THE LORD CHANCELLOR,who had given Notice, To call attention to the subject of a Supreme Court of Judicature, including provision for the trial of Appeals, said: My Lords, in Her Majesty's Gracious Speech your Lordships were recently told that your attention would be invited to the subject of the formation of a Supreme Court of Judicature, including provision for the trial of Appeals; and it was stated that this was one of the legislative subjects of importance which have already been brought under your notice in various forms and at different periods. My Lords, it is probably a universal law—certainly it is a general law—concerning all legislative matters of importance in this country that they depend on the gradual formation of a sound public opinion, founded on experience; and if that is true with regard to any class of measures, it is emphatically true of those measures which relate to improvements or amendments in the law. My Lords, of all our institutions, there are none which excite a greater, a more natural, or a more profound interest than those which relate to the administration of justice. None tend more to bind together the whole fabric of society, and none are held in more general and just estimation and reverence by the people. And, my Lords, it may be for this very reason that public opinion on these subjects is of somewhat slow growth, and that they are relegated to a more serene region than that ordinarily devoted to polemical and political contests. All classes of men feel that they have a particular interest in having these subjects dealt with on sound and right principles, and therefore passion and excitement have but little place in the consideration of such matters. Indeed, there is almost a difficulty in the way of those who endeavour to deal with 332 them, arising from the fact that there is not, perhaps, enough popular interest usually aroused to command at all times, amid the multiplicity of business which has to be discharged and the greater excitement that attends much of it, the amount of momentum which is needful to carry great measures of reform through both Houses of Parliament. Time, therefore, is required—and, on the whole, I think it is good that time should be required—to bring opinion on these subjects to the maturity necessary for sound legislation. On this particular subject it has been growing for a considerable number of years. During many years that opinion has been forming among the most educated and enlightened classes of society — in your Lordships' House and the other House of Parliament, and particularly among those who are most conversant with the administration of justice. This being so, my Lords, unless I encourage in myself too much hope, I venture to think opinion has now reached a point which will enable us to grapple with this great subject.
And, my Lords, as the subject is so large, perhaps the short retrospect which I intend to make by way of preparation for a statement of the plan which I have to lay before your Lordships may not be superfluous. I will not go further back than six years from this time, when, the subject having received some notice in a Speech from the Throne, I, in "another place," had the honour to direct the attention of the House of Commons to the general question of our judicial institutions. It had occurred to me that there were many evils and inconveniences which had gradually been accumulating—and which had made themselves more and more felt—with the advancement of society, and the increase of legal business consequent thereon, owing to the separation of the jurisdiction of our different Superior Courts. I took the liberty of stating at that time the views I had formed both of the evils actually experienced and of the possible remedies. My Lords, I may be excused for repeating to your Lordships what I then said, and what I believe to be no less true now with respect to those evils — that they were not due to any shortcomings on the part of those learned and admirable men who administer justice in our Courts. Whatever is faulty rests with the system 333 itself, and not with the men who administer it. Indeed, but for the fact that we have had such men we should have been much less able to overcome the growing difficulties connected with the system; and that, perhaps, is the best and clearest proof that it ought to be reviewed and in some respects changed and improved. What I then suggested was not without fruit. My noble and learned Friend who was then Lord Chancellor (Lord Chelmsford), and who is now present in your Lordships' House, thought it right to appoint a Commission to inquire into the whole of this large and important subject. A better Commission it would have been difficult to form, whether having regard to its general composition, or to the personal qualifications of the learned men of which it was composed. That Commission entered upon its labours with a strong desire to perform its duties to the public advantage, and devoted itself to them with great earnestness. Under the presidency of two successive Lord Chancellors (Lord Cairns and Lord Hatherley), it occupied a considerable time in the consideration of various points connected with the subject. One of the Lord Chancellors who presided over that Commission was my noble and learned Friend (Lord Hatherley), whose absence on this occasion all your Lordships regret on account of the cause; but I am glad to think that regret may be tempered by the pleasure we all feel in the confident expectation that it will not be very long before he will be again able to contribute his valuable assistance to our discussions. My Lords, not only was the Commission composed of persons highly qualified to form sound opinions on this subject, but it had the further advantage of receiving assistance of a very valuable kind from different legal bodies throughout the country. The attorneys and solicitors of the Metropolis, associated in their Law Societies, and those of Liverpool and other large provincial towns, considered the matter, and gave most valuable contributions of practical knowledge, such as to enable the Commission to form correct views as to the tendency of the opinions of those best acquainted with the conduct of legal proceedings. The Commission made its first Report in 1869. But before it did so one step in advance had been taken by the Legislature, which tended to introduce a new element into the question. In 1868 334 three additional Judges were appointed in consequence of the alteration made in the law with respect to the trial of Election Petitions. The Commission, as I have said, reported in 1869. They recommended large and important changes, the general principles of which, I venture to say, both at the time and since, have commended themselves to public opinion. Those recommendations have been before the public now for three or four years. There has been, therefore, ample time to consider them, and to point out anything which might be considered erroneous in the views put forward by the Commission; but, as far as I am able to judge, the result of time and consideration has been in the most material points to confirm their conclusions. Before I conclude, your Lordships will see that in respect of some points I do not exactly adhere to the lines the Commission laid down; but the general scope of the measure which I shall lay on the Table will be found to have been anticipated in those recommendations. The Report of the Commission was first followed in 1870 by the introduction in this House of two Bills by my noble and learned Friend the late Lord Chancellor. My Lords, I think it would be a great mistake to suppose that the credit of successful measures, when the time comes at which they can be adopted, belongs to those who then introduce them. The predecessors of those persons have paved the way for them, and laid the foundations of the superstructure to be afterwards built. The criticisms made on former attempts at legislation are also most useful to those who have to prepare such measures. I desire, therefore, my Lords, to express my obligations to the Members of the Commission, to the Members of your Lordships' House, and to the eminent Judges and others, who criticised those former measures which were so introduced, and pointed out the ways in which they wore capable of improvement. My Lords, in the Bills which Lord Hatherley introduced in 1870 he adhered to the main outline of the recommendations of the Commission, but did not attempt to fill up that outline, or to show, in detail, how the general scheme laid down was to be put into operation. That was to have been done by Rules framed by an authority which itself was the object of much criticism; but the discussions which took place in reference to those Bills showed that, while 335 there was a favourable disposition towards the formation of a High Court, it was felt that in a matter of such importance it was necessary to know how the scheme was to be worked out, and that anything in the nature of a skeleton scheme would not be regarded as satisfactory. It was not thought desirable to delegate to an external authority—even were that authority itself beyond criticism — the momentous duty of framing the whole working plan by which the scheme was to be carried into effect. That criticism commended itself to many of those, who were most conversant with the subject; but