Star. — London, England, 1826-05-19 00:00:00

/flan in t►e country more mimes than he is to see the real abases of his Court reformed, and its supposed abuses explained. He is most desirous to abridge the delays and to reduce the expellees of proceedings in Chancery ; and in concurrence with this feeling, I hope the House will allow me to conclude with moving for leave to bring in a Bill, to carry into effect the recommendation of the Commissioners.--(Much cheering.) Mr. J. WILLIAMS said he should not follow his Hon. and Learned Friend through the whole of his statement. It did not appear to him that he had given sufficient explanation of the immediate object and pur pose of the Bill. The fact was, that all the inconvenience alluded to by the Commissioners, in their Report, might have been correctcd long ago by a simple order of the Court, and thus his Hon. and Learned Friend would have been saved the trouble of bringing in the Bill. Vor the Hon. Gentleman's eulogium upon the Noble Lord at the head of the Court of Chancery, and who had been there certainly for the 'act 25 years, he (Mr. Williams) could have found in his heart to have cheered it, especially as no Hon. Gentleman had cheered it from the other side; but what was there to be done by the Right Hon. Gentleman's Bill, which—and he had a right to ask this question, especially after such a pane gyric had been pronounced—what was to be effected by this Bill which might not have been done 25 years ago, by the simple interposition of the authority of the Noble Lord at the head of the CL-urt himself ? He spoke now upon the best authority—the best evidence. Almost every thing which the commission proposed to do, the Lord Chancellor might, by his own authority, years ago, have done. Mr. Bell, who had made a large fortune in the Court of Chancery, and was not likely to quarrel with the conduct of it; from Mr. Bell's evi dence, in page 392 of the Report, it seemed quite extra ordinary, that, with all the talent and knowledge of the Noble Lord at the head of that Court, the practice of it should have continued so long in its present defective condition. " Much," this was Mr. Bell's printed evi dence, •" should be left to the discretion of the Judges, who, 1 think, are competent, without legislative assist ance, to make most of these. reforms which have been alluded to, and are best able to do it, as they may vary and alter their rules as experience demonstrates the nececssity." And yet, whatever was the neces sity, it was certain that nothing had been done. —Again, for the evidence of Mr. Stratford, which he (Mr. Williams) would read from the printed report. "The above resolutions"—these Were some which Mr. Stratford had prepared—"are respectfully submitted to the Commissioners; but it is a matter of great regret, looking to the circumstance that the more material ordinances heretofore made for the regulation of the several offices of the Court of Chancery were made by the Lord High Chancellor for the time being, or persons holding the great seal, from the time of Lord Bacon downwards, not forgeting even the time of the Protecto rate, and much less the times of Lord Clarendon, and Lord Nottingham ; and looking also, not only to the learning, but to the experience and wisdom of the present Lord High Chancellor, that he has not followed the example of his great predecessors, and of himself deter mined what alterations in the practice of the several offices of the Court may now be usefully made and ordained ac cordingly" It did not appear that all the Commissioners were agreed in anyone thing recommended in theßeport. There was a great difference of opinion in the profes sion, whether, if the 187 propositions in the Report were all adopted, they would he productive of more benefit or mischief ? This vr4s not his own opinion. Much would be gained by lessening the time a man was kept in Chancel y ; an hoar gained in this way could not fail to add many days to his 1 fe. His Honourable and Learned Friend said that the arms of the Commissioners were thrown open to all information ; that the whole of the profession were summoned to appear before them; and that notice was given of their determination to refuse information from no quarter. He was in formed that Solicitors, and Secretaries of Societies, received no such notice, and that no person, in fact, appeared before the Commissioners who was not spe cifically summoned. Not a single volunteer appeared. It was no longer ago than last term, he believed, that in a suit in which one Vau Sandau was concerned, fourteen separate answers were put in by fourteen different de fendants, and so be-billed was the solicitor in the cause, that he stated it would cost him not less than 3001. to get an office copy, in order to go on with the cause.— The Solicitor• General could set him right, be believed, if he had mis-stated this particular case. This, how ever, was not a singular case.