§ SIR ROUNDELL PALMER*Sir, I am sure that no apology will be thought necessary from any hon. Member who endeavours to call the attention of the House to any defects which may appear to him to exist in so important a part of our institutions as the judicial system of this country. Were it otherwise it would, I think, be easy to give special reasons at the present moment for undertaking that task. In the Speech from the Throne, at the opening of this Session, we were told that our attention would be called
To the Consolidation of the Courts of Probate and Divorce and Admiralty; and to the Means of disposing, with greater Despatch and Frequency, of the increasing Business in the Superior Courts of Common Law and at the Assizes.It will be obvious to all who reflect on the matter that this is a subject which invites our consideration as a whole. Whatever may be the views of the Government of which we are now imperfectly informed—the present is a fitting opportunity for passing in review the whole of the subject to which our attention is thus called. The 842 question discussed at an earlier part of this very evening—namely, as to the measures in progress for the erection of new Courts of Justice to facilitate the administration of the law, affords an additional reason for now bringing this matter forward. There is, also, another advantage in considering this subject at the present time, because we have now, and for a long series of years have had, such an administration of justice—as far as the Judges personally concerned are responsible for it—as disarms all censure or criticism, and deserves the strongest and warmest acknowledgments. Whatever defects I may endeavour to point out are defects in the system, not at all attributable to those whose duty it is to administer it. They have done all in their power, I believe, in every branch of our judicial administration, to encounter and overcome those defects. The Government have not yet had an opportunity of explaining to us their intentions as indicated by the passage I have read from Her Majesty's Speech. A measure, however, has been laid on the table of the other House of Parliament with reference to the Courts of Admiralty, Probate, and Divorce, which, if adopted, certainly will have one good effect—namely, that of relieving the Courts of Common Law from a duty lately imposed on them which it has been impossible for them conveniently to discharge, and which no doubt requires to be otherwise provided for. It is also said that we may expect a proposal to be made for a considerable increase in the number of Judges in the Courts of Common Law. With respect to that, as also with respect to the measure to which I have alluded, it would not become me now to anticipate discussion. But if such a proposal is likely to be made it appears to me very desirable that we should take likewise into consideration all other causes of obstruction and difficulty which may now exist in the administration of justice in the Courts of Common Law, in addition to such as may arise merely from the inadequacy of the number of Judges. Undoubtedly, at the present moment there is a great obstruction of business in those courts. There are considerable and accumulated arrears which the Judges have not been able to keep down by all the energy at their command. That, I believe, is found to be the case both in London and at the assizes. I understand that the Nisi Prius list for the present sittings is exceedingly heavy, and not by any means likely to be cleared. According to 843 the figures with which I have been furnished of Common Pleas cases there are no less than 124 remanets from last sittings, and 145 new cases, making 269 cases altogether standing for trial at the present sittings. I am informed that there is very little probability indeed of getting through the whole of the 124 remanets, and that many of them are likely to go over till next November. Of course, the new cases must also be deferred; and unless a remedy is applied to such a state of things it will tend greatly to the detriment of the interest both of suitors and the public. Then as to rules nisi for new trials, I learn that the list of these which stands over for argument is getting much into arrear, and that some cases which arose as long ago as February of last year are not likely to be argued till May in the present year. The special cases in the Crown Paper are equally or more in arrear. In fact, there is almost a complete block up as to a great part of the business in the Courts of Common Law. At the assizes the power of disposing of the cases under the present system is similarly inadequate. The question before us is, what are the remedies to be applied? I cannot but think that under the present arrangements of the courts there is a very great waste of judicial power, and that to a great extent that waste might be remedied by a careful revision of the whole system, both as regards London and the assizes. I would strongly urge upon the House and the Government the importance and the necessity of looking the whole question fully in the face and examining it in all its departments and branches before applying a particular remedy—which is objectionable if it be not necessary, but which ought to be applied if it is—I mean that of an increase in the number of Judges. There are obvious causes of evil for which there are obvious remedies distinct from an increase in the number of Judges, and those remedies ought to be applied whether the number of Judges be increased or not. Some of these have occurred to myself, and others have been suggested to me by persons of high authority. Looking at the question broadly, the first thing which one encounters is that there are three Courts of Common Law, with fifteen Judges—five in each court, and the first question that occurs is how far is this division of jurisdiction between these three courts necessary or useful, and how far would the administration of justice be pro- 844 moted and improved by abolishing the division of jurisdictions and making the three courts practically one? There is no sound reason for retaining any part of that division of jurisdiction; it is purely technical and artificial. The Court of Queen's Bench has exclusive jurisdiction in criminal informations, and in what are technically called Crown cases, though I believe there are other Crown cases, under Mr. Waddington's Summary Jurisdiction Act, which may be taken into the other courts. It has also exclusive cognizance of certain Poor Law cases. By other forms and processes, direct or indirect, questions of precisely the same nature may be introduced into the other courts; but, so far as relates to these particular modes of procedure, the Court of Queen's Bench has exclusive jurisdiction. The Judges of the other courts are selected from the same bar, and have in every respect the same qualifications with the Judges of the Queen's Bench. The distinction that exists is really quite arbitrary, and I maintain that it ought to be abolished. Whatever arrangements it may, at any time, be found convenient to make, for the distribution of business among the Judges, can, of course, be made; but there is a great difference between such arrangements, and an exclusive jurisdiction. I say the same thing of the special jurisdiction of the Court of Exchequer. Revenue causes are tried in that court only: though petitions of right against the Crown, which may throw heavy charges upon the revenue, may be taken to any court. The Court of Common Pleas has less of peculiar jurisdiction; but that court only has cognizance of registration cases. I advocate the abolition of these technical and arbitrary differences altogether, and I would make all the courts practically branches of one, having a uniform jurisdiction, and capable of taking any business without distinction. I do not think the time of the Judges is now so occupied as that the most is made of them. Four Judges sit in a court at a time, and one often leaves in the middle of the day to go to Chambers. A great amount of Nisi Prius business accumulates for what are called the after-term sittings. Let three Judges constitute a full court, let one or more, if necessary, from each court sit at Nisi Prius all through term continuously as well as afterwards, and then the great arrears of business would be kept down. The sitting of Judges in Chambers might be greatly reduced or en- 845 tirely abolished, the routine and uncontested business should be done by the chief Masters, and it should be in the power of suitors to put down in a list the cases which they wished to have disposed of before a Judge. One Judge, when not required to sit at the Central Criminal Court, might sit alone to dispose of practice cases, and in that way a considerable saving of the time of the Judges would be secured. In the Court of Chancery we do not permit suitors at their option to accumulate a list of arrears in one court, while other courts are insufficiently supplied with business. In the first instance, the suitor selects his own court, and when he has done so, and the case is ripe for hearing, if one court is overburdened and and another ill-supplied, cases are transferred from one court to another, and so the business is equalized and expedited. In the Courts of Common Law, there is at present no such power. Cases cannot be transferred from the Queen's Bench, to the Common Pleas or the Exchequer. One man favours one court and another man another. One court has a lack of business, while another is overburdened with arrears; but if the cases were transferred, a great deal of time might often be saved. It has also been suggested to me that in moving for new trials and in other matters there is a double process, which, in many cases, might be advantageously abolished, There is the motion for the rule nisi in the absence of the enemy, and there is the further argument when the enemy shows cause. Why should it not be here as in the Court of Chancery, where you summon your adversary by notice of motion in the first instance, and the matter is argued once for all? Why should not the party have at least the option to move upon notice for his rule absolute at once, some economy of time might result from the adoption of this plan. Another matter has often struck me with surprise, although I cannot say how far it occupies time. If there are issues of law joined by demurrers, and also issues of fact, although the issues of law may entirely exhaust the merits of a case, and the determination of them often settles the question between the parties; yet, they must, if they wish to go to a Superior Court upon the point of law, unnecessarily try, perhaps at great expense and delay, the questions of fact, upon which if the judgment is right nothing will depend. In the Court of Chancery, if a 846 demurrer is allowed to a bill the matter goes to a Court of Appeal, and there is an end of the case unless the judgment is reversed, in which case the questions of fact are re-opened. Why should there be a trial of facts, when it is settled that it will be of no use unless the Court of Appeal should reverse the judgment? The good sense of parties often leads to an arrangement; but, on the other hand, there are cases in which the unnecessary trial is not avoided, and when there is no necessity for it, it must be a vexatious and useless waste of money and time. Another important matter to be considered is the relief of the Superior Courts from business which might be better disposed of elsewhere. There are two ways of doing that—first, absolutely excluding a certain class of cases which the County Courts have jurisdiction to try, and in which they might be trusted to do full justice; and secondly, imposing discouragements in the way of costs upon parties who, without good reason, choose the more expensive instead of the cheaper and simpler process. I have high authority, both of experienced Judges and of members of the Bar, for the principle of this recommendation. That many frivolous cases would be got rid of by compelling the parties to try them in the County Courts, unless a Judge saw special reason for their being tried in a higher court. I do not pretend to name the precise amount at which the line ought to be drawn, but I doubt whether any harm would be done by taking it in cases of contract at £50. Some might put it lower, but that would be a matter for consideration. It would probably not be right to apply, in all respects, the same rule to actions founded on wrongs. There may be cases such as libel involving a small pecuniary amount, yet in which, more than the verdict is sometimes at stake, and in these cases it might be unfair that the option of having them tried in a Superior Court should be wholly taken away. I venture to suggest, however, that if a person should bring an action of that description, which might be tried in a County Court into a Superior Court, without recovering more than a certain sum—say £10 or £20—he should not be entitled to costs unless the Judge should certify that the case was a proper one to be tried in a Superior Court. The adoption of that course would get rid of a number of cases which are a great obstruction in the Superior Courts, 847 and which form an unnecessary addition to their business. With respect to the assizes, there are two other recommendations which I also venture to make with the sanction of some authority. The first and principal one is that the same practice should be adopted at the assizes in the transaction of criminal business which is followed at the Central Criminal Court. The Judges, who sit at the Old Bailey, try the more important cases, while in an adjoining room others are disposed of by the Recorder or the Common Serjeant. Now there is, I apprehend, no reason why the Judge of assize