notwithstanding, such was the desire of your Lordships—especially of those of your Lordships who best understood the matter—that no impediment should be thrown in the way of the intended improvements; though looking on the scheme as an imperfect one, you thought it the better course to send those two measures down with your Lordships' fiat on them to the other House of Parliament, rather than leave room for the supposition that the general principles on which they were based had encountered your Lordships' disapproval. They went down accordingly to the other House; but they were not further proceeded with in the House of Commons. In 1871, though preparations were made for re-introducing them in an altered form, they were not re-introduced. But in the course of that year further valuable criticisms were made on the measures by my learned and esteemed Friend the Lord Chief Justice of England, by the Master of the Rolls, and by others of the Judges; and progress was made in amending the scheme. I think the thanks of the public are due to the Lord Chief Justice, and the other learned Judges, for those criticisms, and I am happy to acknowledge the assistance they have afforded me in framing the measure I am about to submit to your Lordships. A Bill of considerable practical importance was, however, introduced in 1871. It was the one appointing four additional Judges, with salaries, to strengthen the Judicial Committee of the Privy Council. One of the sections of that Act ends with this proviso—
Provided always, that they shall hold their offices subject to such arrangements as may be hereafter made by Parliament for the constitu- 336 tion of a Supreme Court of Appellate Jurisdiction,That proviso shows that at the time that Act was passed Parliament recognized the importance of dealing with this branch of the subject. It shows that when providing for the appointment of those additional Judges it conceived the idea that it was giving facilities for the administration of justice which might be turned to account when the subject of Appellate Jurisdiction came to be dealt with. My Lords, last year my predecessor introduced another Bill entirely confined to the Final Appellate Jurisdiction as exercised in your Lordships' House and by the Judicial Committee of the Privy Council. Your Lordships appointed a Select Committee to consider that Bill, and on the Report of the Select Committee I shall have something to say when I come to that part of the subject.My Lords, I do not propose to go, in the first place, into the question of Appellate Jurisdiction. I propose to deal with the whole measure in the natural order —to look, in the first place, to the general administration of justice, calling attention to the defects which I believe to exist, and the remedies by which I propose to remove them. Taking stock, then, by the light which we have acquired during the last six years, I think I may say there are four points which have become settled points in the minds of those who best understand the subject, as well as in the mind of the public. The first relates to the artificial separation of legal and equitable jurisdictions, such as never did exist and does not exist in any other country in the world except our own and those which have borrowed our system. This artificial distinction is not only unsatisfactory in itself, but is productive of the greatest possible inconvenience and obstruction to the administration of justice in its actual results. There has been a conviction that, whatever else may be done, we ought to put the finishing stroke to measures of a more partial character which have already been adopted in the same direction, by bringing law and equity—two ideas not artificial but real—into one single administration in the Superior Courts of this realm. The second point is, that we must bring together our many divided Courts and divided jurisdictions by erecting or rather re-erecting—for, after all, there was in the beginning 337 of our constitutional system one supreme Court of Justice — a Supreme Court which, operating under convenient arrangements, and with a sufficient number of Judges, shall exercise one single undivided jurisdiction, and shall unite within itself all the jurisdictions of all the separate Superior Courts of Law and Equity now in existence. The third point is, that it is desirable to provide as far as possible for cheapness, simplicity, and uniformity of procedure. The fourth, that it is necessary to improve the constitution of the Courts of Appeal. My Lords, I approach the subject with the advantage of all these conclusions, which I venture to say have received your Lordships' approbation and the approbation of the public; and I am fortunate in being able to profit by the criticisms that have been brought to bear upon them, and so to avoid—or at least to endeavour to avoid—the defects which were thought to exist in the former attempts at legislation on this great subject.
I propose, then, to ask your Lordships to unite in one Supreme Court of Judicature all the present Superior Courts of Common Law and Equity, and also the Probate and Divorce Court, the Admiralty Court, and the London or Central Court of Bankruptcy. All these Courts I propose to have united in one Supreme Court; which is to be divided into two permanent branches or Divisions: the one consisting of a High Court of Justice to exercise original jurisdiction, and also to hear appeals from Inferior Courts: the other being a Court of Appellate Jurisdiction, to be called the Court of Appeal. I will deal with the Court of original jurisdiction in the first place, and afterwards with the Court of Appeal. I ought to have mentioned that I do not mean to elevate any Inferior Courts so as to unite them to the Superior Courts; but it is proposed to abolish two Common Law jurisdictions, the Courts of Pleas of the Counties Palatine of Lancaster and Durham:—they will be merged in the jurisdiction of the High Court. This High Court will consist of 21 Judges. Those Judges will be the present Judges of the Superior Courts of Common Law, the present Vice Chancellors, the present Master of the Rolls, the present Judge of Probate and Divorce, and the present Judge of Admiralty, with the exception of such three of them as Her Majesty may think fit 338 to remove to the Court of Appeal. The number of the Judges whom I have enumerated is 24; but three of the Puisne Judges are proposed to be taken to the Court of Appeal, to remain there permanently— so that 21 Judges will be left for the High Court. The President of the High Court of Justice will be the Lord Chief Justice of England, and—this is a concession to sentiment—the old historic titles of the present Chiefs of the Common Law Courts will remain to them as Presidents of Divisions of the High Court. The Lord Chief Justice of England will, of course, retain his present title; the Lord Chief Justice of the Common Pleas and the Lord Chief Baron will be chiefs of Divisions with their present titles; but all the remaining Judges will be called "Judges of the High Court of Justice," and are to be addressed as the Judges of the Courts of Common Law at Westminster are now addressed, without any other distinction. So far as the measure to be laid on your Lordships' Table goes, it is, as I have said, proposed that 21 shall be the number of the Judges of the High Court; but, of course, if in the working of the measure that number is found to admit of diminution, that might be made a subject of future legislation. At present, it would be premature to assume that such will be the case, and I do not propose to deal with such a contingency at present.
Passing from the constitution of the Court, I have now to mention the next important point—namely, the jurisdiction which it is to possess, and the manner in which that jurisdiction is to be exercised. This High Court will unite the jurisdictions of all the present Courts except the Courts of Appeal—namely, the jurisdiction of the Court of Chancery, of the Courts of Common Law, of the Probate and Divorce Court, of the Admiralty, and of the London or Central Court of Bankruptcy, of the existing Courts of Pleas of the Counties Palatine of Lancaster and Durham, and of the Courts created by Commissions of Assize; and I hope the measure which I shall lay on the Table will contain what your Lordships will consider sufficiently clear and precise directions as to the general way in which the legal and equitable jurisdiction, so conferred, is to be exercised.
Those directions are given under seven 339 heads. First, the Court in all its branches will give effect to the equitable rights and remedies of plaintiffs; secondly, it will do the same with respect to equitable defences by defendants; thirdly, it will give effect to counter claims of defendants; fourthly, it will take notice of all equitable rights and liabilities of any persons, appearing incidentally in the course of any proceeding; fifthly, it will stay proceedings, when necessary, by the authority of the Judges before whom an action is pending, and not by injunctions to be obtained from other Judges; sixthly, it will give effect, subject to all equities, to legal rights and remedies; and lastly, it will deal, as far as possible, with all questions in controversy in one and the same suit, so as to do complete justice between the parties, and prevent a multiplicity of proceedings.
