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Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part I

Published online by Cambridge University Press:  28 October 2011

Michael Lobban
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Extract

In 1850, William Carpenter, a reform-minded journalist, called the court of Chancery “an instrument of oppression” and noted that “[t]he madhouses, the workhouses, and the gaols, in all parts of the kingdom, have within their walls the melancholy and heart-broken victims of the evil it does.” The image of the nineteenth-century Chancery as a ruinously expensive and slow court is familiar and was given its most famous expression in Charles Dickens's Bleak House. Yet the court was also a prime focus of attention for law reformers throughout the nineteenth century, until its incorporation into the Supreme Court of Judicature in the reforms of 1873–75. The process of reform was slow and complex, driven at different times by different parties, who had often divergent notions of the problems to be addressed.

Type
Forum: Reforming Chancery
Information
Law and History Review , Volume 22 , Issue 2 , Summer 2004 , pp. 389 - 427
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. Carpenter, William, Chancery Reform. The Equity Jurisdiction of the Court of Chancery; a lecture (London: Effingham Wilson, 1850), 7.Google Scholar See also W. C., , A ‘Bleak House’ Narrative of Real Life; being a faithful detail of facts connected with a suit in the Irish Court of Chancery, from the year 1826 to 1851 … to which is added (by permission,) Letters on Chancery Reform, by Locke King, Esq., MP (London: H. Elliot, 1856).Google Scholar

2. See Law Magazine 44 (1850): 34; Lynch, A. H., A Letter to the Rt Hon. Viscount Melbourne, on the present state of the Court of Chancery and appellate jurisdiction of the House of Lords (London: J. Ridgeway and sons & A. Northcroft, 1836), 36.Google Scholar

3. Parliamentary Debates, third ser., 55: 1310.

4. See [Mitford, John], A Treatise on Pleadings in Suits in the Court of Chancery by English Bill (London: W. Owen, 1780), 24–32.Google Scholar The standard nineteenth-century manual was Daniell's, E. R.The Practice of the High Court of Chancery, 2nd ed. (London: V. & R. Stevens and G. S. Norton, 1845).Google Scholar

5. The solicitor Edwin W. Field claimed that over half of 340 cases going through his office in 1838–39 were administrative suits: Observations of a Solicitor on defects in the offices, practice, and system of costs of the Equity Courts (London: William Pickering, 1840), 84. See also “Peter Purge,” “Letters on the Court of Chancery,” Legal Observer 21 (1840): 33.

6. Spence, George, An Address to the Public and more especially to members of the House of Commons, on the present unsatisfactory state of the Court of Chancery, and suggestions for an Immediate Remedy (London: W. Walker and Ridgways, 1839), 5.Google Scholar

7. See the issue debated in [Yorke, P.], A Discourse of the Judicial Authority belonging to the Office of Master of the Rolls in the High Court of Chancery (London: R. Williamson, 1727)Google Scholar and [Burroughs, Samuel], The Legal Judicature in Chancery stated (London: J. Walthoe, 1727).Google Scholar 3 Geo. II c. 30 enacted that all orders and decrees of the Master of the Rolls should be valid, subject to an appeal to the Lord Chancellor.

8. See [Mitford, John, Redesdale, Lord], Observations occasioned by a pamphlet, entitled, ‘Objections to the Project of Creating a Vice-Chancellor of England’ (London: J. Hatchard, 1813), 43Google Scholar; [SirRomilly, Samuel], Objections to the Project of Creating a Vice Chancellor of England, 2nd ed. (London, T. Cadell and W. Davies, 1813), 16.Google Scholar The Master of the Rolls heard no pleas or demurrers until after the passing of legislation in 1833: 3 & 4 Wm. IV c. 94 s. 24. However, in the early nineteenth century, when Sir William Grant was Master of the Rolls, more important business was attracted to his court.

