill embodying a very important part of the recommendations of the Commissioners. The only error into which he fell was that he thought Lord Truro had given directions for the drawing of the other Bills which were subsequently introdúced, and that they were in course of preparation when he left office. In so far it appeared that he had been in error, and that he had done injustice to his noble and learned Friend (Lord St. Leonards), by whom these Bills had been introduced and carried through.

LORD BROUGHAM
said, it was impossible to over-estimate the merits of his noble and learned Friend (Lord St. Leonards) in preparing those Bills, which had effected a most beneficial change in the Court of Chancery, by the abolition of the Masters' Offices, and the substitution of the present mode of Judges working out their own decrees, thus saving an immense amount of expense, delay, and uncertainty; and it was beyond question that Lord Truro admitted that he did not at one time approve the fundamental principle of those measures. But it was a near relation of his own, himself a Master in Chancery, who wrote a letter more than ten years previously to Lord Lyndhurst and Lord Langdale, then Master of the Rolls, in which he advised that the Masters should be abolished, and showed how the business 16 might be done without them. It was melancholy to think that so many years had been allowed to elapse, during which the suitors suffered, the profession suffered, and the character of the court itself suffered, before that great improvement was carried into execution.

§ LORD ST. LEONARDS
said, none of the clauses of either of the Acts was drawn up when Lord Truro was in office. Lord Truro frankly said that he had not made up his mind on the subject, and so little did he think in the first instance that the Masters' Offices were to be abolished, that he actually, a short time before he went out of office, nominated a gentleman to the office of Master. A sketch of one of the Bills did exist, but he (Lord St. Leonards) made, as he had stated, fundamental alterations in the plan.