It may be asked—though I do not think the question would be put by those who are well acquainted with the subject—why not abolish at once all distinction between law and equity? I can best answer that by asking another question—Do you wish to abolish trusts? If trusts are to continue, there must be a distinction between what we call a legal estate and an equitable estate. The legal estate is in the person who holds the property for another; the equitable estate is in the person beneficially interested. The distinction, within certain limits, between law and equity, is real and natural, and it would be a mistake to suppose that what is real and natural ought to be disregarded, although under our present system it is often pushed beyond those limits. I content myself with saying that those rights and remedies which belong to the system of law and jurisprudence under which we actually live, and which are consistent with each other should be equally recognized, and effect given to them, in all branches of the Court. There are some points, however, in which, from this division of jurisdiction, unnecessary discrepancies have been introduced by reason of arbitrary rules established in different Courts. They are not very numerous. It is possible that some may have been overlooked: and on the suggestion of a high authority, I have added in the Bill general words to provide that where there is any variance between the rules of law and those of equity, and the matter is not expressly dealt with, the rules of 340 equity shall prevail. But there are cases in which I think it desirable at once to legislate —in some respects to declare the law, and in some respects to improve it, by abolishing distinctions which might lead to confusion. The first alteration is a rather important one. It is proposed that in the administration of insolvent estates by the Court after the death of the debtor, substantially the rules applicable to bankruptcy shall be adopted. There seems to be no good reason why the estate of an insolvent debtor should be administered in one way while he is living and in another way when ho is dead. The next is in respect of limitation as to trusts, that the statutes of limitation shall not apply between express trustees and cestui que trusts: then the distinction between legal and equitable waste is to be done away with. Again, merger by law is not to take place where an equitable interest continues. Mortgagors in possession are to be allowed to sue in their own names. It is proposed to adopt the equitable and not the common law rule as to stipulations in contracts which are in equity deemed to be not of the essence of the contract; to adopt the equitable rule as to liability for misrepresentation; and also to remove certain technical impediments, now existing in equity, in the way of applications for injunctions and the appointment of receivers in certain cases. In respect of collisions at sea it is proposed to adopt, instead of a rule which now holds good in the Court of Admiralty, the rule of common law as to contributory fault or contributory negligence. The rule of law is that if the plaintiff is equally in the wrong he cannot recover from the defendant, and if the defendant is equally in the wrong he cannot recover from the plaintiff. But what the Court of Admiralty does is this—If two ships run into each other and both go to the bottom, as I understand the practice, the Court of Admiralty adds the value of both ships and then divides the total between the two parties; so that if I were the owner of a ship worth only £10,000 and one of your Lordships was the owner of one worth £50,000, you see how ill I should fare in comparison with the owner of the better ship if both vessels went down after a collision. Then, as to the custody of infants and other matters of conflict, not enumerated, the rules of equity are to prevail.
341 That, my Lords, brings me to what may be called the working machinery of the Bill; and here I find myself in that large region which in the other Bills was left to be defined by Rules to be framed elsewhere. Your Lordships will probably agree with me in thinking it right to give a power to alter hereafter much of what may be here laid down in the Bill — to alter it by Rules to be maturely and deliberately made on due consideration, and after sufficient experience. That may be; but I submit to your Lordships that we should start with a working scheme, and it appears to me to be desirable to do that as far as possible on the face of the Bill itself. In the first place, when this Bill comes into operation—which I propose shall be in about a year after it passes, if fortunately it should pass—and I am sanguine enough to think it will—it will be necessary to deal with the business which will be then pending in the existing Courts. Therefore, we have to consider whether this business should be wound up under the old system or at once transferred to the new, or whether there should be an option in the matter. I have no hesitation in saying that my mind is perfectly clear on that subject. If all existing business were to be wound up under the old system, I do not know when that would be accomplished, and I am quite sure that it would lead to extraordinary difficulty and confusion. For the same reason I, do not think it desirable to give any option. But I see no reason why the course which I propose should not be adopted. It is that of simply transferring the business as it may be found to the new Court and dealing with it under the new system. When I suggest that, I do not mean to say that there may not be cases where, some mere formal step only remaining, it would be better to have that step completed under the old system. For instance, if all the arguments in a ease had been heard, and only the judgment remains to be delivered, there is no reason why that should not be done under the system on which the proceedings were commenced. And again, there may be cases in which, after judgment delivered, it has to be passed or entered, or otherwise perfected. But, subject to such instances as I have referred to, I propose that all pending business should be at once taken 342 over to the High Court of Judicature and concluded under it, whether by the old or the new machinery, as may be best adapted to the particular case.
Then as to the distribution of business. Here, my Lords, I follow, I believe, closely and accurately the intentions and recommendations of the Judicature Commission. It stands to reason and common sense that some internal division of labour must be made in so great a machine as that necessary for the administration of justice, and that such a division ought to be made in accordance with intelligible rules. Some cases can be conveniently classified and brought together and dealt with by the same Judges; while others may not admit of such classification, and require to be dealt with in a different manner. It is proposed to divide the High Court into four Divisions of five Judges each; and that will leave one Judge not attached to any Division. But, though the Judges will be thus attached to different Divisions, it would be a mistake to suppose that this involves any return to the old system of divided jurisdiction, because every Judge is to be made available for any part of the business of the entire Court, in which his services may be required. The division of the Court into four Divisions is merely for convenience in the arrangement and distribution of business. It is proposed that these Divisions should correspond as nearly as may be with the divisions of the existing Courts; and in the first classification of business any convenient classification now in use may wisely be adopted as an element. I will read to your Lordships an opinion of the Associated Committees of Law Societies, given in February, 1868, and also a passage, bearing on the same point, which I find in the first Report of the Judicature Commission. The Associated Committee said—
The division of legal business ought to be by judicial regulation, and not by general law. The general division of legal business effected by the present system is very convenient; and in giving to every Court entire jurisdiction over any matter which may come before it, and in dividing the business of the law by regulation, it is desirable that the work of the Courts shall as much as possible continue to pass through its present channels.Other gentlemen, of great knowledge and experience, made similar recommendations, and the Commission reported thus— 343Between the several chambers or divisions of the Supreme Court it would be necessary to make such a classification of business as might seem desirable with reference to the nature of the suit and the relief to be sought or administered therein; and the ordinary distribution of business among the different chambers or divisions should be regulated according to such classification. For the same reason which induces us to recommend the retention for the present of the distinctive titles of the different Courts in their new character, as so many divisions of the Supreme Court, we think that such classification should in the first instance be made on the principle of assigning as nearly as practicable to those chambers or divisions such suits as would now be commenced in the respective Courts as at present constituted; with power, however, to the Supreme Court to vary or alter the classification in such manner as may from time to time be deemed expedient.My Lords, that recommendation rests on reasonable principles, and what I propose to do in conformity with it is this: —The first Division of the High Court will consist of the present Judges of the Court of Queen's Bench, subject to the necessary arrangements for taking three Judges from the aggregate of the present Courts of First Instance permanently to the Court of Appeal. The second Division will be composed of the existing Judges of the Court of Chancery; the third, of the existing Judges of the Court of Common Pleas; the fourth, of the existing Judges of the Court of Exchequer. The existing Judge of the Court of Admiralty will be a member of the second or Chancery Division of the High Court, and the chief of this Division will be the existing Master of the Rolls. The distribution of business proposed to be made between these Divisions and the unattached Judge is proposed as one to start with, and not as a stereotyped one. It will be subject to alteration, to the power of transfer, and to other safeguards. In the first place, with the exception of the second or Chancery Division, all the Divisions will have those classes of business which are now within the exclusive cognizance of the Courts of which the future Judges of those Divisions are members. Thus, Criminal and Crown business will be in a Division composed of the Judges of the Queen's Bench, Common Pleas business will be in that of the Judges of the Court of Common Pleas, and Revenue business will be in that of the Judges of the Exchequer. As to the second Division, we could not go that length, because if we 344 did so we should be going too far towards the reestablishment of the distinction