§
Order read, for resuming Adjourned Debate on Question [10th August],
That an humble Address be presented to Her Majesty, praying that the Rules of the Supreme Court of Judicature, 1883, may be annulled."—(Sir B. Assheton Cross.)
§ Question again proposed.
§ Debate resumed.
§ SIR HARDINGE GIFFARDsaid, that he held in his hand two Petitions, which he begged to present to the House—one signed on behalf of the Committee of the Bar, and the other from the Law Society of Yorkshire—and he should have to refer to both those Petitions in the course of his observations. Before doing so, however, he wished at once to get rid of the impression that this Motion was, in the smallest degree, adverse to Her Majesty's Government; and, indeed, if he had not possessed the some what doubtful advantage of seniority, this Motion would have proceeded from the other side of the House. He knew no reason why Her Majesty's Government should regard themselves as being implicated in the matter. Her Majesty's Government were doubtless right in supporting the Executive to a certain extent; but, as a matter of fact, they had had no more to do with the actual framing of these Rules, and had incurred no more responsibility in respect of them, than he had. The Rules, which had been drawn up by the Rule Committee of the Judges, if not at once challenged, would soon have the force of a Statute; and the only mode in which they could be amended or altered afterwards was by a special Act of Parliament. They became law on the lapse of 40 days after being laid on the Table of Parliament. He hoped that since these Rules had been published hon. 146 Members had taken the trouble to ascertain for themselves what was the character of this new Code of Law—for such it actually was—which was rapidly becoming a Statute, and which would shortly be binding upon all Her Majesty's subjects, subject only to the possibility of alteration by Act of Parliament. The Rules had been published in the form of a bulky volume. It was true that the Attorney General had been pleased to say facetiously that he saw no good reason why a bulky volume should not become an Act of Parliament; but it was to the fact that it was becoming an Act of Parliament almost without anyone having seen it, or, at all events, without anyone having had time for carefully studying it, that he desired to draw attention to. There was a great deal in this volume—as far as he had been able to master its contents—of which he himself heartily approved; but Rules of such bulk, and involving such important and numerous alterations of the existing law, should not be allowed to become law without full and careful consideration. One or two of his Friends, who thought with him on this subject, had asked why he had not, in that event, moved to postpone the consideration of the Rules. There was no such power. If there had been, he should have been glad to adopt that recommendation. The only mode in which the question could be raised was by such Motion as was before the House, for an Address, under the powers of the Statute, to annul the Rules. There could not be the smallest objection to the Rules being annulled for this Session. They could be re-introduced in February next, and could come into operation on the following Easter, and to that he failed to see the smallest objection. It would only be a form of postponement, and that was all he at present asked for. Let him call the attention of the House to the nature of the power that had been exercised in framing these Rules, and to the extraordinary manner in which that power had been exercised. He said nothing at present as to the limitation of the power which had been given by Parliament to the Rule Committee of the Judges, although he should have to ask, later on, whether these Rules were such as it was really within the power of the Judges to make? At present he was assuming that they were entirely within the power of the Judges. The power 147 that had been given to the Judges—originally to all, and now, by an Amendment Act, to a select body of them, chosen for the purpose by the Lord Chancellor—was to frame Rules for the regulation of the practice and procedure of the Courts; and it was declared, as he had said, that if the Rules so drawn up by them should remain unchallenged upon the Table of the House for 40 days they should have the force of a Statute—the only mode of challenging them being an Address to Her Majesty praying that they might be annulled. The Rules which had been framed by the Rule Committee of the Judges, under the authority of the Statute, with their Appendices, formed a volume of 417 pages, and the volume comprehended a great variety of matters. It was laid upon the Table of the House—whatever that might mean, because those who took an interest in the Rules could not see them until they were published—on the 10th of July, and no one could get a copy of them until the 25th of July; and it was only on the 11th of August, on a Saturday afternoon, which the Prime Minister had been good enough to set apart for their consideration, that they had come before the House for discussion. What full and careful consideration these Rules would receive at this late period of the Session might be judged from the empty state of the Benches of the House on that occasion. Such was the state of things, notwithstanding that the Rules had reference to matters most vitally affecting not merely practice—as the popular world would understand it—and whether it was strictly within the meaning of the word he would say hereafter—of the Courts, but matters vitally affecting important political rights. That being the nature of the case, he would ask the House what opportunity was there, or had there been, to examine this bulky Act of Parliament—for such it was—unless they agreed to the Motion? The volume comprehended a great deal which he quite admitted might be valuable; but he would ask those hon. Members who had got it in their hands to turn to the last page of it. They would there find there were 22 sets of Rules—many of them themselves Acts of Parliament in effect, because they had already been published, and the 40 days had gone by—which were repealed by this Act. The form in which the volume had 148 been presented was not such as was calculated to enable anybody to follow at once what was being done by it. It was usual, when they were called upon in that House to repeal Acts of Parliament, to have those Acts carefully set out in a Schedule; but unless a person took the trouble—as he had done—to go through the whole of this volume, it was impossible to know what "Appendix O," which repealed the 22 sets of Rules, meant. When they took the necessary trouble they found that by these Rules our whole existing Code of Legal Procedure, dating from 1852 downward, was to be repealed. This was a much more important matter than at first sight it appeared, because every change in our legal procedure involved vast expense to the suitor; and, indeed, Baron Martin had once observed that every set of new Rules of Procedure cost the country some £3,000,000 sterling in litigation. The moment there was a new Code of Law or Procedure established decisions were engrafted upon it; and, after a time, it became a part of the known law, and people were able to advise, and save expense. Any new alteration or change in procedure involved an enormous amount of expense to the suitors; because the moment they had something new, and not governed by decisions, that moment they had a fruitful source of fresh litigation and consequent expense. Was it reasonable, he asked, that they should have this body of altered law presented to them at this period? Hon. and learned Gentlemen opposite suggested across the Table that these Rules were simply a re-enactment; but that matter was much more serious than they seemed to think, for it was not a reenactment simpliciter, but a re-enactment with alterations; and if there was one thing more difficult than another, and more dangerous, it was to find a section which at first sight appeared to be a re-enactment of the same law which existed before, but which, on careful examination, was found to contain important and material changes, which, in some instances, gave an entirely new effect to the Rule. He foresaw that great danger would result from this mode of proceeding. But, after all, what was the great hurry for passing these New Rules? Why not have waited until next Session before laying them upon the Table of the House? Presenting them 149 at this period of the Session placed the House in a great difficulty, because it must either accept or reject them as a whole. It was all very well for those who supported these Rules to say—"If you object to any one of these Rules, pray Her Majesty to annul that particular Rule." That might be very good advice to give if this were March or April, when there would be a full House to consider them; but it was utterly inappropriate at the present time. Since his name had appeared prominently in connection with this matter he had received communications every day from all parts of the country pointing out difficulties that would arise under these Rules; and it was because he could not bring all these details before the House at this period of the Session that he was obliged to support a Motion in the terms in which the present was cast. Let it be remembered that, though it was true he could present an Address to disagree with every one of the Rules, yet he could not present one to disagree with part of them. There was no power of amendment. They must either accept what the Judges put before them or annul the whole of the Rules. He could not help saying—and the observation would apply all through the Rules—that the tone and tendency of the Rules was to make Her Majesty's Judges absolute despots in the Courts of Law. He thought that such a tendency was a great evil in itself. It was a proof of the wisdom of our ancestors—he ought, in justice, to say of our Whig ancestors particularly—that while they made the Judges independent of the Crown they gave the Courts as much power and control over them to keep them in order as over anyone else. The tendency of the Rules was an application of the maxim—which was a familiar one with the Judges—one, he believed, invented by themselves—that it was the duty of a good Judge to increase and enlarge his jurisdiction; but, in his humble opinion, that was a very immoral view to take of the duty of a Judge. Certainly, in the present instance, the Judges had done their best to increase and enlarge their jurisdiction, because in almost every case in which a question could arise under these Rules the Judge was to have the power of deciding it summarily. It was useful to the public that there should be such 150 a thing as independence of the Bar—and he said this not merely for the sake of the Profession, but also for the sake of the public. How was the Bar to remain independent in the face of such a system as this? It was all very well to talk about the independence of the Bar but if they complained they were met by the discretion of the Judges, who could punish by the infliction of costs anything of which they disapproved. Independence on the part of the Bar would be exercised at the expense of the clients, and that was a sort of independence that the public would not be desirous of accepting. In every case where the question was one on which the parties had hitherto been disposed to exercise an option in the case, the question would now be determined by the Judge absolutely. He confessed he spoke with all deference of such learned persons—persons whose great learning and ability and desire to do what was right he recognized as fully as any man; but he must point out that after all they were only mortal men, and, as such, were liable to error in some cases, and that it would, therefore, be better for themselves as well as for the public that they should not have this despotic power conferred upon them. He would only refer to one example of what the Judges had done in the exercise of their power of making these Rules. By an Act, known as Sir Henry Keating's Act, no defence was permitted to be raised in certain circumstances in an action upon a bill of exchange; and the Judges by these Rules had, by a stroke of the pen, simply repealed that Act. They did not say in terms that the Act should be repealed—that would have been too scandalous—but they said that after the publication of these Rules no writ under Sir Henry Keating's Act should be issued. What was the meaning of that? In a certain sense it was procedure; but he did not think that under the powers conferred upon them by the Act they were authorized to repeal Acts of Parliament in this summary fashion. What would have been thought if they had taken upon themselves to order that after the publication of these Rules no writ of habeas corpus should be issued?—and yet if they had the power to make a Rule in one case they equally had the power to make it in the other.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, that the Rule to which the hon. and learned Gentleman was referring had been made four years ago.
