The British Press; or, Morning Literary Advertiser.
London, England, 1825-06-08 00:00:00

. _

evil was en notorious that (here eras little necessity floe the
opinion of Commissioners. It was the duty of the House of Com.
mons to find out a remedy for an evil which was growing more de.
atructive every day. It wu well known that the Court of Chancery
had grown wp in an extraordinary manner, and wu not founded
upon constitutional principles and practice like the Courts of Corn.
mon law. The proceedings, too, were different from those of the
founded
e d w
could Eh common
greatlyrac tice osedtntwchie-
sice,
hntift
01 Courts
.nteerushed
oafso
fotge
however
fegit .dithbt:teehott commonmi r
oethwwema use absolute
proceeding,
at
al
nlisl
it
howtwre,
nf—.2etn(ixhwi could0
f.fechl Chanceryiuoec avi
oi ldbeh wne er
ro,assimilatedfce testimony
padocumentary
r,
dav
!should.:
evidence,hb ee da accepted
nott e e
butdm a in.
on.
abolish the system of accepting only the worst kind of evidence
d
inut,,lrttiheerbtorhedpereshanencet sliyormemni4fhperatoct
minister speedy justice. he had not the means. If the situa-
tion of Lord Chancellor was burthened with too many duties,
let the business be divided amongst as many Judges as should
connected
necessary,th dilatory,
w.i ruinous,uh
tthilet u_irrnte.on tsaib,:ede obligedr,n e:
ft oroTpmuhrierst.uee
werejHtles t
shouldi justice
manyth r through
allude to the appointment of Commissioners of Bankrupts. There
mold be no worse tribunal than a Commission of Bankruptcy.
There were seven Judges under the title of Bankrupt Commis.
stoners. This !system was a cause of ruinous litigation and delay,
as well as fraud, with which Bankrupt Commissions are known to
abound. 'I bore were
ofwere 70 places given to young barristers who
had attained no professional eminence, as a thing to begin with.
This wy patronage for the Lord Chancellor ; and it
would be observed, that the situations were not given to those best
qealified, nor with the view which ought to direct in such.appointe
mem'. Leaving these details, he was at a loss to see what mis-
cloet could arise front the production of the evidence. It was the
duty of the House of Commons, and he hoped the next Session
would not pass without the discharge of this duty, to inquire not
only into the proceedings of the Court of Chancery, but also into
the proceedings in the Courts of Common Law, and into the gene-
ral administration of justice. He understood the proceedings were
more expensive in Courts of Law than they were in Courts of
Equity. His (Sir F. Burdett's) object was only to put the country
in possession of all the information which could be obtained. The
evidence, and not the Report, vest' material ; and as great min.
chiefs had confessedly arisen from delays, he hoped the Right Ho-
nourable Secretary (Mr. Peel) would chew his ontrion. Ind allow
the paper, to be praduccel, which he (Sir F. Hardest) expected to
have been ordered as a matter of course.
An Houourahle MEMBER, whose name we could not team,
observed, in allusion to what had fallen from the Honourable n& .
ronet, as to the expenses attendant tipon proceedings in Courts of
Law, that a relative of his had engaged in a suit to recover the
small sum of ten pounds, and at length succeeded, when he dis-
covered that the expenses amounted to 81. )7s. fid., and that only
IL 2s. fld. remained for the successful suitor. (A laugh.) He
hoped the Hon. Baronet would have health and happiness to carry
into effect his intentions on this subject. (Hear.)
Mr. W. SMITH said, that when his father was on his death-
bed, he had called him to say, that the Chancery suit, in which he
WWI so long engsged,lhad terminated last week, by the death of his
opponent. Now this suit had lasted for two and thirty years.
(ties, bear.)
Mr. Secretary PEEL thought the Hon. Baronet was mistaken
as to the extent of the Commissioners jurisdiction. He (Mr. Peel)
had no objection to lay before the House a copy of the Comniission.
If the Hon. Baronet renewed his motion at the commencement of
the Session, he (Mr. Peel) would be disposed to take a different
view of it. As to the anxiety of Ministers to attend to the adminis-
tration of justice, it was evinced by the introduction of an Act
which would be brought before the House that evening to regulate
the issues of trivial writs of error.
