MOTION FOR AN ADDRESS. (Hansard, 10 February 1881)

LORD DENMAN

, in rising to move— That an humble Address be presented to Her Majesty that the Order in Council, a copy of which was laid on the Table of the House on 6th January 1881, for reducing the number of Divisions of Her Majesty's High Court of Justice and for abolishing the titles of Lord Chief Justice of the Common Pleas and Lord Chief Baron and reducing their offices to an equality with the offices of the other Judges who are not ex officio Judges of Her Majesty's Court of Appeal, may not come into operation, said: My Lords, it is painful to me to make the Motion of which I have given Notice, after the hope expressed by the noble and learned Lord on the Woolsack, that no Address might be presented to Her Majesty the Queen on the subject. The majority of the Council of Judges is very great, and we have not their reasons; but, as to a minority, in 1856, I divided this House on the Appellate Jurisdiction Bill, and only four—of whom I am the sole survivor—voted against 44; but in "another place," "a young man from Northampton," by carrying a vote against the same measure, saved the country £35,000 of additional salary beyond his pension to Lord Wensleydale (who did not want it), and £120,000 which, in the 20 years between 1856 and 1876, would have been payable to a Life Peer. Moreover, Her Majesty the Queen was graciously pleased to confer hereditary honours on Lords Wensleydale and Kingsdown, so that appeals were admirably decided. Money, however, is no object; and as to 477 the sage distribution of justice, I hope that the House may be again recruited by such Lord Chief Justices of the Common Pleas as Lord Loughborough, Lord Gifford, Lord Wynford, and Lord Truro; and by such Lord Chief Barons as Lord Lyndhurst and Lord Abinger. In 1832, my noble Relative the Lord Chief Justice of the King's Bench found 500 causes in Middlesex only entered for trial for the Sittings after Michaelmas term; and the delay at Nisi Prius was two years, to the enormous profit of the Marshal; and, if a new trial were granted, another two years' delay occurred; but, at the end of 1837, there was much improvement; and now, if the Courts are merged into one, the Court of King's Bench, in the future, will be quite overloaded; as there are so many male heirs to the Throne—that Queen's reigns are sure to be again, like angels' visits, few and far between; and being, by my mother's side, a lineal descendant of a Lord Chief Justice of the Common Pleas, in the time of Queen Elizabeth— Sir Edmund Anderson—I feel anxious that neither the name of the Chief of the Court or of the Division should be extinguished. In 1838, the Act for enabling the Courts to sit in Banco after term greatly relieved the Court of Queen's Bench; and, in 1849, when my late noble Relative retired, every Writ which was placed at the head of every abstract was of very recent date. The late Lord Chief Justice Cock-burn would not have faced willingly the responsibility of being head of one solo amalgamated Common Law Court. In January, 1881, 734 causes were entered for all the Common Law Courts—Queen's Bench, Common Pleas, and Exchequer (one or two being marked Chancery)— and about 16 without a jury were entered for all the Common Law Divisions; but in the Chancery Division every Court and its causes were specified, and a regular list beginning at No. 1 (Master of the Rolls Court) and No. 1 in each other Court. Counsel practised in only one of those Courts, taking a special fee for leaving his own Court, which was just, as giving the whole of his attention to one heavy case would necessitate there-turn of fees in many light causes. The credit in which the late Lord Chief Baron Kelly (my friend for 46 years) was hold is shown convincingly by the entry for the Exchequer being the highest of 478 all (by about 50 causes); the Queen's Bench being the next, and the Common Pleas the lowest; but still with quite enough causes to make a good beginning of a sitting, if not to finish all. It is very desirable that a Chief should preside in Banco over the review of all causes entered in his Court. There is a provision in the Judicature Act for a Court of Criminal Appeal being presided over by one of the three Chiefs, and there is nothing to prevent any Judge of any Divisional Court sitting to make up the quorum in it. Each cause, and every document, is ordered to be marked with the name of the Division which is chosen; it is adhered to possibly— if the entry has been wrong—and it also is capable of being transposed. Patronage, also, is equally divided between the three Chiefs—any Government may regret not having the appointment to so honourable and useful offices. One effect of my Motion will be to enable the noble and learned Lord on the Woolsack to explain his views. I believe the Judicature Act contains a clause empowering the Judges, with the aid of an Order by Her Majesty in Council, to abolish all Chiefs and Divisions of Courts, and to increase the number of Courts instead of diminishing them. The noble Lord concluded by moving the Address of which he had given Notice. Moved, That an humble Address be presented to Her Majesty that the Order in Council, a copy of which was laid on the Table of the House on 6th January 1881, for reducing the number of Divisions of Her Majesty's High Court of Justice and for abolishing the titles of Lord Chief Justice of the Common Pleas and Lord Chief Baron and reducing their offices to an equality with the offices of the other Judges who are not ex officio Judges of Her Majesty's Court of Appeal, may not come into operation. —(The Lord Denman.)