should not try the more important cases and let the others be tried before the local recorder or by an inferior Judge specially summoned for the purpose. In that way some relief might probably be obtained without any prejudice to the administration of justice. Another mode in which the same end might be promoted is by the entire abolition of separate assizes for counties of cities and towns. There is, it appears to me, no practical necessity for maintaining this separation, and if the assizes for towns were thrown into the counties to which those towns belong, and if, in some cases, the assizes for more counties than one could be held together, some time would, no doubt, by those means be saved. I have now submitted to the House all that I have to offer on that part of the case which relates to the general business of the Superior Courts of Common Law. I now come to the first subject mentioned in my notice of Motion, which I regard as a very important one, and which, I hope, may receive the early attention of the Government and of Parliament. I refer to the subject of appellate jurisdiction. We have four Courts of Appeal, two of final, and two of intermediate appeal. The two Courts of Final Appeal are the House of Lords and the Judicial Committee of the Privy Council; the two intermediate are the Exchequer Chamber, or Court of Error at common law, and the Court of Appeal in Chancery. From each of the two latter an appeal lies to the House of Lords. When that statement is made several questions of principle occur to my mind, and I should like to say a few words on those questions before I enter at any greater length into details. Let me suppose that we were about to construct, de novo, a judicial system, I do not think there could be much doubt that the best course to adopt would be—following the example 848 of some neighbouring, and of, perhaps, most well-governed States—to establish one supreme court of final appeal. I cannot but hope that our efforts after improvement on the subject may take, as far as is practicable, that direction. To have two Courts of Final Appeal administering in several parts of their jurisdiction the same law, with the possibility of conflict, is, to say the least of it, inconvenient, and no sound reason can, so far as I am able to say, be given for it. Next, I would ask if the best plan to adopt be to have only one Court of Final Appeal, whether it would not be better also to have only one appeal? The contrary system, it seems to me, holds out inducements to those who are fond of litigation; and there are, therefore, in my opinion, two principles which ought to be aimed at in any reform which we may attempt. That we should, if possible, constitute a single Court of Final Appeal, and that we should, at all events, permit only one appeal in any case decided by a Superior Court. The next question is, is it expedient that there should be different Courts of Appeal in Equity and at Common Law, or only one Court of Appeal for both? The distinction between them is, as we know, in a great measure artificial, and the requirements of the times point to as great a fusion of the two as is consistent with some reasonable division of labour and the practical despatch of business. Their separation has a tendency to produce a certain narrowness, which may be corrected by bringing both together into a focus by means of one Court of Appeal. As things at present stand, we have the House of Lords administering English and Scotch jurisprudence, and the Privy Council administering not only English jurisprudence, but French, Dutch, Mahomedan, and Hindoo. Now it may be thought that English Judges, whose minds have been formed in the practice of the English law, might be incompetent to the discharge of such duties; but it is somewhat remarkable that, although no Scotch lawyer has ever taken a regular part in the judicial business of the House of Lords (Lord Mansfield and other eminent men whom Scotland has given to the English bar and bench, cannot properly be called Scotch lawyers), yet, by the general consent of those best qualified to give an opinion on the subject, the law of Scotland has derived great benefit from the mere fact that the decisions of its Judges have been reviewed by men free from 849 Scotch prejudices, and bringing to the performance of their duties large views of jurisprudence. Everyone who knows how the business of the Judicial Committee of the Privy Council is administered, will, I think, admit that the difficulties arising from having to deal with different laws have been by them most successfully grappled with, and that, upon the whole, a regard for substantial justice rather than mere technical accuracy has grown out of the fact, that they have to administer justice in accordance with so many different systems. The conclusion I draw from these circumstances is that our equity decisions would be better reviewed by a court which comprised some Common Law Judges than by one from which they were altogether absent, and that our common law decisions would be better reviewed in a court of which some Equity Judges formed a part than if it were confined to common law Judges alone. I contend, therefore, that a fusion of the two would be an absolutely good thing in itself. There is also another point to which I must briefly advert, The conditions on which the right of appeal is given ought not to vary substantially with the court from which the appeal is brought. Some Members of the House may not be aware that if a man wants to appeal to the House of Lords from a Common Law Court he must bear the burden of a double appeal. He has no access to that House except through the Court of Exchequer Chamber. The case, however, is not so in Chancery. An appeal may there be made from the court of first instance—passing over the Court of Appeal—direct to the House of Lords. Now, one or the other of these two systems must be wrong, and there is certainly room for improvement in this respect, even though other things should remain as they at present stand. Again, there is a remarkable distinction between the rule applicable to Scotland and that which is applicable to England and Ireland in reference to appeals from interlocutory orders. Every order made by the Court of Chancery, in England or Ireland, may be enrolled at once, and carried by appeal to the House of Lords. And in practice this facility of appeal is not abused. In Scotland, the rule is that no matter which may there be determined in the progress of a case shall be taken to the House of Lords by way of appeal until the case is finished, unless the Judges either give leave or hap- 850 pen to differ in opinion with respect to it. By reason of that rule, matters of the greatest importance may sometimes be hung up for a considerable time, and I cannot help thinking if not that the English rule is a better one, at least that it may be desirable that the Scotch should be made somewhat more flexible. Having made these general observations, I will address myself to each of the four jurisdictions which I have mentioned, and endeavour to point out the great necessity which exists for some reform in connection with the whole subject. I will commence with an institution which I will venture to say is the most unsuccessful and the most defective part of our judicial system—I mean the Court of Exchequer Chamber, the Court of Error at common law. I have not a word to say against the Judges who transact the business of that court; they are in no degree responsible for its failure. All that it is possible for men to do they accomplish; but the system is one which cannot be satisfactorily worked, and nothing can be more easy than to demonstrate to any one, however unfamiliar he may be with it, the crying necessity for some reform in both its principle and practice. Taking the principle, I must first explain in what the Court of Exchequer Chamber consists. There are three Superior Courts of Common Law—the Queen's Bench, the Common Pleas, and the Court of Exchequer. By an ingenious device the Judges of each two of these courts are appointed to sit alternately in judgment upon the decisions of the third. Such a system is in many ways objectionable. It would not be difficult to put a case where the determination of the law might depend upon the mere accidental priority of an appeal. It has sometimes been found that upon difficult and debateable questions of law one court holds a view opposed to that held by one of the other two courts. Take, for instance, the two subjects of the extent to which a master is liable for the acts of his servants, or of persons in his employment, and of the extent of the liability of railway and other public companies whose operations are injurious to the property of others. Upon these two subjects considerable differences of opinion have prevailed in the Courts of Common Law, and it is possible that the law of the land as laid down by the Court of Exchequer Chamber might be determined one way or the other, according to the court whence the appeal was brought, Thus, if the appeal were 851 from the Queen's Bench, the views of the Judges of the Court of Common Pleas, with or without the accession of one or more Judges from the Exchequer, might prevail in the Court of Error; while, if it were from the Common Pleas, the tables might be turned; so that the eventual decision of an important point of law might depend entirely upon the accidental constitution at a particular moment, of the court before which the appeal was brought. In many cases, also, by this peculiar system of appeal, the decision of the minority may overrule that of the majority of the whole number of Judges of equal and coordinate authority before whom the case has been argued. A case may be decided one way by the unanimous judgment of four Judges of the Queen's Bench, and their judgment may be reversed by four out of six Judges in the Exchequer Chamber, the other two Judges of the latter court agreeing with the decision of the Queen's Bench. Thus, under this ingenious system, the opinion of the minority of four would overrule that of the majority of six; and then, as a matter of course, the case would go to the House of Lords. The truth is that this court was intended to be a very important and solemn tribunal, composed of the whole of the judicial power of the other two courts. It was intended that if a majority of the Judges of the Queen's Bench decided one way, ten—or at least eight—Judges of the Common Pleas and Exchequer should bring their united wisdom to the review of that decision. On account, however, of the other duties which the Judges have to discharge, it has been found generally impracticable to bring together more than five or six of them for the purpose of reviewing the judgments of any of the courts—a number which gives the Court of Exchequer Chamber but little if any more weight than is possessed by the court whence the appeal is brought. Then again, the Court of Exchequer Chamber sits so seldom that it is scarcely possible for the cases to be properly disposed of by it at all. Thus, in 1866, this court sat altogether twenty-eight days, of which thirteen days were allotted to the Queen's Bench errors, eight to those of the Common Pleas, and seven to those of the Exchequer. The Courts of Common Pleas and Exchequer had each two days allowed for its errors in February, in May, and in June; the Common Pleas had also two days in November; the Exchequer one day in December; the Queen's Bench 852 five days in February, one in April, and two in June and November. It must not be supposed that the court sat so seldom in consequence of there being no work for it to do, for there was much more business than it could get through, but the reason that it did not sit oftener was because it was impossible to get the Judges of the same two courts together oftener or for more than two or three days at a time. Thus it happens that year after year cases go on from sitting to sitting unheard; some are partly heard, and are then adjourned to some future sitting; and some are passed over when their chance appears to have come from the fear that they cannot be finished at once, and that it may be impracticable for the same Judges to be re-assembled at a subsequent sitting. Parties are sometimes induced or compelled to compromise their cases after all the delay and expense of legal proceedings have been incurred. It is also scarcely possible for the Judges of this court, amid their other pressing business, to find time for consulting together upon the cases which have been argued before them, and there are many accidents to which human life is liable that may render the opinion of the minority even of the Judges before whom the case in error was argued, that which determines the question of law involved in the appeal. A case known as the "Vibration Case" was decided the other day in the Exchequer Chamber, and it affords a good illustration of the working of the system. The question raised was as to the liability of railway companies to pay compensation to owners of property injured by the vibration caused by railway trains. The case was argued in June last in the Exchequer Chamber, before six Judges, two of whom were Chief Justice Erie and Lord Chief Baron Pollock. Lord Chief Baron Pollock resigned in July, and Chief Justice Erie in December, and in the February following judgment was pronounced by four only out of the six Judges who had heard the appeal argued, and of these four Judges one held that the opinion of the court below was right, and the other three that it was wrong; thus overruling the unanimous judgment of four Judges of the Court of Queen's Bench, with which, if the judgment had been sooner given, Sir William Erie and Sir Frederick Pollock might possibly have been found to agree.