9. For the masters' tasks, see P[arliamentary] P[apers] 1816 (428) VIII 91 at p. 10.

10. Danieli, Practice of the High Court of Chancery, 979–98, 220; [Farrer, James William], Observations on the offices of the Masters in Chancery, with extracts from the books and notes of one of the Masters (London: V. & R. Stevens & G. S. Norton, 1848), 9.Google Scholar See also the evidence of P. W. Rogers and Sir John Romilly to the Select Committee of the House of Commons on Fees in Courts of Law and Equity, PP 1847–8 (158) XV.1, p. 100, q. 936, pp. 167–8, q. 1586.

11. Polden, Patrick has explored the complexity of nineteenth-century Chancery litigation in Peter Thellusson's Will of 1797 and Its Consequences on Chancery Law (Lewiston, N.Y.: E. Mellon Press, 2002)Google Scholar and in “Stranger than Fiction? The Jennens Inheritance in Fact and Fiction,” Common Law World Review 32 (2003): 211–47 and 338–67.

12. Besides the income he received as Speaker of the House of Lords, the Lord Chancellor received an income derived from fees, many of which came from the bankruptcy business. By contrast, the Master of the Rolls and Vice Chancellor were not remunerated from court fees: the Master of the Rolls was paid at various times by income generated from the Rolls Estate and from the Consolidated Fund. See SirSainty, JohnThe Judges of England 1272–1990 (London: Seiden Society, 1993), 144.Google Scholar For the Vice Chancellor's salary, see ibid., 157.

13. These figures are taken from the Twenty-Seventh Report of the Finance Committee of 1797: House of Commons Sessional Papers of the Eighteenth Century, ed. Lambert, Sheila (Wilmington, Del.: Scholarly Resources, 1975), 111:56Google Scholar; Spence, George, Summary of documents and propositions relating to the Masters Offices and propositions relating to the Six Clerks Office and Registrar's Office submitted to the Lord Langdale … in answer to Langdale's letter 24 December 1841 (London: privately printed, 1842), 7Google Scholar; and PP 1830 (361) XX 1. The masters were also paid £200 a year from the Suitors Fund, under 5 Geo. 3 c. 28.

14. This point was made by Sir John Copley, Parl. Debs., new ser., 16: 704 (27 Feb. 1827).

15. PP 1816 (428) VIII 91, at p.45. See also Horwitz, Henry, “Record-keepers in the Court of Chancery and Their ‘Record’ of Accomplishment in the Seventeenth and Eighteenth Centuries,” Historical Research 70 (1997): 34–51.CrossRefGoogle Scholar

16. They were then required to take an oath, which gave rise to their name of sworn clerks. For contemporary understandings of the history of these offices, see [Lowe, James], Observations on Fees in Courts of Justice (London: Joseph Butterworth & Son, 1822)Google Scholar and Lowe's evidence to the Chancery Commission: Report made to His Majesty by the Commissioners appointed to inquire into the Practice of Chancery, PP 1826 (143) XV 1, p. 160. See also Exp Six Clerks (1798) 3 Ves Jr 589 at 598.

17. Evidence of James Lowe to the Chancery Commission, PP 1826 (143) XV 1, p. 162; Horwitz, “Record Keepers,” 41. The solicitor E. W. Field claimed in 1840 that he had been in their office almost every day for twenty years, but had never seen a Six Clerk. See Field, Observations, 1.

18. The figures quoted in the returns included the fees the Six Clerks received as clerks of inrolment (£545 for 1838 and £527 for 1839): PP 1840 (73) XLI 63.

19. See Report of the Lords Commissioners surveying the Chancery in 1740 (reprinted in PP 1814–15 (98) XI 9), p. 20; and the twenty-seventh report of the finance committee: Lambert, ed., House of Commons Sessional Papers, 111:5.

