HL Deb 24 April 1860 vol 158 cc1-21

Order of the Day for the Second Reading read.


in moving the second reading of this Bill, said that he was well aware how distasteful such a subject must be to the majority of their Lordships, but he felt it his duty earnestly to implore them to give their attention to the arguments he had to offer in support of his Motion. It appeared to him that we had arrived at a crisis in law reform, and the question now was, whether there should be any further fusion of law and equity. Her Majesty in the Speech delivered from the Throne at the commencement of the Session recommended the subject to the careful consideration of Parliament, and invited their Lordships and the other House of Parliament to resume their labours in the cause of law reform, and to consider whether it was not practicable to effect a further fusion of law and equity, so as to enable the Courts, whether of Common Law or Equity, finally to determine in a satisfactory manner any case which might be duly brought before them. There prevailed in this country what he believed was unknown in any other civilized State—a distinction between the law administered in one tribunal and the law administered in another. This had arisen from what he must call the narrow-minded and technical decisions of the common law Judges in former times. Justice having been denied to the subject in the Courts of common law it became necessary to seek for some other tribunal. Another tribunal was therefore constituted, from which the most important advantages had been derived by the country; he meant the Court of Chancery. The great men who had presided in that Court had constructed a most beautiful system of jurisprudence, which was the admiration of the whole world. But in many respects it differed from the system which prevailed in the Courts of common law, and there had for several generations been a conflict going on between the Courts on the one side and the Courts on the other of Westminster Hall, Lord Mansfield made an attempt to bring about some reconciliation. But that great Judge and jurist incurred great obloquy for his endeavours, because it had unhappily teen the practice of the two classss of lawyers to consider their respective rules of judicature to be absolute perfection, and to look with horror upon any attempt to alter them. He remembered, indeed, that when he himself entered the profession the equitable doctrines of Lord Mansfield were sneered at and contemned in the Courts of common law. Thus things continued with little alteration until fortunately a Commission was appointed by Her Majesty to consider what improvements could be made in the Courts of equity. The Commission consisted of eminent men — namely, Sir John Romilly, Lord Justice Turner, Sir William Page Wood, Mr. Justice Crompton, Sir Richard Bethell, Sir James Graham, Mr. Henley, Mr. J. Parker, and Mr. W. M. James. Their recommendations, as far as the Courts of equity were concerned, had been almost entirely carried into effect; but he was sorry to say that in the Common Law Courts much yet remained to be done. The Commissioners took the most enlightened view of the subject and offered most valuable suggestions. In the Report which they presented to Her Majesty in 1852 they stated:— The mischiefs which arise from the system of several distinct Courts proceeding on distinct and, in some cases, antagonistic principles, are extensive and deep-rooted. These mischiefs, we believe, have arisen in part from the different principles by which the different Courts are governed, and the different systems of law from which those principles are derived, and in part from inherent defects in the powers of the several Courts.… It happens that, in many cases, parties in the course of the same litigation are driven backwards and forwards from Courts of law to Courts of equity, and from Courts of equity to Courts of law. A defendant in an action at law, who has a just ground of defence, is often obliged to resort to equity to control the decision of a Court of law, or to restrain the plaintiff at law from proceeding to obtain a judgment which cannot in equity be permitted to be available.… Again, Courts of law have no powers for the preservation of property pending litigation. A Court of equity has such powers; and parties suing in Courts of law are thus frequently driven into equity for the preservation of the property pending the suit at law. The Commissioners laid down principles which he wished to see adopted. They said, It is obviously most desirable that in every case the Court which has the cognizance of the matter in dispute should be able to give complete relief. Having then discussed the various remedies which had been suggested, they continued:— We have arrived at the conclusion that without abolishing the distinction between law and equity, or blending the Courts into one Court of universal jurisdiction, a practical and effectual remedy for many of the evils in question may be found in such a transfer, or blending of jurisdiction, coupled with such other practical amendments as will render each Court competent to administer complete justice in the cases which fall under its cognizance. We think that the jurisdiction now exercised by the Courts of equity may be conferred upon Courts of law, and that the jurisdiction now exercised by Courts of law may be conferred upon Courts of equity to such an extent as to render both Courts competent to administer entire justice without the parties in the one Court being obliged to resort to the aid of the other. In this Report of the Commissioners the principle was laid down on which the present Bill was founded,—one cause and one Court. It was not proposed that a suit should be brought in the Court of Queen's Bench against a