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London, England, 1826-05-19 00:00:00

yortante, end if being deeply conversant with the subject, having
great acknowledged experience, and great talents, rendered those
gentlemen who were appointed to the Commission obnoxious to the
charges made against them, the objectimn urged against the con-
stitution of the Commission applied with full force. In his opinion
It would here been utterly, impossible to have selected an equal
number of persons who had longer experience or greater talent tip.
plicable to the particular subject than the persons who had been
appointed. But it had been said that, admitting the vilifications
of the Commissioners, their prejudices and their interest were so
mixed up with this question that It was impossible the investigation
could lead many euccersful or importantresult. In reply to thischargs
he should content himself with referring to the Members of the Cos.
melon then present, sitting at either side of the ileum, and he con.
Micro!), appealed to them whether, in the course of the inquiry, the
investigation had not been conducted with the most unexceptioq.
able fairness, candour, and liberality. Though he had not the
honour of being a member of the Commission, he was not an In.
attentive observer of its proceeding'', end was well acquainted with
the manner in which the inquiry was conducted. Upon every sug.
gestion of an abuse existing requiring a remedy, a full and deli-
berate inveatiga.ion took place. And he appealed to the members
ofethe Commission, as confidently as before, whether, when it was
established that an alteration would be useful, the inquiry into
the hest mode in which that alteration could be effected was not aluo
conducted with the same liberality and candour, and whether the
tame facilities were not afforded. Ile thought, therefore, he could
confidently assert that there was not only no objection to the con.
stamina of the Commission, but there could be ere reasonable
_objection to the tone, the temper, and the spirit in which the pro-
ceedings were conducted. He would now advert to some of the
accusations which he understood had been thrown out against the
form of the Report which the Commiesioners had laid 0.. the table,
or more properly which the Commissioners had presented to his
Majesty, and which, by his Majesty's command, was laid on the
table. It was objected that the Commissioners had appended to
their report a vast bulk of evidence, as if their object was to clod
the subject, whilst a little resection would demonstrate that theft i
motive was to render it more perspicuous. In fact it was nom&
sible for the Commissioners to have taken any other course but shah
which they had pursued. He would venture to say, that if they
had omitted to affix the whole body of evidence, the day after the
Report wee laid upon the table some Honourable Member would
have introduced the subject, by expressing his wonder that the
evidence from which the Commissioners had formed their condo.
stoma was not submitted. and would conclude by moving that Mt
evidence 'should be laid before the House. If the Commit*.
sioners had pursued another course, and submitted a part of the
evidence, that *Melt they considered important, and that which
contained the essence of the whole, and to which they desired tepee
daily to direct the attention of the House, they would then ha*
been charged with garbling the evidence. There was no &hernia
tive left for them, then, but to submit the whole body d
evidence to the coneidepation of Parliatnent, in order that
the grounds upon which they bad recommended certain reforest
might be distinctly known. The course pursued by the Commis.'
sioners, in publishing the whole mass of evidence, could not boob.
jectionable to some Hon. Gents. opposite. The Hon. Member foe
Wincheleea ( Mr. Brougham) could not object to it, for upon the
appointment of the Commission, he said he hoped Government
would not be satisfied with a Report, but thatevery particle of the
evidence upon which that Report was founded should be submitted ,
to the House. Before he proceeded further, he wished to put the
House in possession of the manner in which the evidence was
taken before the Commissioners. In the first instance the attend-
ance was requested of these who wereebost calculated, from their
experience and knowledge of the subject, to afford information, but
the Commissioners did not exclude any evidence whatsoever.
Whether an individual thought torposeessed valuable information,
or complained of some abuse which he undertook to state, the
Commissioners heard his evidence ; and to prevent mistakes, after
the evidence was taken down by a person appointed for that put.
pose, it was transferred to the witness to revise and correct his own
evidence, that no mistake should possibly take place. (Hear, hear.)
He asserted with perfect confidence, that from the commencement
to the end of this inquiry, there was the most anxious dente on the
part of the Commissioners to enter fully into the details
of all real and fancied abuses, to detect them if they ex-
isted, and to discover all eases in which unnecessary de-
lays and expenses occurred in the proceedings of the Court a(
Chancery. Having stated the manner in which the investigation
was conducted, it was of material importance to glance at the
objects to which the Commissioners directed their attention. It
had been said that the jurisdiction of the Chancery Court ought to
be altogether abolished ; that It was not founded upon the common
law of the country ; that it was an encroachment upon that taw,
and ought to be got rid of. If this doctrine wasodmitted the
labours of the Commissioners had been misdirected. If the jails.
diction ought not to exist, there was no necessity for inquiring into
the details of the practice, and the course of proceedings adopted in
the Chancery Court. He (the Attorney-General), however, thought
that It was ab olutely essential that such a jurisdiction as that pos.
sessed by the Court of Chancery should exist, and that we could
not get rid of such a jurisdiction when the state of property in this
country was attentively considered. He could easily point out
various circumstances under which the absence of such a juridic.
tion would lead to the worst consequences. All the real property
In this country, it was well known, was vested in trusts, in in.
finite variety. A great proportion of the personal propetty was
vested in a similar manner, either in trusts expressed or implied,
which were also infinitely various in their natures. Now he asked was
it not necessary a jurisdiction should exist toe punishing a breech
of those trusts, and compelling the faithful performance of duties,
in which the interests of the country were so deeply involved ? The
jurisdiction of the common law was not sufficient in all cases ;
and it was necessary to go through the several steps of their pro-
ceeding', to judge of the real objects the Commissioners had in
view In their inquiry. For instance, in a cage of copyright, the
party whose right was infringed had no redress at common law.