§ SIR HARDINGE GIFFARDsaid, he was sorry to observe that the Law Officers of the Crown appeared to be already assuming the antagonists to this Motion. It was one of the objections to this form of passing Statutes that no one knew anything about it. But for the extraordinary magnitude of this enactment, he had no doubt a great many of the present Rules would have slipped by, too. As to the Rule repealing Sir Henry Keating's Act, it was published by the Judges, and laid on the Table; but he did not know whether it was ever printed by Order of the House until it became law. The 40 days had slipped by without the subject being inquired into, and now the Rule was a Statute. At all events, if the power of so altering the law existed, it ought to be used with something like reasonable regard to what might have been the meaning of Parliament at the time this power was given. It was to this silent and secret mode of altering the law that he objected. The power to enact such a body of law as was contained in this volume would never have been bestowed upon the Judges if it had been supposed that they would have presented Rules on the 10th July; that they would not have been distributed so that Members might know what was contained in them until the 25th July; and that they would not come before the House for decision until the 11th August. This was one of the most important matters that the House could discuss. Without reference to the propriety or impropriety of the Rules, he would say there would be most likely great differences of opinion amongst lawyers, and persons who were not lawyers, if he were to discuss them in detail. It would be an abuse of the opportunity which had been afforded him if he were to try to do so, for the observation would be at once made—"Why, the House of Commons is incompetent to deal with minute matters of procedure." He admitted it could not be done but this they might do—discuss questions of principle. He had objection to some of the Rules, on grounds of principle, and, no doubt, 152 other Members would have objections on grounds of a similar kind; but those Rules he would mention appeared to him to strike at such cardinal principles of our legislation that they ought not to be passed sub silentio. It was well known that there were some members of the Judicial Bench who took a strong view against trial by jury—they made no secret of it; they seemed to think that in Civil cases jurors were likely to go wrong, and Judges were infallible. He was entitled to his own view on the subject. He had often said to Judges, as well as in the House, that he would rather take the average common sense of an English special jury than the opinions of all the Judges put together. He might be wrong about that, and hon. Gentlemen who, he might say, "practised on the other side of Westminster Hall," might take a different view of the matter, believing in the system of reference from one Court to a Court higher. But when they had a verdict on his side of Westminster Hall, it was an extremely difficult thing to interfere with that verdict. According to the Constitutional principle, which he believed was beginning to prevail more largely amongst the Judges than it did at one time, they had no right to interfere with the verdict of the jury, unless they could say it was wrong. Well, was it proper that our system should be in effect abolished?—because that was what the Rules would come to. It might be said—"You do not abolish it; you leave it to the discretion of the Judge." That was one of the things he complained of—that the Judges should try certain cases absolutely, and that in others they should leave the question to the Constitutional tribunal. For his own part, he thought the selection the Judges had made in the matter was not one which would commend itself to anybody. By Order 36, Rule 2, it was enacted that in cases of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage—and he invited the attention of the Solicitor General to the last item—the plaintiff might in his notice of trial, or the defendant might on giving notice, signify his desire to have the issue of fact tried before a jury, and thereupon the issue should be so tried. The cases, therefore, divided themselves into these two classes. He considered 153 this to be extremely undesirable, for if people were not alive to their rights they would allow the opportunity of trial by jury to go by. These special applications were things which would be found scattered all through the Rules. Special application might be made to the Judge, and the Judge would have discretion to make orders; but every step in that procedure meant costs. Of course, it was extremely easy to sneer at the lawyers about this, and say that they would be disposed to acquiesce in anything which would magnify costs. He did not believe any such thing; but if the necessity for visiting a solicitor arose for the purpose of defeating the Rule, the object of which was really to deprive parties of their right of trial by jury, no lawyer, any more than anyone else, could be expected to give up his time without payment. It appeared to him that the change brought about by the Rule to which he referred was not a question of procedure at all, and that it was only within the right of Parliament to effect it. The Judges might decide the point, if it went before them for decision, how they liked. That was their affair; but he believed that the selection of cases made on the Rule was a bad one, for they were not cases in which the right of trial by a Judge was much needed. Take cases of fraud, and those things which were the subjects of angry and bitter discussions in these days. Let them, for instance, take the case of an action against the Directors of a Company for issuing a fraudulent prospectus. They might have a man's character tainted for life by the action of a single Judge. It seemed to him that if there was one particular class of case more than another where it was essential to preserve the absolute right to have recourse to trial by jury it was that class where a man's character was at stake. Take the case of an action on a bill of exchange, and the question turned on whether it was a forgery or not. They could not bring into a definite proportion those cases where Constitutional right ought to be the rule, and they ought only to have exception from that in cases whore the parties were agreed that no question as to character would arise. Then there was the question of discovery. Under our new system the right of discovery had been one of the most valuable 154 changes ever effected in the law; but they were now to have a serious limit put upon it—that they should have no discovery unless a deposit of £.5 was made, but the additional sums of £10, according to circumstances, until the maximum of £20 was reached. To a rich man that would be immaterial; but to a poor man it might amount to an absolute deprivation of the right he might otherwise possess. Then the Rules tampered with the Laws of Evidence. He did not believe the Judges had any power to alter the Laws of Evidence. That was not procedure—it was part of the Common Law of the Kingdom.
§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)By express enactment the Judges have no power to interfere with the Law of Evidence.
§ SIR HARDINGE GIFFARDsaid, that whether they had power or not, they had done it. It was a question of the absolute despotism of the Judges. In Rule 38, Order 36, page 105, the Judge might in all cases disallow any question put in cross-examination of either party, or any witness, which question might appear vexatious, and not relevant to any matter to be inquired into. Was that only declaratory of the Common Law? If so, what was the use of putting it in a Rule? If it was not, it was a dangerous innovation, and altogether ultra vires. But was that the meaning of it—was it declaratory? For his own part, he did not believe it was. It appeared to him to limit the power of appeal from the Judge in the most serious way. If a Judge disallowed a question they had a right to put—a question as to credit and so on—it was a matter for a now trial.
§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)So it is now.