trustee for breach of trust, or that an action for assault and battery should be brought in the Court of Chancery; but that legal rights should be enforced in the Courts of common law, and, if equitable questions arose incidentally, that those Courts should have power to dispose of them without entailing on the parties the necessity of going to another tribunal, employing another set of counsel, and thus incurring infinite delay and expense. His hon. and learned Friend Sir Richard Bethell, who was not only a great advocate, but a profound jurist, in an address which he delivered at the inauguration of the Juridical Society in 1855, said:— For above a century this country has exhibited the anomalous spectacle of distinct tribunals acting upon antagonistic principles and dispensing different qualities of justice. It is the rule and duty of the one set of Courts frequently to refuse to recognize the real right of ownership, to ignore defences and claims founded on the best established rules of justice; and the prevention of gross injury committed in the name of law is made to depend upon the other Court being quick enough to overtake and arrest the first in its career of acknowledged injustice, and prevent it from deliberately committing wrong. Afterwards Commissioners were appointed to inquire into the subject of common law procedure, and the country was deeply indebted to them for their labours. Whatever might be thought of their suggestions respecting the equitable jurisdiction, their recommendations for amending the pleadings and process of the Common Law Courts were universally admitted to have been of infinite benefit to the country. He found from a Return that in the twelve months before the Common Law Procedure Act of 1852 came into operation, the number of rules granted by the Common Law Courts was 38,009, and that in the nine months after that Act came into operation the number was reduced to 3,081, although a greater number of actions were brought and depending. The Common Law Commissioners were Chief Justice Jervis, Chief Justice Cockburn, Mr. Justice Willes, and Baron Bramwell. In their second Report, in 1852, the Commissioners stated:— We think we shall not outstep the limits of our commission by so far expressing our opinion, upon what is commonly called the fusion of law and equity, as to say that, whether or not it may be thought conducive to despatch of business and satisfaction in the administration of justice to do away altogether with the present division of labour between the Courts of law and equity, so far as that division arises out of the diversity of the subject-matters over which either class of Courts exercises an exclusive and complete jurisdiction it appears to us that the Courts of common law, to be able satisfactorily to administer justice, ought to possess, in all matters within their jurisdiction, the power to give all the redress necessary to protect and vindicate common law rights and to prevent wrongs, whether existing or likely to happen unless prevented. They then went on to recommend specific improvements, on which the present Bill was partly founded. On the recommendation of the Commissioners jurisdiction was given to the Courts of common law in all cases where there was an equitable defence; but the Courts of equity held that suitors were not bound by the judgment where there was power to set up an equitable defence; so that, if judgment were given against them, they might go into a Court of equity, file a bill, and have the whole case tried over again. Sir Hugh Cairns, a great ornament of the profession, had brought in a Bill which did give to the Courts of equity the powers that were required to do full justice to suitors who came before them, whereas formerly it was necessary, when a legal question arose, to go into a Common Law Court, directing an issue directed to try the point. Sir Hugh Cairns's Act enabled the Court of equity to decide legal questions arising in an equitable suit; but he was sorry to say that the equity Judges were very reluctant to avail themselves of the power, and it was often necessary in an equitable suit to resort to an action in the Common Law Courts to enforce a legal right, and to incur great additional expense by employing two distinct sets of counsel. In their third Report the Common Law Commissioners, Cockburn, Martin, Willes, Bramwell, and Walton, pointing out the evils and remedies, said:— It is our intention and wish that the result of what is proposed should be ingrafted upon and become part of the common law, and that the distinction between common law and Chancery law should be so far abolished. If, in addition to this, the Court of Chancery is prohibited from interfering in cases where Common Law rights are thus rendered capable of complete vindication in the Courts of common law, and in which, therefore, its interference will have become useless, the greater part, if not the whole, of the field of conflict will be done away with by confining the operation of the courts respectively to subject matters peculiar to each. Thoroughly to effect this it is necessary to confer upon Common Law Courts power to give, in respect of rights there recognized, all the protection and redress which at present can be obtained in any jurisdiction, and it is upon this principle that we have acted in our suggestions. If they be carried into effect there will no longer be the spectacle of jurisdictions imperfect in themselves and clashing with one another, but each Court will be armed in itself with exclusive jurisdiction over the subject-matter within its cognizance, and with full power to give all the protection and redress which the law at present affords by means of a plurality of suits. The conflict of jurisdiction will be done away with, because