between the administration of law and equity which we do not want to be acted on longer, except so far as it may in the nature of things be coincident with a convenient distribution of the business. The second Division will hear Admiralty cases, as the present Admiralty Judge will be there, and Bankruptcy cases, as the present Bankruptcy Judge will be there, and also that class of cases for which the Court of Chancery has at present the only or the best available machinery; being all causes, matters, and proceedings for any of the following purposes:—The administration of the estates of deceased persons; the dissolution of partnerships or the taking of partnership and other accounts; the redemption or foreclosure of mortgages; the raising of portions, or other charges on land; the sale and distribution of the proceeds of property subject to any lien or charge; the execution of trusts, charitable or private; the rectification, or setting aside, or cancellation of deeds or other written instruments; the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases; the partition or sale of real estates; the wardship of infants and the care of infants' estates. Your Lordships will see that the business to be so assigned to the second Division may be summed up in the words "administrative business," which requires administrative machinery. Such business should remain where it is, but not without a power to move it elsewhere when there are reasons to make its removal desirable. I mentioned that there will be one Judge not attached to any Division. He is the present Judge of Probate and Divorce, and, of course, he will hear such cases as are now heard in his Court. This distribution of business, alterable by rules, is subject to the additional safeguard that, in cases not expressly provided for, any suitor will have the right to choose where he will bring his action; in what Division, and in eases where suits are decided by a single Judge, before what Judge. But some of your Lordships may suggest that perhaps, through ignorance on the part of the suitor, or from some other cause, the action may have been begun in a wrong Division, and then what is to be done? Why, the suitor will not lose 345 his cause—it will simply be removed into the right Division, and the proceedings will be taken up at the point to which they had arrived at the time of transference. There will also be power to transfer any case from one Division to another, or from one Judge to another, in consequence of the nature of the case or because of litigation going on elsewhere, or for any other reason which may make such transfer desirable.I come now, my Lords, to the next point, which relates to the sittings of the Court. With respect to sittings, it is proposed that when the Bill comes into operation all cases which are now heard before a single Judge may still be heard in that way. The effect of that will be this:—In the second Division, in which the Judges will be the Chancery Judges, the Admiralty Judge, and the Bankruptcy Judge, the business will, as it always has been, still be conducted before a single Judge; and, on the other hand, in the other Divisions, as to all business which has usually been transacted before more than one, arrangements will still be made for a plurality of Judges. These Judges will constitute what are called in the Bill Divisional Courts. The Bill proposes that the number of Judges to sit in any such. Divisional Court should be three. That number, I believe, will be as great as is necessary, while a larger number would involve a waste of power, which it is very-desirable should be otherwise utilized. A still further reason for not increasing the number is that to do so would be to augment the difficulty which sometimes arises in determining where the preponderance of authority lies; as, for instance, when the decision of a Court consisting of five Judges is overruled by a Court of Appeal consisting of three. Besides, by limiting these Courts to this number, you would, if necessary, be able to have as many as seven Divisional Courts sitting contemporaneously; and every Judge not wanted in a Divisional Court will be available for those parts of the business which are to be transacted by single Judges. The class and kind of business which is to be transacted by these Divisional Courts will be that which has been hitherto done by Full Courts in the Courts of Common Law. Power will be given to have such Divisional Courts, whenever it is thought desirable, in the second or Chancery Division, and 346 also for the purpose of Probate and Divorce business. All appeals from Inferior Courts are to be taken to Divisional Courts of three Judges; and it is proposed that cases, and points of law may be stated, or reserved, by single Judges, for their determination.
I now come to the subject of trial. It is proposed to retain trial by jury in all cases where it now exists, except in one particular. Your Lordships know that there is a class of cases which the parties may take to the Assizes, and in some instances must take there, and which are yet totally unfit to be tried by a jury at all. The result is that the parties are compelled to take such cases out of Court and submit them to arbitration; and as no provision has been made by law for the conduct of these arbitrations, the consequence is that very great expense frequently arises out of them. It was a very valuable recommendation of the Judicature Commission that public officers, to be entitled "official referees," should be attached to the Court, to deal with cases of this kind, and to whom such cases should be sent at once without the useless and expensive form of a jury trial. The Bill proposes that such cases should be sent to reference, even if the parties do not consent, and it also provides for the appointment, where the parties may desire it, of special referees. The proposal of the Bill is that they shall determine all questions of fact or account, leaving questions of law to be determined by Divisional Courts. I venture to think that will be found a valuable and important provision. Continual sittings in London are to be provided for, and the Assizes will go on as usual—the Bill contains no provision for any present alteration of Assizes or Circuits.
There is another point I will mention, and that is as to the time and place of the proceedings in the Court. The present useless division into terms—a division which, while doing no good, is not altogether inoperative for inconvenience and mischief—the Bill proposes to abolish. As an example of the inconvenience resulting from this division I may cite a recent instance. Your Lordships know that in October or November last year a magistrate reserved a question on the Parks Regulation Act for the determination of a Court of Law. Some time later another person was charged before 347 another magistrate with infringing the Act: after the action of his brother magistrate the second magistrate was unwilling to convict until after the point had been determined. The question arose in November; and as Michaelmas term had run out before the point could be argued, nothing could be done till term again commenced, which was not till the 11th of January in this year. That portion of the law was therefore practically in suspense, owing to the existence of terms, from the latter part of November till the middle of January. It is proposed to abolish term altogether, and also to give to the Courts full discretion as to the place at which an action is to be tried.
I now come to the important question of Procedure. It was thought by some to be a considerable defect in the Bill of 1870, that it left the whole question of rules and procedure to be determined afterwards by extrinsic authority. In the main, Rules of Procedure must be so determined. At the same time, nothing is more important than to have a good start; and profiting by the discussions of 1870, my predecessor obtained the assistance of some eminent members of the Judicature Commission, who drew up a series of Rules embodying the recommendations of the Commission on that subject, which since they were first framed have been further considered and revised; and those Rules will be found in the schedule of the Bill. I may say, generally, that they cover all the main points of Procedure, and their object is to get rid of long and expensive pleadings, to establish a single uniform system, to constitute the means of giving a decision when there is no practical defence, and in many other respects to introduce useful improvements. There is another subject with which I have attempted to deal, and its object is to remove what for 20 years and more has been represented as a grievance by solicitors of Liverpool and other large towns. Those gentlemen have constantly urged that, to make such a measure perfect, means should be given, subject to the control of the Court, to take formal proceedings, such as suing out writs, and the like, in local registries in the country. This suggestion I have endeavoured to meet; and, in effect, all country registries over which the Court will have control under this Bill will be made available for that purpose. In many 348 cases, I believe, the result may be the saving of much expense. Of course, all the officers of the existing Courts will be carried over, and powers will be taken for the distribution of the work among them. The Rules, however, relating to Procedure do not profess to be a perfect code—they will require to be supplemented; and it is proposed, that between the passing of the Act and its coming into operation, Her Majesty, with the advice and assistance of the principal Judges of the different Courts, shall supplement these Rules by Order in Council, so that they may form as complete a system as possible. Powers, of course, will also be taken to alter them afterwards from time to time as may be deemed necessary. It is proposed that once at least in every year all the Judges should meet together to review the operation of the system, whether in regard to Rules made by their own authority or by that of Parliament. That is a matter which the Lord Chief Justice, in a publication on the subject, states to be of great value and importance, and I hope it is provided for in this Bill in a manner both practicable and useful. It is proposed that these Rules shall be subject to the approval of Parliament, but that their operation shall not be suspended until that approval is signified. Of course, if an Address is agreed to by either House against any Rules, their operation will from that time be suspended. It is proposed that Her Majesty shall be empowered to enlarge the jurisdiction of any Inferior Court if she should think fit, so as practically to enable them to administer a system of combined law and equity, according to the same Rules as those which are to govern the Superior Courts; and wherever there is found in any existing Court an equitable jurisdiction, or an Admiralty jurisdiction, it is to be exercised in such a manner that there will be no difference between the law upon an appeal brought from the Inferior Courts, and the law of the High Court itself.
