ART. VII.-THE BILL FOR THE BETTER ADMINISTRATION OF JUSTICE IN THE COURT OF CHANCERY, AND IN THE JUDICIAL COMMITTEE of the PRIVY COUNCIL.

WE

E have still to regret the extremely inadequate measures proposed by the Government for the reform in the Court of Chancery. Since we last reviewed the prospect of legislation in this direction,1 two great advantages have been gained. The inconsiderate propositions then before the House of Commons have been withdrawn; and instead of an act which would practically have insured the subtraction of one-third of our judicial force in equity (since under the proposed scheme the Master of the Rolls would never have been found in his own court), we have had our judicial force augmented by the appointment of Sir G. J. Turner to the Vice-Chancellorship, to the great satisfaction of suitors generally, and not a little to the credit of Lord John Russell for having selected a political opponent for advancement. Instead of only two Vice-Chancellors, therefore, as was threatened, and a Master of the Rolls sitting as Lord Chancellor, we have three Vice-Chancellors and a Master of the Rolls, with the Lord Chancellor as before. So that our inferior tribunals have double the judicial force which was anticipated, and the tribunal of appeal is no worse-for in the Court of Chancery, although complaints are still rife upon the subject of arrears, yet the Lord Chancellor, by his unwearying attention and inexhaustible urbanity, by his indomitable industry in mastering details, and his undeniable "pluck" and independence of spirit, has conquered the "situation," and bids fair to be as popular a chancellor as he deserves to be. If he do not always command success, he always strives to deserve it. There are arrears, but the chancellor does, as he always has done, his best-and his best now is a very different thing from what it was twelve months ago.

The change, then, in the prospects of the Chancery Courts, as far as their present position goes, is entirely favourable. As regards the prospect of permanent improvement for the future, it is as bad or worse than ever. Indeed, we almost feel inclined to wish that the original bill of March last had been allowed to go on. It would very speedily have brought matters to a The late hot weather would have done it. With two

crisis.

Bill for Better Administration of Justice in Chancery,&c. 111 Vice-Chancellors to do all the original hearings, and bankruptcy and petition business, and a Master of the Rolls thrust in the first week of his judicial existence to hear the appeals, the whole machine would very soon have come to a dead lock. And as when matters are at the worst they begin to mend, we might then have had some rude blows, by which the Great Seal might have been broken-splintered, we believe is the phrase; until which event takes place, chancery reformers never will be at rest, nor will any government have quiet. For, as has been urged and acknowledged over and over again, it is by the admission of every Lord Chancellor since the time of Lord Eldon IMPOSSIBLE to find one man who can duly fulfil all the multifarious duties of that office. To regret the necessity of separating these functions, therefore, and of providing more than one man to do that work which no single individual can accomplish-and live-is as weak and childish as it would be to lament that there are but twenty-four hours in the day.1 What is it that these self-styled guardians of the chancellorship lament? Is it the unfitness of any individuals now-a-days to perform high judicial functions? But there are abundance of men whose learning, uprightness and industry qualify them for any office. At any rate, there are as many men as would be required. Do they lament with Mr. Canning the withdrawal of the grand prize from the ambition of the bar? But we propose, according to Lord Langdale's plan, or a plan somewhat similar, to have three prizes instead of one. Will they tell us with a groan that "there were giants on the earth in those days," and deplore the degeneracy of modern lawyers? Then we beg of them, even on their own statements, not to place on the shoulders of one degenerate modern a load two or three times as great as what made their sturdiest giant stagger. Their favourite "giant," we suppose, would be Lord Eldon; and we must be allowed to remind them that he was considered quite incompetent to perform the whole task he undertook, and so perseveringly clung to. Nor was this disparaging estimate entertained by ignorant innovators or political opponents alone. The Select Committee of the House of Lords, appointed in 1823 to examine into the delays, &c., in the Court of Chancery, reported unanimously that "there was at that time A MANIFEST IMPOSSIBILITY that any person holding the Great Seal could find time for the performance of all the duties of his high office." They did not indeed proceed explicitly to declare that those "Unless your lordships can add to the twenty-four hours, it is impossible that any one individual can perform the duties already imposed on the Great Seal." Lord Cottenham, 1836, Parl. Deb.

duties were not duly performed by Lord Eldon; but the general terms above quoted, and the occasion of the appointment of that very committee making the report, sufficiently declared their opinion. And if there was a manifest impossibility in 1823, it is still more strikingly manifest now. The appeal business may be described with tolerable accuracy as a per centage of the suits decided before the Vice-Chancellors' Courts and the Master of the Rolls. These courts, two in number in 1823, have been four ever since 1841. This alone would lead us to expect a similar augmentation in the number of appeals. But beside the greater facility of coming to the hearing from this cause, there has been a continued series of efforts on the part of the equity judges, in general extremely well directed, towards expediting and cheapening the steps of proceedings in a suit. So that the suits might be expected to be more than twice as many as in 1823. They are actually, however, scarcely so much; the average number of causes disposed of (including the dropped causes) in the years 1819-23 having been about 900 per annum, and in the years 1846-49 about 1600 per annum. The increase is still very considerable; and if we reflect that owing to the much longer delays prevalent thirty years ago, the "dropped causes" bear a far greater proportion to the whole than they do now, and also that a vast variety of matters now come before the courts by petition which at that period either were totally excluded, or were only admitted by the usual proceeding on bill and answer, we shall see that the real increase in the work done at the present day by the inferior courts is probably more than double what was done in the period 1819-23.1 And the appellate business of the Lord Chancellor has increased in a similar ratio accordingly. How then can the weaker men of the present generation be called upon to perform more than even Lord Eldon ever undertook? As regards political avocations, it may be said that no discussion of the present day is equal in importance to the Emancipation and Reform Acts, which hung like contending clouds over the heads of every Government for the last fifteen or twenty years of Lord Eldon's continuance in office. But to a political Lord Chancellor every measure is of distracting importance which bears in its fate the fate of the Government; whether he strive to establish the barefaced but too successful impositions of a Pacifico, or struggle with all the might of learning and