- He had given similar details to the House, in number, be believed, aspic ad nauseam, and he merely recurred to the subject now, to hew that there was blame in high quar ters, which the Commissioners of Inquiry found it not quite so easy or safe to speak of—(Hear, hear.) There was another point to which the Report had not paid the least attention. He meant the question of Contempts. It had fallen to his lot aad that of several of his Friends, in the discharge of their duty in that House, to present more th in one petition from parties actually in custody upon alleged contempts of the Court of Chancery—not because they were contumacious, but because poverty prevented them from taking the requisite steps. He should not object to imprisonment so long as contumacy was evinced, but it was otherwise under the circum stances he had mentioned. His Honourable Friend, the Member for Montrose (Mr. Hume) in the course of the present Session, had presented a Petition from a person of the name of Richardson, stating that he was in custody for a contempt, under circum stances for which it was not in his power to pro vide a remedy. In that Petition he confessed there were circumstances detailed which set his mind against the truth of the complaint. Those circumstances, which were without doubt in the recollection of the House, related to the imprisonment of a child of the age of seven or eight years, along with his step-father. He was induced to write to the Governor of York Castle, and from him be received an answer, stating, that in consequence of an attachment issued against some land, in which this child was interested, to which he did not appear by himself or his nearest friend or guardian, he was, together with his step-father, committed, in the month of Oct. last, for a breach of the rules of the Court. Tht terms of the commitment ran thus—" Herewith, by virtue of a writ, I command you, in the name of his Majesty, to take charge of the bodies of James Richard. son and his boy, and that you receive them into your safe keeping, there to answer to his said Majesty, for contempt to the High Court if Chancery." What were the facts of this case? The boy had no father, he was confined a prisoner with Richardson, who was his father in lain. Tte child, it seemed, had a title to a portion of an estate in right of his father ; and so, because it was said that the child had an intetest in the property, a subpusna was issued against the child; and because he had no one to stand up for him, the child was impri soned from the month of October to the present hour. This was the system that was without reproach—the immaculate unerring Court of Cha n ce r y —( Cheers) —1 In the case of " the Attorney General against Brooke," six years elapsed from the setting down to the hearing; and in the case of " the Attorney General against Brown and De Tastett," it was nine years from the setting down to the hearing. In cases of motions, some of them had occupied two or three years before they were disposed of. Mr. Basil Montagu, the Commissioner of Bankrupts, had given three instances of prolonged cases of bankruptcy. One of those had been touched upon by the Repot t. It appeared that they severally occupied nine, eight, and seven years, up to the year 1824, and in 1825 two cases out of the three still stood upon the paper. The House and the country both demanded that soma thing should be done to expedite the business of a suit towards its termination. The expence at that time was enormous. He himself knew of a case in which 10001. had been expended before judgment was pronounced. By a reference to page 453 of the Repot [,where the case of Fitzgerald v. Balfour is quoted, an instance would be found of ttie incorrect manner in which a minute had been taken. He would just read the passage. It was the case of a bill filed for the specific performance of an agreement entered into in the East Indies, respecting a debt from the Nabob of the Carnatic. " On the 30th July, 1817, a motion was made before the Chancellor that the defendant might be directed to pay into Court the amount of the debt in question, with interest thereon at 12 per cent. (the Indian rate of interest) ; and an oid, of some kind or another having (as it was supposed) been made by his Lordship, minutes of such supposed orders were drawn up by the register according to the notice, and delivered out to me; but the defendant's solicitor having alleged that no order was made, or at least no order to the effect stated in the register's mi nutes, and which question the register (not having, as it afterwards appeared by his book, taken any minutes of his Lordship's judgment) was unable to deride, a further application to the Court became necessary ; and on the 10th of December, 1817, such application was made, when the Lord Chancellor promised to look into the papers (which be took home with him for that purpose), and give his judgment at some future time thereon. No judgment was given, although repeated applications were made by Counsel for that purpose. On the 22d May, 1820, I took the liberty of addressing a letter to his Lordship on the subject, in answer to which, he promised to give judgment on the Saturday