The Sun.
London, England, 1839-06-08 00:00:00

notice.—( The Noble and Learned Lord sat down amidst
loud cheering.)
Lord BROUGHAM said that in presenting himself
hus early to their Lordships to take part in this discussion,
he must bear his testimony to the great ability and clear-
ness of the statement of his Noble and Learned Friend,
than whom, as no man could express himself more clearly,
so did few men think so clearly on any subject to which
they devoted their attention. This was the third or fourth
time that this subject bad been brought before the House,
and he could not agree with his Noble t'riend in the rea-
sons which he had given for not bringing forward this
measure himself, because he was convinced that any mea-
sure matured by the advantage of the assistance which he
could always command, would have every chance of meeting
with the respectful attention and the ultimate concurrence
of Parliament.—( Hear, hear.) It was a gr.'at comfort
to him that there had been no Royal Message on
this subject, because if that had been the case, his
Noble and Learned Friend on the Woolsack, acting in
conformity with the example of his colleagues elsewhere,
would most probably have put off the measure until 1842 ;
but that not being the case, he thought there was some
chance of its being taken up in a reasonable time.—( A
laugh.) It was impossible to say too much on the great
importance of this subject, and the case had been by no
means overstated. He (Lord Brougham) had formerly
brought forward a large measure of Chancery reform, at
which time it had appeared to him that the delays in the
Court of Chancery were owing to a habit that the Judge
presiding then had' got into of not deciding. He was only
now stating what he had stated in Lord Eldon's lifetime,
and in his presence ; and certain it was, that with all the
great qualifications of that most illustrious Judge, possess.
ing as he did learning the most profound, the greatest
subtlety, and the greatest industry, he had acquired a bad
habit of not attending to counsel, but deciding causes on
reading the affidavits a long time afterwards. The pro-
lixity of the Counsel secured the attention of the Judge ;
and this again produced prolixity of Counsel by re-action.
He had often thought that a Judge of less learning and
capacity, who would apply himself to what was said, would
be able to get through business as effectually and in much less
time. He begged to put his Noble and Learned Friend
right on one point : he had assisted in throwing out his
Bill in the House of Commons ; it had been dropped in
consequence of the demise of the Crown ; in the subse-
quent Parliament he had been asked if he would continue
his opposition to it, and he said he should do so, and the
Bill was withdrawn, or rather was not brought forward.
Lord L YND HURST— It had passed a second reading
by a majority of 49.
Lord BROUGHAM—In what sized House ?

Lord LYNDH URST— A hundred and twenty.
Lord BROUGHAM—That was no great majority in
those days, although now it would be reckoned a vast
majority.—( Cheers and laughter.) He ( Lord Brougham)
shortly after took the Great Seal ; and if he had then
proposed the creation of new Judges, it would immediately
have been said he had changed his opinion, and demanded
that assistance for himself which he had before opposed
when he was at the bar. The course he pursued therefore
was to act on his own previous opinion, and to try how far,
by unremitting industry and attention, he could make up
for his other deficiencies. He determined, therefore, to
grapple with the great evil, to make head against the
arrears, and to keep down the business. If he had found
he could not do so he should have had recourse to the