Mr. DENMAN said the Act which the Right Hon. Gentle-
man was about to introduce was not upon the Report of Com-
missioners but upon notorious necessity. Now he contended that
the evils of the Court of Chancery were equally notorious, and that
the Howie may consider the propriety of applying • remedy without
delaying for the Report of Commissioners. If he understood
rightly the Commissioners felt themselves festered by the terms of
their commission, and confined themselves to particular subjects
of inquiry. The evils of the present practice, as he before ob-
served- was notorious : it often happened that two or three an.
nultante under a will could not enforce their claim, although it was
unquestioned. until several joined. It would be ruinous for one to
think of enforcing his claim, and before a sufficient number could
join perhaps one of the claimants was dead. Now this was dia.
graceful to the administration of justice. In cues where a small
quantity of stock was left, and the Bank refused to pay until pro-
ceedings were commenced in equity, it was the advice of the
Solicitors. " Don't move for 400/. or 5001., for the expenses will
swallow up the sum." These matters were of frequent occurrence.
Similar facts were stated every ear; and unless the House of
Commons interfered, when would the system be at an end? In
1823 the Member for Lincolnshire brought the subject before the'
House of Commons; last year the question was evaded by the
appointment of Commissioners. The Commissioners had now sat
for nearly fifteen months, and yet there was no immediate prospect
of • Report. For his part, he thought the evidence might be
printed in three days ; copies of it were now handed about,
but this was not bringing it before the mtblic, as the Ho-
nourable Baronet proposed. One part of this evidence he
Mr. Denman had read. A practitiorer in the Court of Chancery
is asked whether he had an opportunity of witnessing the distresses
of his clients P—He replied that he had not, because the clients
communicated with his solicit-es. but he had seen at the end of a
Chancery suit an order given, that the remnant of the property
should be given, not to the individual who claimed it, but that it
should be divided In payment of the 'solicitor's bills. It was said
there was no precedent for this motion, but be (Mr. Denman)
conld not see what difference there was between evidence taken
before a Commission and evidence taken before a Committee of the
House. If the production of the evidence only brought the public
to consider a branch of the subject, it was a great advantage. If a
particular remedy could be applied to a particular part, it was cons.
resent for the House to act and apply that remedy. Until the
House took the subject in hand, in his opinion no good could be
done. As to the Report of the Commissioners, it was subject to
the revision of the House and public opinion, and it would be well.
by pmducing the evidence, to let the public into the secrets of the
practice Li the Court of Chancery, which would give them some
means of judging on this diversified subject. He had hitherto
considered this subject without any personal reference, and
he would say, that there seemed to be an alarming degree of ten-
derness on this part of the question. This is visible all through the
inquiry. The whole proceeded upon the assumption that there
was no personal fault. Now he thought there may be some per-
tunal fault, and unless It was scrutinized, he should remain in doubt.
One fact he would mention. On the first day of last Michaelmas
Term there were 45 cases put down in the list for trial, and on the
last day of the term the 45 cases remained. The names of the par-
ties were the same, and it appeared that not one of those caws had
been touched. Now every individual party was obliged to pay U.
for having his cause put down. It was not IL from the plaintiff
and IL from the defendant, but IL each. should there be ten plain.
tiffs and twenty defendants. Whether any of the causes which then
appeared on that paper were now settled he could net tell, hut
this he would say, that this WM not a proper system of prac-
tice. It could not be propel to oblige parties to pay one poand
for the privilege of not being heard. (Hear, hear, and laughter.)
Then they heard a great deal of praise bestowed upon the Noble
Personage who presided in the Court, because everything wt.; dis-
posed of upon motion ; but he would nay, so much the worse. That
was not the way in which all die great minxes which came before
the Court of Chancery ought to be disposed of, because it must be
obvious that when questions of magnitude are disposed of on mo-
tion, there cannot have been that grave and solemn attention paid
to it which the interests of the parties required. He threw these
observations out without any intention to inculpate the noble mdi.
vidual who heard these motions, though God knew he had no wish
to he thought desirous of nicking soy compliments in that quarter.
All they knew of that individual was that lie bad been for the last
25 years carrying on and benefiting by this system, and that he
had done nothing towards correcting it. but, on the contrary, had
opposed it with all his power. whenever any Hon. Member of the
House of Commons (for it had not been brought forward in the
other House) had endeavoured to introduce corrections, and to
alter a system an fraught with objections. Upon those principles
he should support the motion of his lion. Friend. With regard to
the Commission, and to its probable results, when he considered
the important nature of the subjects submitted to it. and the
.great
and powerful individual presiding over it, he was quite sure that a
great deal of disgust would be entertained in the country at the
daisy shish had taken.placaz and tte-thongirt that-Merin would
not be diminished, when it was known that the Right Henourable
Gentleman opposite (Mr. Peel) had had an interview with that
Noble and Learned Lord. He was sure that the disgust would be
considerably increased, and more especially if the production of
the evidence now called for by his Honourable Friend should be
refused.