THE SOLICITOR GENERALremarked, that the judgment in the Court 853 of Queen's Bench was delivered by two Judges only.
§ SIR ROUNDELL PALMERI may have been misinformed on that point; but that circumstance does not weaken the force of the argument, because had the judgment of the Queen's Bench been pronounced by four instead of by two Judges the result would have been exactly the same. It is, in truth, impossible now to get more than five or six Judges to attend in this court at one time. My duties took me into the Exchequer Chamber on the 4th of February last, when I found that the time allotted for hearing ten cases of error from the Common Pleas was three days, of which one, being the day of the opening of Parliament, must be regarded as a dies non. At that time there were three Nisi Prius Courts sitting; there ought to have been four or five; and Mr. Justice Blackburn was engaged in the Central Criminal Court, and the Lord Chief Justice was necessarily absent owing to ill-health. Thus, only two Judges from the Queen's Bench and three from the Exchequer could be assembled. No person can look at these facts without seeing that the Court of Exchequer Chamber is an institution which ought not to be allowed to continue, and that it is the duty of Government to adopt some means of substituting a better constituted tribunal in its place. I now come to the other intermediate court of appeal—the Court of Appeal in Chancery. Very eminent and able Judges have presided over that court, and have transacted, in an admirable manner, a vast amount of business; still, it is impossible to deny the existence of some obvious defects in the constitution of that court also. In 1851 two Lords Justices of Appeal were appointed to assist the Lord Chancellor for the first time, by Act of Parliament, on the ground of the necessity which existed for strengthening the court presided over by that noble Lord. It was originally intended that the Lord Chancellor and two Lords Justices of Appeal should sit together as one court, with power, however, of subdivision when occasion required; but since the passing of the Act, creating the Lords Justices, the three Judges have very rarely indeed sat together as a full court. At the present time, the Lord Chancellor, as a general rule, sits in one court, and the Lords Justices in another. The Legislature contemplated the possibility of the 854 Lord Chancellor being a Common Law Judge, and therefore it was determined that in such an event he should be assisted in the Equity Courts by two Equity Judges, who were to sit with him. Every question of equity, which may happen to be reviewed in the Court of Appeal, is thus liable to be decided by a Common Law Judge. I have already expressed my opinion that the presence of one or more Common Law Judges in the Court of Appeal for Equity cases is most desirable; but that is a very different thing from a Court of Appeal in Equity, in which a single Common Law Judge sits alone. Some tribute however must, in passing, he paid to the Common Law Judges who have presided in the Court of Chancery. They sat there under undoubted disadvantages, but I must say the manner in which they overcame them merits the most pointed acknowledgments. Before my time Lord Brougham, within my time Lord Lyndhurst, Lord Truro, Lord Campbell, and the present Lord Chancellor, all of the Common Law Bar, have presided in that court; and I must say that the inconvenience which may have occasionally been felt, from the circumstance to which I have alluded, has been in practice very much less than any one could have anticipated, judging only à priori, owing to the very great patience and care with which those eminent men have discharged their duties. Still, the fact remains, that a Common Law Judge—and the Lord Chancellor must frequently be taken from the Common Law Bar—a Common Law Judge sitting alone as Judge of Appeal in Chancery must labour under serious disadvantages, and no doubt it would be a better constitution of the court which offered some security for having Equity Judges to assist him. Besides, the Lord Chancellor is constantly withdrawn from that court. He is absent from it four days a week during the Session of Parliament On Wednesdays and Saturdays alone he resumes his place in the Court of Chancery. Arguments are thus unavoidably interrupted—unavoidably protracted; and no one can say that is a satisfactory state of things, if means of avoiding it can he devised. With respect to the Lords Justices, nothing can be more admirable than the administration of their court, and I do not doubt it will so continue. But, at the same time, every one must see a most patent inconvenience in the sitting of two Judges together, because unavoidably they may sometimes 855 differ; not only they may differ, but they sometimes do differ, and the consequence in such cases is that the appeal simply fails, all the expense is thrown away, and the parties must either acquiesce in the judgment of the court of first instance, with a sense of their not having had the benefit of an appeal, or they must go further and appeal to the House of Lords. If we can devise a system that would avoid this inconvenience, it would certainly be an improvement on the present state of things as existing in the Court of Appeal in Chancery. I now come to the Judicial Committee of the Privy Council. This is a very eminent tribunal. It takes Indian and colonial Appeals; also domestic appeals of three classes—in Admiralty cases, in Ecclesiastical cases, and from the Lord Chancellor or Lord Justices in lunacy. What particular propriety there is in sending Admiralty, Ecclesiastical, and Lunacy cases to a different court of final appeal from that which determines cases in Chancery and Common Law, I cannot conceive. But that is a subordinate consideration. The court, undoubtedly, has worked well, and I cannot but think it, in some respects, a model of what a good Supreme Court of Appeal ought to be. I have no hesitation in saying that I take the constitution of the Judicial Committee as furnishing, on the whole, the best basis for the construction of such a court. Its merits are these:—It has administered a great variety of law, with great breadth of view, great regard to practical justice, comparatively little regard to technicality and mere form, and I believe greatly to the satisfaction of the country, and of the colonies and India, from which a great portion of the appeals have come. It has adopted a practice differing from that of the House of Lords in one important respect. It gives judgment by the mouth of a single Judge, usually well considered, and written or even printed, and suppresses the difference of views which may possibly exist among the members of the tribunal. I cannot but think the practice of the Judicial Committee, in that respect, a wise one—giving the authoritative judgment of the court, from which there is no further appeal, without the expression of individual opinions calculated to detract from or neutralize its authority. It has kept down business—there are no arrears, and no serious delays. Lastly and not least, it has cost, I may say, nothing to the public, for the total annual cost of the establishment is £1,500, 856 and very nearly the whole of that is made up by the fees received for business. The business has a tendency to increase, but its working, hitherto, has been such as I have described. We cannot, however, safely rely on the perpetual continuance of the favourable working even of that tribunal. The constitution of the Judicial Committee has inherent difficulties which make it hard to keep it always going, without drawing away power from other courts. It is constituted thus:—All existing Judges of the Superior Courts of Law and Equity, and of the Admiralty, Probate and Ecclesiastical Courts, who are members of the Privy Council, are ex officio members of this Committee; so are all retired Judges of those courts, including ex-Chancellors. In addition to these there are two Judges specially nominated by Her Majesty. Nothing could be more excellent than the materials I have described, provided, of course, that they can be brought to bear with sufficient regularity, convenience, and despatch. We have men of great learning, great experience, and important position. But its judicial force is not such as to secure adequately the regularity of the administration of the court. Take the case of the retired Judges; of course, their number will be fluctuating. At present there are four very eminent Judges—Sir William Erie, Sir Edward Williams, Sir Richard Kindersley, and Sir John Coleridge—they have been most assiduous in their attention, as far as health and other circumstances have permitted, to the business of the court. In that respect, I do not think there could be a better state of circumstances than exists at present in the Judicial Committee. But you cannot expect that retired Judges, however mentally able and, willing, should long be physically able to give a constant attention to duties of this description. They have come to a time of life when they either already do, or soon must require, the rest which they have fairly earned. You cannot rely on more than occasional and precarious assistance as a general rule from that source. Then with regard to your present Judges. The Chief Justices and Chief Baron and the Admiralty and Probate Judges, are so occupied in their own courts that their attendance is generally impracticable. The Lord Chancellor and the Ex-Chancellors are wanted in the House of Lords. With regard to the other Judges of the Court of Chancery, the Master of the Bolls and the Lords 857 Justices, they have been accustomed to I give a good deal of their time to that court. In Lord Langdale's time the Rolls Court used to be shut up for long periods together, while his Lordship attended the Judicial Committee. That does not so often occur now; but the Lords Justices have often been withdrawn from their own court to attend the Judicial Committee. In 1864 the Lords Justices sat thirty-seven days in the Privy Council; in 1865, fifty-three days; in 1866, nineteen days; in the present year they can hardly be expected to sit there at all. I need hardly say anything about the two nominated Judges, but the retirement of one of them, a man honoured by us all, who has done eminent service to his country in the Judicial Committee for many years, and to whom, in a great measure, it owes the high reputation it enjoys—I speak of Lord Kingsdown—must be severely felt. Such being the situation of things, I will venture to state what has occurred to me as the best way of meeting all these difficulties, before I say a word on the most difficult portion of the subject, relating to] the august tribunal of the House of Lords. Taking the three courts I have mentioned alone—the Court of Error in the Exchequer Chamber, the Court of Appeal in Chancery, and the Judicial Committee of the Privy Council—I am of opinion, if the House agrees with the view I have expressed, that one Court of Appeal is sufficient—that out of the Court of Appeal now existing in the Judicial Committee of the Privy Council you might, with some additions, form a most admirable Supreme Court of Appeal, capable of discharging the whole of the business which is now done by that court and also by the Courts of Exchequer Chamber, and of Appeal in Chancery. The constitution of the Judicial Committee of the Privy Council is most excellent, as far as it goes. I have no hesitation in saying that that court, powerfully constituted, with a sufficient number of Judges to render it capable of subdivision, and comprising men conversant with different kinds of law—common law, equity, and, it might he, Scotch law, as well as colonial and Indian law—would be able to dispose of the appeals most beneficially to our jurisprudence, with great satisfaction to the country, and at no very great additional cost. You might have the Lord Chancellor, though, if the House of Lords retained its appellate jurisdiction, he would 858 be required there frequently. You might also have the Lords Justices, and all the other eminent persons now constituting the Judicial Committee of the Privy Council. You might have two or three other permanent Judges with proper salaries, chosen with reference to qualities which are not ordinarily to be found in the Judges of the Court of Chancery; and you might from time to time offer an inducement by some acceleration and increase of pension to a few able men on the Bench in England, Scotland, and Ireland, to retire from their positions and become members of this court. Some such measures as these have been suggested by high authority as necessary to maintain in efficiency the Judicial Committee, even for its present purposes. I venture also to think that those who may hereafter fill the high office of Lord Chancellor might, considering the circumstances which often deprive the country of their services in that office, be called upon ex debito, in consideration of their pensions (which are ample though not too great), to give their services in the Supreme Court of Appeal as they now voluntarily give them from a sense of public duty in the House of Lords. It would be thus quite practicable to form such a Supreme Court of Final Appeal as might unite the various jurisdictions now exercised by different courts, and then I should certainly recommend that the court should assemble in the same place as the other Law Courts—in the future home about to be provided for justice in the neighbourhood of those who practise the law, and not, as the Judicial Committee now does, in such an inconvenient place as the Privy Council Office in Downing Street. I do not conceive that there would be any constitutional objection resulting from the relation of the colonies to the Crown to giving such a court jurisdiction over colonial and Indian appeals, because its Judges might be, and, in practice, would be, Privy Councillors, and, being