§ SIR HARDINGE GIFFARDasked, what, then, would be the use of the Rule? They did not want a re-enactment of all the Laws of Evidence. But he did not agree with the Solicitor General that this was merely declaratory, and in future the question argued would not be the old question. It was at present whether such a question was admissible; but in the future it would be whether it appeared to the Judge to be vexatious and not relevant. That would be the question to be determined, and the Judge before whom it was argued would naturally be inclined to say—" It appeared 155 to my learned brother, and he, having all the facts before him, was much better able to determine the point than I am." If the matter was one for appeal at all, it was only so to this extent—that the Judge in the Court of Appeal might say—"It is a matter which, stated in the Act of Parliament, is a question in the Judge's discretion with which we cannot interfere." That limited the powers of an advocate in a manner which appeared to him to be most serious to the public. In works of fiction it was the fashion to speak of the right of cross-examination being abused, and perhaps it was sometimes; but it was a much more serious matter whether, when important questions were at stake, the right of cross-examination should be interfered with by the Judge. Here was another case. Of course, he did not wish to mention names; but he desired to give the case, as it was a fair illustration of his argument. A young woman brought an action, and in cross-examination she was asked whether 18 years before she had not had an illegitimate child. Until the whole circumstances were disclosed that appeared to be an exceedingly cruel question; and if these Rules had been passed no doubt the Judge would have disallowed the question as being irrelevant and vexatious; but when the whole details of the case were brought to light it appeared that she had been passing off this child as her brother in order to establish an identity, and the answer to that question was the cause of an indictment for perjury. They could not tell the Judge all that was in their briefs, and it was undesirable that they should be called upon to state the object with which a question was asked, as the explanation would probably defeat the whole object of the question. Such matters as these must be left to the good taste and discretion of the counsel. Then there was a great extension of the power, under Order 14, of the Rules of 1875 to obtain summary judgment in cases where there was no defence. That Order was intended to be limited to demands for liquidated sums of money. But now that power was extended to actions for the recovery of land. So important a change in the law ought not to be made in a body of Rules of Procedure, but if, at all, only by express enactment after debate. He expressed no opinion as to the desirability 156 of the change; but he thought that was a reason why time should be given for the further discussion of the Rules. He could not, however, affect to discuss the Rules in detail at this late period of the Session, which rendered it necessary that they should not be-passed in a hurry. Then, in what was called third party proceedings, the Rules gave the Judge despotic power. Under Rule 16, Orders 48, 49, and 52, a third party might, on receiving notice, be absolutely precluded from appearing on the trial. He felt that he must be brief; but the abundance of material really formed his difficulty. He was only able, under the circumstances, however, to point to those matters which seemed to be pressing matters of principle, and ask the House if they would allow these Rules to become law without further inquiry. Another matter which he must refer to, however, was this—An effort had been made from time to time to menace the jurisdiction of the County Courts, and decrease that of the Superior Courts. Over and over again Parliament had refused to do this; but now he found in these Rules a proposal that, if a suitor went to the Superior Courts with a case where there was a concurrent jurisdiction, he should have no more costs than he would obtain in the County Courts. Was that a desirable thing? If it was desirable to get rid of the jurisdiction of the Superior Courts in County Court cases, they ought to do so by express enactment, and not by Rules of this sort. He asked, moreover, was it desirable, when both branches of the Legal Profession asked for further inquiry, that so reasonable a request should be refused. He understood that a Petition had been presented in this matter by the Incorporated Law Society; but he had two others to present to the House. One was from the Yorkshire Law Society, and set out that the Rules which had been issued effected very great changes with which the Legal Profession was deeply interested. The Petition represented the solicitors of Yorkshire, and regretted that they were not afforded an opportunity of offering suggestions before the Rules were passed; and they were of opinion that the fullest opportunity should be given for the consideration of the Rules. He had another Petition from the Bar Committee, which had been recently formed, which set 157 forth that the Rules could not fail to create momentous results in the administration of justice, one of which was that a great increase would he caused in the Chamber work of the Judges, without any proviso being made for its despatch. They conceived that in many respects changes which the Rules involved were such as to demand careful consideration. No opportunity had been afforded the Bar to consider the Rules before they were presented to Parliament, and the Petitioners were of the opinion that this was to be regretted. He had only one word to say as to the mode in which these Rules had been secreted by the Judges. Instead of being discussed openly, as they would have been if they had been an Act of Parliament, they had been discussed in secret. They had been intentionally concealed, moreover. He did not mean to say that in any disrespect to the learned Judges, because he supposed they thought it right that they should not be made public. The Benchers of Lincoln's Inn—a body which he feared enjoyed no great popularity—and the Bar Committee had each applied to the Lord Chancellor for a copy of the Rules; but they had been courteously but firmly refused. They had, therefore, been intentionally kept back—he did not say with a sinister intention; but they had been kept back, and had only been laid on the Table in the month of July, when, if they did not present an Address praying that they should be annulled, they would be-come an Act of Parliament. He ventured to think that the House would never have permitted its functions to be handed over to the Committee of Judges had they known what the result would be. First of all, the power of making Rules was given to the entire body of Judges; but they had not even that safeguard now. He saw the Solicitor General taking a note, possibly because it was the late Government who were responsible for the change in 1875; but that did not affect his case. He was considering this question apart from Party motives. He was glad to admit that the Act of 1873, which was the work of a Liberal Government, did not give such wide powers to a Committee of the Bench; and, for his part, he thought the change of 1875 was most injurious, and they were seeing the result of it at the present time. If great changes of this 158 sort were to be made they ought to be effected by Act of Parliament, and not by a small body of Judges selected by one particular Officer of the Government. He therefore hoped that the House would not at once give its sanction to the Rules.
§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)said, that this was not a Party matter, and he had taken no notes in any Party spirit; but he thought it essential to point out that a great deal of which the hon. and learned Gentleman complained had been done under the very auspices of the hon. and learned Member himself. The hon. and learned Gentleman had read Petitions to the effect that the Legal Profession ought to have been consulted; but he (the Solicitor General) did not think that the manner in which the Rules affected the Legal Profession ought to be put in the foreground. What they had to consider first of all were the interests of the suitors, and the interests of the Profession were a secondary consideration. Those Rules had been framed in accordance with the provisions of an Act of Parliament, which cast upon the Judges the duty of framing Rules of Procedure. The Judges had spent a considerable amount of time and care in the framing of them; and he could not help thinking that his hon. and learned Friend had treated them with scant courtesy after all the trouble they had taken in the interests of suitors. The hon. and learned Gentleman suggested that Her Majesty should annul these Rules, so that they might be brought forward again next year; but he (the Solicitor General) was not quite so sure that it would be possible to reproduce them after they had been annulled. The hon. and learned Gentleman said it would be possible for the Judges to make the same Rules again the very day after the annulment; but he was not quite so sure as to that. It would raise a very serious Constitutional question. [Mr. WILLIS: But they could be annulled again.] That was true; but they could not go on in that way; and it might be difficult to bring into effect at once Rules which had already been annulled by Her Majesty. It was a serious thing to say that the Judges could re-enact Rules which Her Majesty had said should not be enforced. For his part, he regarded 159 the Rules as a very beneficial reform in the interests of the suitors. They would very greatly reduce litigation, and cheapen the cost of it to the suitor; and the proposal of his hon. and learned Friend was that they should abandon these reforms foranother year. He thought the fact that the Rules would very much cheapen litigation—of course, he did not refer to his hon. and learned Friend opposite—might be one of the reasons why so strong an objection was taken to them in some directions. He would not deal with the details of the Rules, and his hon. and learned Friend had dealt with only three or four Rules, which were, doubtless, those to which exception might most easily be taken. The attack of the hon. and learned Gentleman was really directed more against the Act of Parliament than against the New Rules; but he would point out that the hon. and learned Gentleman was a party—indeed, he was personally responsible, by being Solicitor General at the time—to the passing of the Act of 1876, which made the Rule Committee of the Judges as it existed at the present time. There had been no less than 213 New Rules made under the power of the Act of 1876; and all these were made between 1875 and 1880, when the hon. and learned Gentleman was in Office. If the system was such a vicious one, surely his hon. and learned Friend should have objected then. He was a very strange person to come forward at that late period and object to the system. Of those 213 Rules, not one had been submitted to the Benchers of the Inns of Court, or to the Incorporated Law Society; and why was it that the hon. and learned Member did not complain of the Judges keeping them concealed at that time; and why did he wait until he was relieved of responsibility in order to make a com-plaint of a system which had been universally followed? There were of all these Rules only 125 new ones, or Rules which had been materially altered; and all the rest were simply the re-enactment of existing Rules, it having been thought desirable to consolidate them into one Code. His hon. and learned Friend need not have flourished the large Book of Rules before them therefore, for in 1880 there were as many as 68 New Rules made under his own auspices. In regard to the complaint of the Incorporated Law Society not having been consulted, he would 160 point out that one of the very Rules which the hon. and learned Gentleman objected to had been framed upon a suggestion thrown out in a resolution passed by the Society itself. He thought it would be much better that those who were interested should lay their objections before the Judges—and he was sure they would have the most careful consideration—than that the Rules should be annulled altogether. If Amendments were required they could be made; and surely it was much better to endeavour to amend the Rules than deprive the public of a great and much-needed reform for another year. The hon. and learned Gentleman also complained that great political rights in connection with trial by jury were interfered with in these Rules; but he could not have read the Rules when he made such a suggestion. With respect to trial by jury, at present, in all cases, the practice was for the party desiring a jury to give notice to the other. In certain cases that practice was still preserved. In other cases an application had to be made to the Judge or Master. The expenses of such an application would only be a few shillings. But what was prevented? There were many cases now in which all the expense of a jury trial was incurred, and which had afterwards to be sent to a Referee. The New Rule prevented that great scandal, and cases which were obviously cases for reference would at once be sent to an arbitrator. Then his hon. and learned Friend had referred to discovery. There was hardly a more valuable right in existence than that of discovery. But it was liable to great abuse. Until he had recently had occasion to make inquiry into the subject, he had no idea how far the costs of litigation had been increased under the Judicature Acts in respect of the right of discovery. Then the application of Order 14 to actions for the recovery of land was a most beneficial change; and there was little danger of abuse, as it only applied after notice to quit had been given. Then, with respect to Order 38, he agreed that it might be questionable whether it was expedient to enact a Rule which in any way altered the law. But there was no warrant for suggesting that there would be no right of appeal against a Judge's refusal to allow a question to be put. The Judge had that power already, and constantly 161 rejected irrelevant evidence, and in that respect his hon. and learned Friend had certainly not made out his case. Could his hon. and learned Friend deny that many of those Rules were benefiicial to suitors, and saved great expense? He assured his hon. and learned Friend that even if these Rules were not annulled, those who had framed them would most carefully and anxiously consider any suggestions for improving them; and he could not help thinking that, if the Bar Committee and the Incorporated Law Society would give their services, any blemishes that might be contained in the Rules would be at once removed, without depriving the public of the benefit of these great reforms for the best part of another year he, therefore, earnestly hoped that the House would reject the Motion now before it.