PEEL rose to explain. He declared that his only motive
for seeing the Noble and Learned Lord was with a view of ascer-
taining whether there would he a Report made by the Commis-
sioners in any reasonable time, that it might be laid before the
House; and that Noble hoed said that he had no doubt there
would be a Report prepared in the course of a few month:. ; at all
events, he was of opinion that there ought to be such a Report
made within that time. (blear.)
Mr. W. COURTENAY begged that the House would look at
the question before them with impartiality; and lie hoped they
would listen to him with attention for a short time. while he en-
deavoured to explain what wax the real nature of the commission
which was now proceeding with the inquiry into the practice and
system of the Court of Chancery. It was to be remembered that
when this question was first brought forward, great complaints were
made against the delays in the. Court of Chancery, and much was
said respecting the duties of the Lord Chancellor in the House of
Lords ; the practice of the Court of Chancery was also much corn.
;gained of, as being calculated to work great abuses. lie was sure
that the House would do him the justice to say that he never bad
denied the existence of abuses in practice which ought not to exist.
(lieu, hear.) On that occasion he admitted that there were abuses
which required to be done away, but at the same time he felt it his
duty to resist the appointment of a Committee of the House of
Commons to inquire into and remedy those abuses, because he
knew that ouch a Committee was wholly incompetent to enter into
the subject, as it would be composed of men who were not at all
conversant either with the taw or the practice of that Court, and
whi therefore could not be supposed capable to enter into inquiry
efficiently. He contended then. and he would still maintain, that
the very nature of the complaints themselves showed that the re-
medies must be applied to minute anti particular points of the
process. What were the complaints made ? They were that
great delays were occasioned by the abuses of the process, that
people were frequently involved ma Chancery suit for years before

~

7, •

they could obtain • judgment, and ;list when a decision was math
the prolixity of the proceedings had incurred an expense which irs;
often times ruinous to both parties The whole systctu, indeed, of
the Court had been represented as an evil that ought to be done away.
He would ask, whether up to this year (and he was in the recellee,
tion of the House) the complaints were not stated to be of such
nature, and the abuses en great, that without an inquiry on the part
Ma Committee of this House, it was impossible to cure the defec-
tive amens that existed ? Last year, the Hon. Member for Lined*
(Mr. J. Williams) made a motion for a Committee of Inquiry, and
the Hon. and Learned Gentleman founded it on the reyreeenuttioa
of eases where delays had intervened ; in fact, the whole matter
was made a subject of complaint, and u loudly calling for inquiry.
But the House of Commons did not concur in the uppointment of
a Committee; u was the opinion of the House that such aCannontee
would not be competes[ to accomplish the task prorated to
be assigned to them • but instead of a Committee, his Right
Honourable Friend (Mr. Peel) suggested that the whole of
the subject should be submitted to the investigation of those
whose experience would qualify them to point out what were the
defects and what were the proper remedies to be applied to them.
But did
the proposition
to be
ionofhlins
instituted
Right
esuppollamson. Fried
cticte t arhan that inany
makeway
which was proposed by the Hon. and Learned Mmber for Lin-
coin No ;on the contrary the motion of his Risk Hie. Primd
extended the inquiry to subjects which were not embisesd by the
motion of the Honourable cad Lesened °endears. What were
the terms of the instrnctiesta dews la Re Cosninhilmere They
were directed to inquire whether owy mil what elimuleute
made in the system and peek*er the Court, sod of dint
offices connected with it; thee unbratlas the whole awn ed the
jurisdictionpowermnot oofn
ityhetoCittzurtirsof
thalami/7w
as
system; ter they wipe spat et,
and yawn le lee
equity branch of that Curt, hse am houghs& at tam kei, led the
jurisdiction over (hole-af.liiikispicy ebb -Ili hew ea
loudly complained of, medrupesineel Is s put whit* e=rd be
altogether taken away lbsen [lbws Clundlle. They wiest to
inquire into all the vadome oboe of skin preseedingb *an be
commeocement the silt II di* Rail diedebn of the Judie, b..