so, would be qualified to advise Her Majesty on all matters of that kind. If such a court were thus constituted, and if the House of Lords retained its appellate jurisdiction unaltered, still it would be advisable to cut off the second appeal; and I see no reason why an option, at least, might not be given to suitors in Scotland and Ireland to carry their appeals to this high tribunal, if they should desire to do so. Having ventured to make these observa- 859 tions, I will state what amount of judicial business such a court would have to transact, judging from the data furnished by the business of the existing courts, though by the changes I have suggested there might be some alteration in the amount of business, especially by reason of the abolition of double appeals. In 1866 the Judicial Committee of the Privy Council sat for sixty-seven days. I think it better to take the number of days than the number of cases. The Court of Exchequer Chamber sat for twenty-eight days, making together ninety-five days. From Michaelmas, 1865, to Michaelmas, 1866 (I have not the exact Return for the year 1866), the full Court of Chancery sat fourteen days, the Lord Chancellor alone sat seventy-four days, and the Lords Justices sat 127 days, making together 215 days. These, added to the ninety-five days, made 310 days in all. Thus, if the court were ordinarily divided into two subdivisions, 155 days only would be required for the discharge of the business hitherto discharged by these three courts. I now come to the subject of the House of Lords, and I should be very sorry if anything were to fall from me which might be thought disrespectful to that illustrious body, and I think it my duty to bear my humble testimony to the excellent manner in which the Judges in the House of Lords have during the whole of my experience discharged their duty. It is not from any dissatisfaction at the performance of their duty that I venture respectfully, and I hope with due modesty, to approach for the purpose of criticism that august tribunal. The jurisdiction of the House of Lords underwent consideration in 1856, when Lord Westbury recommended an opposite policy to that which I now recommend. He recommended that the jurisdiction of the Judicial Committee of the Privy Council should be transferred to the House of Lords. I cannot say that such a change would to my mind be an improvement. I own I cannot see why we might not venture even to ask the House of Lords to transfer their jurisdiction to another Supreme Court of Appeal, if there be not some strong political reasons to the contrary. It is really only nominally that the House of Lords now act as Judges of Appeal. Two or three, or four, eminent and learned Judges sit in the House of Peers, in a most inconvenient place, surrounded, no doubt, by the trappings of that august assembly, and discharge functions which they 860 could perform equally well elsewhere. What happened in O'Connell's case? When a case involves principles of importance, political or religious, about which men's minds move in different directions, there is some danger even for Judges in a court of justice to be divided with respect to it, just in the manner which might be anticipated from their known opinions, although their decisions may be perfectly consistent with the most conscientious discharge of their duty. That happened to the Law Lords in O'Connell's case. Other Peers, however, were present who thought they might have been capable of forming an opinion on such a question, and one of those, hearing the opinions expressed by the Law Lords, thought that he, being a Member of the House of Lords, which was then exercising its appellate jurisdiction, had a right to express his opinion also. He had listened to the whole of the case, and had heard the entire argument, which he thought he understood. Accordingly, he desired to express his opinion; but it was held that neither the views nor the votes of any of the numerous lay Lords who attended at the hearing could be given. The result was that the sentence was declared against, possibly, the judgment of the majority of the Peers who were present. The majority of the Law Lords determined the matter, and some people thought they did so according to their political opinions; though that may, I believe, be accounted for without the slightest imputation being made on the character of those Judges, because on occasions of that kind general principles have a considerable influence, even over judicial minds. Still, this justifies me in saying that the House of Lords, as a great political assembly, does not now practically exercise this jurisdiction, which is in reality transferred to a small number of learned persons who, if the law allowed it, might render the same valuable service to the State in a place more suitable for the administration of justice. If, however, any value were attached to the form, that form might still be gone through, just as is the case with appeals from India or the colonies. An appeal from India or the colonies is made to Her Majesty in Council, and is referred to the Judicial Committee, who make a Report, which is afterwards adopted by Her Majesty, who gives judgment accordingly. In the same way the House of Lords might refer cases 861 for argument and report to the Supreme Court of Appeal, and might adopt and act upon the reports of that court, though I confess I do not myself attach much importance to such forms. Whatever may be the political value of this association of the House of Lords with the administration of justice, I cannot but feel, and I think it my duty to impress upon the House, that, as things now are, this benefit is purchased at the cost of very serious public inconvenience, to which, if the jurisdiction is to continue, a remedy ought without further delay to be applied. Let us look, first, at the time which is lost under the present system. This great court of final appeal in the House of Lords sits only while Parliament is sitting: that is, for four days only in the week, during less than six months in the year. For the other six or seven months of the year, however great may be the urgency of the case, the doors of this Court of final Appeal are closed. I will give an illustration of the inconvenience which may be caused by this. Lately questions have arisen in consequence of the failure of the firm of Overend, Gurney, and Co. The shareholders in that Company have raised the question whether they are liable to its creditors. Well, if a decision on that question were given by the Court of Appeal in Chancery at the end of July, while Parliament was not sitting, it would be impossible to have the matter determined by the final Court of Appeal before the next Session of Parliament, notwithstanding the vast importance of the interests involved, and the shock which might possibly be given to credit throughout the mercantile community. I maintain that the final Court of Appeal ought to be always accessible. Then, with regard to arrears. In 1866 the House sat for judicial business on seventy-seven days only, and this Session there are forty-three cases, which are remanets from former Sessions, fourteen of them being remanets from Sessions earlier than 1866. Now this delay is felt most particularly in cases of error brought from the Court of Exchequer Chamber, in which it is often considered necessary to have the attendance of the Judges. This very day there has been a strong illustration of the inconvenience which arises. There was an appeal relating to the presentation to a church living, the parties being the Bishop of Exeter and the patron of the living. The Bishop had not instituted the clergyman presented 862 by the patron, and the action was brought in 1858. The real issues between the parties were raised on demurrers, and decided in June, 1859; but it nevertheless became necessary to go into the trial of questions of fact, which occupied a considerable time more, and it was not until December, 1860, that the case could be taken, by way of error, to the Exchequer Chamber. In February, 1862, it was decided there, and then taken to the House of Lords, and set down for hearing. It waited four years, and then came on for argument. The argument began in June last year, and the Judges were summoned; but they were obliged to go on circuit before the argument could be concluded. The argument was resumed yesterday before Judges not altogether the same; and to-day it has had to be again interrupted in consequence of the Judges being obliged again to go to other duties. It is not probable that it can be a second time resumed before June next Now, is it possible to conceive anything more objectionable than such a system? For my part, I cannot see what is the use of the Judges attending the House of Lords in order that they may hear an argument a third time, and once more express their opinions. That practice ought, I think, to be put an end to, especially considering the pressure of their other duties, which make it most difficult for them to find lime for such a purpose. But now I come to a still more important point. In order to keep up this jurisdiction in the House of Lords, you must have a sufficient attendance of Law Lords; but you cannot always find childless men who can be transferred to the House of Lords to do judicial business. Is it convenient to the Law Lords themselves or to the country that you should be under the necessity of making a new hereditary Peer as often as you have to keep up the supply of judicial power in the House of Lords? There are some lawyers who are able to leave adequate fortunes to their children. But we know from past experience that there have been eminent men to whom, and to whose families, it would have been infinitely more desirable not to have had that burdensome dignity. As long as the Law Lord himself lives the country gets the benefit of his learning and services; but his son is not a Judge in the House of Lords, nor his grandson; and unless he has been so fortunate as to be able amply to endow his family you are inflicting an evil upon them, 863 upon the Peers themselves, and upon the country by multiplying unduly the number of hereditary Peers. Not very long since an attempt was made to remedy this evil. It was supposed that Her Majesty possessed the prerogative of creating Peers for life, and that when She did so by Her writ, they might be summoned to sit in the House of Lords; and I confess, for my own part, I have never been able to discover in what part of the law or Constitution of this country authority can be found to show that a Peer so created and summoned has not a right to sit in that assembly. However, their Lordships have so determined, and have thus practically excluded every lawyer with a family which would forbid him to accept an hereditary Peerage. Therefore, unless the appellate jurisdiction of the House of Lords can be otherwise provided for, we must go on with this system of multiplying hereditary Peerages in order to keep that House sufficiently supplied with judicial power. The House of Lords themselves have confessed that this is a very serious evil. In 1856 they appointed a Committee, and a Bill was introduced on the subject. The sense of the evil entertained by that Committee was such that they recommended that there should be two paid Judges sitting in the House, and a limited number, not exceeding four, of life Peers, to secure a regular attendance. A Bill was introduced to give effect to that recommendation, and passed the House of Lords, but was thrown out in this House. The evil has been going on ever since without remedy. As often as I hear of attempts being made to supply the deficiency I am only reminded how inadequate they are, and how much they fall short of the exigencies of the case. We have all heard that two new Judges are now to be called to the Upper House. One of these is a Judge from Scotland (Lord Justice General M'Neill), whose presence, as long as he has health and strength, will, I doubt not, be a most valuable addition to the strength of that assembly. I hope he may long enjoy that dignity and prosperity which his services to the country so richly deserve. The other is an eminent person (Sir Hugh Cairns) who was, not long ago, one of the chief ornaments of this assembly, and who will be one of the chief ornaments of any assembly to which he belongs; one who is deserving of every honour which can be bestowed upon him, and to whom we are 864 all delighted to see honour paid; but the only thing he will not be able to do is to add to the judicial force of the House of Lords, for as long as he has to discharge the duties of a Judge elsewhere he cannot do it in that House. His presence there will be welcome to the House and the country, but the difficulty will still remain. Now, is there any real difficulty in dealing with the case? In Lord Eldon's time Sir John Leech, who was not a Peer, assisted in the discharge of the judicial duties of the House of Lords for a considerable time, and therefore there is no reason why those duties should not be discharged by men who are not Peers, if you constitute a Supreme Court. But, if that solution cannot be accepted, there can, at least, he no good reason why the obstacle, which the Lords themselves have created, to the exercise of Her Majesty's prerogative to create life Peers, should not be removed by legislation. I thank the House for having heard me with so much patience. All I have to say in conclusion is that I hope I shall not he misunderstood. I do not profess to dogmatize, or to do more than propose to the House and the country those matters which have occurred to me as worthy of consideration, to meet evils which are, or ought to be, admitted by all. Such remedies as have occurred to me I have offered; but no one will be more ready to defer to the judgment of others, if the remedies which I have suggested should not be considered conducive to the public good.