§ MR. GREGORYsaid, that the Solicitor General had naturally laid great stress on the terms of the Motion, which was, in fact, to annul these Rules altogether. But they had been driven to adopt such a form of Resolution. They could deal with the case in no other way. If that Motion were not carried, the Rules became absolute, and there was no other way of protesting against them than by bringing forward such a Resolution. The Petitions which had been presented that day were all in the same terms, and they all asked for time for the consideration of these Rules. In bringing forward a Motion for annulling the Rules, all that was intended was that further time should be given. It could not have been contemplated that, under the Act of 1875, a body of Rules, making so important an alteration in the law, would be issued. They were, in fact, a New Code of Law. It was true that the extension of Order XIV. was made at the suggestion of the Incorporated Law Society, to which he (Mr. Gregory) be-longed; but his hon. and learned Friend (Sir Hardinge Giffard) was not responsible for that suggestion, and it was quite open to him to object to it with reference to the action of the Law Society generally. A somewhat different course had been taken with reference to the Rules and the communication of them to the Society to that which had been taken on previous occasions. It was quite true that a copy of them had been sent to the President of that Society; but it was sent with an invitation not 162 to make the Rules public, although he might show them to a few friends. The copy sent to him was, therefore, absolutely useless, and only placed him in a false position with respect to the Society and the members of the Profession. The President had not had the opportunity of consulting those interested in the matter; he had had no opportunity of laying the Rules before the representative body of the Profession; and he had had no authority to offer any observations or suggestions upon them. The result had been that so far as the Profession generally was concerned, and so far as he as an individual and a member of the Profession was concerned, they had not had the opportunity of looking into the Rules until they were published under the authority of the House. The Rules came into operation in October, and they required careful consideration in their operation on the public, and also on the Profession of which he was a member, to a very considerable extent. For instance, as regarded the public, one of the provisions of the Rules was that on an application being made for the production of any document, or on the filing of interrogatories, a man should pay £5 into Court. Everybody who had conducted cases knew that a suitor had to apply from time to time for documents, and to administer interrogatories. For a rich suitor this might be immaterial. In the ease of a Railway Company, or any undertaking of the kind, this would be a mere nothing; but if a poor man were called upon to make constant payments of £5, the result would be the discouragement of applications, however necessary they might be. With reference to admissions, any person who refused to admit anything had to pay the costs of an application to the Court, unless the Judge at the trial should say that he was quite right in so refusing. Therefore, a suitor would have to pay the costs at once if he refused to admit anything, and he would have to get it back when he could. A man might be called upon to admit the whole case—to admit himself out of Court altogether—and if he refused to do so he must pay the costs. [The SOLICITOR GENERAL dissented.] The hon. and learned. Gentleman might not be aware of it, but, as a matter of fact, however right the suitor might be in refusing to make the admission, 163 he must pay the costs in the first instance. There was another point in connection with the Rules which received the most careful consideration—namely, the question of the delegation of certain duties by the Judges to the officers under them. He admitted that, in the Chancery Division, the duties of the chief clerks were very efficiently performed; but the powers given under the New Rules seemed to be very large indeed. The Judges' officers would be able to do almost everything the Judge himself could do. The present arrangement of business in Chambers, where the Judge attended generally only twice a-week, after a hard day's work in Court, was not satisfactory; and he did not see that the Rules effected any improvement in that respect. With regard to the manner in which the New Rules affected his own Profession, he would venture to say that he did not think the position in which a solicitor stood was generally understood, or that his responsibility and liability were fully recognized. A solicitor was an officer of the Court. As the Court admitted him to practice, so it could deprive him of his practice, and it could make him liable to any penalty it pleased. A solicitor was responsible for negligence or ignorance. He was bound to carry out his duties with due skill and knowledge; and if a client was able to prove that he had not conducted himself properly, he could make him pay any loss incurred by him in consequence of such misconduct. More than this, the Incorporated Law Society had been at work for about 50 years. That Society was formed for the purpose of regulating the practice of the Profession, of elevating their character, of educating them, of taking notice of any misconduct or error or malpractice which they could lay their hands upon. They assisted the Court as far as they could in drawing attention to cases which required to be dealt with by the Court. They devoted their time and their funds to this task; and he thought it would be seen by any Member that in cases where a solicitor's conduct was brought in question action was almost always taken by the Incorporated Law Society. It was on their application that these charges, of which they heard from time to time, were brought against solicitors; and there were many cases of misconduct which 164 would escape attention were it not for the exertions of the Society and its 4,000 members. The Society also examined young men, and elevated their characters. It had certainly always been willing to co-operate with the Judges in effecting any reforms in the practice of the Courts. The Society felt aggrieved by many of these New Rules, as personally affecting the solicitors as a body. There was almost a series of Orders which specially mentioned the solicitor as being liable, at the discretion of the Judge, for matters of the most trivial character—for any little slip, any little miscarriage, any little delay, any non-delivery of papers—to pay the costs, not only of his own client, but of the other side too. He quite agreed that full jurisdiction over solicitors should be given to the Judges; he quite agreed that if a solicitor should neglect his duty, or be guilty of gross ignorance or gross negligence, he should be liable to his client. But the House was asked to pass a series of New Orders, which really required solicitors to be infallible, not only in their relations with their own clients, but also as regarded the parties on the other side. If they were guilty of the slightest act of negligence, or of the slightest omission, it would be heavily visited on them; and the Orders gave special directions to the Judge on that point. He did not think the Profession had altogether deserved any such treatment, and they felt it deeply. As regarded himself, the matter was comparatively light, because his professional career was practically drawing to a close, and he should probably not have to work very long under the New Code of Regulations; but with the views of his Profession as a body the case was different. They had for years been trying to raise themselves in public estimation. They had educated themselves for the professional duties which devolved upon them. They had the interests of their clients at heart in all they did; and, although, no doubt, there were instances of defalcations—instances similar to those which occurred in all trades and professions—he would appeal to Members of the House who had consulted solicitors—and there were few who had not—to say whether they had not always received honest and disinterested advice, and whether they had ever had their confidence in their solicitors 165 betrayed? Such being the position of solicitors, they were pained and grieved at the odium which was cast upon them by those Rules. He confessed that he personally felt hurt to the last degree. After exerting himself, in conjunction with others, for 40 years in endeavouring to elevate the Profession, and to improve it in the public regard, when he was on the point of leaving it, he found it placed under the stigma and the odium imposed upon it by the reference made to it in these Rules. He therefore thought they might reasonably ask for some delay, in order to consider the Rules, and make whatever representations in respect of them which might appear necessary. The Solicitor General had said that any representations would be attended to. He (Mr. Gregory) hoped they would; but, in the meantime, the Orders would be in operation, and, when that was so, representations might not have the same effect as they otherwise would have. On these grounds, he begged to support the Motion now before the House.
§ MR. BRYCEsaid, that whatever new powers these Rules might give to Judges in respect to solicitors, they were insignificant as compared with the powers concerning solicitors which Judges already possessed. The most cordial relations existed between the Judges and the solicitors; and he believed that the solicitors were well satisfied with the manner in which Judges had hitherto acted in regard to them. There were no reasons to think that the Judges would behave any worse in the future under the New Rules than they had done in the past under the Old Rules. He did not intend to defend the New Rules in every particular. They contained something which some of them might have preferred to see omitted. But, on the whole, he was of opinion the good Rules outweighed the bad. Apart from the advantage which a mere codification and consolidation brought about, the changes which the Rules made were nearly all changes for the better. It seemed to have been forgotten in some quarters that it was upon the Report of a Committee which sat a few years ago that these changes were based, and that, so far from the changes being bold and sweeping, they really fell short of the recommendations of that Committee. The Committee of Judges, in fact, 166 seemed to have been actuated by the most Conservative spirit. Although the hon. and learned Gentleman (Sir Hardinge Giffard) talked of the Judges as despots, the truth was that the fault of the Judges, if a fault they had, was that they were too timid; they were unwilling to deal boldly with the existing law, even when they were sitting on the Bench; and the same spirit characterized them in the framing of these New Rules. He did not blame them; because it was always better that legal reforms should proceed slowly. In these things it did not do to outrun the opinion of the country, or even of the Profession. With respect to jury trials, the Solicitor General had shown how small the changes were; and he believed the experience of those best acquainted with the subject would have warranted the Judges in going much further. In Scotland, where people were very democratic, things were more advanced, and in the United States, where people also were very democratic, the tendency of legislation had been growing more and more against jury trials and in favour of increasing the power of the Judges, so that the Judges had some precedent for the action they had taken. Although a great number of Rules had been made since the Judicature Act of 1875, there had never been an occasion on which they had been discussed in the House. The Judges might have brought these Rules into operation immediately; but they had chosen to give the House a larger opportunity of considering the changes in Legal Procedure than it had enjoyed before. It would be, therefore, unfortunate if the House were to take a course which it had on previous occasions abstained from taking. Did hon. Members, or did they not, wish to see the procedure of the Courts codified? That procedure, at present, was extremely complex and confused, and needed change. In point of fact, there were few of the 1,045 Rules which were new; he believed the absolutely New Rules only numbered 125; and the 1,045 had been cut down from 1,803. He did not deny there was certain defects in the Rules; but the defects were such that no amount of discussion would enable the House to get rid of them. The Rules raised questions of policy on which hon. Members could not be expected to agree. The hon. and learned Member for Launceston 167 (Sir Hardinge Giffard) would say that between this time and February the Judges might take back the Rules and alter them; but so they might at any time, and how much more forward would they be in February than they were now? The policy they were asked to reverse was the policy which Parliament had already sanctioned in the Judicature Acts, when the principle was laid down that it was impossible for Committees of that House to deal effectually with such matters, and that that could be done only by experts. The whole speech of the hon. and learned Gentleman the Member for Launceston was an impeachment of the policy of the Judicature Acts. He (Mr. Bryce) hoped the House would come to the conclusion that the policy of those Acts was just and wise. If they were to wait until they got a perfect set of Rules they might wait for ever. The only way they could make an advance was by experience, and by trusting to the good feeling of the Judges to amend the Code accordingly. If they were to take the strong measure of annulling the Rules now, it would be a slap in the face for the Judges, and would only make them more timid.