chiding inquestioashly dm ask nif kerbs and d= ass by
which the espionali MA dies Sit strongly cots were
stated to be auselensi. Ink* an aware what set of wadi in
the English Isaguse audit en the Comodeeinswe lure ex-
tended power, or a more kips IP dish lasehleiti But it
did Imstop there. lee it weal her
any ind • what pad of the bodkin subject to the • of the
Cosset would be withdrawn ad submitted to anon et withrut
detriment to the pitbeic. Me swat s loos to conceive what words
could be used to Min 111111RillibileiTe power to the Commis-
sion. It extended oureury Wench of the Court, whether of its
practice or its jurisdictions. If it was thought that the jurisdiction
over bankruptcy cases should be withdra•n which, as he had al-
ready stated, was the opinion of several, that was within the power
of the Commissioners to report upon. Rut the Honourable Boa
toilet (Sir F. Burdett) had aid (with what authority or on what
grounds he (Mr. Courtenay) mid net understand) dial the Com-
missioners had limited shim pare, end had au carried their in-
quiries so far as their oiannheles encelibil dies to do. He would,
however, state that there wee no dhpseitien m&spare of the Com-
missioners to evade the full discharge of diale.daties ; that there
was no one point that could be submitted M ken on which they
were not willing to motive evidence, and in as instance where any
such evidence had bus diked bad it been objected to or re-
fused to be received b them. But he would ask what were
the objects to be attained' by the commission P It was to ascertain
to what extent the complaints against the system and practice of
the Court of Chancery wet, well founded, and what were the re-
medies to be applied for correcting them 11 and to whom were these
inquiries to be submitted ? The Hon. Baronet (Sir F. Burdett)
said, why we will take them under our own consideration and in.
spection„ and will apply the remedies. But in what way was it
that the Hon. Baronet spoke in that large and general sense, when
he said "We will do it ?" Did he consider that this House was
qualified to enter into these minute inquiries, or that a corumium
of country gentlemen up stairs were the most proper persona to
remedy the evils complained of ? He had no wish to make a long
speech, but he hoped the House would excuse him while he read
ode or two passages from a book which had been already noticed
by some gentlemen in the course of the debate on this question.
Ile held in his hand a hook which had been attributed to a very
able lawyer, he meant Mr. Miller. That gentleman had cur.
taihly, in his judgment, taken rather an unfair view of
some points relating to the practice of the Court of Chancery, but
there was nevertheless passages in it which he thought valuable,
and he begged those Honourable Gendemen who had complained
of the Court of Chancery sot assimilating its practice more closely
to that of the Courts of Law, to attend to the opinions of a permit
whose name had been favourably mentioned by Honourable Mem-
bers on the other side of the House. Mr. Miller observed, that the
comparatively late period when the Court of Chancery wu nosh-
fished, was the reason why its proceedings were more dear, aim-
plc, and intelligible, than those adopted in the Courts of Corn-
.nion law, whose remote origin occasioned their proceedings to
be incumbered with such ambiguous matter. It was true
that a multitude of technicalities and rules had been since
introduced into the practice of the Court of Chancery, which had
almost entirely destroyed its original simplicity. Whether Hon.
Gentlemen would think Mr. Miller. in this passage, to bees good
an authority us they were disposed to consider him in sonic miter
sues, tie -could not determine, but for the sake of comistency, he
thought they ought. isle. Miller proceeded to say, that this was
the evil to be remedied, and the only way to remedy it was hr
cutting off the technicalities and forms in practice, which hail
deformed the whole of the ancient peoceedlnp of the Court. 'f his
also was his opinion ; he felt that there were abuses that ought
to be removed, so that his view of the subject was confirmed by an
author who had been quoted by gentlemen on the opposite aide of
the House. Indeed, he thought that it would not be passible to
peopose a plan more natural and appropriate, than that which Mr.