the occasion for it will no longer exist. We have only to add that we have give our best attention to the question whether it is necessary to adopt the procedure of the Court of Chancery in cases where it is proposed to borrow from its remedies; and we have arrived at the conclusion, strengthened by an experience of the working of the Common Law Procedure Act of 1854, that the desired object can be attained as effectually, and with less expense, by means of the ordinary proceedings of the Common Law Courts. This Report having been presented to Her Majesty, no time was lost to carry it into execution. The Bill of which he now moved the second reading had been framed entirely and exclusively on the suggestions of those eminent lawyers the Commissioners. The Bill, for which he took no merit, was drawn by Mr. Justice Willes, one of our soundest lawyers and ablest jurists, who had long distinguished himself by his earnest desire to assist in the amendment of the law, and he (the Lord Chancellor) had introduced it without altering a single line. It had been perused and approved of by Lord Chief Justice Cockburn, Mr. Baron Martin, Mr. Baron Bramwell, and all the common law Judges. A copy of the Bill and of the Report of the Commissioners had been submitted to the equity Judges; but those learned personages he (the Lord Chancellor) regretted to say disapproved of the Bill, and had even—including the Master of the Rolls, and the Lords Justices Knight Bruce and Turner —presented a memorial against it. They thought that nothing more should be done to bring about any further fusion of law and equity. He had no desire to ask their Lordships to pass the present measure without affording an opportunity for minutely and dispassionately considering the objections raised by the equity Bench—it was but reasonable that such a course should be taken—and with that view what he proposed was that their Lordships should give the Bill a second reading, and refer it at once to a Select Committee. In taking such a step he felt bound to state that the Common Law Commissioners were of opinion the objections of the equity Judges were untenable, and that Lord Chief Justice Cockburn had expressed a willingness along with his colleagues to answer the memorial of the Equity Judges. He would not enter with any minuteness into the provisions of the Bill, but would simply state that its object was to enlarge the powers of the common law Judges by enabling the Courts of law finally and completely to settle all questions of equity which might arise in the course of actions at law. He trusted their Lordships would consent to the second reading. All objectionable points could be fully discussed when the Bill was before a Select Committee.

Moved, that the Bill be now read 2a.


said, he was wholly opposed to the principle and object of the Bill, and should oppose the second reading. The Bill purported to be a Bill for the further fusion of law and equity; but so far as it tended to alter the present system of legal proceedings, it might be characterized as a measure calculated rather to promote the confusion than the fusion of law and equity; for it would give to one Court powers which could far more properly and far more effectually be exercised by another. The noble and learned Lord (the Lord Chancellor) had given to the House his opinion of the merits of the Common Law Commissioners and their recommendations; but he had altogether omitted to state the objections that were urged against the measure by the equity Judges. He should in the first place draw the attention of the House to the fact that the Commissioners had not been authorized to report in reference to equity jurisdiction, inasmuch as the order of reference had directed them to inquire into the principles of pleading in the Courts of common law; the manner of conducting suits before these tribunals and other circumstances connected with their procedure. The Commissioners had therefore gone beyond the scope of their powers, in reporting that it was expedient to give to the Courts of common law all the material functions which were now discharged by Courts of equity. And this without the slightest necessity. By this process it was supposed by some persons that the two different systems would be amalgamated; but it would have no such operation; they were leaving equity where they found it, and law where they found it; all it would do was to take equity from the Courts that understood it and from persons competent to administer it and give it to Courts that did not understand it and to persons who were not competent to administer it. If there was to be a real fusion of the two systems, they must have a code of law blending together those two branches of the law, and so make the union an absolute and complete one. As the law at present existed, no man had ability enough to execute both common law and equity. The legal system of this country was ancient and complicated, and had hitherto worked well. Let them consider a moment how the Courts, the machinery of both systems, stood. As to the machinery, the several Courts of the Master of the Rolls and the Vice-Chancellors have chief and other clerks, who admirably carry on the important business entrusted to them, and without such assistance, from the nature of equity business, justice would not be administered. There are registrars and other officers skilled in the framing and in the knowledge of the operations of the orders of the Court. The machinery works well, but Courts of law have no such machinery. They have only aid enough to carry out their own judgments. Is the country to be at the expense of unnecessary establishments to enable Courts of law to attempt to accomplish what is now perfectly executed by Courts of equity? The division of