THE ATTORNEY GENERALSir, the subject which has been introduced tonight by my hon. and learned Friend is one of the greatest importance. The mode in which it has been brought under our notice is not the most convenient for discussion. Were it not for the somewhat singular proposals with which the speech of my hon. and learned Friend concluded, I should express my regret that during the many years he sat on the Government Benches, with the influence and reputation his name has always carried, he did not introduce them for our consideration at an earlier period. Having regard to the nature of those proposals, I cannot regret that measures of such a character were not introduced with the authority of Her Majesty's Government. I shall not endeavour to follow in detail all the arguments of my hon. and learned Friend through his long and varied speech. It was 865 divided, as the House will recollect, into two main points—the one referring to the original jurisdiction of the Courts of Common Law; the other to the jurisdiction of the appellate courts. My hon. and learned Friend made no complaint of the original jurisdiction of the Court of Chancery, with which he and I are best acquainted; but with respect to those courts to which his experience does not extend much more largely than my own, he had several complaints to make. I shall not dwell upon this part of his case, being anxious to direct attention to those large and important proposals with which he concluded. Still, with reference to the courts of common law, I may say that my hon. and learned Friend admits that all the energies of the Judges now presiding there, are honourably and well directed to the discharge of all their duties, and that there is nothing to be hoped for in the way of an improvement of the machinery by which the business of those courts is conducted. When I say "the machinery" I speak of the intellect, the mind which is applied to the discharge of those duties, whatever other machinery there may be. My hon. and learned Friend admits there is nothing more to be hoped for in that direction. I agree with him. But he complains that there is a great waste of judicial power. Now, as far as he and I are concerned, this is not a question of knowledge; it is a question of hearsay evidence, and I venture to think that my hon. and learned Friend's evidence on the point is not more valuable than my own. For thirty years he and I have sat side by side in the Court of Chancery, and so engaged that neither of us can know from personal experience what goes on in the Courts of Common Law. Therefore, what my learned Friend and I say on the point is derived from information furnished by others. I believe that my information on the subject is derived from the highest authority, and I say that after every allowance made for possible improvement in procedure, an addition to the judicial power is necessary, and that it was right that in the Speech from the Throne the attention of Parliament should have been called
To the Means of Disposing, with greater Despatch and Frequency, of the increasing Business in the Superior Courts of Common Law and at the Assizes.I repeat that I do not pretend to personal knowledge on the subject; but, speaking from the information of parties who are 866 familiar with it, I will proceed to consider the observations of my hon. and learned Friend. He says, first, that he would make all three Courts of Common Law practically one. Now let it be granted that this might be done, though I do not admit the expediency of it; still, what great saving would there be of judicial power? There is a special jurisdiction in the Queen's Bench, a special jurisdiction in the Exchequer, and some special jurisdiction in the Common Pleas. Throw the three into one, you have still the same amount of work to do. I do not think, therefore, there is much to be accomplished by that suggestion of my hon. and learned Friend. But he says that we ought not to have three Judges sitting in banco, that we should have one every day in term sitting at Nisi Prius, and one in Chambers. My hon. and learned Friend the Member for Plymouth (Sir Robert Collier), in correction of one of those suggestions of my hon. and learned Friend, remarked that already one of the Judges sits at Nisi Prius every day during term. And as regards Chamber sittings, I may observe that already we practically have that course of procedure. Whenever an escape from duty in court is possible, one of the Judges does sit in Chambers in the middle of the day; and when this is not possible, Judges are to be often found discharging their official duties in Chambers to a late hour in the day. I think, therefore, that there is no ground in that direction for a saving of judicial power. Another suggestion of my hon. and learned Friend is to transfer arrears from one court to another. This might prevent arrears, and on that ground no one would object to it. But it would not prevent the necessity of additional judicial power. There were some other points in my hon. and learned Friend's speech directed to the same subject, but I failed to perceive how any of his suggestions disposed of the proposition in the Queen's Speech, that there is a necessity for strengthening the judicial powers of the Courts of Common Law. I now come to my hon. and learned Friend's argument respecting the ultimate Court of Appeal. I agree with many things he said; but I must confess that I heard with great surprise and regret that, in his opinion, it is right and proper that the main appellate jurisdiction of this country should be removed from that tribunal which has possessed it from the earliest period of our history. I will follow my hon. and 867 learned Friend as closely as I can through the various portions of his argument. First he submits that there should be only one appeal. That I admit is an important consideration, but I do not intend to express an opinion upon it, because it is not at all material to the main question which my hon. and learned Friend has brought forward, and to which I propose to address myself. It is clear that throughout this vast Empire, and for as long a time as our judicial tribunals have existed at all, suitors have had a right of intermediate appeal. From the Courts of Chancery there have been appeals to the Lord Chancellor, and more recently to the Lords Justices, and thence to the House of Lords. From each of the Common Law Courts there have been appeals to the Exchequer Chamber, and thence to the House of Lords. In Scotland there have been appeals from the Lord Ordinary to the Court of Session, and thence to the House of Lords. In the colonies and in India there has almost always been an appeal from the court of first instance to the Supreme Court, and thence to the Privy Council. I quite agree to the proposition that, if you have an ample and exhaustive argument on the whole subject before two minds or two sets of minds, one after the other, one appeal is enough. The intellect of the appellate court is then fully informed, and a right decision is as likely to be obtained then as after a second appeal. But it constantly happens that the hearing of the first appeal is defective, that a case goes off on some point of form, that the arguments are not exhausted, and that questions of importance are not considered at all till the hearing of the first appeal. And this is not a thing to be cured by regulation. It is an infirmity of human nature and will always exist. There is therefore another side to the question, and it may well be that our old constitutional practice is right of allowing more than one appeal. I leave that question, however, without expressing any opinion upon it, and I wish it to be understood that I am throughout giving utterance simply to my individual sentiments with reference to my hon, and learned Friend's proposals, and that nothing I say is an expression of the opinion of Her Majesty's Government. The next point which was urged by my hon. and learned Friend is that there should be only one ultimate appellate court. Personally and in the abstract, I agree with him, pro- 868 vided it can be done. But observe the great difficulties there are in the way of producing that result with an Empire so extensive and so varied in its interests as ours. If there is to be one appellate court for the whole Empire, it must be a court to which every portion of the Empire will cheerfully submit. It may be that Hindoos and Mahomedans and Her Majesty's colonial subjects would submit to a tribunal sitting in Lincoln's Inn Fields. Possibly even Jersey and the Channel Islands would submit, and perhaps if they did not my hon. and learned Friend might think he could compel them. Still, these are difficulties in the way which are not to be disregarded. But then comes the question which some hon. Gentlemen on both sides of the House may be able to answer—What will Scotland say to the matter? Will Scotland submit to an independent tribunal sitting in Lincoln's Inn Fields to try her appeals? For my part, I believe Scotland will insist upon retaining the great benefit she has derived from an appeal to the Imperial Parliament, which is, in fact, her Parliament as much as it is that of England. Moreover, if you want only one Court of Appeal you have one already in the House of Lords, to which there can be no practical difficulty in referring every portion of our ultimate appellate jurisdiction. The argument of my hon. and learned Friend really tells against the conclusion which he endeavoured to establish. I agree with him that a mind schooled in law and accustomed to grapple with facts, will have no insuperable difficulty in dealing with the law that may be brought under its consideration from any part of our Empire. My hon. and learned Friend has spoken of the way in which Hindoo and Mahomedan law is administered by the Privy Council, and the law of Scotland by the House of Lords. These are admirable instances of the truth of his remark, and it is manifest that the benefit is reciprocal. The law of England is as much benefited by the familiarity of our supreme Judges with the law of foreign countries as the law of those countries is benefited by the law of England. The effect of that is that no narrow or prejudiced view is taken, and we find that the law of England receives light from the knowledge which is obtained by Judges hearing appeals on other systems of law than those with which they are most familiar. Then, as to what that ultimate tribunal of appeal should be, I 869 may remind the House that in the debate of 1856, upon the Motion of Earl Granville for a Committee of Inquiry into a more effective exercise of the appellate jurisdiction of the House of Lords, the Earl of Derby used these words—Of this I am quite certain, that if it was necessary to take the alternative between the maintenance of any privilege of your Lordships' House, however important, or however valuable, and, on the other hand, the better administration of justice, there is not one of your Lordships who would hesitate in regard to that alternative, and say, let justice be fairly and impartially administered, whatever privileges this House may be compelled to forego.It was not, therefore, a new sentiment to which my hon. and learned Friend gave utterance when he said that the consideration of primary importance was the perfect administration of justice, because that principle was insisted upon over and over again on that occasion. If I fail to show that the appellate jurisdiction of the House of Lords is the system most complete and perfect for securing the administration of justice, no subordinate considerations can be taken into account. Some general observations, however, naturally occur before we come to the particular history of that jurisdiction and the particular objections that have been urged against it. In the matter of judicial tribunals should not regard be had to the usage of centuries? Were the respect, the affection, and the confidence of the people in the administration of justice by a tribunal which had existed for centuries to be disregarded? I affirm that the subjects of the Crown have perfect confidence in the administration of justice by the House of Lords, and my hon. and learned Friend will not and cannot impeach it. His own experience as well as mine, for twenty years at least, will testify that though sometimes an advocate's sympathy with his client may lead him to regret a particular decision, yet on reviewing the decisions of that long period I believe that we shall agree in the opinion that in the House of Lords we have a wise and just administration of the law, and that everything that can be expected from an appellate jurisdiction has been obtained. Then, too, regard must be had to the place which the existing tribunal holds in the Constitution of the country. That argument would be of no avail with any Members of this House—if such there be—who do not admit that it is an advantage to have a House of Lords as one of our 870 institutions in which the people have confidence, and