THE LORD CHANCELLOR

said, he would, in reply to the Motion of his noble Friend (Lord Denman) for whom he felt great respect, and also because of the intrinsic importance of the subject, endeavour to explain briefly the grounds on which the Council of Judges, which met at the end of November last, advised Her Majesty to make that union of Divisions in the High Court of Justice and reduction of offices which they thought should be made, and to which his noble Friend objected. When the Judicature Act of 1873 was passed, it was necessary, while uniting the jurisdiction of all the 479 existing Superior Courts, to make some provision for the distribution of business between them; and it occurred to the Government to take the existing Courts as furnishing the main lines of that distribution, at least as far as the immediate transition and change was concerned. Thus it was that the five Divisions of the High Court of Justice were established. Of those live Divisions, two—the Chancery Division, and the Probate, Divorce, and Admiralty Division—were conversant with business in its nature and machinery distinct from, and not homogeneous with, the business done in the other three or Common Law Divisions, now called the Queen's Bench, Common Pleas, and Exchequer Divisions. In each of those Common Law Divisions there was some business which had been peculiar to the Court from which it took its name; Crown business in the Queen's Bench, registration business in the Common Pleas, and revenue business in the Exchequer. But all the Judges were equally well qualified, from their experience and practice at the Bar, to deal with every part of this special business; and with the highest and most important part of it, the Crown business of the Queen's Bench, they were all familiar, from pre-siding over criminal trials at the Assizes, and being members of the Court of Appeal in criminal cases. The general business of all those three Divisions was exactly similar and homogeneous. Therefore, although it was thought expedient to commence in that way when passing the Judicature Acts, it was the view of Parliament that it might become necessary at some future time to consolidate those three Divisions; and there were two clauses in the Act of 1873 indicating the views then entertained in this respect. The 75th clause enacted that there should be an annual meeting or Council of Judges at which they should consider the general operation of the new system from time to time, and advise upon any changes which they might think necessary; and Clause 33 provided that, on the recommendation of the Council of Judges, it should be competent for the Crown, by Order in Council, to unite together any of the existing Divisions; and, for that purpose, to reduce, amongst other offices, those of Chief Justice of the Common Picas and Lord Chief Baron to an equality 480 with the Puisne Judges; and that this might be done without new legislation, unless either House of Parliament should address the Crown against it. That being so, the Judicature Act came into operation two years afterwards. Its operation had not been without some drawbacks; but the opinion of the great majority of persons conversant with the administration of the law was, that it had answered its main purposes, and that the drawbacks wore only such as, by the use of proper means, might be removed. Under those circumstances, on the occasion of the death of the late Lord Chief Baron in October last, it became the duty of Her Majesty's Government to hold their hands as to the appointment of a successor until a Council of Judges should have had an opportunity of considering the matter. Accordingly, with the concurrence of the late Lord Chief Justice, a Council of Judges was called, and that Council reported in favour of an amalgamation of the three Common Law Divisions. When the Council considered that question, they had to bear in mind the important facts that under an Act passed in 1879, all the offices hitherto attached to each of those Divisions had been consolidated, and were now worked by one set of officers, who were common to all the Courts; and that, under the existing Pules and Orders, the cause list of the Nisi Prius sittings in London and Middlesex was now made out without reference to the Divisions in which the actions were commenced. With regard, even, to the names of the Judges appointed since the passing of the Judicature Act, all titular distinctions had been abolished. Judges appointed to the Exchequer Divisions were no longer to be called Barons, but were, like all others, simply to be Judges of the High Court of Justice. In the nature of things, the three Divisions had been tending towards unity; and it was perfectly certain that each Judge in each Division was as capable as any other Judge of performing all parts of the business which came before any of them; so that nothing but practical inconvenience could be expected to arise from keeping up these Divisions separately. One almost unavoidable consequence of that separation was, that Divisional Courts were multiplied to an extent which convenience did not require or justify; and 481 all arrangements for the best distribution of judicial power wore liable to be impeded. The change was rendered the more desirable from the fact that Judges were, from time to time, withdrawn from their Divisions for an increased number of Assizes, and to preside over Election Inquiries. For these and other reasons, he had considered it his duty to ask the opinion of a Council of Judges on the subject. He was bound to state to their Lordships, as