in order to prevent the innovation of could be found to discharge this laborious creating a new officer, they would be duty. No doubt there were several emi. guilty of a still greater innovation upon nent peers capable of performing this, but the constitution. To suppose that the it was too much to think of building a perLords would remain in town, after the manent measure upon the existence or conother affairs of parliament were dispatched, veniency of peers, not of necessity bound so for this purpose, was a visionary hope, and to devote themselves to the public service. one upon which no wise statesman would It had been objected to the present mea act. Besides, there was a decided consti- sure, that it would tend to alter the habits tutional objection against it which was, of the Chancellor, and by confining him to that it could not be done without trench- his appellant jurisdiction, deprive him of ing upon the prerogative of the crown, in his Chancery knowledge; but it might be the important privilege of proroguing answered, that the confinement of the ofparliament. It must put the crown into ficer to the jurisdiction in the House of the delicate and awkward situation of Peers, would equally deprive him of such either permitting parliament to sit after a knowledge of the equity and practice of the national business for which it had Chancery as would enable him to come to been assembled was finished, or of doing competent decisions upon those cases injustice to the claimants who were at their which came before that House as a bar. As to the House of Lords appointing court of appeal: so that the evil coma committee or delegation of its members, plained of could not be cured without a such a measure would also be repugnant violation of the principles of the constituto the constitution; and he apprehended tion, or the creation of a correspondent that a further sitting of the whole House evil. If this were true (and the noble was not to be expected from its diligence. lord knew of no flaw in its reasoning,) the Indeed they had no right to expect from question was from what quarter could aid the House of Lords, that they would de- be drawn; and, in his opinion, it was only part from their usual habits of sitting; from that now proposed that aid could be and the evil would not be remedied by it drawn safely and with advantage. The even were their lordships to consent, in- question then was, (there being a necesstead of five months to sit for twice that sity to provide some aid in the Court of term, unless gentlemen were prepared to Chancery) whether it could be drawn encounter the other evil, namely, that the from the other courts of law, or whether Lord Chancellor should not be the pre- they must erect a new officer? In the siding officer in the House of Peers. Court of Chancery itself there was a great Without this, the remedy thus projected if not a growing arrear-a great calamity would be only to exchange one evil for for which there appeared to be no remedy, another, and transfer the arrears from the unless by creating a correspondent evil House of Lords to the Court of Chancery, elsewhere, for if the Lord Chancellor had by occupying the time of the Lord Chan- not called in aid the assistance of the cellor in the former, which, during the Master of the Rolls, it was only because recess, he now devoted to the latter. that could not be done without creating a With respect to the project for withdraw corresponding evil in the Rolls Court. ing the Lord Chancellor from presiding in None of the other courts were in a situation the appellant jurisdiction, it was not neces- to afford help, but were all so pressed with sary to go into detail. As far as he had business that the judges, with all the diliwatched the discussions upon this subject, gence they used, could not cope with the no question had been made as to the sepa- excess, and discharge their duties fully. ration of the office of Speaker from that of The Court of Chancery, too, could only Chancellor, which had been formerly sofitly draw aid from a court, the decisions long litigated and favourably considered by some high authorities, in the noble lord's opinion erroneously, as tending to cast a shade upon the dignity of the presidency of the House of Peers. The first statesmen who had turned their attention to this point, had unanimously agreed in opinion, that such an alteration would derogate from the dignity of the House. It was also evident that no other individual

of which rested on similar principles of equity, and were analagous to its own, for though there were upon the benches of the Courts of King's-bench and (he believed) Common Pleas, individuals who had, at a former period of their lives, been eminent in Chancery practice, yet there was no Court in Westminster-ball, except the Court of Exchequer, which acted upon principles of equity; and so far from that