labour has been found to operate beneficially in various departments. As the law itself stands, this division between the Courts of law and equity is of great advantage. The object of this Bill is to put an end to that division. To try this proposal by a familiar instance, let the House suppose there to be two workshops, both supplied with adequate machinery and skilled workmen, but each confined and appropriated to a portion of the work — the machinery of the one inadequate to the work of the other; the workman skilled in one but utterly incompetent in the other branch. What should we say to a law compelling the manufacturer—for no sane man would do it without compulsion—to direct one division to execute the work of both without removing either the requisite machinery or the skilled workmen from the department whose duties it was proposed should be performed by the division to which they did not properly belong. In such cases it is not a question whether originally all the operations should not have been carried on together, but whether, being divided, you can without creating a new establishment by a real union of the divisions, effectually confer on one department the functions of the other. Now, as to the Judges, there were seven in the Courts of equity—the Lord Chancellor, the Master of the Rolls, two Judges of Appeal, and three Vice-Chancellors. How they had answered the purpose intended was proved by the fact that in no country was a system of equity law ever so well, or so certainly, or so cheaply administered as in England at present. The Lord Chancellor sometimes sat separately; the Judges of Appeal were always sitting, sometimes with the Chancellor, but generally without his aid; the Master of the Rolls and the three Vice-Chancellors were always sitting. There were fifteen Judges of the Common Law Courts, who had already as great an amount of business before them as it was possible for them efficiently to transact. Why, then, was the proposed transfer of jurisdiction to take place? Only a few evenings since the noble and learned Lord on the woolsack asked their Lordships to agree to the Bill for increasing the powers of the Judge of the Divorce Court, on the ground that the common law Judges were too much occupied to be able to sit as assistant Judges in the Court of divorce. And yet this important duty was part of the functions with which the Legislature had entrusted them. Then, how was it possible to ask their Lordships, without necessity, to transfer the duties of the Courts of equity, which they were perfectly competent to execute, to the Courts of common law, that could hardly do all their own work? They were quite inadequate to discharge the new duties required of them, or undertake the amount of business that now occupied the six equity Courts and their seven Judges. The consequence of the change would be that the equity Courts would not be fully occupied, and the Courts of common law would be encumbered with too much work. The machinery of the two systems as at present constituted enabled each division to discharge its own duties. But he thought, with all respect to the common law Judges, that they were rather too fond of making cases brought before them the subject of reference to arbitration, which was not the case in the Courts of Chancery. And this Bill particularly provided for a reference to arbitration. It would be found impossible to transfer the business of one set of Courts to the other. It was inevitable that the common law Judges could not be learned in the law of equity; yet it was proposed to transfer to them a system of procedure they had never studied, and in which they had not had the practice indispensable to form an equity lawyer. The consequence of referring equity cases to the Courts of law must be confusion and a mass of conflicting opinions. He had the greatest respect for the learning of the common law Judges in their own line, but common law lawyers themselves would be ready to admit that they were not equity lawers. They had no practical knowledge of the details of equity law and they would be overwhelmed by any attempt to bring its rules into practical operation. Then, if there existed a want of capacity in the Judge, insufficient time for dealing with these questions, and a want of adequate machinery for executing the decisions which might be made, with what prospect of success, he asked, could it be proposed to confer equitable jurisdiction on Courts of law? By taking on themselves to act under the provisions of this Bill these Courts would frequently be forced to take charge of the money belonging to suitors. In Chancery this portion of the duties of the Court had been reduced to a perfect system. All monies were paid in to the Accountant General, whose office was one of long standing, and who had under him a large staff of clerks; while in the Bank of England there was a large department appropriated to the Court of Chancery, with a view to insure the security of the funds and their due application. Was it intended that there should be a similar large establishment for the Courts of common law, or were they to have a repetition of what had happened in early times, where a suitor coming to claim his money found that it had been misapplied by the person to whom it was intrusted? In the case of a fraudulent or improvident trustee the person entitled to the equitable estate would have little difficulty, and would incur comparatively trifling expense, in causing the property to be conveyed into proper hands; but before the common law Judges a fraudulent trustee would be able to make out a much better case; and under the provisions of this Bill the owner, he contended, would be compelled to make good his equitable right as against the trustee before it would be competent