20. PP 1826 (143) XV 1, p. 162. Cf. the evidence of William Vizard at p. 34.

21. Ibid., 550–53 (Appendix B, No. 24: Return from the Sworn Clerk G. Jackson).

22. Ibid., 29. See also Vizard's, WilliamLetter to William Courtenay, Esq., one of the Commissioners for Inquiring into the Practice Established in the Court of Chancery (London: J. Wilkins, 1824).Google Scholar

23. PP 1826 (143) XV 1, p. 571 (Appendix C, No. 1).

24. According to the annually published Law List, there were 46 sworn clerks in 1785, 20 in 1805, 25 in 1825 and 27 in 1839.

25. Evidence of William Leake to Chancery Commission, PP 1826 (143) XV 1, p. 445.

26. Figures quoted by Pemberton in Parl. Debs., third ser., 55: 131f ff. See also the return of term fees in PP 1840 (376) XLI 57.

27. PP 1826 (143) XV 1, p. 550 (Appendix B, No. 24: Return from the Sworn Clerk G. Jackson).

28. PP 1846 (219) XXXIII 225, p. 64.

29. Carpenter, Chancery Reform, 11.

30. The most extended defense was Twiss's, HoraceThe Public and Private Life of Lord Chancellor Eldon, 3 vols. (London: John Murray, 1844).Google Scholar

31. For a thorough and insightful examination of trends in Chancery litigation, see Horwitz, Henry and Polden, Patrick, “Continuity or Change in the Court of Chancery in the Seventeenth and Eighteenth Centuries?” Journal of British Studies 35 (1996): 24–57.CrossRefGoogle Scholar For the lawyers' spinning out of business, see Lemmings, David, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000).CrossRefGoogle Scholar

32. PP 1836 (370) XLIII 7. See the observations of James Wigram to the Select Committee of the House of Lords on the 1840 Administration of Justice Bill: PP 1840 (500) XV.303, p. 10.

33. See Eastwood, David, “‘Amplifying the Province of the Legislature’: The Flow of Information and the English State in the Early Nineteenth Century,” Historical Research 62 (1989): 276–94.CrossRefGoogle Scholar

34. M. A. Taylor, The Times, 18 May 1811, 2c; Parl. Debs., new ser., 9: 728 (4 June 1823). The Chancery bill books of the early eighteenth century reveal a much higher number of bills filed than in the mid-century: but nineteenth-century reformers were content to use Hardwicke's era as a comparator.

35. PP 1840 (500) XV.303, p. 12 (Wigrara).

36. Some returns did distinguish between the general paper and short causes: e.g., PP 1812 (273) II 343, p. 53 (for 1810–11) and PP 1852 (150) XLII 531 (for 1842–50).

37. See Sir Robert Gifford AG's comments: Parl. Debs., new ser., 7: 1380 (26 June 1822), and Cooper, Brief Account, 45.

38. These figures were quoted by Sir Edward Sugden SG in 1830: Parl. Debs., new ser., 25: 229. It was reported in 1812 that the number of motions before the Lord Chancellor from 1 January 1810 to 5 April 1812 was 14,987, having risen from 11,121 for an equivalent period in 1797–1799, and from 11,280 in for the same period between 1737 and 1739. PP 1812 (273)11343, p. 51.

39. Parl. Debs., 17: 181–83 (25 May 1810); ibid., 19: 262–63 (7 March 1811). See also Beckwith's, WilliamLetter to Sir Samuel Romilly on the Necessity of an Immediate Enquiry into the Causes of Delay in Chancery Proceedings and of Arrears of Appeals in the House of Lords (London: Cox & Co., 1810)Google Scholar, published after Taylor's motion.

40. See Redesdale, Observations, 10. Cf. Romilly, Objections, 16, 25.

41. PP 1810–11 (194) III.923, p. 3. The government was already of the view that an additional Chancery judge was needed to allow the Lord Chancellor to spend more time in the Lords. The committee reported there was also “considerable encrease” of business in Chancery; but this led to some disagreement in parliament: Parl. Debs., 20: 337 (30 May 1811).

42. Redesdale noted that Pitt had rejected proposals to separate the two offices and had supported the idea of appointing an additional judge in Chancery to relieve the Lord Chancellor: Observations, 15–17.