the dignity and importance of I which it is proper to maintain. I do not to-night quarrel with their sentiments; let them be adduced at the proper time, and we will meet them. But those who believe that the House of Lords is a valuable, important, and venerated part of our Constitution must certainly give some weight to the fact that the confidence and respect which attach to its appellate jurisdiction add to the dignity and importance of that Assembly. In the debate to which I have referred, Earl Granville, adverting to the remarks which had been made by the Earl of Derby, and which I have already quoted, thus expressed himself upon that subject—I go still further than the noble Lord in holding that those functions are a very important part of the functions of your Lordships, and go far to support the dignity and utility of the House, and to increase the respect in which it is held in the country.Lord Campbell, too, said—I entirely agree that it is of the greatest importance, not only to the dignity and usefulness of your Lordships' House, but to the public welfare, that the judicial jurisdiction should be retained. It has been looked upon for ages with veneration, and no supreme court of appeal can now be constructed which would be a substitute for this House.These were the opinions of noble Lords in that House. Then, Sir, what are the feelings of each part of the Empire? I will not appeal to the colonies or the smaller dependencies of Great Britain. If you are to have an appellate tribunal such as the hon, and learned Gentleman recommends, are you to deprive Scotland of its privilege of appeal to the House of Lords? The opinion not only of every lawyer but of every Scotch gentleman capable of expressing an opinion would be against such a proposal. Having had some experience in arguing cases from Scotland, I will say that, whether you take the opinion of suitors or of the profession, you will find them agreeing that Scotland has derived the greatest benefit from the appellate jurisdiction of the House of Lords. Only this week the hon. and learned Gentleman who filled the office of Lord Advocate in the late Government (Mr. Moncreiff), in addressing the Lord Justice General of Scotland on his retirement from the Bench, said, "We are conscious of the many benefits which Scotland has obtained from the appellate jurisdiction." That is the universal sentiment of Scotland. Are you 871 then to divide the appellate jurisdiction, and make it into two jurisdictions? That is not desirable as admitted by my hon. and learned Friend, and I am sure that the people of Scotland would not be satisfied with the shifting of the jurisdiction which he proposes. If you are then to reduce the appellate jurisdiction to one tribunal, the House of Lords is the place in which it is to be exercised. If you divide it into two, the House of Lords must retain its ancient jurisdiction. The judicial and appellate functions of the House of Lords are of great antiquity. They add to the dignity of that ancient and distinguished Assembly, and you cannot withdraw them without removing a stone from the edifice which, would not be unimportant. But what I rely upon mainly is this, that the House of Lords is the tribunal the best calculated to administer justice in every portion of this great and varied Empire. No existing tribunal possesses the same elements, nor will you find them in any tribunal which you may create as the appellate jurisdiction for the whole Empire. What are the objections the hon. and learned Gentleman urges? The small number of Judges, the occasional sittings, and the uncertain attendance. Let me ask, what is the most suitable number of Judges? If you get a tribunal of three Judges of the highest qualification you have enough. During the last twenty years the great majority of judgments in the House of Lords have been those of three of their Lordships. Out of 400 appeals a small number have been decided by two Lords and not one-sixth of the number have been decided by one only. That, at all events, is not an objection of so vital a nature as to induce you to remove the appellate jurisdiction from the House of Lords. Then as to occasional sittings, is there any difficulty in applying a remedy? I say there is no difficulty. With the aid of this House there would be no difficulty in passing a Bill through Parliament enabling a Judicial Committee of the House of Lords to sit for every practical purpose during the vacation. The hon. and learned Gentleman says it is a mere sham to call the sitting of noble and learned Lords as Judges a sitting of the House of Lords. But his argument equally goes to the functions exercised by the Sovereign. Her Majesty in Council hears appeals from India and the colonies, and refers them to a Judicial Committee. Is that tribunal to be dis- 872 pensed with because the Queen does not herself determine the question? The fact that a large tribunal have always had an appellate jurisdiction, and that a portion of that body only are exercising it, forms no reason whatever for removing that jurisdiction, on the ground that they are delegating it to a portion of their number. How do men gain access to, and become members of, the appellate tribunal of the House of Lords? If my hon. and learned Friend took his seat there it would be because he is known to be a fit and proper person to sit in that House. He admits that those who sit upon this tribunal are competent to the task. I say that the interests of the law and of the public at large, that equity, that common law, that Scotland, England, and the colonies, alike receive benefit, not only from the existence of this tribunal for the ultimate decision of great questions, but also from the mode in which the tribunal is from time to time renewed or strengthened. I say we ought to be proud of the Constitution which leads to the elevation of men who have distinguished themselves in their profession. The road to this dignity is open and is known to the public. It is the road of honour, wisdom, and learning, and the people of this country, who know the path which leads to this high eminence, place confidence in that tribunal. I say it is no sham, and it would be as true and as just to call the decision of the Privy Council a sham because it is given in the name of the Queen. But then the hon. and learned Gentleman says there were sometimes only two Judges, and their sittings were only occasional. I deeply regret that my hon. and learned Friend did not call attention to these subjects when he was in office, because, with the power and influence he then possessed, any proposal coming from him would have been carefully considered by Parliament, and within reasonable limits might have been carried. At the same time, I do not believe that any such measure as my hon. and learned Friend now indicates would have been carried, and I doubt very much whether he would have proposed it under the responsibility of office. If he entertained these strong views, why did he not bring in a Bill when Attorney General and endeavour to carry it? My deliberate opinion is that maintaining the appellate jurisdiction of the House of Lords is the best way of administering the appellate jurisdiction of the country. The jurisdiction is as free from 873 objection as is any legal jurisdiction in the country, and its defects, such as they are, admit of easy redress. Various remedies have been attempted. In 1834 Lord Brougham, then Lord Chancellor, brought in a Bill to refer appeals to a Judicial Committee to be appointed by the Lords, upon whose Report the Lords were to determine. That plan seemed to be in the mind of my hon. and learned Friend, though it has not received much favour till to-night. In 1841 Lord St. Leonards, then a Member of the House of Commons, introduced Resolutions, and a Bill in which he proposed the nomination of two Lords' assistants. In 1842, a Bill was brought in by Lord Campbell having for its object to establish one court of appellate jurisdiction, and to constitute the House of Lords the sole court of ultimate appeal for the Empire. In 1856 a Bill passed through the House of Lords and was brought down here, having its origin in the Report of a Committee appointed on the Motion of the Earl of Derby, and its object was to make better provision for the appellate jurisdiction of that House. That Bill was, in substance, to appoint two Deputy Speakers with salaries to assist in the judicial business of the Upper House, and provided that if the Crown should create any Lord Chancellor or Deputy Speaker a Peer for life, such life Peer should be entitled to sit and vote in the House of Lords, subject to certain provisions for limiting the number of such life Peers entitled to sit and vote. [2 Macqueen's House of Lords Reports, p. 675.] This would be a method, and, I think, a good method, of surmounting the occasional—and, in my experience, only very occasional—inconvenience arising from too limited a number of Judges. It is admitted that the jurisdiction of the Tipper House has been well and wisely exercised, and it is evident that the inconvenience that sometimes arises from the difficulty of finding a sufficient number of Judges might be remedied. I am of opinion that much of the difficulty, in cases of this kind, arises from the perhaps wise parsimony of this House in sanctioning expenditure for judicial purposes. I say "wise," because it is wise of this House always to look cautiously to the way in which public money is expended; but economy may be carried too far. At present you actually trust, as my hon. and learned Friend has pointed out, for the discharge of all the appellate business of the country to the sense of honour 874 of Judges who, having by their former services entitled themselves to their retiring pensions, think it their duty, without salary or remuneration of any kind, to undertake those new and onerous labours. Look at the instance of the noble Lord who has rendered such eminent service to the country, Lord Kingsdown, who never held any judicial appointment, and never consequently had any retiring pension, yet who for years discharged duties of the highest kind, and added, not only to the lustre of the Bench, but, by his decisions, contributed to place upon a firm basis principles which before had been unsettled, and, at the same time, facilitated the administration of the law. Such labours were due entirely to his sense of honour and of the public duty incident to his high position as a Member of the House possessing the appellate jurisdictions, and examples equally honourable have occurred before now in our legal history. But is it wise for the country to trust to services of this character being often at its disposal? I have detailed to the House plans which at various times have been suggested for modifying the appellate judicial tribunal. At present, I do not think there is any necessity for adopting any of these plans. But if reform be needed, and the money forthcoming, all that is required might be accomplished by the appointment of Lords' assistants or Law Lords with life Peerages, as proposed in the Bill carried through the Lords in 1856. We have, however, now an ample staff for the business to be transacted. Three Judges attend constantly, without taking into account the addition of the noble Lord from Scotland who is about to enter the House. That the efficiency of the tribunal should be maintained to the fullest extent I am clear. A tribunal which has to comprehend, to weigh, and to apply finally the principles of law in force in almost every part of the Empire, and which discharges those functions ably, impartially, and to the satisfaction of the country, is a tribunal which I am sure this House will never think of weakening or destroying. It might be desirable that the whole appellate jurisdiction should be administered by one court, which should have the ultimate decision in all causes, whether Hindoo or Mahomedan, whether from our colonies or dependencies, or from England, Ireland, or Scotland; but no sufficient ground has been shown for removing the jurisdiction from the House of Lords. 875 With reference to the Privy Council I have nothing to say but this, that it is a tribunal which has discharged its duties admirably. Into the small matters which my learned Friend has discussed as to the judgments of the court being pronounced by one for all or by all of its members, I will not travel; they are points which are not properly subjects for legislation, but which every court must determine for itself. But I think that it would be impossible to constitute the Judicial Committee of the Privy Council the sole tribunal of appeal. Neither do I think it would be satisfactory to have one tribunal sitting at Lincoln's Inn fields to decide all the vast and varied issues growing out of the business of the nation. For these reasons I submit that if legislation on the subject be sanctioned, it must be such as shall retain the jurisdiction of the House of Lords, which has existed so long and so beneficially in this country.