My Lords, I now come to the subject of the Appellate Jurisdiction. I do not propose to deal by this Bill with the appeals from Scotland or Ireland. Those countries have each their own system of jurisprudence and judicature, with which, so far as their original jurisdiction is concerned, this Bill does not in any way deal. Furthermore, the evidence 349 given before your Lordships' Committee last year by gentlemen conversant with the practice of appeals from Scotland was to the effect that no change was desired in that country. I think the views entertained by the people of Scotland on this subject are entitled to very great respect; it would be an unwise and unnecessary thing to propose changes applicable to that country which the public opinion of that country does not require. As to Ireland, there was also no evidence that any change was wanted. I do not, of course, conceal from myself that if you establish in England a thoroughly good appellate jurisdiction, and find that it works as we hope it will work, opinion both in Scotland and Ireland may probably hereafter tend to the application and adoption of the same system in those countries. But I am perfectly content to wait, and not to anticipate the time. All I propose is that, in the constitution of the Court of Appellate Jurisdiction, we may make it possible to have the services of eminent Judges who have served in Scotland and Ireland.
I will now remind your Lordships of the present state of the appellate jurisdictions in this country. We have four Courts of Review—the Exchequer Chamber, the Court of Appeal in Chancery, your Lordships' House, and the Judicial Committee of the Privy Council. These Courts give to the dissatisfied suitor, in most, although not in all cases, the opportunity of a double appeal. In Admiralty cases there is only one appeal—to the Judicial Committee of the Privy Council. In Lunacy cases also there is only one appeal—to the Judicial Committee. But all the cases in the Superior Courts of Common Law, which are brought by Error to this House, must go through a double appeal. They must first go to the Exchequer Chamber, and in every case where an appeal is taken to the Exchequer Chamber it may also be brought to this House. It is not so in Chancery. In Chancery cases there is an option generally for the appellant either to come at once to this House or, if ho prefers it, to the Court of Appeal in Chancery; but every judgment of that Court is subject to an appeal to this House. Therefore, there is generally a system of double appeal for the suitor. I have never concealed my opinion that this is not a good system.
350 If you have a good Court with sufficient judicial power to command the confidence of the country, it is better that there should be no double appeal. I would not exclude the power where you have an appeal heard by a small number of Judges of having it reconsidered by a larger number of Judges. But my opinion is that if you establish an adequate Court, it is desirable for the parties and for the general interest of the country that the decision of that Court should be final, and that you should not multiply appeals. You never can escape, by going through any number of Courts of Appeal, from the risk of differences of opinion in each and every one of them, and from doubts arising as to whether the last Court decided better than those before it. What you want is to make as good a Court as possible, and to give it all the power and authority you can, and that, in my humble judgment, is best accomplished by making it final. I will now briefly review the results, upon this subject, of the useful discussions of the last few years; and I hope your Lordships will pardon me if I first ask permission to read a passage from a speech delivered by myself in the House of Commons six years ago, when I moved this question. Your Lordships will, at least, see that the opinions which I now express on this subject are not newly formed, and that they are indeed the same that I expressed at that time. Addressing the House of Commons on the 22nd of February, 1867, I said—
I will venture to state what has occurred to me as the best way of meeting all these difficulties, before I say a word on the most difficult portion of the subject, relating to the august tribunal of the House of Lords. Taking the three Courts I have mentioned alone—the Court of Error in the Exchequer Chamber, the Court of Appeal in Chancery, and the Judicial Committee of the Privy Council—I am of opinion, if the House agrees with the view I have expressed, that one Court of Appeal is sufficient —that out of the Court of Appeal now existing in the Judicial Committee of the Privy Council you might, with some additions, form a most admirable Supreme Court of Appeal, capable of discharging the whole of the business which is now done by that Court and also by the Courts of Exchequer Chamber, and of Appeal in Chancery. The constitution of the Judicial Committee of the Privy Council is most excellent, as far as it goes. I have no hesitation in saying that that Court, powerfully constituted, with a sufficient number of Judges to render it capable of subdivision, and comprising men conversant with different kinds of law—Common Law, 351 Equity, and, it might be, Scotch law, as well as Colonial and Indian law—would be able to dispose of the appeals most beneficially to our jurisprudence, with great satisfaction to the country, and at no very great additional cost. You might have the Lord Chancellor, though, if the House of Lords retained its appellate jurisdiction, he would be required there frequently. You might also have the Lords Justices, and all the other eminent persons now constituting the Judicial Committee of the Privy Council. You might have two or three other permanent Judges with proper salaries, chosen with reference to qualities which are not ordinarily to be found in the Judges of the Court of Chancery. …. Some such measures as these have been suggested by high authority, as necessary to maintain in efficiency the Judicial Committee, even for its present purposes. I venture also to think that those who may hereafter fill the high office of Lord Chancellor might, considering the circumstances which often deprive the country of their services in that office, be called upon, ex debito, in consideration of their pensions (which are ample, though not too great), to give their services in the Supreme Court of Appeal, as they now voluntarily give them, from a sense of public duty, in the House of Lords. It would be thus quite practicable to form such a Supreme Court of Final Appeal as might unite the various jurisdictions now exercised. by different Courts; and then I should certainly recommend that the Court should assemble in the same place as the other Law Courts—in the future home about to be provided for justice in the neighbourhood of those who practise the law, and not, as the Judicial Committee now does, in such an inconvenient place as the Privy Council Office in Downing Street. I do not conceive that there would be any constitutional objection, resulting from the relation of the Colonies to the Crown, to giving such a Court jurisdiction over Colonial and Indian appeals, because its Judges might be, and in practice would be, Privy Councillors, and, being so, would be qualified to advise Her Majesty on all matters of that kind."—[3 Hansard, clxxxv. 857.]My Lords, in reading this passage from my speech delivered six years ago, I desire to prove to you that I have not now arrived at a new conclusion: and if in what I now propose I seem to ask your Lordships to relinquish some part of your judicial authority, I hope your Lordships will feel persuaded that this does not arise from a disposition on my part to take anything away from the dignity and importance of your Lordships' House. Independently of my being the youngest Member of your Assembly, my own constitutional principles have always made the honour, the dignity, and the constitutional power of this House, most dear to me; and there is not a man in it who would be more unwilling to do anything to derogate from the dignity of your Lordships' House in any respect whatever. I ought almost to apologize for 352 saying this, because I do not think I can possibly be mistaken in the conclusion I have arrived at, that your Lordships to a man will be at one with me on this point. Your Lordships can have no privilege—no notion of artificial dignity or importance—which you would desire to stand in the way of the due administration of justice. The name and shadow of the appellate jurisdiction of this House is utterly unimportant, unless it can be shown that the substance of that jurisdiction ought in the public interest to be maintained. I feel assured that I rightly interpret your Lordships' opinion, judging from what has occurred in this House, when I say that your Lordships long ago came to the conclusion that any improvements which can on solid grounds be shown to be desirable your Lordships will willingly make, although they may involve some diminution of the exercise of judicial power in the name of the House. At the same time, I agree that all proposals of this nature should be carefully scrutinized by your Lordships, and I am most willing that those I now submit to your Lordships should undergo the strictest examination. The various proposals, which