for the Judges to decide on the evidence. The result of the measure, if passed, would be that the equity Courts would sit inactive, while the law Courts, with insufficient machinery, time, and information, would be engaged in the attempt to execute imperfectly and ineffectually the business which it was sought to withdraw from the proper channel. As for amending the Bill in Committee, there was but one thing which could be done with it, and that was to run a pen through all the clauses relating to the equitable jurisdiction. The third Report of the Common Law Commissioners proposed that certain equitable powers should be given to the Common law courts, which were accordingly conferred upon them, but those Courts had refused to exercise them, on the ground that they had not sufficient jurisdiction. It was not, however, a want of power on the part of the Judges, but a want of determination to execute that power, which prevented them from doing so. The Judges found—and nobody was better acquainted with the facts than the noble and learned Lord on the woolsack— that they were unable to deal with the subject, and they refused to assume the authority which the Act of Parliament had conferred on them. Now, it was proposed, in so many words, that they should have the power which they had before declared they were unable to execute. The Bill directed that in cases where the Judges found they were not able to do justice they should let the party go to equity. Was ever such a provision heard of? It was proposed, as an improvement on the existing system, that powers should be transferred from the Court of equity to a Court of law; and, if the latter found itself unable to deal with the cases brought before it, the remedy provided was, that they should be sent back to the very Court to which, at the present moment, they belonged! He maintained, as he had often done, that the tendency of modern legislation was to drive suitors from the uncertainty and conflict of jurisdictions into an arrangement of their suits by way of arbitration. The Bill proposed to give to Courts of law power to enjoin Courts of equity not to give relief, and a more monstrous proposition he had never heard. The noble and learned Lord had referred to the example of America, where the equity jurisdiction was at one time in a most unsatisfactory state. The remedy applied was to enable Judges of the Courts of law to sit also as Judges of equity; but that was not a fusion of law or equity—it was a mere confusion of Judges. The Judges of the Court of Exchequer here had at one time an equity jurisdiction; but the result of their being both law and equity Judges was, that the equity jurisdiction was administered so unsatisfactorily, that an end was put to it by Act of Parliament, by the unanimous assent of all men, at a vast expense in the way of compensations and retiring allowances. And yet Parliament was now asked to sanction the re-establishment of a system with regard to all the Courts of law which had already been tried and failed signally. The noble and learned Lord on the woolsack had acted with the utmost fairness in regard to this Bill. When the Bill was produced it had thoroughly astounded him, and he had no hesitation in saying that his surprise was shared by every lawyer in and out of Parliament; and he suggested to his noble and learned Friend to refer it to the working Judges of the Courts of equity—since the Report, of which it was the echo, was drawn up entirely by common law Judges. That was done, and the Report of the Master of the Rolls and the three Vice-Chancellors was now on the table, condemning the Bill on every ground. To every word of that Report he thoroughly subscribed. The Lords Justices had not been included in the reference, but they had also expressed their opinion in communications addressed to his noble and learned Friend in strong condemnation of the Bill. Therefore the noble and learned Lord on the woolsack—new to the Court, to its law, and to its practice—stood alone against the other six Judges of the Court whose lives had been spent in it. A more important question had scarcely ever come before their Lordships, and whether an attempt should be made to refer the Bill to a Select Committee or not, he should certainly take the opinion of the House in the present stage.


said, the subject now under consideration was one of preeminent importance. Whether it should be referred to a Select Committee or a Committee of the Whole House was a matter upon which, at that moment, he would not offer any opinion. He thought, however, that it was of great importance that the Bill should not be crushed at once, merely on account of certain parts of it that might appear objectionable, for on the other hand there were certain parts of it which ought to become law. He hoped their Lordships would not accede to the objections of his noble and learned Friend (Lord St. Leonards). The object of his noble and learned Friend on the woolsack was to enable all the Courts of equity and at common law to completely and satisfactorily decide every question brought before them, so that the suitors should not be bandied backwards and forwards from one Court to the other. That that was a most desirable object no one could doubt, and no one could doubt that every case ought to be decided cheaply and quickly, and, if possible, before one tribunal. In the object in view, therefore, he entirely concurred, although he must express his opinion to be that he felt great reluctance against passing a large portion of the measure. He objected to some but not to all the equitable clauses. He was disposed to agree to some of them, as he thought they would be eminently useful. He thought it, for instance, of the greatest utility that pending an action for ejectment