§ MR. BULWERsaid, that since these Rules had been published on the 25th of July, he, in common with other members of his Profession, had been a good deal out of town, and it was only last night he had been able to get a copy and to give the Rules a very cursory examination. He, therefore, declined to enter into their merits or demerits. What his hon. and learned Friend asked was not to abrogate the Rules altogether, but to give the public time to consider them. He regretted that the discussion to-day had been confined so much to Professional Members. The interest of the Profession was not the first thing that ought to be considered, but the interest of the public. The worse the Rules were the better for the Profession, because more legal business would be the result. Did the House know that every set of Rules promulgated by the Judges cost the public thousands upon thousands of pounds before they were settled; and then, when they were settled, they had another set of Rules to take their place, which again would cost the public thousands upon thousands? Therefore, this was emphatically a question for the public. There was no such 168 urgent haste that these Rules should be carried into effect, as they might work very great changes, not merely in procedure and the carrying on of trials, but in the laws of evidence and other matters. The hon. Member (Mr. Bryce) asked how much more forward should we be in February than we were now if delay were given? Well, we should be in this position—that we should know more about the Rules, just as we did about the merit of the claims of M. de Lesseps, which at first were rather rashly sanctioned by the Government. The time would not be lost; the Rules now in force would still operate, and we should only be deprived for a time of the benefit of 125 Rules, which, no doubt, were most important, and would effect great changes; but the public mind would be instructed, and so, too, would the four or five Common Law and four or five Chancery Judges who had dealt with the matter, and who were not infallible. The Solicitor General had relied upon the advantage to the public of sending a case for reference instead of having a trial. A case came under his own notice lately which, if these New Rules had been in operation, would certainly have been sent to a Referee, and would probably have cost the parties thousands of pounds; but it was heard by the Judge and disposed of in half-an-hour, and so saved the parties that expense.
§ MR. H. H. FOWLERsaid, he quite agreed with the hon. Member who had just spoken that they ought to approach this question from the point of view of the public and not of the Profession; and he thought it right to say here what was being said elsewhere, and what was known to be the feeling outside, that there was increasing dissatisfaction throughout the country with the present system of the administration of justice. The Judicature Act had, in one sense, proved a great failure. It had increased the cost of litigation, and it had increased the delay in the administration of justice. And the difficulty they had to grapple with was that at the fag-end of a Saturday afternoon in the middle of August they were discussing one of the most serious and important questions that had arisen in this Parliament. The administration of justice was producing great and just dissatisfaction; and what they had to ask themselves was whether the Rules now submitted would tend to 169 remove one or both of those great sources of complaint—cost and delay? The Solicitor General had said that since the Judicature Act came into operation the cost of litigation had increased from 40 to 50 per cent; he would have been nearer the mark if he had said 70 or 80 per cent. But there was one commodity which was oven more valuable to an Englishman than his money, and that was his time; and at this moment in the Chancery Division the arrears were greater than they were in the days of Lord Eldon. As to the Queen's Bench Division a statement had appeared in The Times that when the Courts opened in November something like 1,100 causes would be awaiting trial. This was a state of things which demanded the immediate attention of the Government and of Parliament. It had often been said that the only way to meet the difficulty was to appoint new Judges. He thought there was no necessity to appoint new Judges. The present Judicial Staff, if properly applied, was amply sufficient to do all it had to do. He know that in saying that he was touching upon very delicate ground. And while he thought it a right and proper thing to abstain from criticism of the great Officers of Justice who presided over our Courts there was the danger that men in that position were apt to regard themselves as exempt from criticism. The Prime Minister was freely open to criticism, and things were said of him that no one would think of saying of the Lord Chancellor, or the Lord Chief Justice. Still there were ways in which they might convey to those personages their sense of the existing grievance, and he believed he was within the mark when he said there was an impression pervading the public mind and both branches of the Profession that there was not the same amount of judical time how appropriated to the public service as was appropriated in the days of the Judges who had passed away. There was no doubt an absurd waste of judicial strength on the Circuits, and the present Government had endeavoured in vain to prevent that waste. But there was another evil, and, in his opinion, the greatest evil of all, and that was the modern practice of sending Judges of the Chancery Division on Circuit. They did not send a colonel of the Guards to command an iron-clad, or 170 an Admiral of the Fleet to lead a Cavalry brigade. And it was no disrespect to the eminent lawyers who lived in the seclusion of chambers, or in the Equity Courts, to say that they had not received the training which qualified them for the administration of criminal justice. Yet the Courts of the Chancery Division were shut when they ought to be dealing with suits in which large properties were involved, while the Chancery Judges were sent to try men who were charged with stealing pocket-handkerchiefs, or sheep, or ducks and geese—offences which might perfectly well be disposed of by a Chairman of Quarter Sessions or a Recorder. The result of this system was that the Courts became congested, and then came the cry for more Judges. The real reason of this anomaly arose from the throwing upon the Judges their travelling and other expenses while going Circuit. When they selected for Circuit a number of Judges of the Queen's Bench Division they were required to pay their own expenses; but the Chancery Judges, who got precisely the same salary, were not called on to pay their Circuit expenses. The result of this was that the Chancery Judges, if they did not take their share of Circuit work, got so many hundreds a-year more than the others. The true remedy for that was to treat all alike, to pay all travelling expenses, and not to allow the element of pounds, shillings, and pence to enter into consideration of the best mode of administering justice on Circuit. One of the most beneficial of the Rules which had been alluded to by the hon. and learned Member for Launceston (Sir Hardinge Giffard) was that which practically restricted the jurisdiction of the Superior Courts to cases of above £50. If they could take out of the Superior Courts all cases relating to amounts of under £50, much relief would be experienced, and two more Judges would be available for general business. The Rules, as a whole, were not all that was wanted. They might, however, be regarded as an instalment, and as a step in the right direction of Law Reform. They were not perfect, and they might, no doubt, be open to criticism; but no Act of Parliament and no Code of Rules was perfect. The principle Parliament had adopted in relation to these matters was that it was incapable, as was certainly 171 the case, of legislating upon them. On the whole, the present Rules formed a very decided step in the right direction. Judges were not law reformers as a rule. [Sir WILLIAM HARCOURT: Hear, hear!] They never had been and they never would be. When, therefore, Parliament got for them so large an instalment as this, he thought they ought to take it thankfully, and then ask for more. Therefore, he was unable to support the suggestion of the hon. and learned Member for Launceston, because he could not' see anything practical in the proposal to postpone them till February or April. The delay would lead to no real progress. Parliament would decide then, as it had decided before, that it was not competent to deal with the question. He hoped, therefore, the Motion would not be agreed to. He would, however, himself move an Amendment which he believed was practical. He desired that the Government should ask the Crown to annul Order 63 which perpetuated the flagrant and glaring abuse of vacations in the administration of justice in this country. This was the 11th of August, and the Royal Courts of Justice would be open just as Windsor Castle was, when Her Majesty was not there, for the inspection of an admiring public who wished to see their architectural beauties; but from this day until the 2nd of November, the building would be practically closed for the administration of justice. It would be difficult to find a parallel of such denial of justice in any other country. The Vacations which this Rule proposed to perpetuate were four in number. At Christmas there were 20 days; at Easter, 12 days; at Whitsuntide, 10 days; and the Long Vacation, 85 days—in all, 127 days out of the 365, or 18 weeks and one day during which Her Majesty's subjects were denied justice while the Judges were drawing their full remuneration. In what Department of the State was there as much as 18 weeks' holiday? He saw the Home Secretary on the Treasury Bench. Had he had 18 weeks' holiday since he had been in Office? Had the Prime Minister had as much as 18 weeks' holiday? Such a state of things existed in no other Profession under the sun, and yet those belonging to trades and other professions had to pay for it. He had brought this question before the notice of the House on a 172 previous occasion, and the Attorney General then said he would bring what he described as the unanimous opinion of the House under the consideration of the Judges, but deprecated any action being taken at that time (August, 1881), because it would not be respectful to the Judges to interfere without giving them an opportunity of expressing their opinion. But so far as the principle of shortening the Vacation was concerned, the House and the Government unanimously accepted it. That representation was submitted to the Judges, and the Home Secretary, in the course of some wise and weighty words, said—