43. Ibid., 17–18.

44. PP 1810–11 (244) III 925 and 1812 (273) II 343. See Taylor's recollections, reported in Part. Debs., new ser., 9: 732–33 (4 June 1823) and ibid., new ser., 16: 708ff (27 February 1827).

45. Romilly, Objections, 37, 8–10, 30–31. See also Parl. Debs., 24: 491 (Romilly, 11 February 1813); ibid., 24: 184 (Holland, 7 December 1812); ibid., 24: 519 (John Leach, 15 February 1813).

46. Romilly, Objections, 14–15. Canning agreed that the bill would lead to cases being argued twice in Chancery, Parl. Debs., 24:485 (11 February 1813). Castlereagh (ibid., 145) however urged that parties would desire a quick settlement of disputes and would not appeal.

47. Romilly, Objections, 9. These arguments were echoed by Macdonald in the Commons: Parl. Debs., 24: 474 (11 February 1813). Cf. the leading article in The Times, 3 November 1810, 2c.

48. The Times, 8 March 1811, 2c, 18 May 1811, 2c, 7 May 1812, 3a; Parl. Debs., 24: 491 (11 February 1813).

49. Parl. Debs., 24: 184–85 (Holland, 7 December 1812); ibid., 539 (Romilly, 15 February 1813); ibid., 474 (Macdonald, 11 February 1813). Romilly's doubts on this matter were alluded to by Taylor: Pari Debs., new ser., 15: 1246 (18 May 1826). For Eldon's earnings, see Melikan, R. A., John Scott, Lord Eldon, 1751–1838: the Duty of Loyalty (Cambridge: Cambridge University Press, 1999), 316.CrossRefGoogle Scholar See also Eldon's return in PP 1817 (105) XVI. 1.

50. For these suggestions by Taylor, Romilly, and Leach, see Parl. Debs., 24: 483, 491, 519 (11 February 1813). There had long been commissions authorizing any of the judges, along with two masters, to sit for the Lord Chancellor; but the practice fell into disuse in the early nineteenth century as the judges were too busy in their own courts. However, Romilly suggested that three judges could sit on the bench as efficiently as four, freeing a judge for Chancery business: Observations, 33.

51. Parl. Debs., 24: 459 (11 February 1813), ibid., 24: 685 (22 February 1813). Redesdale, Observations, 9–10.

52. These arguments were put by Castlereagh, Parl. Debs., 24: 459ff (11 February 1813) and 531ff (15 February 1813), and by Redesdale, ibid., 186 (7 December 1812).

53. Of the government's opponents, Taylor gave a figure of 116 in May 1821 (Parl. Debs., new ser., 5: 1031) and 119 in June 1822 (ibid., 7: 1377). In 1825, the anonymous pamphlet Review of the Delays and Abuses occasioned by the Constitution and Present Practice of the Court of Chancery; with practical hints as to the remedy: in a letter to the commissioners of inquiry (London: G. B. Whittaker, 1825), 56, put it at 116. John Williams claimed an arrear of 135 in June 1823: Parl. Debs., new ser., 9: 712 (4 June 1823). Of government supporters, Master William Courtenay and Sir John Copley SG quoted a figure of 104 (ibid., 791). According to Stephen Lushington, even Eldon himself admitted in 1826 that there were 109 appeals in arrear: Parl. Debs., new ser., 15: 1256 (18 May 1826).

54. Parl. Debs., new ser., 7: 1378, 1380. Two years was also the time estimated by Eldon in 1826 that he would require, on the assumption that he heard 45 cases a year: ibid., 15: 1256 (S. Lushington, 18 May 1826). According to the returns of 1836, between 1820 and 1826, Eldon heard and disposed of an average of 41 appeals a year. See also [Anon, .] Observations on the Judges of the Court of Chancery, and the practice and delays complained of in that court (London: John Murray, 1823), 43ff.Google Scholar, pointing out that many of the appeals would be struck out.