following. No judgment was, however, given, and in the month of November, 1820, I determined to set the cause down for bearing before the Vice-Chancellor, who decided that the defendant was bound to pay the principal debt; and twelve per cent. interest thereon up to that day; but upon the defendant objecting to have interest decreed against him at the rate of twelve per cent. the matter was referred back to the Lord Chancellor, who decided that he had al ready made an order in the case. Se that it ap peared that the matter slept for four years, subject to 4001. on one supposition, and 6001 . on the other, al though the party was in the utmost possible distress and misery." (Hear. hear). In page 434, of the evidence in the case of t , Erskine v. Garthshore," the whole business was obliged to be begun de novo, after an expense al ready incurred of at least 1,5004 But those were imaginary cases of grievance. There was no delay, no distress. "Oh," said the Hon. and Learned Gen.' tlemen at the other side, " those are only individual cases." (Cheers.) In the year 1814, an appeal was made against a decision of the Vice-Chancellor : from the yeas 1819 to the year 1824, a period of five years, this case was sometimes at the bottom and sometimes at the top of the paper, without being heard at all ; and is July 1825, counsel wrote a letter to the Lord Chancellor, entreating for judgment. The Lord Chan cellor sent him word he would decide it speedily ; but he had net done so up to the present time.— The lion. and Learned Member then alluded to the c ise of Mr. Welling:, the banker, of Ludlow, who had 32,0001. depending upon the issue of a Chancery suit, and who, after a personal application to the Chancellor, and promises of immediare decision, had become a bankrupt in consequence of delay. He mentioned also the case of a windmill which had tumbled down whilst his Learned Friend was trying to get a decision. It was an appeal from the Rolls and after it had been depending thirteen years and 1,5001. had been expended, the plaintiff died in the poor house of Kensington, of which parish he had formerly been a respectable inha bitant. The Hon. and Learned Member mentioned one or two other cases. He had read of a certain King Theo doric, to whom a Lady had complained that her cause had been depending before two of his judges for three years.—(How unreasonable this Lady must have been, in complain of a delay of only three years). King "lheodoric threatened to put the Judges to death, and in two days they pronounced a decision. He afterwards called them before him, and inquired how they could decide so speedily a cause which had already been before them fur three years ?—and, not being satisfied with their answer, he _ordered them both to be beheaded. This, the story wed on to say, put an end to such delays. He had no wish fur the same kind of severity to be exercised towards the present Chancellor. He had rather refer him to the kind and milky Commissioners, he himself being one. From•them he had no such severity to fear. They would nut touch a feather in the plume of his power, his patronage, or his dignity. The appropriate motto of the Noble Lord world be, patronage ever beginning causes, never coming to au end. Two important points had never been touched by the Commissioners, and whatever confidence he might have in his Hon. and Learned Friend, If they were to legislate upon their present information, It would be legislating in the dark. The SOLICITOR-GENERAL said he would not occupy the attention of the House at any length, but, as one of the Commissioners appointed to inquire into the practice of the Court of Chancery, he felt himself bound to say that he had performed his duty; and, al though the Hon. Member for Lincoln had brought charges against that body, it would be easy to meet them when an opportunity was afforded to examine them in detail. The Hon. Gentleman had said that solicitors should have been appointed on the Commis sion ; whereas there had been no precedent for such a practice. He (the Solicitor-General) did not recollect any instance in which solicitors had been appointed to such situations. In the case of Lord Hardwicke, no situations had been appointed in the Commission; they might be invited to attend the Commissioners, but on the present occasion they had been examined : in fact no person was obstructed or prevented from giving informa tion. Mr. Lowe had been examined. If any one class had n excluded bythe Commissioners,they would not have done their duty. Jut as the Hon. Gentleman had charged the Commissioners, he hoped they would all answer for themselves. With respect to the complaints that there had been delay in giving judgment in the Court of Chancery, he would merely say that it was impossible to answer each individual case without some opportunity of collecting all the information upon it; but he would say, that in every instance where a complaint had been brought 'Forward against the practices in the Court of Chancery, there had been a satisfactory answer given. Nor one of the 186 