One of the greatest difficulties of getting the law administered in this country was the block of business and the loss of judicial power consequent upon the fact that, with reference to a great portion of the business, it was altogether suspended for a third or a fourth of the whole year.And the Home Secretary added—That the judicial and administrative staff of the country was more expensive than all the Public Departments of the State put together."(3 Hansard, [216] 1801.)He could see no excuse for the present system; but if there was to be no alteration in the Vacation except upon the report or recommendation of the Judges, it would never be shortened by a day or by an hour. [Sir WILLIAM HARCOURT: Hear, hear!] The Home Secretary was right. The Judges had met to consider the question. It was known that there had been a division of opinion among them, and that notwithstanding the protest of the Lord Chief Justice and some of his colleagues, the majority decided to remain as they were, and that these Vacations of which the public complained, and which were a public scandal, should be continued. And they were asked to stereotype an Order which perpetuated this evil. Parliament would be false to the interests of the public, and the Government would be false to the attitude they had assumed as law reformers, if they permitted legislative sanction to be given to such an Order. He was not going to ask the House to specify what should be the length of the Long Vacation, or what would be the best way of promoting facilities in the way of the administration of justice. He simply asked them to decline to sanction the present system, leaving it to the Judges to reconsider the matter before the 24th 173 of October, and to submit to Parliament another and a better scheme for readjusting judicial time and the Judicial Vacations. There was nothing in that that could be said to be in any way disrespectful to the Judges. Although the Long Vacation might have the plea of antiquity, the present Bench had added a fortnight to it. The hon. and learned Member for Colchester (Mr. Willis) remembered having sat in Court as late as the 29th of August; but when the Judicature Act was passed, the Judges interpreted it as requiring that all judicial business should terminate on the 8th of August. That statement was controverted in The Times, and a learned Judge, under the well-known signature of "B.," disputed it. But the evidence which he had put before the House had never been set aside, and he had the highest authority for saying that prior to the passing of the Judicature Act the Judges sat at Leeds, Bristol, Gloucester, Liverpool, and in Surrey long after the 8th of August. So that not only had the Judges perpetuated the old Vacation, but had added a fortnight to it, and now asked Parliament to sanction it. He should take the opinion of the House on his Amendment as being a practical measure of Law Reform. At the same time, he wished to say that although the Rules were not everything they could desire, yet they would make a considerable reduction in the expense and facilitate the administration of justice, and he hoped the House would accept them. He had no desire to deprive the eminent functionaries who sat on the Bench of a fair and legitimate holiday; he did not wish to see the burdens thrown on them unnecessarily increased; but he maintained that 18 weeks in one year was an amount of exemption from public work which no class of public servants ought to ask the House or the country to grant. The hon. Member concluded by moving his Amendment, of which he had given Notice.
§
Amendment proposed,
To leave out from the second word "that," to theo end of the Question, in order to insert the words "Order 63, of the Rules of the Supreme Court, 1883, may he annulled."—(Mr. H. H. Fowler.)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. GRANTHAMsaid that while he agreed with the hon. Member who 174 had just spoken in almost all the arguments he had used in the first portion of his speech, he must oppose the conclusions he had arrived at concerning the Vacations in the second part. He had the authority of the late Master of the Rolls, one of the greatest and most hard-working lawyers who had ever sat on the Judicial Bench, for saying that the public would derive no advantage if the Long Vacation were in any way curtailed. If the Amendment which had just been mooted were agreed to, it would have really no effect whatever, and the matter would be left exactly where it was.
§ MR. H. H. FOWLERasked permission to explain. The effect of his Amendment, if carried, would be not to leave things precisely as they were before, because the Rule which regulated Sittings and Vacations would be repealed, and the Judges would, therefore, be bound to draw up a New Rule in its place.
§ MR. GRANTHAMsaid, he did not think the Amendment would have such an effect, and that matters would remain as they were. But the mere fact of discussing these Rules in such a manner was altogether anomalous; and it was very unfortunate, indeed, that they should have been brought forward at so late a period of the Session. Although he rejoiced at the majority of the Rules, he thought there were some that required modification, particularly those relating to the carrying on of suits on behalf of paupers, and he thought the Judges would see that they ought to be amended. They were not, however, of the drastic character which they were intended to be after the Committee made their Report some two years ago, although that was a reason why the longer time should be allowed for this discussion. If the Rules were now forced through Parliament, an early amendment would be necessary; and he thought it would be better to have one good practical Act of Parliament, even if they had to wait a little for it. At the same time, he considered that, if they were modified, the Rules would form one of the most valuable additions to the laws of the land that had ever been provided.
§ MR. INDERWICKsaid, he would not criticize the Rules in detail; but in reference to the speech of the hon. Member for Wolverhampton (Mr. H. H. Fowler), he thought the country was indebted to him for having brought before 175 the House one of the most important questions that could be discussed, the readjustment of judicial time, a question which he brought before the House on another occasion by a Motion for the abolition of the Long Vacation. Individually, he did not feel that he could support that abolition; but, undoubtedly, the hon. Member had made use of arguments that day that should commend themselves to the House. They had heard of the serious block of business in the Chancery Division. They had also heard of a considerable number of causes standing over in the Queen's Bench; and he had himself on one or two occasions unsuccessfully endeavoured to bring before the House the state of things in the Admiralty Division, and the great expense many classes were put to by Judges being removed to go on Circuit. Of course, the removal or decrease of the Long Vacation would be of substantial benefit to suitors; but, without taking such an extraordinary step as that, it was quite possible, by means within the disposal of the Government, to make such a disposal of judicial time as that some time should be given to the Courts at London, Liverpool, Leeds, and Manchester, where cases were waiting to be tried. What the Government had to do was to make up their minds to deal in a trenchant satisfactory manner with the question of Circuits. The Circuits were now nearly over, and he had been told by those who had been on Circuit that there was more business this year than there had been for a considerable time. But two or three Judges were sent on Circuit, and were sent to places the names of which hon. Members were familiar with, and they were taken away from business in London, and they went in twos to five places, where there was not a single cause to try; and to other towns Judges were sent year after year where there were but a few causes to be tried. Under the Assize Act, the Government could send Judges where there was business to transact, and they had power to group towns in a way that would give far more satisfaction. But the fact was, no Government had had courage to deal with the question of Assizes; because, in a number of obsolete country towns, the Assize time was popular and important to the local trade. He did not think that Circuit arrangements ought to be done away with; but he did believe that 176 if Judges were sent to places where there was business to transact, and if the Government would take in hand the appointment of Spring and Winter Assizes for civil causes, it would be an enormous benefit to suitors, and Judges would not be occupied in trying cases of the most trumpery character. The fact was, though we did not like to admit it, that we were now administering justice in a mechanical point of view, and sending Judges round in the same manner as the days of years ago, before railways and the telegraph were known, no official allowance being made for the shifting of populations and the enormous increase of our great centres of industry in a few years. This he was glad had been put before the House, for it was a substantial matter to deal with. The block of business in the Court was of more practical importance than the alteration of Rules, and the circumstances under which a jury might or might not be had by suitors. It was a pity that the subject had not been dealt with, as it might be, by an Order in Council. He knew the Home Secretary was in favour of such a course, and he hoped another Session would not pass without a step being taken in that direction.