measure of his Noble Friend, and have asked for another
Judge. He entirely agreed with his Noble Friend that
the expense of a new Judge might be saved out of the
odds and ends, the more frips of the present Court. Why
the term fees alone, amounting to from 6,0001. to 7,0001.
per annum, would defray the expenses. Original causes
had not been heard for years by the Lord Chancellor, not
since 1813. He had found that the number of appeals
entered for hearing had amounted to 140. He heard
these causes and made it a point never to stop counsel—
heard one or two original causes, until at least there
were only eight appeals set down for hearing, and he
found it absolutely necessary to stop and to sit and hear
appeals in that House. That same year be got off the
appeals in that House, and got through more causes than
had ever before been got through by a single Judge in one
year, and within seven or eight of the number that had
been got through when Lord Gifford and Lord Eldon
were sitting together.— (Cheers.) The diminishing
of his labours by the appointment of the Court
of Bankruptcy did not apply to that year. He had sat for
five or six weeks in Bankruptcy. He thought it necessary
to say thus much in contradiction to certain ridiculous
statements which had been made out of doors by persons
who ought to have been better informed on this subject,
and who had, among other absurdities, stated, that h!s
Noble and Learned Friend on the Woolsack was the
first Lord Chancellor who had heard original causes ;
whereas the fact was, that previously to the time of Lord
Eldon, the Lord Chancellor did nothing but hear original
causes. There never had been an instance of more gross
crass, or stupid ignorance than those learned persons had
exhibited.
Lord LYNDHURST—It was not any one connected
with the Court of Chancery ?
Lord BROUGHAM—Not with the Court of Chancery
in England. That learned person had also said that his
(Lord Brougham's) judgments were not worth a straw,
and were only useful as landmarks to be avoided,
and yet the same learned person had said, in his own
hearing, and in the presence of 4,000 persons, on the 25th
of May, 1838, that he was the first Judge in equity who had
ever shown that it was possible to combine good judgment
coupled with great despatch. Now, as he had given no
judgments in the interval, it must have been on a re-
consideration of the subject after reading the volumes of
his judgments, that the learned individual had come to his
present decision. He took great pains never to waste a
half hour, never to go to Courts, or Levees, or attend Cabi-
net Councils, except when absolutely necessary, and in
that way the arrears had been got rid of'. It did not at
all follow that the same thing could be done every year,
and it had been said that it was owing to that exertion that
he had injured his health, but it was no ste}, thing, he had
never better health than he bad in 1831, 1832, 1833, and
1834, and it was his hard work in 1835, in the debates on
the Municipal Reform Bill that had destroyed his health.
But it did not require a person ordinarily to work so hard
as he had worked in getting rid of the arrear causes. lie
had been getting rid of the arrear and at the same time
keeping down the growing crop of new causes, but that
arrear having been got rid of, the Chancellor could hear
original causes. He was restored to his pristine title of
an original Judge, and not an Appellate Judge, and oho-
third was thereby added to the judicial power of the Court
of Equity. He was not pertinaciously adhering to his own
opinion, but he wished, before any decision was come to,
that their Lordships would hear both sides of the question.
Now, his Noble and Learned Friend had alluded to the
great number of Bills filed in the time of Lord Hardwicke—
( Lord Lyndhurst—" Causes set down")—that amounted to
merely the same thing. In 1816 there were 7,000 to 8,000
filed.-(Lord Lyndhurst—' Che number of bills filed v.as
not always a criterion of the number of causes ; in one
year they were 30,000.1 He was aware that formerly there
were a much a greater number of bills filed, several
b,•ing filed to accomplish the same object. But if
the number filed in the several years between 1750
and 1836 was looked at, it would be found that
they bore some proportion to the causes heard.
The average number between 1770 and 1774 was 5,000 ;
between 1780 and 1800, 9,000 ; between that period and
1813, 11,000 ; and between 1823 and 1827, they fell off
to 10,000. They remaite dat 10,000 during the next five
years, and they were a little lower at the present rime.
What he wished to press upon his Noble and Learned
Friends before they came to any decision was, that they
must not look at the present Courts as anything like what
they were in former times. They must not forget that
they were now very different, The business had certainly
greatly increased, but the judicial power of the Court had
also been very much increased. Within the last 20 years
the Vice. Chancellor's Court had been created, and was
not merely increasing the power of that Court 50 per cent.
—it was doing much more ; because the Chancellor's could
not be considered a complete Court. As he had to at-
tend to his political functions in the House of Lords,
therefore the Chancellor's Court wee a great deal less
than half of the two Courts. He was sure his Noble
and Learned 14riend would follow that statement (" Hear,
hear," from Lord Lyndhurst)—so that when another com-
plete court was added it was adding something like 70 per
cent. But that was not the whole. His Noble and Learned
Friend had made a great reform in the Rolls' Court. For-
merly in the Rolls they only sat four weeks in the
year; at other periods only in the evening, and never
on Saturday. Taking the average of three days during
term and four in vacation, each week, it amounted to about
fourteen hours per week. That was the former judicial
power of the Rolls ; but when they sat in the morning,
and for six days in the week that time was more than
doubled. So that taking the three Courts, the judicial
power of the Court of Equity was nearly trebled. He
would add another fact—the Recorder's report was with-
drawn which took up a considerable time; and a further
most important charge was that the Chancellor was re-
lieved from the duties of the Bankruptcy Court, which
occupied, him six or seven weeks in the year. That, it
would be admitted, was a large increase of power, and some
assistance was also given in the Master's office. Taking
all these matters into consideration, it would be as well to
see if they had not sufficient judicial power already, instead
of adding more. It was a fact that the arrear was greater
than before, after the Vice-Chancellor's Court was estab-
lished. He had a great suspicion and a great prej'adice
against appointing new judges. It was not the expense—
he would set that aside ; it was not the patronage,
although that was a more powerful argument ; but he was
averse to the system if it were not absolutely necessary.
His main objection was that it was a very dangerous and a
very bad precedent to create new judges. It was saying
neither more nor less, than " if you don't exert yourself
strenuously to do your business, you will always get help
by an Act of Parliament creating new judges." He (Lord
B.) had not been six months on the Woolsack, when he
had been asked to create new Judges for one of the Com.
mon Law Courts which had fallen into arrear. He had
said " No, no, try and get rid of your arrear as we are
doing," and the consequence was that the arrear turned
out to be temporary, and it was got rid of. He hoped
their Lordships would consider the matter fully before
they came to any decision. If the new Judge was to have
a power subject to the Chancellor, they would overwhelm
that Court with the number of appeals. Again, suppose
they abolished the Equity jurisdiction of the Court of Ex-
chequer, and transferred it to the new Judge. Was the
Chief Judge in Equity to have an appellate jurisdiction
over the Vice_ Chancellor and the Master of the Rolls,
there would be a remission of appeals from the one to the
other, and the business would be considerably increased.
The course be had suggested on a former occasion was, to
give an election to the party either to go by way of appeal
to the Chief Judge, and to have his decision final, or, if he
chose, to come to the House of Lords at once, and, as it
were, per caltum. If that were the case, the parties would
at once go to the Chief Judge, and all cases of importance
would come to the House of Lords. If the appeals to
their Lordships accumulated, the evil would right itself.
Everybody who wanted justice, and not delay, would then
go to the Chief Justice instead of to the House of Lords.
Another very important subject of consideration was the
propriety of separating as much as possible the judicial
from fhe 'political functions of the Lord Chancellor, and
constructing a better Court of Appellate Jurisdiction.