Resolutions of the Commissioners had been objected to, and it was fair to infer that those Resolutions were satisfactory. Another improvement suggested was to bind the Master to compel the parties 47 go on with their suit. At present there was no power of con trol ; but if any delay took place hereafter the Master would be answerable. It had been said that the Cum- missioners had done little ; in his opinion they had done as much as could be expected. Some thought the bankruptcy business should become the business of a new Court; but he could nor concur with them. The evil was, that the inferior forum did not act. If a new court were established, would any man ;ay that there must not Ise as appeal from it. It was known that from fifteen t• twenty days of tie Chancellor's time were consumed in the course of the yeti by bankrupts. The improvement should be carried into effect, in his opinion, as quickly as possible ; and the resolutions of the Commissioners might be modified, after a little experience. The Commissioners had taken up every subject in which improvement could be made, and their exertions bad Iwo patient and !Amnions. Mr. M. A. TAYLOR said the Commissioners were entitled to some praise; but had they not neglected some materiel parts? Mr. Shadwell was asicei if one individual could get through the btr,inest of the L r.t _ _ Chancellor ; his reply was, that three ant s *-k could not do it. (A laugh). Had the Contmitt , e recommended the appointment of three angels ? Why had they not ? Because Mr. Shadsvell advised that the b mkruptcy business should be separated ; but Lord Eldon would rather part with life than with Bankrup . cy Petitions. Sir Samuel Romilly-thought smite step should be taken to rid the Court of bankruptcy busines, The Chan cellor ought not to be distracted by other political duties. They sere told tbat the abuses were fancied abuses ; and one part of the Report said a suit might beneficially lost for half a century. Sir S imuel ltomilly was once applied to by a Member of the House to expedite his suit. lie asked him how it was he had not voted with him for an inquiry into such delays? He should do his duty (he added) in his cause, but he wished never to see his face at his chambers again. It was a libel on the profe.sion to assert that there were not three fit individuals to discharge part of the duties which devolved on the Chancellor. Why not go to one of the Judges? Surely the Chief Baron of the Exchequer was a fit person. The Judges of England were a most laborious class, and had less time on hand than any other description of persons in the country. If it were asked what was gained by the Report, he would admit that the Commissioners were entitled to gi eat merit for what they had done, but they had not gone far enough, and had omitted to notice that important part of their duty,which was to inquire whether the Court of Chancery was com petent to discharge all the duties which attached to it. The same course as that which was now pursued had been go ing on for 20 years, and yet no attempt to rectify abuser had been made. Surely the Government which neg- lected to inquire into so glaring a matter, when the Newspapers so constantly mentioned it, was to blame for the neglect. The Hon. and Learned Gentleman (the Solicitor. General) had alluded to several Lord Chancellors, and might have ' adverted to many more, in whose time the same system Wa► pur sued. But the real reason why the abuse lead been allowed to pro ceed for so many years without correction was, that the reform had originally been suggested at that (the Opposition) side lathe House, which was considered a prescribed place, but at last it was found necessary to adopt the suggestion. Mr. Secretary PEEL said, that as he was mainly responsible for the advice which had been given for the appointment of those Commissioners, he was unwilling to lose the opportunity of saying a few words with re spect to it. He should also, in the first instance, express his satisfaction at the tone in which the question had been discussed, and at the forbearance exhibited by the Hon. Member for Lincoln, in his intention not to press his intended motion on the same subject. The present motion was one, simply to bring in a Bill, grounded upon the Report of the Chancery Commission, and hare it printed. He agreed that the present was not precisely the time for discussion, as the Session was now too short for the purpose. The time for that would be, when the House had it under their consideration, and when their minds were enlightened by those publications which were promised by the Hon. and Learned Gentle man (Mr. J. Williams). He should, however, say, that his lion. Friend who spoke last had not dealt fairly with the Report of the Commissioners, nor with the candour which he usually exhibited. He bad to com plain of this in two instances, and although he was not a professional man, yet having felt it hiaduty to read the Repot t, he thought he should be able to bring the House over to his opinion. His Hon. Friend had said that the