had been stated to the Council of Judges, that the opinion of the late lamented Lord Chief Justice was not favourable to the change. He had so great an admiration for that brilliant and mots able servant of the public, that he was very unwilling even to suggest anything which might seem to detract from the weight of his opinion on such a subject; but he might, perhaps, venture to say that the late Lord Chief Justice had not the reputation of being very fond of the changes introduced by the Judicature Acts; and he (the Lord Chancellor) was not sure that he looked at the question from quite the same point of view as that taken by Judges who were more recently appointed. However, such was the opinion of that great man. When the Council of Judges met they occupied two days, the 27th and 29th of November, in considering the question. Every one of them gave his opinion fully and deliberately, seriatim, and the result was that there was for the union of the three Divisions a majority of 18 Judges against 7, and that for the proposal to reduce the Chief Justiceship of the Common Pleas and the Chief Barony of the Exchequer to Puisne Judgeships there was a majority of 20 to 5. Two Judges were unavoidably absent. Of the opinion of one of those Judges, he (the Lord Chancellor) was unaware; but the other had, within the last few days, publicly expressed an opinion in favour of the changes in question; and he might add that all the Judges of the Court of Appeal, as well as all those of the Chancery Division, were also in favour of them. On the 29th of November, that conclusion was arrived at; but the Order in Council was not made until the 16th of December. The thing was not done in a corner, and public opinion was not inattentive to it. If there had existed a strong public opinion against 482 the proposal, it would have been elicited; but he was not aware that any such strong opinion had been expressed either before, or after, the date of the Order in Council. It was, of course, in the power of their Lordships to Address the Crown against it; but he thought that, looking at the provisions of the Act of Parliament, looking at the state of opinion among the Judges, looking at the nature of the case, and to the fact that Her Majesty had been advised to make that Order in. Council, their Lordships' would hesitate before doing so. He had not yet said anything as to the particular offices proposed to be abolished. He supposed that they would all, and lawyers in particular, part with such offices with some regret. But were they to maintain those two offices merely as prizes for the Bar? To have a Chief Justice of the Common Pleas without any Common Pleas and no Judges in particular over whom to preside, to have a Chief Baron without any Barons or Court of Exchequer, would be simply to create new offices, for they would really be new, and not the ancient offices. It would be simply maintaining highly-paid and salaried offices for purposes wholly unlike those for which they were originally created. They were, no doubt, coveted prizes in the Profession, and, for his part, he did not grudge such prizes to the Bar; but he believed that the old offices which would still remain, and the new offices which had been created in their Lordship's House, in the Judicial Committee of the Privy Council, and in the Court of Appeal, were prizes fully sufficient to command the services of the best men in the Profession. In proof of that, he had only to refer to the men who had formerly filled, and who now filled those offices. Ear be it from him to disparage the distinguished men who had filled the offices proposed to be abolished; but he was not prepared to admit that they had always been superior to those to whom he had referred, or, he might add, to some of the Puisne Judges. He did not doubt, from the public spirit which distinguished the Bar, and the attraction of the other great offices to which he had alluded, that the greatest ability to be found at the Bar would always be available, at the proper time, for the public service. He might mention that since the Order in 483 Council had been made, a committee of Judges, members of the Bar, and Solicitors had been appointed, and were actively endeavouring to put into proper shape those alterations of procedure which might properly be consequent upon those particular changes, or suggested in other respects by the working of the Judicature Acts, in the three Common Law Divisions, and the Court of Appeal. With regard to the state of opinion on the subject, he was aware that a meeting of the Bar had been held, at which there was considerable difference of opinion, and that a not very great majority, as he was informed, wore of the opinion expressed by his noble Friend; but those who composed that majority were, he believed, not all agreed in the grounds on which they based their opinion. On the other hand, the Incorporated Law Society, which represented the men who were, perhaps, most directly conversant with the interests of the suitors, had petitioned the other House of Parliament in favour of the proposed changes. He trusted their Lordships would not interpose to prevent changes which, from time and circumstances, could now most conveniently be made. No man could more regret than he did the loss of the late Lord Chief Justice of England; but that loss had taken place, the two offices in question were both now vacant, and he put it to their Lordships whether a more fitting or convenient opportunity than the present could occur for the union of the three Divisions, with its necessary consequences.