the Court of common law should be able to restrain parties from committing waste or cutting down timber; whereas persons who brought an action of ejectment in a Common Law Court were now driven to a Court of Chancery for an injunction to restrain waste. So, again, in cases of forfeiture for non-payment of rent. If rent was tendered within a certain period the Court of common law ought to be in a position to stop the action in the same way as the Court of Chancery would now do. What objection could there be in such cases to giving the Courts of law larger powers? Last Session his noble and learned Friend, Lord St. Leonards, introduced similar clauses in reference to insurance. In the Common Law Procedure Act of 1854 there were for the first time introduced what were called equitable defences at law, and the Commissioners had recommended a greater extension of the system, to enable Courts of law to deal with equitable subjects. He would not go into the question of the original distinction between equity and law. They must deal with the matter as an accomplished fact—they found it so. There were certain cases called equitable, and others of common law. Then why not fuse, so far as they could, the two together, and say the Courts should administer justice in all? The reason why it could not be carried out generally was this—that in one class of cases the subject matter in litigation required one sort of machinery and another class another kind; and the Courts of law and equity at Westminster had not the machinery which was required for the two classes of cases. If all had the same jurisdiction, they must all have the same machinery. Suppose, for instance, a person died indebted, the executor was the person whom the creditor must sue, and he could bring his action at law and obtain judgment. But a Court of equity said that was not perfect and complete justice, and what was required was, that all the assets should be got together, so that all the creditors might come in and prove their debts, and the estate should be distributed rateably among them. The Courts of common law could not possibly deal with such a case, because they had not the machinery whereby full justice could be done. They required the machinery of the Accountant General's office connected as it was with the Bank of England, and the assistance of officials to issue advertisements and take accounts. If they had not this machinery attached to the Courts of law, what would be the consequence? why, they would stop parties from bringing their actions, and then would not be able to give them complete redress. He would not go into the question as to the Judges of either Court being equally competent for both classes of business, no doubt the common law Judges either were already or would very soon become fully competent. But this would be of no avail because if they had not competent machinery all the learning and intelligence in the world would not be of any service. On the other hand, there were cases in which it was unjust for the plaintiff to sue at all; and in which no special machinery was required, yet the defendant could not stop the action without going to the Court of Chancery. It was to meet this state of things that provision was made in the second Common Law Procedure Act, whereby parties were allowed to plead equitable defences if the Court did not feel incompetent to deal with the matter. In the first year after the passing of that Act two cases arose which completely illustrated the necessity of the alternative which enabled the Courts of common law either to admit or refuse an equitable plea. In the first case, an action was brought in which the equitable defence depended on the defendant executing a proper surrender and doing other acts which the Courts of common law had no means of enforcing. In that case, therefore, the plea was not allowed. In the second case an action was brought to recover the value of machinery in a mill. The equitable defence was that £10,000 had been paid for the mill and machinery, but by a mistake the machinery was not mentioned in the bought and sold note. The Court of common law could deal with such an issue as that, and the plea was admitted. By this Bill it was proposed to enact that a party should be able to obtain an ex parte injunction upon what was called a summons from a Judge at chambers. At present such injunctions were only granted by the Court of Chancery to prevent irreparable mischief, upon a bill and affidavit disclosing all the circumstances both for and against the party applying. No such security would, as he understood the Bill, be obtained under the present measure. More than this, it was obvious that an injunction granted with the view of preventing irreparable mischief to one person might cause an equal injury to him against whom it was granted. Accordingly, it was essential to justice that there should be an immediate and ready means of getting rid of it. Under the present system the Court of Chancery was in theory, and to a great extent in practice, always open; but if injunctions were to be granted by Judges at chambers during vacation it might be several weeks before parties considering themselves aggrieved had an opportunity of applying to a Court of common law for their dissolution. He thought he was bound injustice to their Lordships, and to the Court with which he had so Ions; the honour of being connected, to state his views upon the measure, in order to show why he could not concur with his noble and learned Friend (Lord St. Leonards) in the opinion that the defects of the Bill afforded any ground for not reading it a second time. He objected to such an extreme course, because he believed that the larger half of the Bill contained provisions to which no objection could apply.