55. Stevens, Robert, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (Chapel Hill: University of North Carolina Press, 1978), 19.Google Scholar

56. As before, there was some consideration of what reforms might be needed in Chancery. The select committee considered separating the bankruptcy and the lunacy jurisdiction from the court and recommended instead that certain reforms could be made to the court's procedure, such as not allowing an appeal to the Lord Chancellor if the two other judges agreed on a question. See Stevens, Law and Politics, 18 n. 67.

57. Parl. Debs., new ser., 40: 561 (20 May 1819), drawing on PP 1810–11 (244) III 925, p. 3. In June 1823, John Williams drew on returns of the previous year (PP 1822 [9] XXI 89) to demonstrate increases in arrears (Pari Debs., new ser., 9: 711 ff.). They showed that where in 1813, there was an arrear of 141 causes and 61 exceptions and further directions (in the Lord Chancellor's court), by 1822, the arrear of causes (in the Vice Chancellor's court) was 161 and of exceptions and further directions, 141.

58. Brougham's phrase in Parl. Debs., new ser., 9: 784 (5 June 1823). The Whigs did not remark on the fact that the creation of the court had in fact generated new business.

59. Parl. Debs., new ser., 9: 709 (4 June 1823).

60. Ibid., 724, 759, 764.

61. [Anon] Observations on the Judges of the Court of Chancery, 3, 14–15, 36, 45. He was identified as a solicitor in Parl. Debs., new ser., 9: 717 n.

62. Though a barrister, Taylor had not practiced in Chancery since 1789. Parl. Debs., new ser., 9: 735 (4 June 1823).

63. Ibid., 5: 1036–37; ibid., 16: 692, 708; ibid., 17: 939; ibid., 18: 315; ibid., 19:51.

64. Ibid., 10: 403, 408.

65. British Library, Add. MS. 40315 f. 183 (Eldon to Peel, February 1825).

66. Pari Debs., new ser., 13: 960 (Williams, 31 May 1825); [Cooper, Charles Purton] Lettres sur la cour de la chancellerie et quelques points de la jurisprudence angloise (London: Longman et Compagnie, 1827), 72Google Scholar; Parl. Debs., new ser., 18: 326 (Taylor, 12 February 1828).

67. Merivale, John Herman, A Letter to William Courtenay Esq. on the subject of the Chancery Commission (London: John Murray, 1827), 7–8.Google Scholar

68. [Redesdale, Lord] Considerations suggested by the report made to his majesty under a commission authorising the Commissioners to make certain inquiries respecting the Court of Chancery (London: J. Hatchard and Son, 1826), 11–12Google Scholar; Merivale, Letter to Courtenay, 31.

69. See Lushington's views expressed in Parl. Debs., new ser., 13: 991–94 (31 May 1825) and ibid., 15: 1257 (18 May 1826); and Merivale, Letter to Courtenay, 9–10.

70. PP 1826 (143) XV 1, pp. 207, 212.

71. Ibid., 35 (propositions. 174, 180–81), 112. The commissioners felt that any judge who only heard bankruptcy cases would become less familiar with the general doctrines of equity and, in any case, there was not enough work to occupy such a judge.

72. Ibid., 10.

73. Ibid., 20–21, Prop. 66.

74. Ibid., 53 (Prop. 100), 120, 175.

75. E.g, ibid., 208, q 312.

76. Ibid., 23.

77. Ibid., 170.

78. Ibid., 37.

79. Thus, Redesdale defended them strongly: [Lord Redesdale] Considerations, 40ff. Cf. Parkes, Joseph, A History of the Court of Chancery (London: Longman, Rees, Orme, Brown, and Green, 1828), 575.Google Scholar

80. Merivale, J. H., Letters to a Chancery Reformer, occasioned by the withdrawal of the late bill for facilitating the administration of justice (London: William Pickering, 1841), 5.Google Scholar Mills told the commissioners of two cases, in the first of which the Sworn Clerk received £8 10s from a bill of costs of £79–12–10; and in the second of which he received £15–1–2 from a bill of costs of £421–5–3: PP 1826 (143) XV 1: Appx C No 10, p. 605. See also pp. 321 ff. for his evidence. James Winter told them that “the expenses of the master's office are, out of proportion, greater than those of any other department” (p. 276).