have been made in former years, have all really tended in the direction in which I shall ask your Lordships to proceed. The scheme proposed in the first Report of the Judicature Commission did not and could not deal with any matter affecting your Lordships' jurisdiction, except in an imperfect and incidental way. I am about to propose something which goes beyond their recommendations: but it must always be remembered that it has been my duty to endeavour to deal with the whole of this subject, whereas it was not in their power to do so. Their first Report proposed that a Court of Appeal should be constituted, with an ulterior appeal under certain limitations to this House, consisting of the Lord Chancellor, of the Lords Justices of Appeal in Chancery, of the Master of the Rolls—who would have been removed entirely from the Court of First Instance — of three other permanent Judges, and of three Judges of the Supreme Court—Judges of First Instance —to be annually nominated by the Crown —forming a Court of fifteen Judges altogether. As far as number is concerned that would have been a Court of considerable power. I do not propose, 353 however, in the constitution of the Court of Appeal which I shall recommend to your Lordships, to follow exactly that proposition, for I confess I concur generally in the opinions expressed by the Lord Chief Justice of England in 1870 as to that proposal of the Judicature Commission. His Lordship thought that two parts, at all events, of that proposal were open to objection. In the first place, the Lord Chief Justice thought that if any Judges of the Courts of First Instance were taken into the Court of Appeal they should be the principal and not puisne Judges of the Superior Courts. Again, his Lordship thought that a rota or change of the Judges in the Court of Appeal was not a desirable thing. My Lords, I confess that, after due consideration, I concur with the Lord Chief Justice on these points. His Lordship stated in 1870 his own view of what would be a good constitution of the Supreme Court of Appeal, and as what I shall actually propose agrees substantially with the spirit of his propositions, it may not be altogether a waste of your Lordships' time if I remind you what those propositions were. He proposed that there should be five ex-officio and six ordinary Judges in the Court of Appeal—the ex-officio Judges being the Lord Chancellor, the Master of the Rolls, and the three Chiefs of the Common Law Courts. So far, my Lords, I propose exactly the same thing. Then his Lordship proposed that there should be six other Judges—three intended to represent the Equity and three the Common Law Courts. In 1871, after further consideration, his Lordship suggested some variation of that scheme, though still retaining the same general features. He said—The scheme for the creation of a new Appellate judicature, which, after much reflection, I would submit for consideration is this:—I would have but one Court. It should consist of—1, the Lord Chancellor; 2, such members of the House of Lords, having held judicial office, as should give notice to the Lord Chancellor of their willingness to serve as Judges of Appeal; 3, the Lord Chief Justice of England, the Master of the Rolls, and the two Lords Presidents of Divisions of the High Court of Justice; 4, four Lords Justices of Appeal. Thus there would be from eight to nine regular Judges, independently of the Lord Chancellor and the Presidents of the High Court of Justice.There is a very close approximation between that scheme and the one I am about to submit to your Lordships' 354 consideration. In 1872 the question was brought forward again, and Lord Hatherley at that time suggested a scheme for dealing exclusively with the business which now conies to your Lordships' House and the Judicial Committee of the Privy Council. He proposed to make a Statutory Court, consisting of the Lord Chancellor, five salaried Judges, and the following ex-officio Judges—namely, all former Lord Chancellors, the three Chiefs of the Courts at Westminster, the Master of the Rolls, the Lords Justices of Appeal in Chancery, the Judge of the Admiralty Court, and the Judge of the Probate and Divorce Court. I take the scheme in the shape it finally assumed in Lord Hatherley's hands; but it is to be observed that it did not deal with the jurisdiction of the Exchequer Chamber or the Court of Appeal in Chancery;—and I think it would have been a circumstance to be regretted if, having such a strong Court, it could only have been approached through the Courts just mentioned. The alternative scheme proposed in your Lordships' Committee by my noble and learned Friend now sitting on this side of the House (Lord Cairns), and which that Committee adopted with some little change, was that the jurisdiction of the two final Courts of Appeal should be exercised by a Court consisting of the Lord Chancellor, four salaried Judges, and the following ex-officio members: —all who had been Lord Chancellors or Judges of the Superior Courts in England, Scotland, or Ireland, the three Chiefs of the Superior Courts at Westminster, the Lords Justices of Appeal in Chancery, the Judge of the Court of Probate and Divorce, and the Judge of the Admiralty Court. And then came the question what was to be the relation of those Judges to your Lordships' House? It was proposed that they should be judicial Peers, not having power to sit or vote upon any but judicial business. My noble and learned Friend felt it was desirable to retain their assistance in Committees on claims to Peerages, which were substantially judicial business, and also in cases of impeachment, which is in a high sense judicial: but to this enlargement of their powers the Select Committee did not agree. Whatever may be said of either of these two plans, one thing is clear—it would not have been. 355 the House of Lords that would have exercised the jurisdiction conferred by such a measure. The conclusions I have arrived at from all this evidence are two. First, it is felt that, for the purpose for which it at present exists, so far as relates to English appeals, your Lordships' jurisdiction is not, and can hardly be made, satisfactory or sufficient without changes which would practically deviate from its nominal principle, and make it cease, even more than it has ceased already, to be really the jurisdiction of the House of Lords. Secondly, it is agreed, that the best mode of forming a great Supreme Court of Appeal would be to form it of some such elements as are indicated by the schemes I have referred to. I would form, of such elements, as part of the Supreme Court of Judicature, the Court of Appeal which I propose. So far as relates to England, I propose that its decisions shall be final. I do not propose to connect it, even nominally, with the House of Lords; but I do propose, with the help and assistance which I have no doubt the Crown and the country will receive from those eminent Members of your Lordships' House who have so long and with such great ability administered the jurisdiction exercised in its name, that there shall be the same substantial connection between the Court which I recommend your Lordships to establish and the House of Lords, which there is now between the House of Lords and the administration of justice; that is to say, that those ornaments of your Lordships' House who have risen to their position here by eminent services in the administration of justice shall continue, if they are willing—as I have no doubt they would be — to render like service in the Supreme Court of Appeal, though it be called by a different name. I wish to justify what I have said, and what I now propose, by reading a few more words from the opinion of the Lord Chief Justice of England, laid upon your Lordships' Table in 1871. Speaking of the scheme he was then asked to consider, he said—The scheme for the creation of a new Appellate Jurisdiction appears to me to labour under the radical defect that it is founded on the basis of retaining the jurisdiction of the House of Lords. Surely the time has come when the House of Lords may be asked to give up a jurisdiction which it has only in name, which the House itself does not and cannot exercise, and which, although exercised in its name, is, in reality, committed to 356 three or four Law Lords. It may be hoped that, in furtherance of the public interest, the House would, without any great difficulty, be induced to part with so shadowy an authority.I think this is also the opinion of very many others who have considered the subject, as I hope I have done, not only with a desire to do the best that can be done to improve the administration of justice, but with an equal desire to show deference to your Lordships' House and to uphold your Lordships' real authority. The constitution of the Appellate Court I propose is this. As the Lord Chief Justice suggested in 1871, I propose that there shall be five ex-officio Members — the Lord Chancellor, who shall be the head of the Court, and the heads of the four Divisions of the High Court—namely, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron. In that way there will be a representation of the Court of First Instance, in the persons of the principal Judges, who will also belong to that Court. In addition, I propose there shall be a number, not exceeding nine at any one