§ MR. STUART-WORTLEYsaid, he had known the Judges to sit in Leeds as late as the 16th or 17th of August; and he believed they were sitting in Liverpool at the present moment. He saw in the newspapers also that there was less work at Manchester than occupied the time at the disposal of the Judges. The hon. Member for Wolverhampton (Mr. H. H. Fowler) was, therefore, mistaken in thinking that the Judges had added a fortnight to the Vacation, and that they had construed the Judicature Acts to mean that no legal business was to be transacted after the 8th of August. His hon. and learned Friend (Sir Hardinge Giffard) began his speech by claiming the support of hon. Members opposite, because there was no Party issue in this debate; and it was on that ground that he (Mr. Stuart-Wortley) would not support his hon. and learned Friend. Nor could he support the Amendment crudely proposed by the hon. Member for Wolverhampton, who based his speech on the false assumption that there was too much work for the Judges to do at the Assizes. It was evident that no Code of Rules could be passed which would please everyone. Even supposing that 177 they could suspend the operation of these Rules for another three months, and that every representation which could be made were listened to, it would be impossible so to amend them that in the end they should satisfy anything like the various conflicting interests which would all try to make themselves felt. Moreover, if they were to annul the Rules, what security would they have that the Rule Committee would meet again and re-enact them? The House could not order the Committee to alter the Rules. However respectfully they might word the Address, and however careful they might be to save the feelings of the Judges, the House had, wisely or unwisely, deprived themselves of the power of oven indicating their wish that the Code should be re-enacted. The conclusion of his hon. and learned Friend (Sir Hardinge Giffard) resolved itself into this—that there were among the Rles two or three that were certainly objectionable What remained as really objectionable were the Rules in reference to cross-examination and jury trials. But, as the Solicitor General had already proved, except in the matter of reversing the presumption, whether there should be trial by jury or not, there would be no greater power, under the New Rules, of compelling a trial without jury than existed before. If his hon. and learned Friend had proposed to expunge the Rule as to cross-examination, he should have voted with him; and that would have prevented the raising, in a perhaps unconstitutional way, of a very difficult question. The principal reason why he objected to the proposal to annul these Rules was that so long as the Rule Committee confined themselves to matters which were intra vires, it was in the last degree undesirable that Rules of Legal Procedure should be discussed by the general public. The despotism of the Judges had been referred to; and it was true that bodies like the Law Societies and Bar Committees were much to be respected—though the Bar Committee had not begun particularly well—but what he humbly thought to be worse than the despotism of the Judges was the despotism, in matters entirely beyond its cognizance and above its comprehension, of the uninstructed public.
§ MR. HORACE DAVEYsaid, he was surprised to hear the very weak case which the hon. and learned Gentleman the Member for Launceston (Sir Hardinge Giffard) 178 was able to lay before the House. The hon. and learned Gentleman had pleaded for delay; he had told the House that the object of the Motion, was to secure that the Rules should undergo some discussion by the public and the different branches of the Legal Profession. In asking the House to assent to the Motion, the hon. and learned Gentleman ought to have shown the House that there were some substantial defects in the Rules; but he had failed to do so. If his hon. and learned Friend had shown that the Rules had abolished trial by jury, or had placed serious restrictions on the right of trial by jury, he would have been justified in asking for further time in which the Rules could be amply and fully discussed in the House and in the country. But the Rules had done nothing of the kind; they, in fact, did not go one step further in that direction than the Rules already in existence went. In regard to the question of the payment of the costs of an action which might have been commenced in a County Court, the hon. and learned Gentleman had also failed to make out such an impeachment of the Rules as would warrant any delay. He was glad to hear from the Solicitor General that the Judges would be ready to give the most attentive and careful consideration to any suggestions which might be made respecting the Rules. In his opinion, there were several matters which were fairly open to criticism, and on which he should have taken a very different view from that taken by the Judges. For example, he doubted the expediency of handing over to the chief and junior clerks in Chambers the duty of dealing with money orders in Chancery. He had great apprehension that the same careful attention would not be paid to the security of the money as had hitherto been paid. He was also very doubtful of the expediency of abolishing what had hitherto been found in the Chancery Division to be a very useful mode of procedure—namely, that by demurrer. It must be borne in mind, however, that these Rules had been under the consideration of the Committee of Judges for a considerable time, and that it would be unwise for the House, except upon the strongest grounds, to take upon itself the responsibility of annulling the Rules. A great deal of the speech of the hon. and learned Gentleman was in the direction of an impeachment 179 of the policy of the Judicature Acts. It was obvious that the hon. and learned Gentleman would take away from the Judges the power of legislating with regard to the practice and procedure of the Courts. But that was not the Question before the House. He knew a great many hon. Members had serious doubts as to the wisdom of placing so much power in the hands of the Judges; but that power was deliberately given by Parliament, and he was sure the hon. and learned Gentleman the Member for Launceston would be the last man in the world to undo, by a side-wind, that which had been determined upon by the House after the most careful and anxious consideration. Had the Judges exceeded their power? He considered his hon. and learned Friend had failed to convince the House that they had done so. He did not regard the objection which had been made with regard to cross-examination as really serious or substantial. He considered that a Judge who presided at a trial ought and must have the power of regulating the evidence which was to be put in at the trial. If any material evidence were excluded there would be ground for a new trial. Justice, however, could not be administered unless there was the power vested in the Judge to stop irrelevant and vexatious cross-examination. To turn to the Amendment of the hon. Member for Wolverhampton (Mr. H. H. Fowler), he must say he had long been of opinion that if the question of the Long Vacation was to be regarded from the point of view of the public, it was impossible that the Long Vacation could exist as at present. He did not think it necessarily followed that the Long Vacation itself should be shortened. The difficulties now experienced might be met by increasing the staff of Vacation Judges, or by increasing the number of days on which the Vacation Judges sat. The public did not realize the strain upon the health and strength of the Judges involved in the sittings in Court and on Circuit. It would be unwise to curtail the amount of vacation allowed to the Judges; but there was some justice in his hon. Friend's complaint as to the decreased expenditure of judicial time in the service of the country. It was certain that the Courts sat later and rose earlier than they did formerly; he hoped they did the business more efficiently now than they did 180 when the sittings were more prolonged. He sympathized with the object his hon. Friend had in view; but he doubted whether that object could be effected in the manner suggested. If these Rules were passed, his hon. Friend would not be prevented from bringing forward the question in the future, as he had done in the past; and, therefore, he trusted his hon. Friend would be satisfied with the discussion which had taken place, and that he would not persevere in his proposal to leave out one of the Orders, the effect of omitting which would be to some extent to disorganize and make incomplete that which was intended to be a complete Code of Rules.
§ MR. NEWDEGATEsaid, he thought the House was indebted to the hon. and learned Gentleman the Member for Launceston and to the hon. Member for Wolverhampton for the course they had taken on this occasion. The hon. Member for Wolverhampton had acknowledged the great danger which at present threatened the administration of law in this country—namely, the danger arising from the confusion inseparable from the sending of Equity Judges to administer Common Law. If the discussion had done nothing else, it had brought out the confusion involved in the so-called fusion of Law and Equity. The House had created such distrust in the minds of the Judges by its dilatory yielding to Obstruction that they had adopted the best means of evading the discussion of the New Rules. He (Mr. Newdegate) could not think without shame upon the time wasted in the Autumnal Session upon the futile attempts to prevent Obstruction. Unless the House manifested more determination in vindicating the functions for which it was elected, he foresaw that from year to year the Judges would assume the legislative functions the House abandoned, while Democratic meetings out of the House would dictate the principles on which the House was to act. He cordially thanked the hon. and learned Member for Launceston for this protest against the House abandoning its functions.
§ MR. MORGAN LLOYDsaid, he did not believe the carrying of the Amendment would prevent the sitting of the Courts; if it were carried the Judges might either sit all through the year or take any vacation they pleased. There did not appear to be any substantial objection to any of the Rules; the objection 181 was that there was not time to discuss them. It had been said that the Rules abolished considerably limited the right to trial by jury in civil cases; but that was a mistake. The right remained as it was, and the Rules only affected the procedure. It was also objected that they were unfair to members of the Legal Profession, as they reduced the costs of litigation. He hoped they would have that effect, and that they would not only reduce the costs, which had been greatly increased by the Judicature Acts, but would also tend to reduce the arrears of causes and shorten the inordinate length of proceedings. Under these circumstances he must oppose the Motion, though he would have been glad if the Rules could have been embodied in the Bill, as was the case with the original Judicature Rules. This method of legislating was objectionable, and could only be justified by absolute necessity, which would not exist if it were not for Obstruction; but, authority having been given to the Judges to make the Rules, only the very gravest reason could justify the House taking the course that was now proposed.