court being able to afford them the aid they required, there had been serious proposals for requiring an additional effective judge there, where the arrear of business was even more pressing than in the Court of Chancery; and the difficulties under which suitors laboured rather called for a legislative remedy of their own, than offered a resource. If the Court of Exchequer could not supply the want, no other court in Westminster-hall could. It was thought impossible therefore, that the remedy could be expected from any of the courts in Westminsterhall. It was very generally supposed, that the measure now proposed would be the means of causing innovations in the mode of conducting business in the Court of Chancery. Nothing could be more inconsistent with the principles on which the Bill was founded, than such a supposition. Such had been the growth of legal business since the two unions which had been so happily effected between England with Scotland and Ireland, and the consequent increase of the industry and wealth of the whole kingdom. If judges had struggled under this press of business so long, it was only a proof of their dili-mittee to be examined more in detail, and gence and zeal, as well as of their inte- to advise upon any better measure which grity. The measure proposed would be should present itself. One half of the exthe smallest departure from ancient prac- pence of the office would be charged on tice, and so little of an innovation, that in the profits of the Lord Chancellor, in the lieu of giving the Chancellor the privilege business of the court; the other half was of calling in the assistance of the nine to be taken from what was called the puisne judges, together with two masters dead cash, or suitors' fund, the annual rein Chancery, as he now might do, it gave venue of which, at that time, was 9,000l. him a permanent instead of a temporary The revenue of that fund had, on various assistance. It was a mere change to this occasions been applied, under the authoextent. The Chancellor. had now the rity of parliament, for analogous purposes, privilege of calling in the assistance of and could not certainly be devoted to any the Master of the Rolls; and when he as- better use than the support of that officer sisted the Chancellor, he was as much whose appointment was in contemplation. under the direction of the Chancellor as The fund consisted of unclaimed monies the judges under a commission, or the in Chancery, which had been suffered to Vice-Chancellor proposed. The object accumulate at interest. The salaries of of the Bill was to afford to the Lord Chan- the Masters in Chancery, and of superancellor a permanent, instead of a temporary nuated masters and other officers, were assistance in the transaction of the bu- paid out of it; and the income of 9,000%. siness of the Court of Chancery. The af- per annum, to which he had alluded, was fording assistance in the transaction of its present clear revenue unappropriated. business, certainly did not imply any in- Thus, as far as related to economy, there novation in the mode of transacting could be no objection to the Bill. It had it; and the very reverse of innovation been said, that there were other means was the object of the measure then by which the object of the Bill could be under discussion. The functions of the more effectually attained, than by the officer whom it was proposed to appoint, adoption of the measure which it proposed. were not different from those who were And one of those means was, to take away appointed commissioners, and he repeated the management of the bankruptcy busiit, that when the Master of the Rolls was ness from the Lord Chancellor. Without

| able notwithstanding the pressure of his business to assist the Lord Chancellor, the assistance which he afforded was not different from that which would be given by the new officer. The objection which was made, by comparing the evil which the Bill would produce with that which it would remedy, instead of really operating against the Bill, was a powerful argument in its favour. For after a fair comparative view of the two evils, the magnitude of that which it remedied, was so strikingly contrasted with the diminutive nature of the evil which it could produce, that there was little room for hesitating to decide in favour of the Bill. He had formerly mentioned that the present measure would not cause any additional expence to the public, though it would be productive of so great benefit to the suitors in Chancery. It had been alleged that it would, but he should be able to satisfy the House that it would be no such expence; and the question for the House was, whether, with these advantages to the suitor, with the removal of the evil complained of, and with no better plan proposed, the House should hesitate to send this plan to a com

465]

Vice Chancellor's Bill.

taking into consideration the fundamental
principles, that this business should not be
separated from the Lord Chancellor, and
even allowing that it might with propriety
be taken away from him, still it would be
necessary to have a Vice-Chancellor. For
as to the particular jurisdiction of the
bankruptcy business, none required greater
attention on account of its difficulty and
its intricacy. It was so particularly im-
portant in a commercial country, that it
would be highly dangerous to trust the de-
cision, on business of such weight, to any
authority subordinate to that of the Lord
Chancellor. To separate, therefore, this
branch of business from the office of Chan-
cellor, would be to remove that function,
which, in his opinion, was most essential
to it, and would have a tendency to sepa-
rate the equity of Chancery, from the
equity of the country. It had been objected
that, in the distribution of the business in the
Court of Chancery, the Bill enabled the Lord
Chancellor to direct the whole at his plea-
sure; that he might allow the Vice-Chan-
cellor to decide upon matters of such diffi-
culty, that no authority short of the Lord
Chancellor himself, should have been
allowed to make a decision; or that he
might only intrust to him causes of minor
importance, and that such a power would
degrade the character of the new magis-
trate. To this he would answer, that the
possible abuse of a practical good ought
not to be alledged as an argument against
it, and that it ought on the contrary, to
be presumed that the discretion thus vest-
ed in the first law officer of the country
would be soundly exercised. He con-
tended that the argument was untenable,
because it went upon the abuse, and not
the use of the measure proposed. It was
needless to speak at large on the impro-
priety of supposing, that any man who
should be vested in such an office as that
of Lord Chancellor, ever could be guilty
of such a breach of all the ties of duty
and of honour-that he could ever so far
abuse the power with which he was en-
trusted. Much had been said about the
multiplicity of appeals which would be
caused by the adoption of the measure be-
fore the House, and the creation of an in-
termediate jurisdiction. But it was too
much the interest of the suitors to have
their causes quickly decided, to be sup.
posed they would venture on the tedious
repetition of their suits by making appeals
against the decision of any judge, particu-
larly of such an officer as the Vice-Chan-
(VOL. XXIV.)