said, that dry as the subject was, and unintelligible as it must necessarily be to the majority of their Lordships, he spoke with sincerity when he said that a Bill more important in its con- sequences had not often been laid upon the table of their Lordships' House. Its effect would be, whether wisely or unwisely, to subvert the system of law which had prevailed in England for upwards of 200 years, and to introduce into the administration of justice a confusion and uncertainty to which the nation hitherto had happily not been subjected. The distinction between law and equity arose from the circumstance that any system of jurisprudence which pretended to effect justice must apply different remedies to the assertion of different rights, and to the redress of different wrongs. The evil which was proposed to be remedied by this Bill, and which the Report of the learned Commissioners suggested needed a remedy, was not that the system administered by the Court of Chancery required to be altered, not that it was wrong, not that it failed to do justice, but that it would be more efficiently applied by Courts other than those to which its administration was now intrusted. It was contended that as the law was one, the same Court ought to administer it; but it might be said with equal force, that the same department of the State ought to conduct the Naval as well as the Military business of the country. That a colonel ought to command a ship and an Admiral to lead an army. The science of medicine was one, but nobody insisted on a physician proposing an amputation or on a surgeon attending through a fever. The only important question was how could the duty be performed with the greatest efficiency and at the least expense. The provisions of this Bill, instead of diminishing delay and expense, would largely increase them. The effect of the Bill in its present shape would be to empower an adversary, when a right was asserted in the Court of equity, to transfer the jurisdiction from that Court which understood the subject, and which was provided with all the machinery for administering the law, to another Court which was ignorant upon the subject and which possessed no such machinery. The question was not whether some improvement might not be made in some particular items, but whether the general change proposed by the Bill, and which was termed the "fusion of law and equity," was desirable; and if so, whether this Bill was calculated to carry out the object sought. He gathered from what was stated in the Report of the Commissioners, that upon a former occasion his noble and learned Friend (Lord Cranworth) had objected to the proposals which were again submitted to their Lordships in this measure. If that were really so, he must be permitted to say that it was one of the many unacknowledged or ill-acknowledged obligations which the country owed to his noble and learned Friend, who, while he held the Great Seal, unostentatiously discharged its duties in a manner which might challenge comparison with the ablest and most distinguished of his predecessors. With the permission of their Lordships he would, for a moment, invite their attention to the course of procedure that would be rendered necessary in granting injunctions in the event of this Bill becoming law. In the first instance, an application was to be made to a Judge of the Court, and if granted, exparte, of course, it might be reheard. If either party were dissatisfied they might appeal to the whole Court; if a Court could be found sitting—and during a great part of the year the Court would not be sitting. The Court might direct a special case to be stated, or an issue or issues to be had, or reference to such person or persons, as the parties might agree upon. But the matter was then by no means settled. After it had passed through all these stages, which might occupy years, it might be brought before a Court of Error, which in many cases could have no means of forming a judgment on the matter After having passed through all these forms, whether it was to be brought by a writ of error before their Lordships' House, or their Lordships were to be deprived of their jurisdiction, he was unable to say—but after it had passed through all these stages, after the opinion of all these Judges had been given, after the case had been argued, the issue tried on the point of fact, and the case had found its way into the Court of Error by way of appeal, the Court of Error might say, "We can make nothing of it. Go your ways to the Court of Chancery." He was told that the Bill was founded upon the Report of the Commissioners, and that it carried faithfully into effect the recommendations of the Commissioners. He regarded with the utmost respect the names which he found attached to the Report. The first was that of a most distinguished individual—at the bar the most eloquent of advocates—the most accomplished of gentlemen, and who, he believed, in his high office of Chief Justice, discharged its duties in a manner which gave general satisfaction. The other names were those of excellent common lawyers, but none of those learned persons ever had any experience of the course of procedure in Courts of equity. He confessed that he had heard with considerable astonishment his hon. and learned Friend the Attorney General cited as one of the supporters of the measure.


I quoted, in support of the principle of the Bill, his address to the Juridical Society.


Knowing the precision and accuracy of the Attorney General, it was impossible for him to persuade himself that his learned Friend had ever given his high sanction to one single clause in this measure. Judging only from the internal evidence of that document, he must say that no man in the slightest degree conversant with the doctrines and practice of a Court of Equity could suppose that the provisions of the Bill gave to the Courts of law, with respect to injunctions only, the same authority which was now exercised by Courts of equity. While professing to confer this jurisdiction on Courts of law, instead of confining it as it had been confined by Courts of equity, the Bill actually extended it to every possible case in which actions for breach of contract or other injury might be brought. Any action—the most important or the most trivial—might be the subject of these injunctions. Looking through this Report, as he was bound to do when told it was the foundation of this Bill, he had met with a passage which had rather surprised him, and which he was utterly unable to comprehend. It spoke of the jurisdiction of the Court of Chancery "to entertain Bills technically called Bills for new trial." He must say he had never heard of such Bills. He should apologize to their Lordships for entering into these details, but it was important that the matter should be fully discussed. A good deal had been talked of the fusion of law and equity, but he could not help thinking that there ought to have been a fusion of equity and common law Judges on the Commission. He had no apprehension that this Bill, or anything like it, could ever by possibility pass into law. He had not much apprehension that this Bill would go to the other House of Parliament in its present shape. There was another and much more important point which was not necessarily involved in that discussion, and that was whether it was or was not advisable in a different mode to attempt that which was called a fusion of common law and equity. He confessed he distrusted all attempts to tamper with the existing legal institutions of the country. If that doctrine, which he believed was first propounded by the eminent individual to whom he had referred (the Attorney General) was capable of being reduced to a system, he (Lord Kingsdown) had no doubt it would be laid before the other House of Parliament with every advantage which the greatest ability could confer. Our judicial system was like our legislative system; they were both of native growth— the growth of England; they had grown with the growth of the people, and had been accommodated gradually to their wants; and though they may contain many irregularities, and may display some want of symmetry—yet with all these apparent defects they have conferred upon this country a greater share of order, freedom, and prosperity, and a purer administration of justice, than was ever enjoyed by any other country under the sun. He did, then, trust their Lordships would pause before, under the notion of making a theoretical improvement, they adopted an alteration which was calculated to impair the usefulness and endanger the security of such a system.