True, he might recover damages for the actual injury sustained ;
but this was by no means a sufficient check, nor could a prohi.
bitten issue but from a Court of Equity. Such a jurisdictioe as
the Court of Chancery must therefore exist. There was another
class of cases in which sect' a jurisdiction was most advantageous.
Me meant that dam dependent upon the performance of a specific
illoetract. In smelt cases, If the contract was broken, damages•
might be recovered, it was true ; bat these were often found very
Wequate. The person who had broken the contract might
have absconded, he might have been in prison, and there was
DO other jurisdiction that could compel the specific performance
of the letter and spirit of the contract but the Chancery Court.
There was another class of cases—accounts between parties. In
this large class of cases the common law had no jurisdiction, nor
was there any other jurisdiction but the Court of Chancery. He'
was not now talking of the manner in which the jurisdiction ought
to be exercised ; but he was j ist'tied in saying that mach juriMic-
tion as that possessed by the Court of Chancery must be exercised
somewhere. There were an infinite number of cases to which he
had not yet adverted, where the jurisdiction of such a Court was
absolutely necessary. The Common Law Courts had no jurisdic-
tion, unless the injured party complained of is fraud having been
effected ; but they could not compel a fraudulent instrument to be
abocelled, which was part of the jurisdiction of the Court of Chan.
wry. This j arificliction also affected the rights of infants, of mar.
ited women, and a vast variety of cases which the (Courts of Common
"Law had no jurisdiction over. It was to be considered, then, whether.
rich a jurisdiction must not exist, or whether it could be dispensed
:with. It then came to be considered where such a jurisdiction
should be vested, and by what Court it ought to be exercised. It
must either be vested then in separate tribunals, or it must be en.
grafted on the Courts of Common Law. He knew it was the opi.
nion of some persons that if the business of the Chancery Courts
was merged in that of the Courts of Common Law, it would be bet.
ter. But see to what this would lead. We should have to double.
the Courts of Common Law, and what would be the advantage of
such an arrangement? The two systems of law were, so distinct,
sad the proceedings so dissimilar, that the Coulee would of neces-
sity appoint one day for equity and another for law. rhos them
would nominally_ be only one tribunal, but subatnntially there
would be two. Besides, there was another consideration. It was a
question whether, Rem+ an arrangement was made, there would
be an opportunity for sufficient attention and study on the part of
those who administer justice in the Courts of Law. The Courts of
Equity, too, were in that ripened state, and so many of the eases
brought before those Courts depended upon the principle In cases laid
down, that it required nearly as much study for the administration of
justice in Courts of Equity as in Courts of Law. The probable
Onmsequences then would be, that we should Ice some Judges ex-
dislyely for common law and some for equity. In such a state of
things there was no rule to guide the House but one, which he
thought it would not be wise to imitate. It was well known that,
until the close of the last century, the Court of Exchequer had a
combined jurisdiction—the jurisdiction of a Common Law Court
and of a Court of Equity. But what was the result of such a
union ? That every suitor who wished his case to be triad at com-
mon law, went to the Court of King's Bench, and every suitor who
tad an equitable case, resorted to the Court of Chancery. ( Hear.)
.This was an instance which ought not to induce the House to
douroy the present institution. The inconvenience of' a combined
jurisdiction in the Court of Exchequer was found to be so great,
that supon. Gentleman at the other side of the House brought in
a Bill, which caused a substantial separation of the two jurisdic-
tions. The Equity Court was held in one place, at which the
Lord Chief Baron presided, and the Common Law cases were die.
Cof in another Court, where the other Barons sat. He thought
.111
now proved that an equitable jurisdiction remit not only
exist, but that it must exist in separate Courts: and if such a tri-
bunal must exist in separate Courts, he assumed that no material
thaw could take place in the mode of proceeding by bill and
sower upon oath ; unless such a jurisdiction possessed this power
it was useless. The detection of fraud, and the unravelling of
Many secret transactions, depended on this power. The juris-
diction then, he repeated, must exist ; it must exist separate; and
ha be useful, it must proceed in the form which it now did, by bill
I and answer. The House ',mid observe how this applied to the
point to which the Commissioners directed their attention. They
could not direct their attention to remedying the abuses supposed
to exist in the Court of Chancery, if they had not laid it
down that the Court must exist separately, and the proceed.
legs be carried on by bill and answer. Upon these prin-
ciples they were enabled to make conclusions, and pointed
their attention to the delays and expense of the proceedings in
Chancery. By assuming them principles, the Commissioners were
enabled to say, let us examine a proceeding in the Court d Chan.
eery from the commencement to its final issue—let us tom Ms va-
rious courses and windings, awl if exuberant It may boreunadred,
and if there be any unnecessary expense, that ereebee_emby be
saved. This WS the course pointed out by the twammossanees.
and this course they pursued Ishii a Ishoss, seal, mad taiiaatry,
which had never hiss earpoposi la amp NNW Asgairy. Ohm)
He had indulged le dime feasial aboarvaine..
Pertinatill babe tits impact imesisilogill•