§ MR. WARTONsaid, it was perfectly unnecessary to abolish demurrers; nothing in their practice of the law had been more useful. In the case of "Chamberlain v. Boyd," a demurrer saved the cost and delay of bringing witnesses from Australia by enabling the Court to decide the point of law on the assumption that their evidence would support the allegations made. And the rights and privileges of that House were being argued on a demurrer by the Attorney General, who was now supporting Rules which would get rid of demurrers. The principle of the Rules as to trial by jury was that it should be dispensed with, because it was only by way of exception to trial by Judges that trial by juries was allowed in the class of causes that were most sensational. There could not have been devised a better means of throwing contempt on trial by jury. The tendency of the Rules was to limit the employment of junior counsel, for whom Judges and eminent counsel seemed to have too little consideration. Solicitors were treated scandalously in being saddled with costs if witnesses were absent or papers were missing; and barristers' clerks were to be deprived of what was duo to their merit and fidelity. 182 Let the line between Legislative and Executive functions be recognized, and let Judges judge and Parliament legislate.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, the matter had been very fully discussed; but he regretted that it had been debated only by members of the Legal Profession. With the exception of the hon. Member for Warwickshire (Mr. Newdegate), he thought that no hon. Member had expressed an opinion upon these New Rules except he was a member of the Legal Profession. If the House would allow him, he would refer to what had been said by the hon. and learned Member for Launceston (Sir Hardinge Giffard), and in doing so he would endeavour not to say one word that would bring him in conflict with the House and the hon. and learned Gentleman. The hon. and learned Member, in his speech, had spoken of these Rules being concealed, and of the Judges being despotic. He (the Attorney General) was sure his hon. and learned Friend did not intend to say anything that would offend; but he was bound to say that he was certain the words used grated upon the ears of many hon. Members who heard them. Let the House do justice to the Judges. They had not assumed any duties or taken any course which ought to be regarded as being despotic in relation to the framing of these Rules. The duty was cast upon them by Parliament, and the House ought to be grateful to the Judges who, having had that duty imposed upon them, had attempted to discharge it according to the very best of their power in the interests of the public. The House ought, therefore, to be very careful in the language they applied to them. Let him ask the House to consider whether it was possible to accept this Motion without almost acting unconstitutionally, and at least acting in a manner which would be a great insult to the Judges. [Cries of "No, no!"] He said so, and said so advisedly. ["No, no!"] At least the House, before uttering these signs of dissent, should listen to what he was going to say. Let him first remind the House of the course that had been taken. The Judges might, if they had so chosen, have framed these Rules, and put them into operation at once without consulting Parliament. That was a course that had been taken several times before. The 183 sanction of this House, to a certain extent, had been given to the Judges at all times to frame Rules that should come into operation even before they were laid upon the Table of the House; and if, therefore, the Judges had thought it right to frame these Rules, and to bring them into operation, they would but have been following precedent. He was bound to say that for his hon. and learned Friend to use the term that these Rules had been kept secret by the Judges was very strong language; besides, it was in no way justified by the facts of the case. The Judges had afforded the House an opportunity of considering the New Rules, and had taken that course at great personal inconvenience. The course proposed to be taken by the hon. Member for Launceston (Sir Hardinge Giffard) was to move an Address to the Crown; but if that were done the Crown would not allow these Rules to come into existence. That would be a most serious thing for the Crown to do, so far as the Judges were concerned. What was to be done when the Rules were annulled? What were the Judges to say? They would be told by the Crown that their labours were to be entirely destroyed, and no reason was to be given. The Judges were not supposed to know the reason why their work was annulled, and yet next year they would again be asked to re-enact that which would be annulled this year. It was, in fact, asking the House to annul the Rules in the hope that next year the annulment would be put aside and the Rules again submitted. That would be a course which appeared to him to be without precedent in the House of Commons, and he trusted hon. Members would pause before they sanctioned such a course. He would ask the House to consider upon what grounds this annulment was asked for. Such a serious step could only be taken on general grounds, such as that there had not been time for consideration, or that there was something in the Rules themselves which necessitated that being done. As for the general grounds, he had heard nothing advanced which in his mind would justify the step. The Committee which considered the Rules in the first instance were men of great experience, and afterwards these Rules were sent to every Law Society in England. The Provincial Law Societies were consulted and made their reports, and all these reports 184 and suggestions were placed before the Judges, and if he had time he could show that every one of them was carried out. His hon. and learned Friend had said it was monstrous that they should extend the provisions of Order XIV. to actions for the recovery of land. But what was said by the Incorporated Law Society on the subject? They said that the provisions of the Order ought to be so extended, and, in fact, the suggestion came from them; and he asked the House to accept the opinion given in favour of the Rules by the Incorporated Law Society. This was not a despotic action on the part of the Judges, for everything that was done was done on the suggestion of those outside. More than that, they placed the Rules on the Table of the House in order to give an opportunity for discussion, and that they need not have done if they had so wished. His hon. and learned Friend the Member for Launceston had said that he had not had time to consider these Rules, but, being a distinguished member of the Legal Profession, a copy of the Rules was furnished to him as early as the 11th of June; but the hon. and learned Gentleman admitted that he had not considered them, because he said he had only waded through them. He thought the House had a right to ask the hon. and learned Member when he moved for this Address to the Crown to state what his objection to the Rules were. He did not move objections to any particular Rules, but he simply asked that the Judges should be treated in a manner which they did not deserve, by having their work thrown back upon them as a whole. The hon. and learned Gentleman had dwelt strongly on the fact that the Rules would abolish trial by jury in certain cases; but that provision was put in the Rules at the suggestion of the Incorporated Law Society. Anyone could have trial by jury if he simply asked for it, and at the expense of 6s. 8d. What was the weight of authority that was said to be against these Rules? The opinion of the Bar Committee and of the Incorporated Law Society had been cited against these Rules; but Parliament I had an authority of its own in such matters. The Prayer of the Bar Committee was that before these Rules were submitted to Parliament they ought to be submitted to them. He had yet to 185 learn that the Bar Committee came into existence in order that four Judges should submit their labours to it. He wondered what these gentlemen expected was to be their duty. Because the Judges did not submit their Report to the Bar Committee before giving it to the public, his hon. and learned Friend said that the Committee kept the Rules secret, and made of that a ground for a charge against the Committee. He hoped the House would believe that the result of the labours of those four Judges showed that they had acted with unusual courage. He firmly believed the Rules would work a great reform in the law generally, and all in the interests of the public. The costs of Chancery suits would be reduced down to the level of Queen's Bench costs, so that there would be no longer any extra charge on the public. He could assure the House that the public only would benefit by these reforms, and everything that had been done had been done for the purpose of lessening the scandalous charges and expenses attending law proceedings. He was certain that it could not be shown that the interests of the public suffered in any way from these Rules, and for that reason he asked the House not to accept the Amendment. They must either accept the labours of the Judges as they had been carried into effect, or they must point out the errors that the Judges had made in the Rules before they could be refused.
§ SIR HARDINGE GIFFARDsaid, he should not have availed himself of his right of reply if the Attorney General had not put a construction on his words which they did not bear. Whatever might be said about his speech being misunderstood, he should say the speech of his hon. and learned Friend would be very much misunderstood by the Judges. He did not say that the Judges were despots. What he said was, that while the policy of our Whig ancestors was to keep Judges down, the tendency of these Rules was to make Judges despotic; and upon that solitary sentence the Attorney General had thought right to say that he had described the Judges as despots.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, he had heard the phrase "the despot Judges" over and over again.
§ SIR HARDINGE GIFFARDobserved, that he had simply discussed the tendency of the Rules. The notion of 186 describing these learned men, many of whom he was glad to say were his intimate and dear friends, in any terms of opprobrium or reproach was the furthest thing from his mind. Except the Attorney General, he did not think there was a single Member of the House who would have supposed he intended to do so; and he was quite sure none of the Judges would have supposed he had spoken of them in their absence as the Attorney General had represented. The Attorney General seemed to think that an Address to the Crown in pursuance of the section was a reflection on the Judges; but if it was never to be used they had better give unchecked power to Her Majesty's Judges. But as long as they said this power of legislating, so to speak, required a check, how could it be insulting to the Judges if they availed themselves of the only mode of doing so? The Attorney General said the Judges had worked night and day so as to present the Rules at an early period; but had they not presented them to Parliament so soon, and had only published them on the 24th of October, there would have been 40 days before next Session in which there would have been an opportunity of considering them and presenting an Address. But that was evidently what the Government did not want. He did not conceal from the Attorney General that he thought some of the powers given to the Judges had been used in such a way that they would produce mischievous results to the public, and especially was that the case with regard to referring a question to arbitration after scientific evidence had been obtained on both sides at great expense. Therefore, when he was asked to accept a Code of Jurisprudence of this sort he looked upon it with great jealousy, and he required an opportunity to examine it. The Attorney General had made a most undue use of what he had called a Minute on this matter of a Committee of the Incorporated Law Society; but it was not a Committee of that Society, but a certain number of gentlemen selected by the Lord Chancellor. The Committee was appointed by the House, or under the powers of the Judicature Act, and then the Attorney General said that the Report of these gentlemen—or rather their opinion, which had no more authority than that of any other person—had been before the House for two years. The Attorney General had 187 further misrepresented him in saying that he asked the House to pass an adverse judgment on the Rules; all he asked was that time should be given to consider the matter in detail. He did not expect the House to form a judgment on these Rules, as they were matters for lawyers to consider; what he did ask the House to say was that sufficient time had not been given to form a judgment upon their merits or demerits after they had been considered by lawyers.
§ MR. ARTHUR O'CONNORasked, as a point of Order, if any hon. Member desired to present an Address to Her Majesty with reference to any other Rule than that named in the Amendment, he could after the Division move an Amendment to that effect?
§ MR. SPEAKERIf the House decide that the original words should not be adopted, then on the Question that the words of the hon. Member for Wolverhampton be there added, an Amendment might be moved.
§ Question put.
§ The House divided:—Ayes 99; Noes 22: Majority 77.—(Div. List, No. 285.)
§ Main Question put.
§ The House divided:—Ayes 49; Noes 71: Majority 22.—(Div. List, No. 286.)