Miller had suggested. He mentioned this to show that he ad-
mitted abuses to exist, but his object was not to let the system of
equity be altogether destroyed, but to correct those practical
abuses which, In the course of a long series of voirs„ had crept in,
and to do away with those tedious anomalies which a refined state
of society had brought on. He felt anxious to put the case
before the House in that correct point of view which every
one who wished to examine the subject fairly, would naturally
desire. In the course of the debate on a former occasion, the Code
Napoleon was alluded to as being simple, intelligible, and proper
for imitation. But it appeared that such was not the opinion ~t
some very wise and sensible people on the other side of the Atlan-
tic. Ile held In his hand a book which was written by an Arnett-
can lawyer of the name of Hoffman, which was entitled "The
Practice of the Office and the Duties of a Master in Chancery." In
perusing this book, it appeared that our rivals in arms and in com-
merce had thought they could do nothing better in the establishing
their jurisprudence than by adopting that system which wan fol-
lowed by us. This author lamented that more attention was not
paid to rules andsforms; but an opinion prevailed now that such
minute particulars were not essential to a good system of jurispru-
dence; such, however, was not the opinion of the great Lord
Bacon. He made and established rules and regulations which
his enlarged and philosophical mind deemed to be conducive to
great practical good. That philosophy was the best which conde-
scended to minute particulars, rather than confined itself to broad
and general assertions, unsupported by practical experience. It
was not a mere idle opinion of his own, but one that had the sanc-
tion of many very well-informed persons, that the practice of the
Court of Chancery required to be examined into and corrected, and
that the best and only effectual mode of accomplishing that object
Ira, by a Commission of persons acquainted with the subject, and
qualified to suggest improvements. Such a Commission, he
thought, hail been obtained. Under these circumstances, then, it
became the House to consider whether any real advantages
would be gained by their withdrawing from the Cermiissioners
any of those powers which had been given them, and of their
proceeding with the inquiry themselves. He could not see
any course which this House could better pursue than that of
obtaining the evidence of practical men, and of applying the know-
ledge and skill of practical persons on the evidence so obtained.
It had been obected that the opinion of the Judges on the
practice pursued' in their Courts, to which they were by habit
wedded, was not of value. But he thought the Helot would
hardly say in the outset, that &Judge's opinion was to he worth
nothing. Ile thought some degree of confidence should be placed
in the integrity of persons in such high stations, and that they
should not be considered capable of becoming the willing instru-
ments of delusion. He thought the persons appointed on the Coal.
mission were perfectly competent to the duties assigned them,
and he should be lamely disappointed if they showed en
haling, 'Or caused any unnecessary delay. Of this he was
quite confident, that they would not relax in their eldeurears
to serve the country, notwithstanding the obloquy that might
he attempted to be cast upon them, or the epreches that
might be made. But should it happen that en unnecessary delay
should take place, then would arrive the time when the House
would Inc justified in saying, we do now suspect your intentions,
and we shall therefore take upon ourselves the duties which we had
imposed upon you. But until such a circumstance should mom
this House might not, in his opinion, to iatertere with their 4pro-
ceedings, nos bv any premature measure impede their operations.
Dr. LUSH NovoN said he had not yet heard any sufficient
meson to persuade him to depart from the great and almost uni-
versal principle, that publicity and discussion tended to produce
good. He considered the discussion of the subject by all manner
of persons, the publication of the evidence, and reviews and criti-
cisms upon that evidence, were likely to promote much benefit, and
to afford great assistance to the Commissioners thentselves, and that
the more the subject was discussed the more likely they were
to attain the great end in view. Hews also one lous to obtain the ed.
thence in justice to the Commissioners themselves, in order to show
that they had not been remiss in their duties. hut had discharged
the trust confided to them with faithfulness and impartiality. The
argument that it would be premature to publish the evideoce, was
in his opinion erroneous. fur the remaining evidence which was tq
be taken was not such as could by possibility affect or render in-
jurious the publication of the present testimony: for they hail
already inquired into the practice and system of the Court, and
nothing remained to be done, except to deduce some inferences
from the evidence, on which a great diversity of opinions might
possibly exist : for these reasons, therefore, he should support the
motion of the Honourable Member for Westminster. \i'llether
the persons appointed were fit to compose the Commission, he was
duly ad-
ministered in the court of Chancery, three things were necessary.
ob-
jects satri
of tlearsme ingtuoirs'ay ywoenree?wordln;
namely, a good system of law, a prod course of practice, sod a good
obrduterhetowheuavlde
itziktiwrehat the ob-
Judge. With respect to the system of the Law of Equity, he
thought it was not a subject at present proper to enter into; but
for the practice of the Court, that they had very fully investigated.
As to the last question, whether they had a good Judge or not,. lie
would observe, that undoubtedly, in the words of the Commission,