Report spoke very slightingly of the delays in Chan cery, and that a suit might last beneficially for fifty years. The Report simply said, that there was a popular misunderstanding upon the subject of delay. That re ferred solely to cases of Trusts, in which the Court of Chancery exercised a beneficial control for a long period. Such were the cases of infants of one or two years old, where that controul must necessarily exist for twenty years. And its property could by law be made inalien able for any number of lives in existence, and for 21 years after, so long as a trust remained unexecuted, it must remain subject to the Court of Chancery, and all that the Report alleged was, that those,and similar cases, afforded no grounds for reflection on that Court on the score of delay. His Hon. Friend had not treated that part of the Report fairly, by only giving the fact with out the reasons which accompanied it. Also, with re spect to bankruptcy, the Hon. Gentleman had brought forward certainly an highly respectable evidence, Mr. Shadwell, but he had not stated that every other wit ness who was examined had given a contrary opinion. Even Mr. Shadwell had proposed, that in taking the power they now had from the Commissoners. other Judges should be appointed in their stead. The Corn miss•oners stated, that the business of the bankruptcy was not sufficient to occupy the time of one Judge, and there fore they proposed that an experiment should be made, in order, it possible, without a change of the whole system, to produce the effect of distributing justice to all par ties ; and to this proposition all of them, with the exception of Mr. Shadwell, had coincided. It was moreover strange to observe the variance of opinion between different persons on the subject of this Report. Some maintained that the Commissioners had not gone far enough, others that they had gone too far. In the publication to which allusion had been made, those contradictory propositions had been advanced. To what course ought the House, therefore, proceed? To that most assuredly which slowly and cautiously steered between the two extremes. Of the tone in which the Hon. and Learned Gentleman had stated his observations on the subject of the Lord Chancellor, not even the warmest friend of that Learned Judge could complain. Yet, in the course of his speech, instead of the 180,000 propositions, of which he made such a parade on a for mer occasion, they were reduced to IS7—aet he was loot satisfied, as he contended that some important posits had been omitted—such as that of conveyancing, as well as that of contempt. It was stranger that though the bulk of the Report was declared to be so great as almost to render the perusal of it impossible, those im portant subjects were not included. To what truth did those Honourable and Learned Gentlemen desire that it should be extended ? Before he concluded his ob servations, he was desirous of calling the attention of the House to one point, the cl• lay of which the L'rd Chancellor was accused, in the delivery of his judg ments. On this subject he wished to ref.-r to one pant of the evidence which was printed in the Report. Mr. Bazil Montagu, a Gentleman with whom he had not the pleasure to be acquainted, slid, that no two men could possibly differ on political subjects more than dia he and the Lord Chancellor.. He stated that his feel. ings in the Court of Chancery hal been guided by Sr Samuel Romilly, 'with whim he had been on terms of friendship, and, of course, t' at he was a favourer of the opinions of that celebratel man, rather than those of the Lord Chancellor—yet v hat did Mr. Montagu state the Lord Chancellor ? That there were three causes w!ty the Lord Chancellor i'ellyed his judgments; first, that there was a difference bet v een the practice of the Lor d Chancellor and that of the other Judges, inasmuch as the Lord Chancellor sought to make up his mind on the controverted points. " N w I ask (exclaimed Mr. Peel), is there any man who will venture to condemn a Judge undertaking to di,pense unbiassed justice, and labouring to make himself master of the true circum stances of the cafe, in ord r that he may find grounds for giving his decision with security ?" Second. The second cause of the delay was, because , as there was no appeal . from the decision of the Lord Chancellor, in cases of Bankruptcy, the Lord Chancellor thought him self bound to investigate fully the subject, particularly in cases bf appeal from the Vice• Chancellor. To the propriety of such a line of conduct there was no person who heard him, who could for a moment object. Third. The third cause, as stated by Mr. Montagu, arose from the particular constitution of the Lord Chancellor's mind. And his great anxiety to do justice to all parties. " If," (continued Mr. Peel), " the House will take into its view, a man who devoted twelve hours out of twenty four to a patient and laborious investigation of the facts of each case, as well as of the principles of justice applicable to its decision ; if it reviews the causes which a