81. Merivale, Letter to Courtenay, 60.

82. PP 1826 (143) XV 1, pp. 27, 29.

83. Pari Debs., new ser., 15: 1205; ibid., 16: 692.

84. See Spence, Summary of documents.

85. Parl. Debs., new ser., 18: 324, 321. He reiterated his argument on the need for more judges in ibid., 19: 51 ff. See also ibid., 17: 253 (D.W. Harvey, 5 April 1827).

86. Ibid., 21: 1277.

87. Ibid., 25: 631–35. In 1847, the Law Review (6: 122) referred to “the valuable though very undeservedly neglected Report of 1826, which is in fact a vast arsenal of suggestions, whence many have taken weapons of attack, burnished them bright, and passed them off as new.”

88. Parl. Debs., new ser., 17: 947, 965, 969. See also ibid., 19:51–54, 78, 97, 86, 102 (24 April 1828).

89. Brief Account, 67; The Jurist 2 (1828): 87.

90. See the debate of 10 June 1830, in Parl. Debs., new ser., 25: 210ff.

91. Thus, Horace Twiss had suggested in 1828 that the equity jurisdiction of the Exchequer should be transferred to the Chancery, where a new judge would be created. Parl. Debs., new ser., 19: 72 ff.

92. See Horwitz, Henry, “Chancery's ‘Younger Sister’: The Court of Exchequer and Its Equity Jurisdiction, 1649–1841,” Historical Research 72 (1999): 179–80CrossRefGoogle Scholar; and his Exchequer Equity Records and Proceedings, 1649–81 (London: Public Record Office, 2001).

93. PP 1829 (46) IX, pp. 23, 40.

94. Parl. Debs., new ser., 21:1274, 1283 (12 May 1829).

95. Ibid., 21: 1565 (25 May 1829). It is likely Peel also had in mind the point raised by Eldon four days earlier (ibid., 1497) that abolishing the equity side of the Exchequer would require compensations to be paid. Peel had not yet solved the problem of compensations for loss of office.

96. The bill also included measures recommended by the Chancery Commissioners (but hitherto resisted by Lyndhurst), including the regulation of Masters' salaries and the creation of new registrars. Parl. Debs., new ser., 23: 683; ibid., 24: 1127.

97. Ibid., 24: 1123 (26 May 1830). Cf. Shadwell's comments in PP 1840 (500) XV.303, pp. 4–5. Shadwell's change of heart evidently irked Lyndhurst: see Pad. Debs., third ser., 34: 437 (13 June 1836).

98. Lyndhurst Papers, Glamorgan Archive Service, Cardiff: D/D Ly 19/79. Eldon also argued for drawing on the help of the Judges and Masters, as had been done in the commissions in the late eighteenth century. See also Eldon's speech in Parl. Debs., new ser., 24: 1123 (26 May 1830).

99. Parl. Debs., new ser., 24: 1172; ibid., 25: 671.

100. Parl. Debs., third ser., 19: 613 (12 July 1833). See also Legal Observer 6 (1833): 210.

101. Parl. Debs., third ser., 34: 464–65 (Langdale, 13 June 1836).

102. See Lobban, Michael, “Henry Brougham and Law Reform,” English Historical Review 115 (2000): 1192CrossRefGoogle Scholar; Brougham MSS, University College, London: W.B. 1 May 1836.