§ SIR ROBERT COLLIERsaid, that he had no intention of following the Attorney General and the Member for Richmond in their controversy on the subject of the appellate jurisdiction. As far as abstract principle was concerned he thought that there should be one court of appellate jurisdiction; but it would be admitted that to adapt that principle to our existing institutions must be a work of difficulty and of time. Without entering into this question, he desired to draw the attention of the House to a point of more pressing importance—namely, the present dead-lock in the Common Law Courts. At Middlesex the remanets in the Queen's Bench numbered 141, in the Common Pleas seventy-nine, and in the Exchequer twenty, making, a total of 240. Adding to these the remanets in London, the total number was brought up to 479, or close on 500 remanets. At present it might be observed that the Court of Exchequer was not so fully occupied as the other tribunals. But the very admirable manner in which the present Lord Chief Baron discharged the duties of his office was such that business had already returned to the Court of Exchequer, and there was every reason to suppose that before long it would be as much occupied as any of the other courts in Westminster Hall. Among the evils resulting from the pressure of business in the courts, as represented by these 500 remanets, were these. Actions just and capable of being maintained were not brought; others were settled 876 disadvantageously or referred to arbitration at double or treble the expense; and defendants were encouraged to defend actions unjustly for the sake of wearying the plaintiffs out, and so obtaining the advantages to be looked for from delay. Those various evils taken together represented an amount of actual money loss greater than the salary of many Judges. But there were not only remanets at Nisi Prius, there were arrears on the new trial paper, and on the special paper. On circuit there were also remanets, or else, without any fault of Judge or counsel, when there was a long cause list and no time to try it, causes were crushed and ground to powder in a way that was highly unsatisfactory to suitors. On many of the circuits Judges were obliged to avail themselves for days together of the assistance of Queen's Counsel in trying the criminal cases. This state of things entirely bore out the contention of the Attorney General, from which he did not understand his hon. and learned Friend to dissent, that it would be absolutely necessary to take into consideration the passage of the Queen's Speech upon this subject. His own opinion was, and had been for many years, that a public necessity existed for adding to the judicial strength of the Common Law Courts. The number of Judges had been substantially the same since the Revolution. In 1831 the number, it was true, had been increased from twelve to fifteen; but the abolition of the Welsh judicature took place at the same time, so that there had been a corresponding increase in the duties. A statement in his possession from a learned Judge showed that from 1831 to the present moment the duties of the Common Law Judges had at least doubled. This had been due, in the first place, to the increase in the wealth, population, and commerce of the country; but next, to the great improvements which had taken place in the law itself. Cases, instead of being got rid of by technical objections, were now for the most part tried out upon their merits, which course, while it was much more advantageous and satisfactory, naturally consumed a great deal more time. Again, the examination of the parties, who were generally the largest witnesses, inasmuch as they knew most about the subject, had greatly added to the length of trials. Again, the Chamber business of the Judges had very much increased, owing to the Common Law Procedure Acts; and he was informed by a learned Judge that for one 877 hour that used to be spent in Chambers there were now at least four. Moreover, additional circuit towns had been established, and the Judges now went to Liverpool, Manchester, and Leeds, and they were to go to Birmingham. All this had taken place since 1831. Winter circuits had also been established, and it was most desirable, nay, necessary, that they should be extended for the trial of civil as well as criminal cases. The universal feeling of the profession was that another circuit should be formed. But that was utterly impossible with the present judicial staff. Arrangements might, no doubt, be made for saving the time of the Judges to some extent. The business of the three courts might be equalized, and by abolishing the peculiar jurisdiction of each the business might be transferred from one court to the others; but that would only equalize the burden—it would not diminish it as a whole. He also agreed that four Judges need not sit at one time in banco, but four Judges scarcely ever did so. There were generally only three, so that no great saving could be effected in this way. His hon. and learned Friend suggested that the Chamber business might be transferred to the Masters; and, perhaps, a portion of it might, but not much, because the decisions of the Masters could not carry with them the authority of those of the Judges, and would probably give rise to many more appeals. Possibly some further business might be thrown on the County Courts, but it was not desirable much to extend the jurisdiction of those tribunals, for if they became courts for the trial of heavy cases their utility would in a great measure cease, and it would, perhaps, become requisite to have other small debts courts, thus leading to greater confusion. Again, the number of frivolous actions might possibly be somewhat reduced by depriving plaintiffs of costs in certain cases. Still, enough would remain to make it absolutely necessary that the present judicial strength should be increased. He did not think that the addition of one Judge to the Admiralty Court would suffice, and in his opinion none of the suggestions made would obviate the necessity of considering the important recommendation contained in Her Majesty's Speech.
§ MR. SANDFORDsaid, the Attorney General had not answered the case made by the hon. and learned Member for Richmond (Sir Roundell Palmer), because he had contended that the appellate jurisdic- 878 tion ought to reside in the House of Lords, but had not attempted to show that the appellate jurisdiction of that House, as at present constituted, was the best tribunal that could be constituted. That hon. and learned Gentleman had taken rather a rosy view of the present state of that tribunal. Indeed, Attorney Generals in esse were apt to entertain optimist views on matters of that kind. If the hon. and learned Gentleman thought the House of Lords the best tribunal that could be constituted, all he could say was that that was not in accordance with the opinion of the House of Lords themselves. For what had they determined? Their own Committee had reported that three Law Lords should always sit as an appellate court. But all knew that three Law Lords would not do that, and that appeals would virtually be decided by Lord Chelmsford and the Scotch Judge who had just been made a Peer. He asked, then, was it right that these two learned Lords should review and reverse—for that was what it came to—the decision of Lord Justice Cairns and the other Lords Justice, or the decision of the Exchequer Chamber? Such an appellate jurisdiction as that could not possibly give satisfaction to the country. As the House of Lords was at present constituted, they did not get the best Judges nor enough of them. If they were about to create a law Peer, they did not ask whether he was the best man they could find; but their first question was, "Is he married?" their next question was, "Is he likely to be married?" and, perhaps, their third question was, if so, is his wife likely to be a fruitful mother of children?" Under these circumstances, he maintained that such an appellate jurisdiction was not one that could be perfectly satisfactory to the country. The Lords' Committee had proposed that two Deputy Speakers should be appointed and made life Peers, as it had been said that barristers did not earn fortunes large enough to render them eligible to be hereditary Peers. The evidence given by the lawyers before the Committee went in favour of life Peer ages up to the number of four being created. That was utterly rejected by that House, not because life Peers ought not to be created, but—certainly as far as his own vote went—on the ground that as the measure then stood it would not secure the best men. £5,000 a year each for the Deputy Speakers were not such terms as would give them two of the best lawyers. The most satisfactory arrange- 879 ment would perhaps be that the House of Lords should part with its appellate jurisdiction, but it was open to this objection, that the Peers' Report showed them to be unwilling to do so. Some persons thought that jurisdiction should be transferred to the Privy Council; but there were some constitutional objections to that. A Privy Councillor was only a servant of the Queen as long as it was Her will and pleasure that he should be so. It had also been proposed that all the chiefs of the superior courts should be made life Peers. But the gentlemen of the legal profession saw one great objection to that, because the chiefs of the Common Law Courts had not the time for such duties, and were wanted elsewhere. Moreover, from the manner in which legal patronage was bestowed, those chiefs were by no means always our best lawyers. They were probably appointed for their Parliamentary services, and they had generally entered that House because they were successful advocates. If the Peers were really unwilling to part with their appellate jurisdiction, it seemed to him that it would be necessary to consider the very broad question of life Peerages, and whether they ought not to be conferred on the best lawyers they could find, whether distinguished as advocates or not. He hoped that that suggestion would receive the serious attention of the Government.
§ SIR GEORGE BOWYERsaid, he did not agree either with the present Attorney General in believing that our appellate jurisdiction was in a perfect state, or with the late Attorney General in the opinion that that appellate jurisdiction ought to be removed from the House of Lords. If we were starting afresh no doubt it would be well to establish some court akin in its nature to that of the Court of Cassation, and entirely separated from all political influence. But, under our Constitutional Government, our courts were in reality the débris of the ancient Curia Regis, and the largest fragment of that débris was the House of Lords. To destroy that, or to weaken its authority, would be to derange the balance of power, which was so ad vantageous in the Constitution of this country. It would not only be a violation of English history and a dangerous innovation, but it was not at all necessary to our obtaining a good Court of Appeal. It was evident that the Judges of the land formerly shared in the judicial powers of the House of Lords, which in the ancient records was said to consist of les grands et 880 sages du, royaume. The former term included the Barons of the realm, and the latter the Prelates and the Judges. There were two ways of remedying the present state of things—one which he thought a very good one—was that all the Judges, both Common Law and Equity Judges, should also be Members of the House of Lords for judicial business, and on all judicial business should vote with the Peers, as they did formerly; and the other was to devise some mode by which the judicial strength of the House should be increased without its being encumbered by too great a number of Law Lords. There was little difficulty attending the solution of that problem, for it could be done by granting the Crown power to make the holders of certain high judicial offices, such as Judges, life Peers. This could be done without an unlimited power of creating life Peers being granted, which he had on a previous occasion opposed; for if such unlimited power were granted, the authority of the House of Lords would be gone, and a Minister would be able, by the creation of life Peers, to overbear all opposition in the Assembly by swamping it for the purpose of carrying a particular measure. He did not believe that the Judges sitting in the House of Lords were sufficient to constitute a Court of Appeal. There would be no objection to appointing Judges life Peers; and he thought that if the House were strengthened in either of the ways he had pointed out, it would have greater weight with the country than any court constituted upon à priori principles. It was contrary to common sense that the decision of ten Judges in the Exchequer Chamber should be reversed by three Judges in the House of Lords. The staff of the House of Lords must be increased. With respect to the Courts of Equity, the Lord Chancellor was the chief Judge of the Courts of Equity. It often happened that he had to sit in the House of Lords on appeals from himself, and, with the assistance of a Common Law Judge, who never held a brief in a Court of Equity, affirm his own decisions. This showed that the appellate jurisdiction was in an unsatisfactory state. He thought that either of the expedients which he had pointed out would enable the House of Lords to cope with all the difficulties which existed, and render it a satisfactory Court of Appeal. He agreed with the late Solicitor General (Sir Robert Collier) that the administration of justice at the assizes and 881 at the sittings in London was unsatisfactory. The assizes were arranged on a very antiquated model. At the assizes, the cases frequently were hurried over, or referred to junior barristers, instead of being decided by the Judge. The time was approaching when there must be a thorough re-casting of the whole of our judicial system. With respect to the County Courts, they were unable to cope with the business heaped upon them. A County Court Judge did not possess the dignity and position which a Judge ought to hold. The country ought to be mapped out into judicial districts, and a court ought to be appointed in each capable of discharging all the duties of a court in the first instance. The Judges of that court ought to go circuits in their own district, and be fully responsible for the administration of justice, and from the decision of these provincial courts an appeal might be given to a separate court in the capital. That was a system which existed in every civilized country, and which had been found to work well. So far as the appellate jurisdiction went Parliament had the remedy in its own hands; but he hoped they would never destroy the time-honoured jurisdiction of the House of Lords, which was necessary for the maintenance of the mixed constitution of the country.