practitioner in that very Court as serts to have occasioned the delays ; if it examines the decisions pronounced during the long period of twenty years, of the justice of which not eves the greatest enemy of the Lord Chancellor had ventured to breathe a doubt, surely it will pass over with a light hand the venial faults which owe their origin (accord ing to the words of Mr. Montagu), to anxiety to do justice to all parties." In corroboration of those state ments, he would ad dace from Mr. Montagu's evidence two circumstances which tended to corroborate this view of the Lord Chancellor's conduct. The first related to the case of an individual, named Blackburn, which Mr. Montagu had argued before the Lord Chancellor, and in which he had contended for judgment, on grounds which seemed to him undeniable. To the de lay occasioned by the Lord Chancellor, Mr. Montagu had felt the highest repugnance, and his surprise had been excited on hearing the Lord Chancellor state— " Mr. Montagu, I spent several hours last night in the examination of that case, and there is one point on which I should like yet to hear some arguments from you." Mr. Montagu re-argued the case, and the result was, that Mr. Montagth• as stated in the Report, declared himself convinced, that if the Lord Chancellor had given judgment on the first hearing of the case, that the greatest injustice would have been done. The next cir cumstance related to a case of a wsut of Habeas Corpus issued by the L-rd Chancellor. A man had been ci,n fined in prison by order of the Court of King's Botch, on the oath of an individual who swore that the de fendant owed him 10,0001. Mr. Montagu made ap plication for the writ to the Lord Chancellor, and the Chancellor had a conference with the Lord Chief Justice of the King's Bench, after which the man was liberated, otherwise he would have continued, in all probability, in prison to the present hour. If Mr. Montagu, as an individual, adduced those two instances, did it not follow that there were others of which no mention had been made? or rather, if any injustice had been done, would not a declaration have been made, if injustice had been committed? Under thote circum , stancas, he would put it to the House. if the conduct of the Lord Chancellor was not worthy of lasting ho nour ? If the time of the Lord Chancellor had not been occupied in the investigation and adjudication of each ease. that excellent Judge might, perhaps, have turned his attention towards the faults of his course, in order to devise means of remedying the evils which were complained of. But, when occupied in other details of equal importance, it became a duty to attehd to the facts of the dispensation of justice, and not to the mode. Did not the ready acquiescence of the Lord Chancellor to the Report, prove his willingness to remove those evils ? It did—and it, as well as the other conduct of 'the Lord Chancellor, conferred OR him the most lasting honour. He was unwilling to introduce into the dis classier: any words calculated to excite asperity in the minds of any persons; but he thought that the Lord Chancellor could, on the present occasion, look back with delight on his former decisions, which proved that they had been received by the country as having been dictated by justice—for not one voice was raised to impugn them, and not even once had it been said that the Lord Chancellor had wasted the time which he owed to the country in anything like frivolous amusements. Dr. LUSHINGTON observed, it had been stated that there bad been no enquiry as to whether any delay occurred bet wren the setting down of a cause and the hearing, or shether any delay occurred between the hearing and the final judgment. Those were the very two points on which the processional conduct of the Chancellor had been blamed, and they were therefore the very first points to which the Commissioners had directed their attention, and if they had not attended to that inquiry, the most important subject of the case would have been left untouched. As to the conduct of the Lord Chancellor during the progress of this Com mission, he did but discharge the debt of justice, when he said that throughout the whole of this investigation he afforded the most material assistance, g.ve to the Commissioners all their best information, and did not attempt to deliver his opinions as dogmas not to be disputed, but allowed those who were not satisfied with them to endeavour to overturn them if they could. As to mallets of bankruptcy, it appeared to him that of all the systems that ever yet welt established, the present system relating to the Ctimmissioners of Bank rupts was t h e mo.t ruiiiiitis to the suitor and the country at large. When he saw seventy Commissioners costing the country upwards ul 20,0001. a year, several of whom were quite incompetent to act; when he saw the bank rupts estate not administered as it might to be,—when he considered all these facts, and rei.ollected that this was one of the circum-tanceb for which blame was im puted to the Lord Chancellor, he recommended as