103. See Parl. Debs., third ser., 48: 66 (7 June 1839); letter from Brougham to Peel, 30 June 1845, B.L. Add. MS. 40482, f. 189. By 1851, he told Russell of his fundamental objection “to any greater severance of the Chancellor's links from the Court of Chancery, than is absolutely necessary & therefore inevitable”: The National Archives, London, PRO 30/ 22/9C f. 5 (Brougham to Russell, 18 April 1851).

104. Parl. Debs., third ser., 33: 410 (28 April 1836). At 406, he showed that the average number of causes set down in Chancery had grown from 540 in 1810–12, to 1301 in 1833–35, while the average number of appeals had grown from 16 to 55.

105. Ibid., 34: 421 (13 June 1836). It should be noted that in 1838, Cottenham began once more to exercise an original jurisdiction in Chancery: see Law Magazine 45 (1851): 42.

106. Parl. Debs., third ser., 33: 424; ibid., 34: 427, 438, 440ff., 474.

107. Sugden, Edward, A Letter to the Right Hon Viscount Melbourne on the Present State of the Appellate Jurisdiction of the Court of Chancery and the House of Lords, 2nd ed., (London: J. Murray. 1835), 11–14Google Scholar; Law Magazine 16 (1836): 19.

108. Parl. Debs., third ser., 48: 48 (Lyndhurst, 7 June 1839). See also [Alderson, E. H.] “The State of the Equity Courts,” Quarterly Review 65 (1839): 272–83Google Scholar; Spence, Address, 8–9; Miller, John, On the Present Unsettled Condition of the Law and its Administration (London: John Murray, 1839), 97–105Google Scholar; J. H. Merivale, Letters to a Chancery Reformer, 26–27. See also Pemberton's comments in Parl. Debs., third ser., 45: 499 (15 February 1839).

109. PP 1840 (500) XV.303, p. 14; cf. Shadwell VC's evidence at pp. 5–6 and E.W. Field's at 55–56; and Cooper, C. P., A Brief Account of some of the most important proceedings in parliament, relative to the defects in the administration of justice in the Court of Chancery, the House of Lords, and the Court of Commissioners of Bankrupt, etc (London: John Murray, 1828), 104.Google Scholar The argument from the statistics was also used to back up arguments that the court's procedures needed to be simplified and cheapened: Legal Observer 27 (1843): 1.

110. PP 1840 (500) XV.303, pp. 53–59.

111. Parl. Debs., third ser., 48: 48 (7 June 1839).

112. Lyndhurst to Brougham, 9 December 1833, Brougham MS 46391.

113. Attempts to reform the equity side of the Exchequer in the 1830s only served to render it less efficient: thus, while 3 & 4 Wm. IV c. 41, s. 25 (itself necessitated by a narrow interpretation of the statute 57 Geo. III c. 18, which provided for the hearing of equity cases by the Chief Baron alone) empowered a puisne baron to sit in equity cases when the chief baron was absent, his jurisdiction was taken to cease when the chief baron became available. An act of 1838 (1 & 2 Viet. c. 32), which authorized the barons to sit in banc after term, when the chief baron was trying metropolitan nisi prius causes, was seen as in effect sealing off the equity side of the court: Parl. Debs., third ser., 49: 406 (J. W. Freshfield, 16 July 1839).

114. William Vizard to Henry Brougham: Brougham MS 28216, 1 January 1833.

115. Parl. Debs., third ser., 53: 1341, 1360, 1346.

116. Ibid., 54: 769 (1 June 1840).

117. Ibid., 55: 1156; ibid., 56: 186.

118. The main controversy in the end turned on whether Abinger's son, appointed to an Exchequer office after notice had been given of the intended abolition of the equity side of the Exchequer, should be entitled to compensation for loss of office. Parl. Debs., third ser., 57: 1043 ff. (23 April 1841). This was resolved by the proposal that Scarlett should only have the compensation until he became a peer.

119. British Library, Add. MS. 40442 f. 75 (7 February 1842). See also Legal Observer 27 (1843): 1; Law Times 1 (1846): 290.