1 The numbers above quoted are from the Parliamentary Returns and include causes only, not petitions, &c., of which we have seen no return. All causes disposed of" are included, whether actually heard, or compromised or abandoned.

In

authority to perpetuate the disabilities of half the population in one kingdom, and the whole population in another. each case, as far the Lord Chancellor is concerned, the seals are at stake, and, personally, he is as much interested in the one question as the other. And as to the other important functions of the Lord Chancellor besides sitting as a judge of appeal in chancery and a leading member of the Government in the House of Lords, e. g. in his characters of chief judge of appeal in the House of Lords as a court of appeal, privy councillor, quasi minister of justice, referee and law adviser of the Government, guardian of lunatics, &c. &c., in every one of these respects it will be readily conceded, or, if necessary might be very readily proved by the returns, that his duties are more onerous than ever. Under such circumstances, how can any person be found to withstand the appeal of common sense, that one man should no longer be compelled to pretend to do the work of three?

We forego all advantage of the excellent arguments showing the absurdity of a political Lord Chancellor, the loss of time, the loss of money, and the abnegation of all principle. We will not ask, or at least will not examine, how a system can be endured under which an admirable judge, just as he had acquired the confidence of the suitors and a full confidence in himself, should drop at once from the bench because a Hellenizing Portuguese Jew cannot make a British senate believe his preposterous inventions (as Lord Cottenham might have fallen); or how another equally admirable judge should drop from his seat through the failure of the potatoe crop in Ireland (as Sir Edward Sugden did). The intendant in Gil Blas excusing his master's non-attendance to greet the arrival of a royal guest, gave fifteen excellent reasons for his absence, and as the sixteenth, that he had died three days before. We shall not enter into the various other excellent arguments which have been so often urged against the existing system. We are content to rest the decision of the question on the manifest impossibility of the case so loudly declared by the Lords' Committee in 1823. We will still hope that that which has been for so many years admitted to be manifestly impossible to be performed, will at last cease to be attempted.

We fully and readily admit, however, the great difficulties in the way of a reform; difficulties, which, as in almost all other reforms, reside in the reconstructive part of the operation. Sever the functions of the Lord Chancellor, let the Keeper of the Great Seal no longer sit in Chancery; and how is he to be replaced? Who is to be the Judge of Appeals in Chancery?

VOL. XV. NO. XXVIII.

I

Shall the court still consist of a single judge? Who shall preside in appeals in the House of Lords? Take away from the Lord Keeper of the Great Seal all his judicial practice and habits, and he will soon cease to be an efficient legal adviser of the government, such as the Chancellor is at present; and he is the sole legal adviser in the Cabinet. The steel will soon get dull unless it be kept in constant use. On the other hand, if the Lord Keeper preside in the House of Lords, without any other judicial functions, it is to be apprehended that he will be less efficient than other judges whose judicial habits have been kept in constant exercise. And there is no spectacle more unseemly in a court of justice than a president of less authority than an inferior judge, unless it be a judge succumbing to an advocate. Then there is the Judicial Committee of the Privy Council, which is susceptible of amendment; and if retained as an independent court, by multiplying judges and jurisdictions, greatly augments the confusion. Besides there are various questions as to the hands to whom various other duties now discharged by the Chancellor should be entrusted; which, however, are of comparatively less moment.

The confusion engendered by the consideration of the reform of the Judicial Committee, however, we should clear away by a very simple yet serious expedient (viz.) the establishment of one Court of Appeal for all matters, instead of two. At present, there are the House of Lords and Judicial Committee of the Privy Council, totally independent of each other, and each without any common court superior to both, by appealing to which incongruities, if they arose, might be corrected. Such a division can only expose us to the risk of uncertainty from contending decisions. Each tribunal decides questions arising on common law, equity and civil law, and acknowledges no superior but an act of parliament. Lord Langdale, struck with the same incongruity, proposed in 1836 that there should be but one Supreme Court of Appeal; but he proposed to commit it to the hands of the House of Lords, a Lord President and Lords Assistant being created for the purpose of giving its decisions due solemnity. We confess that we should prefer to see the Judicial Committee, or some such tribunal, (empowered, of course, by act of parliament,) entrusted with the ultimate appellate jurisdiction, for reasons which we have stated more at large in some observations which will be found in our last volume (vol. 45, pp. 47-51). But without recapitulating the reasons for this preference, or insisting any preference for one tribunal over another, it is surely evident that there should be but one such court. In addition to the above reason on principle, there is to be taken into consideration the great practical