said, he entirely agreed in the panegyric pronounced by his noble and learned Friend on the woolsack on the various Commissioners who had considered this subject. Many improvements had been made in the law in the course of the last few years. In 1850 a Commission was appointed to inquire into the state of the law, and through its labours great simplification had been introduced into the system of pleading, as well as other most useful alterations in the common law system. They were embodied in the Common Law Procedure Acts of 1852 and 1854, and were eminently useful. The latter statute gave the Courts of common law, on the one hand, equitable jurisdiction, to give plaintiffs the full effect of their judgments by injunction, and, on the other hand, to grant defendants relief, by injunction, from judgments against them, for which they would have otherwise been obliged to apply to a Court of equity. The Court of Exchequer, when he had a seat in that Court, decided that they could only give relief to a defendant in cases in which a Court of equity would have granted an unconditional perpetual injunction; and their decision was, I believe, approved of and constantly followed in the other Courts of law. Those Courts have not officers capa- ble of working out the details necessary in conditional and limited injunctions, with which Courts of equity are familiar, and new officers would be necessary. Looking back to the last fourteen or fifteen years, be had seen that one certain result of most alterations of the law, had been the appointment of a great number of new, and often the pensioning off of a number of old officers, the expense of which to the country had been enormous. He entirely objected to the part of the Bill which gave original jurisdiction in equity to the Courts of common law, beyond that which the statute of 1854 gave them. But other parts of the Bill might be useful. He therefore entirely agreed with the noble Lord who first addressed their Lordships in opposition to this measure as to the impropriety of extending the jurisdiction of Common Law Courts to all cases of injunction. The noble and learned Lord concluded by observing that he could not therefore concur with his noble and learned Friend (Lord St. Leonards) in objecting to the Motion for the second reading of the Bill.


said, he entirely concurred with his noble and learned Friends by whom he had been preceded in their opposition to the Bill, and added, that when the question which it involved came on for discussion again, it would be desirable that the House should consider whether it was desirable, when a measure of such a character was introduced, proposing to effect, as the greater portion of this Bill did, important alterations in the jurisprudence of the country should be adopted, so far as its reference to a Select Committee was concerned, because it contained certain clauses which were in themselves unobjectionable.


in reply, said, that as the Bill was about to be read a second time without opposition, he should not enter into a discussion of the various objections which had been urged against its adoption. He could not, however, help expressing the great surprise which he felt at the statement which had been made by his noble and learned Friend who had left the House (Lord St. Leonards) to the effect that he regarded it as an act of great presumption on the part of the Common Law Commissioners that they should have dared to meddle with the subject. His noble and learned Friend, indeed, seemed to look upon the conduct of the Commissioners in that respect as the right rev. Bench might be supposed to view a proposal for the amendment of the Ten Commandments. But he would remind his noble and learned Friend that the Commissioners had been authorized to examine how far the Courts of common law might be improved, and that they had come to the conclusion that a great obstacle to that improvement was the want of equitable jurisdiction. The having made a Report in accordance with the authority with which they were invested, then, constituted the head and front of their offending, and he could not help adding that the objections to the Bill which were founded on that Report seemed to him to be based on an entire misapprehension of its meaning; for it did not propose that suits, of whatever character they might be, might be brought indiscriminately before either equitable or common law tribunals, but that if, incidentally, a question of law arose in a suit in equity the equity Courts might be empowered to deal with it, and vice versa. Any Amendments in the Bill which might be suggested would, he need hardly say, receive his most careful consideration.



said, he would lay the Report of the equity Judges upon the Bill before their Lordships; and when they had had an opportunity of reading the opinions on one side and on the other, he would move that the Bill be referred to a Select Committee. He stood in a neutral position between law and equity, and he hoped there would be no contest among lawyers on the subject, but that they would continue to work harmoniously together.

On Question, agreed to; and Bill read 2a accordingly.

House adjourned at Eight o'clock, to Thursday next, half-past Four o'clock.