time, of ordinary Judges, who, in the first instance, will be obtained in this way:—The two present Lords Justices of Appeal in Chancery, the four salaried Judges of the Privy Council, who were appointed under the recent Act in the contemplation of a future Court of Appeal, and three Judges to be transferred from the present Courts of First Instance, who are permanently to serve in the Court of Appeal. I need not say that whatever Government may have to carry out such a measure would endeavour to select from the Courts of First Instance some of the most able and experienced Judges. The reason for fixing the number at nine is this:—The Acts under which the three Election Judges and the four Privy Council Judges are appointed are not permanent Acts; and, as to the Privy Council Judges, any power of appointing an additional Judge would, in the natural course of things, cease this year. It was not contemplated that so large a number would permanently be required: and, as this may well happen also with the new Court of Appeal, it is thought right not to make nine an inflexible number, though at present it is desirable to take advantage of the existence of these Judges. In addition to these ex-officio and ordinary Judges, it is 357 also proposed that Her Majesty shall have power to appoint as additional Judges of the Court of Appeal any persons who have filled any judicial office in England which would qualify them to be Members of the Judicial Committee of the Privy Council, or who may have filled the offices of Lord Justice General or Lord Justice Clerk in Scotland, or Lord Chancellor or Lord Justice of Appeal in Ireland. Such appointments would be made with their own consent, and not otherwise. I hope and believe that those who have discharged the duties which would qualify them, and who have strength to enable them still to render useful service, would not refuse to give their assistance in the new Court of Appeal as additional Judges. I should not myself stand here to ask your Lordships' assent to such a proposal, without being ready myself to serve in such a capacity, if Her Majesty should think me worthy of the honour, when I cease to be Lord Chancellor. That is the proposed constitution of the Court of Appeal. It is proposed that its decisions shall be final, and that the only appeal from the High Court shall be to that Court. It is proposed at once to transfer to it the Admiralty and Lunacy appeals which now go to the Privy Council; and it is proposed to enable it to sit in divisions, with not fewer than three Judges in each, so that it may overtake and dispose of all the business. However great it may be, such a number of Judges will doubtless be able to transact it. The Judicial Committee of the Privy Council remains; and with respect to it, the only constitutional point to be borne in mind is this:—Appeals from the Colonies and from India go to Her Majesty in Council, and it has always been the custom for the decrees and orders of the Court to be issued in Her Majesty's name, the assent of Her Majesty being given in Council. But Parliament has passed Acts regulating these appeals, so far as relates to the hearings; and there is no part of Her Majesty's foreign possessions in which any exception has ever been taken to the regulation of these appeals by such Imperial statutes. What I propose in this Bill is not at once to remove the appeal business of the Judicial Committee to the new Court —because it might possibly be thought reasonable to see the working of the new Court for a short time before that is 358 done; but since this jurisdiction, in a constitutional point of view, is with the Queen in Council, it appears to be an unexceptionable mode of proceeding to empower Her Majesty, if she think fit, to transfer the appellate jurisdiction now exercised by the Judicial Committee, in other than ecclesiastical causes, to the new Court of Appeal. I do not propose to touch the subject of ecclesiastical jurisdiction; it is one sui generis, Standing apart, and the prospect of passing this measure would not be increased by any needless interference, on my part, with ecclesiastical jurisdiction. The Judicial Committee will remain to advise Her Majesty upon any non-judicial questions which may be referred to it; and, as far as my proposition goes, it will remain to determine ecclesiastical appeals under the present law. If Her Majesty should exercise the power which I shall ask the House to confer upon her, all the other judicial business of the Privy Council would be transferred to the new Court of Appeal. It is convenient it should be so; because if we are to have the services of these four Judges appointed for the business of the Court of Appeal, it is manifest we must provide, in the first instance, for the discharge by them of those duties for which they were specially appointed to the Judicial Committee, and the two systems will be most conveniently combined if we have the whole business brought together. Furthermore, the provision made by the appointment of these four Judges for the judicial business of the Privy Council is only a temporary provision; and unless Parliament should think fit to amend the Act of 1871 by giving additional powers to Her Majesty to provide for that business, it must soon fall into its former condition, and necessitate fresh legislation.I propose this scheme in the sanguine hope that it will recommend itself to your Lordships' judgment. Before I close my remarks on this subject, I wish to mention one other consideration which operated in my mind against giving a second appeal to this House over and above the general objection to a second appeal. One effect of giving an appeal, under whatever conditions, from this Supreme Court of Appeal to your Lordships' House, would be to throw an impediment in the way of obtaining the assistance in that Court of the judicial Mem- 359 bers of your Lordships' House. If it is —as it surely must be—a very important object to have the services of those who have filled high judicial office and are Members of your Lordships' House available to the Supreme Court of Appeal in great and important cases, this is a strong reason against giving, in the same class of cases, an ulterior appeal to the House of Lords. For these reasons I hope your Lordships will be willing to entertain the proposals I have made on that subject.
Perhaps, before I conclude, your Lordships may think it right that I should say one or two words on a topic which, however, rather belongs to the other House of Parliament—I mean the financial part of the arrangements. As the scheme is proposed it will not throw any new charge on the country—it will rather result in some eventual saving. Of course, it will not interfere with the pecuniary rights of any existing Judges. With respect to the future Judges, the Chief Judges will receive the same salaries as at present—places of great dignity and the great prizes of the law are not so numerous as to make it desirable that they should be materially reduced. In other respects it is proposed to retain the existing scale of salaries, both in the High Court, and in the Court of Appeal; with this exception—that, instead of £6,000 received by the Lords Justices, their successors in the Court of Appeal will receive only £5,000. The future salaries in that Court, except in the case of the ex-officio members, will be on one uniform scale of £5,000 per annum. I know that persons of great authority have recommended that Judges of Appeal should receive higher salaries than the Judges of First Instance, on account of the greater dignity of their office. But, if the office of a Judge of Appeal is one of superior dignity, that very circumstance will make it more desirable without any difference of salary, unless it is also one of greater labour: which it certainly will not be. However, the emolument of the Judges is more a question for the other House than for your Lordships' consideration. It is also proposed, that in future the pensions of the Judges shall be one-half the amount of their salaries. There will be no difference made in the present amount of pension paid to the Lord Chancellor, if serving in the Court of 360 Appeal, or of the Lord Chief Justice, and but little in those of the Chief Justice of the Common Pleas and the Lord Chief Baron; but there will be some considerable difference in those of future puisne Judges. These are the provisions I have thought it right to explain affecting the financial part of the scheme.
And now I have to thank your Lordships for the patient manner in which you have listened to the long statement I have felt it to be my duty to make; but I cannot conclude without saying that I feel I do not deceive myself when I state that I believe my plan will receive at your Lordships' hands careful consideration, with every disposition to give effect to it; and no one will be more ready than I shall be to receive suggestions for improving it. And I entertain a sanguine hope, that with such improvements it may pass into law.
The noble and learned Lord then presented a Bill for the constitution of a Supreme Court and for other purposes relating to the better administration of Justice in England, and to authorize the transfer to the Appellate Division of such Supreme Court of part of the jurisdiction of the Judicial Committee of Her Majesty's Privy Council.