§ MR. JAMESsaid, he entirely agreed with what had fallen from his hon, and learned Friend the Member for Richmond, that there ought to be only one court of appeal. He could not conceive a worse tribunal than the Court of Exchequer Chamber, for the calls upon the Judges who composed it were so numerous that it was impossible for them to discharge the duties imposed upon them as a court of appeal. He wished to call the attention of the House to the necessity of doing something to correct the defects which existed in the tribunals of the law, not only in Westminster but throughout the whole country. The present judicial system was universally admitted to be bad, and the first thing to be done was the consolidation of the Courts of Queen's Bench, Exchequer and Common Pleas. A great deal of mischief resulted from the independent jurisdiction of these several courts. He would take the Court of Queen's Bench as an illustration of the evils which existed in the other courts. In theory these courts consisted of five Judges each, and it was supposed that four of them were sitting continuously in banco. In the 882 Court of Queen's Bench two days in the week were set apart for new trials and motions—two for the special paper and two for the Crown paper. Now, how did the matter stand in point of fact? One of the Judges had to hear cases at Nisi Prius, and four were left to sit in banco; but it not unfrequently happened that one of them was engaged in trying cases at the Central Criminal Court, leaving only three for the general business. One of them had to leave the Court at one or two o'clock to go to Chambers, sometimes rising in the midst of an argument. His time was thus entirely wasted, and he might as well be away from the court altogether. The same thing occurred with regard to the other courts, so that three of the Judges interrupted the business of the courts in order to go to Chambers. It would be much better to have one Judge continually at Chambers. He suggested to the Government the propriety of consolidating the three courts into one. But he would go further. The consolidation of the Court of Admiralty and the Court of Probate and Divorce was contemplated. If these courts were to be consolidated he did not see why the whole of the courts should not be consolidated. If that were done there would be no necessity for additional Judges in the Common Law Courts at Westminster, and the whole business of the country might be very well discharged without any increase in the number of Judges. He was quite satisfied that there ought to be an independent court of appeal, though that might involve some increased cost. He would suggest also that there should be an alteration made in the legal year; the present system of regulating terms was totally inadequate to the purposes of the present day. He would suggest the division of the legal year into six pretty equal parts, and then these might be divided in proper proportion between the metropolis and the country at large. The business of the provinces was largely increasing. Leeds already had assizes, and Birmingham would probably insist on them. At present the Judges were required to go down to every county in England, and it seemed to be an idle thing to require the Judges and sheriffs to go to a place to hold an assize where there was not a single cause to be tried, and perhaps not more than one or two prisoners. There ought to be central districts to which parties might be brought without requiring 883 the Judges to go to every particular place as they did now.
THE SOLICITOR GENERALSir, I thank the hon. and learned Member for Richmond (Sir Roundell Palmer) for bringing this subject before the House this evening. The part of his speech to which I paid most attention was not that in which he showed that the judicial system of the Courts of Common Law had broken down, but that in which he pointed out the remedies for the evils of which he complained. It would appear from the hon. and learned Member's remarks that the panacea for the numerous defects of the Courts of Common Law is to alter the present system so as to divide the cases more equally between the different courts. The hon. and learned Member alluded to the arrears of business in the courts, and I listened in the expectation of hearing him state which of the courts was so devoid of business that it had been compelled to rise before the time allotted for the trial of its causes had expired. But, although it is true that there are large arrears in the Courts of Queen's Bench and Common Pleas only, still we find that the Court of Exchequer sat out the fourteen days allotted for its sittings at Westminster, and is likely to sit out the time allotted for the trial of its causes at Guildhall. It has been well and truly said that the Court of Exchequer will now regain its fair share of business, and it is evident that that court is not in the position in which, according to the hon. and learned Member, some of the Chancery Courts are—namely, sometimes starving, for want of work, and at other times overburdened with business. I fully admit that the state of things in the Common Law Courts is such that we cannot hope to cope with it without an increase in the judicial power. We cannot attempt to satisfy the demand which is now being so generally made for additional assizes without we have a larger judicial staff. I do not think it probable that the suggestion of the hon. Baronet the Member for Dundalk (Sir George Bowyer) to abolish the assizes altogether will be carried into effect. We may take it for granted that for our time, at all events, assizes will be held throughout the country, and that the number of assizes will be increased instead of diminished, and therefore Judges must be found to hold them. I am told by the hon. and learned Member for Richmond that, in order to utilize the judicial power we now possess, three 884 Judges instead of four could sit to hear Common Law cases. All I can say in reply to that suggestion is that the I Will. IV., appointing the fourth Judge, was passed on the express ground that three Judges were not sufficient to form an efficient court for the decision of Common Law cases. Notwithstanding the provisions of that Act, it is rare that more than three Judges can sit together in the Common Law Courts on account of the press of business. Even if some of the defects of the courts could be remedied by a re-distribution of the business so as to render it more equally divided between the courts, the difficulty would still remain of having to provide Judges for the additional assizes which are so generally called for throughout the country. The hon. and learned Member for Manchester (Mr. James) suggested the propriety of establishing throughout the country certain district courts, resembling the Central Criminal Court of London. The supposition of the hon. and learned Member was that the work of the learned Judges on assizes would be much lessened by the establishment of such courts. I may, however, remind the House that it is the almost universal practice, in order to diminish the assize business, to hold courts of quarter sessions in boroughs and counties for the trial of prisoners charged with a certain class of offences. If greater judicial power is required at the assizes, and additional Judges are not to be appointed, I think the practice that at present prevails of appointing Queen's Counsel to act as assistant Judges is far preferable to the proposition of the hon. and learned Member. The cases that come before the court presided over by the right hon. and learned Member the Recorder of London (Mr. Russell Gurney), and by the hon. and learned Member the Common Serjeant (Mr. T. Chambers), are not such as come before the courts of quarter sessions, and I do not think that the plan suggested by the hon. and learned Member would in any way relieve the Judges from the duties which are now imposed upon them. It is impossible to help feeling that, with the peremptory demand for more frequent assizes and circuits, the legal business of London and of the country cannot be carried on without the creation of additional Judges. I must say one word regarding an institution which the hon. and learned Member for Richmond looks at in a different light from what I do—I mean 885 the Court of Exchequer Chamber. It is very easy for the hon. and learned Member to say that, in a few isolated cases, this court has broken down. But when he says that this intermediate court of appeal is useless and worse than useless, and that the wit of man never devised a more ingenious system for rendering the law uncertain, I can only say that I do not agree with him. When the hon. and learned Member was pointing out certain defects in this court, did he remember in how many cases decisions in this court are practically final? I will venture to say that in numbers of instances the parties are satisfied with the decision of this court, and so are saved the trouble and expense of appealing to the House of Lords. The Court of Exchequer Chamber, in my opinion, when properly constituted, and when having a sufficient number of Judges, will be a peculiarly good intermediate court of appeal. So far as my experience goes, which is not so great as that of my hon. and learned Friends the Attorney General and the late Attorney General, I cannot help thinking that the court of ultimate appeal is as satisfactory a court as exists. When my hon. and learned Friend says it is small, I agree with him; but I thought I heard him say that he thought the judicial constitution of the Court of Appeal in Chancery, consisting of two Judges, was satisfactory; and, as far as the Courts of Common Law are concerned, that if three sat instead of four, that would be a sufficient staff. Then I do not see why three should not be sufficient for a Court of Appeal. In a large majority of instances three men of great learning and eminence and of large experience sit in the House of Lords deciding causes. Again, I differ from my hon. and learned Friend in this, that the Court of Appeal of the House of Lords, as now constituted, is weakened or less worthy of credit because they can, by their own summons to the House of Lords, ask the whole body of Judges to sit there as assessors. I was surprised to hear him say that, because, although it may be true that a large number of those Judges who came there as assessors in certain cases may have had to consider the case on which they sat in the House of Lords before, I do not think he will say that they are so bigoted to the judgments they before announced that if, on a re-hearing of the case, they find weighty reasons to show their opinion was wrong they will not give full effect to the argument and alter that 886 opinion. But of this I am quite certain, that there are no judgments to be found in the books so valuable as those which have been pronounced in the House of Lords after consultation with the Judges, on whose opinion, after mature deliberation, the Law Lords are entitled to act as they think proper. I will not further trespass on the attention of the House upon this question; but, though I am quite conscious that many evils are found in our present system, I cannot help wishing that my hon. and learned Friend had not only given us a more mature plan for the remedy of those evils which he states exist, but also pointed out with more clearness that the remedies he has shadowed out to-night would really meet the evils which he supposes to exist.