no

cellor, and it might be added, that the Lord
Chancellor would have the power to put
at once before himself such causes as were
most likely to be made matter of appeal.
At any rate, the objection did not apply with
greater force here than it did to the courts
of the Master of the Rolls, and the puisne
judges acting under a commission: and
surely the power of distributing business
was such an additional instrument of dis-
charging the great functions of the office,
as counterbalanced the evils arising from
the presumed increase of appeals. It had
been urged, that the measure would trans-
form the Lord Chancellor from the first
law authority in the kingdom, to a mere
state magistrate, and this was said on the
suspicion, that he would intrust the deci-
sion of matters of importance to the Vice-
Chancellor. Never was there an opinion
more unfounded, nay (without disrespect
he said it), never more absurd, than to
suppose a Chancellor would abdicate his
judicial character; the honour and re-
sponsibility of the situation were suffi-
cient security against such an event. If
the principle of arguing on suspicion were
carried to any length, there was
reason why lord Ellenborough should
not withdraw from the execution of the
duties of his situation, and intrust the
functions of his office to his assistants.
Certainly lord Ellenborough was only
bound to the performance of the duties of
his office, by the ties similar to those
which bound the Lord Chancellor, and he
knew of no law which prevented his with-
drawing himself entirely from the court;
yet would any man alarm his mind with
the possibility of such an event? Was it
not a suspicion equally chimerical, to sup-
pose that the Lord Chancellor would walk
about the streets doing nothing, and leave
his business to be transacted by his Vice-
Chancellor: nor was it less unlikely that
he would absent himself from parliamen-
It would be wrong in the
tary causes.
House to legislate on such principles. In
Ireland business was so arranged that the
Master of the Rolls afforded the same as-
sistance to the Lord Chancellor which was
here proposed to be given by the Vice-
and this arrangement was
Chancellor,
made, in consequence of a Bill which he
had brought into that House. When that
Bill creating such regulation was first pro-
posed, objections had been made to it, si-
milar to those now started to the Bill before
the House. The object which both the
Bills had in view was similar, namely, to
(2 H)

into a committee for further consideration. His lordship concluded by moving the order of the day for the second read

Mr. Bankes rose and observed, that the noble lord had endeavoured to render his measure agreeable to one portion at least of the House; and to none more than himself, by stating that it would be attended by no public expence. Highly, however, as he prized this part of the scheme, he could not approve of it unless it had other distinct merits. In all matters of innovation, two things were to be considered; first, whether the evil were of an alarming size; secondly, whether the remedy was likely to be efficient, and answer its purpose. In the present case, he allowed, that a deplorable evil existed; the grievance was of such a nature, that though justice was supposed, proverbially, to exalt her head, and flourish in this country, yet the delays of her administration had been such as to come little short

provide an auxiliary instrument to the upon the revenues derived by the Lord Lord Chancellor, and it was then said, as Chancellor from his office. The measure, now, that the Chancellor (lord Clare) therefore, being charged with no public would become a mere state-officer. The expence, calculated as it was to remedy two best answer to this objection was furnish-evils, and coming recommended as it did ed by the conduct of the four distinguish-by the sanction of all the legal characters ed persons who had since that period filled in the upper House, seemed to be of such that high situation. Not one of the eminent a nature that all parties would allow it to characters had ever withdrawn one mogo ment of their time from their judicial business for political purposes, or ever used the assistance of the Master of the Rollsing of the Bill. except as an auxiliary. Experience proved that the object had been attained in the case of the former Bill, so that it was but rational to conclude that the object should be effectually accomplished by the Bill then under the consideration of the House. Some persons had said that the whole expences of the office of ViceChancellor should be charged upon the emoluments which the Lord Chancellor derived from the business in the Court of Chancery. That noble lord had stated, at the very commencement of the enquiry, that he wished for no profit which was not purchased by beneficial labour; yet when the importance and dignity of the office were considered, and when the magnitude of the labour attendant on the execut cn of the duties of it were duly estimated, it would be found to be but reasonable that the Lord Chancellor should reap the fruits of his honest labour, and should live with becoming splendor. He should have the means of providing for his family, for it was to be remembered, that there was much risk and uncertainty in the time during which it might be his fortune to continue in office. The pension of 4,000l. to ex-chancellors was by no means sufficient of itself for this purpose, and it should be remembered that there were many distinguished noblemen, who owed the origin of their rank, and the wealth of their families, to the provision which their ancestors had been able to derive from their dignified labour, while they had filled the office of Lord Chancellor. It seemed to be reasonable that this office should be endowed more liberally than any other; and that its income should not be looked upon with jealousy. It ought to be so considered, because it was liable to greater cares and to more political uncertainty than any other judicial situations which were held during life, at least during good behaviour. Under these circumstances he hoped that the House would not think of making any encroachments

of a denial. Yet he should do wrong to rest satisfied with a remedy that was not at once comprehensive and constitutional. If the Bill intended merely to provide a temporary remedy for a temporary pressure of business, it might, perhaps, with some modifications, be more generally agreeable; but when it was proposed to introduce a permanent innovation into the administration of justice, the House should pause, unless it were demonstrated, that the remedy provided was the best possible remedy. It might be said, that a pressing grievance required a speedy remedy; but in his mind, the time would be well spent, and the delay wisely protracted, which should be dedicated to the consideration of a measure more calculated to answer its purposes, and less liable to objections on constitutional grounds. His opinions were sufficiently known on the subject of economy; but whenever economy alone was opposed to measures of a more substantial nature, it ought undoubtedly to give way. His objection to the present Bill was, that the remedy proposed would be found totally insufficient for the purpose for which it was intended, and it was