§ LORD CAIRNSMy Lords, in the very few observations which I propose to offer to your Lordships at this stage of this Bill, I must commence by offering to my noble and learned Friend on the Woolsack my most sincere congratulations upon the extremely lucid and exhaustive statement we have just heard. There is no subject upon which the great abilities and vast experience of my noble and learned Friend could be more worthily occupied than this, and I am certain that his ability and experience have been occupied on it in a manner worthy of the subject. As regards the greater part of the measure which my noble and learned Friend has described, I have very little indeed to say, except to express my entire agreement with his propositions. The greater part of his Bill may be described as occupied with two great subjects, the consolidation into one Supreme Court of all the Superior Courts of this country, and the fusion of the two systems of Law and Equity. My noble and learned Friend was perfectly correct in saying that on these subjects the recommendations of the first Report of the Judicature Commission, 361 upon which no Member took a more active part than my noble and learned Friend, were clear and distinct. I am glad that my noble and learned Friend has followed those recommendations. He said, indeed, that the credit of a measure of this kind did not belong to the person who introduced it, but to those who had previously made attempts or recommendations on the subject. There I do not quite agree with him. It was easy, comparatively, to make the recommendations the Judicature Commission made; but I know from experience and some acquaintance with the subject how difficult it is to put such recommendations into the form of a Bill. The Bill which passed your Lordships' House in 1870 did little more than sketch out or indicate the manner in which this great work could be accomplished, and it was for that reason that while I myself assented to that Bill I did so only in the hope that it would elsewhere be supplemented by provisions it did not contain. The proposal of my noble and learned Friend is entirely free from those defects. I would only make one further statement on this part of the subject. I must say that I think my noble and learned Friend is quite right in coming to the conclusion that it is impossible in the fusion of Law and Equity to abolish entirely the distinctive names of Law and Equity. In Equity we have a series of legal principles and enactments dealing with specific classes—of cases where there is no collision or conflict between the principles of Law and Equity—and therefore my noble and learned Friend has exercised a wise discretion, while consolidating the Supreme Courts, in keeping up the distinctive names, and providing a corresponding distribution of business. My noble and learned Friend appeared to hope if this Bill became law that it might be brought into operation some 12 months hence; but there will be some difficulty in that. It appears to me that it will be utterly impossible to work the system which my noble and learned Friend has described unless you can have all your Courts together under one roof; and, looking to the desolate aspect of matters near Temple Bar, I fear the great work of my noble and learned Friend is not so near its accomplishment as his sanguine hopes would lead him to anticipate. My noble and learned Friend proposes to put an end to the local jurisdiction of 362 the Chancellor of the Duchy of Lancaster. I think that quite right. But, my Lords, satisfaction will not be given to great centres such as are to be found in Lancashire, unless much larger provision be made for bringing the administration of justice by the Superior Courts nearer to their homes than at present. Whether this should be done by more repeated circuits or by the constitution of permanent branches of the Superior Courts in those centres, I am not prepared to say; but I hope some means will be found of supplying this largely felt want. As regards the Court of Appeal, in providing for the appellate jurisdiction of the new Court, my noble and learned Friend has acted most wisely in not including in his proposals the appeals from Scotland and Ireland. I strongly objected last year to the Bill of my noble and learned Friend Lord Hatherley, because, in the face of the satisfaction felt by Scotland and Ireland with the present appellate system as applied to those countries, it was proposed to hand over the jurisdiction of this House to what would seem to be a municipal Court of England. My noble and learned Friend has wisely avoided that objection. So, also, I am glad my noble and learned Friend, in regard to appeals from the Colonies, proposes to retain what to our colonists is much more than a matter of form, and is really a matter of substance and reality — I mean the appeal to Tier Majesty in Council. Our colonists attach the greatest importance to the fact that they carry their appeals to the foot of the Throne, and receive from the Throne the order which is made on the appeal. I believe that to many of the subjects of the Crown in our Colonies, that mode of appeal forms one of the great bonds of connection between the Mother Country and the Colonies. By what advice the Crown is guided in making the orders is a matter of less moment, and I conceive it is not at all a violent change to give power to the Crown to take the advice of a Court constituted as my noble and learned Friend proposes to constitute this Appellate Court instead of the advice of the Judicial Committee of the Privy Council. As regards the Colonies, I may say generally that the scheme of my noble and learned Friend is a great and substantial improvement upon the Bill of last year. My noble and learned 363 Friend, when dealing with the appellate jurisdiction of this House, did nothing more than justice to your Lordships when he said your only desire was to seek the public good. The great danger, in my opinion, has always been that some of your Lordships would be tempted to part with your appellate jurisdiction too easily. The English appeals are not very numerous—they rarely amount to more than 20 in the year, and therefore may be regarded as a very small part of the question. I have always been of opinion that the Judicature Commission adopted the right course with regard to appeals. It is quite true that they had no question referred to them with regard to the appellate jurisdiction of this House. They proposed to build up improvements on the present Courts, and their first object seemed to be to make the primary and the intermediate Courts as strong as they possibly could. They then said that as soon as your Appeal Court has gained possession of public confidence you may consider whether you should not make its decisions final in all cases. The Commissioners recommended that the appeal should be made final in certain cases only; they recommended, for instance, that the appeal should be final when the decision of the Judges was unanimous, and that there should not be an appeal except when the Judges differed, or when special leave had been obtained; and they thought that the right of appeal should be given only in cases where the value of the property amounted to a certain sum; and that in any case security for costs should be given. I agree with the lines adopted by my noble and learned Friend. My only doubt is whether he has not gone too far. I will tell your Lordships why. Now and then cases arise affecting very large interests; I could name many involving the transfer of very large estates, and I would judge the system of my noble and learned Friend by such cases. It is proposed by the scheme before us to have a Primary Court of one Judge or three, and a Court of Appeal consisting of three Judges. [The LORD CHANCELLOR: Three or more.] Practically three Judges will be the ordinary number, because it would not do to have an even number, and five could seldom be secured. Now, observe. The Primary Court may decide one way and the Appellate Court another. Suppose 364 the Primary Court decide unanimously and the Appellate Court differ; a majority of 2 to 1 would reverse the decision of the three Judges of the Primary Court. The result in this case would be that two Judges would reverse the decision of four, and from their decision there would be no appeal. Suppose the Primary Court consisting of three decide one way by a majority of 2, and the Appellate Court decide the other way by a majority of 2, we should have two Judges against two and no appeal. Such a system could not be satisfactory to the country. Suppose, too, you have in some cases stronger men in the Primary Court than in the Appellate Court, the strain upon the system would be too great—greater than it could bear. It is extremely plausible to say there shall be only one appeal, but I doubt whether the principle is quite sound. Great injustice may be done if the single appeal is insisted on; and it must not be forgotten that a third Court has great advantages over a first Appeal Court. The arguments to be submitted to it are more matured and better understood, and the judgments of the Judges are considered side by side and can be corrected. I am not ignorant of the danger of multiplying appeals; but my objection is that you may go too far in the other direction. I think, therefore, it would be better that there should be no appeal from the Appellate Court when there was unanimity among the Judges, but that there should be an opportunity of appeal when there was a division of opinion. I merely throw out this suggestion for my noble and learned Friend's consideration. From what I have said already, your Lordships will understand that I hail with great pleasure and satisfaction the general provisions of the measure of my noble and learned Friend, and I must heartily wish him success in his endeavour to carry it into law.
THE EARL OF CARNARATONsaid, it would be presumptuous in a layman to attempt to criticise the scheme which had been introduced that evening with so much ability by his noble and learned Friend. Without, therefore, referring to the main details of his noble and learned Friend's scheme, he should be glad to say a word or two upon two points. His noble and learned Friend proposed, if he understood him aright, to leave the Appellate Jurisdiction of the 365 House of Lords so far as it related to Scotch and Irish business exactly in its present condition, but that a change was to be made with reference to English business on account of some shadowy and invisible connection which his noble and learned Friend supposed to exist between their Lordships' House and the Courts from which the appeals came. His noble and learned Friend had referred to this part of his scheme as if some such connection really existed; but, with all duo deference to his noble and learned Friend, he ventured to think that the connection was merely an idea, and that, to use his noble and learned Friend's own language, it was a mere shadow of a shade. The other point related to the salaries of the Judges, which, if he correctly understood his noble and learned Friend, were to be subject to some reduction. He, for one, viewed any such proposal with the greatest possible jealousy, especially if it was to take such a form as that which had been adopted, or which it had been attempted to adopt, last year.
THE LORD CHANCELLORexplained that, under the present system the Lords Justices of Appeal received £6,000 a-year, and as it was not intended that the salaries of the remaining Ordinary Judges should be raised to that amount, the result of equality among them would necessarily be a future reduction, in those two instances. He ought also to add that the salary of the Judge of the Admiralty would be increased, and made equal to the salaries of the rest of the Judges of his Division of the High Court.
§ LORD REDESDALEhoped that the House would formally delegate its jurisdiction as a Court of Appeal to properly appointed members, instead of tacitly renouncing its functions as far as their general body was concerned in the manner at present adopted. That was the ancient practice, and to this day the old form of appointing certain Lords to be Triers of Petitions was kept up at the commencement of every new Parliament; and it would be expedient to make it a reality with a Standing Order that no noble Lord should take part in determining appeals and reporting their decision to the House, except those specially appointed.
§ Bill read 1a; and to be printed. (No. 14.)