120. Figures quoted in Law Magazine 45 (1851): 42. According to Russell in 1851, where in the early 1840s, there was an average of 7279 matters to be dealt with annually by Chancery judges (including petitions, motions and so on), by the end of the decade it had increased to 8456. Parl. Debs., third ser. 115: 685–88.

121. Law Times 16 (1850): 223, 253. According to the journal, in December there were 900 causes before the Master of the Rolls and Vice Chancellors.

122. Bethell to Brougham, Brougham MS. 33838.

123. Legal Observer 40 (1850): 113.

124. TNAPRO 30/22/8E, f. 51 (11 June 1850).

125. Ibid., f. 60 (8 June 1850). This was an idea Langdale opposed.

126. Parl. Debs., third ser., Ill: 1199 (14 June 1850); see also his letter to Denman, , Legal Observer 40 (1850): 436.Google Scholar

127. TNA PRO 30/22/8E, f. 132: Russell to Sir Thomas Wilde (9 July 1850).

128. Parl. Debs., third ser., 115: 688 (27 March 1851).

129. Ibid., 115: 700, 779; ibid., 117: 703, 711 (13 June 1851). Under the act 14 & 15 Viet., c. 83, the two new judges could sit alone if the Lord Chancellor was absent.

130. For critical comment on the legislation, see Law Magazine, new ser., 15 (1851): 110–20.

131. See Law Times 27 (1856): 221, and Roundell Palmer's speech in Parl. Debs., third ser., 185: 844–46 (22 February 1867).

132. The Times, 18 December 1872, 10c.

133. See the critical article in Solicitor's Journal 14 (1869): 3, responding to a leading article in The Times advocating the abolition of one of the Lord Justiceships: 27 November 1869, 9d.

134. When Sir George Turner was incapacitated by illness from sitting on the Court of Appeal, an act was passed in 1867 to allow a single judge of appeal to sit in the court to dispose of interlocutory and summary business: 30 & 31 Vic. c. 64. In 1869, some argued that such an arrangement could be made permanent: Solicitor's Journal 14 (1869): 91.

135. Solicitor's Journal 3 (1858): 966.

136. See, e.g., the correspondence in Solicitor's Journal 11 (1866–7): 157, 621. For complaints against the clerks, see, e.g., pp. 471, 519. An act of 1867 (30 &31 Vic. c. 87) empowered the Chancellor to appoint more clerks.

137. The Times 12 May 1870, lie.

138. Solicitor's Journal 17 (1873): 549; The Times 24 April 1873, 13d, 23 May 1873, lie; Law Times 55 (1873): 21.

139. The Times 26 April 1873, lie.

140. Parl. Debs., third ser., 215: 1259 (1 May 1873).

141. Ibid., 216: 664 (9 June 1873).

142. Ibid., 215: 1278 (1 May 1873), Law Times 55 (1873): 181. It was argued that any arrear was the result of short term problems, such as the illness of Wickens VC, and a spate of company windings up.

143. See the discussion in Polden, Patrick, “Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature,” Cambridge Law Journal 61 (2002): 575–611.CrossRefGoogle Scholar

144. It had been discussed periodically in between: see, e.g., Law Times 32 (1858): 10.

145. Parl. Debs., third ser., 212: 1919 (26 July 1872).

146. Cairns to Selborne, 18 April 1873, Lambeth Palace Library, Seiborne MSS., 1865 f. 269.

147. Parl. Debs., third ser., 215: 1268 (1 May 1873).

148. Letter from Equity barristers on the Judicature Bill: The Times, 1 May 1873, 12d.

149. Interestingly, just as the equity men felt under pressure, so some common lawyers felt that the Chancellor's supremacy was a threat to their system: see Cockburn, A., Our Judicial System: a letter to the Lord High Chancellor on the proposed changes in the jdicature of the country (London: William Ridgway, 1870)Google Scholar; “Ought the Judicature Bill to Pass?” Law Magazine and Review, new ser., 2 (1873): 534–41.