—Sir, I rise to move that an humble Address be presented to Her Majesty, praying that She will be graciously pleased to take into consideration, as an urgent measure of Administrative Reform, the formation of a separate 540 and responsible department for the affairs of Public Justice. I am sure that the House must be well aware of the great importance of the subject I have to bring under their consideration. It was one which had already attracted a large amount of attention both in Parliament and in the country, and the change which I now advocate has received the earnest support of all our most eminent legal reformers. I do not wish by this Resolution to commit the House or the Government to any special plan for the formation of a separate department for presiding over the business of Public Justice; my only object is to obtain their assent to the principle of the necessity and the expediency of adopting some measure for the attainment of that object. Such an arrangement would lead to a proper division of the labour connected with the administration of Justice, and to a more efficient performance of the duties of that great branch of our public administration. At present those duties are distributed among such a variety of officers that no one knows to whom he should apply for guidance and information upon any particular subject. It is no longer necessary that we should institute any inquiry into the matter, and the time had unquestionably come for action. In the month of March, 1853, the present Lord Chancellor saidthat we had arrived at such a point that further speculation as to what might and what was convenient to be done was absurd; that these inquiries had ended, and always would end, in nothing.The noble Lord at the same time declared his purpose to do what had been done in New York,where all the statutes of the Legislature are placed before the community in a compact and practicable form, and in language perfectly intelligible to the whole community.Three-fourths of our present statute law consisted of mere superfluity; and he need hardly remind the House of the great services which a new Department of Public Justice could render in classifying and consolidating that law, and taking care that future legislative measures should be framed in consistent and intelligible language. Let us turn for a moment to the light which the philosophic genius of Lord Bacon has shed upon the question. Lord Bacon said—The leaving on the Statute-book Acts which are at variance with the spirit and temper of the 541 times in which we live, impairs the authority of the rest, and we ought not to have the living die in the arms of the dead.The Statute Law Commissioners, in their second Report, recommended the appointment of a single responsible head, with a well-organised staff of assistants, to carry out the system which they advocated; and the House itself has agreed to the following Resolution—That in the opinion of this House, as a measure of administrative reform, provision should be made with a view to secure the skilful preparation and proper structure of Parliamentary Bills, and promote the progressive amendment of the laws of the United Kingdom.It is impossible for any attentive observer not to perceive how desirable it is that a change should take place in our whole system of law procedure, and even in the mode of appointing our Judges. In England the Crown appoints some of the Judges, and the Lord Chancellor appoints others; in Ireland the nomination of the Judges is, I believe, placed in the hands of the Prime Minister himself, and in Scotland they receive their appointments from the Secretary of State for the Home Department. It would manifestly be better that the selection in all those cases should be left to a responsible head, acting upon uniform and well-considered principles. I believe that the time has come when a vigorous remedy is required for the incoherencies, the delays, and the other defects of our legal and judicial system. It would be a serious misfortune if Parliament were at present to refuse to adopt those reforms in the system which would place it in harmony with the new wants and the progressive spirit of the age. My belief is, that if prudent but liberal amendments are not effected in that department of our public administration, it must before long be subjected, in obedience to the public demands, to violent and ill-considered alterations. The wisest policy which Parliament can adopt in the case, as in all others where reforms are necessary, would be to reform at once, to reform carefully, but to reform largely and generously. All the feudalism of our law is dying out; the narrow precision on which our lawyers formerly insisted is at present generally condemned; and some new system should be devised to meet that altered state of feeling and of circumstances. I find that the remedy for the existing evil most generally recommended by law reformers is the establishment of a central office, charg- 542 ed with the general supervision of our whole legal and judicial business, who would be able to watch the working of the existing system, communicate with the Judges as to defects and requisite reforms, and receive, and if thought proper, act upon the suggestions which might be received from various quarters. At present, if any one had any suggestion to make with respect to legal reform, there was no Member of the Government who had the power to receive and act upon such suggestions. They had lately found it necessary to have a separate Minister for Public Education, and had previously experienced the necessity for separate departments for trade, war, and public health. Let the experiment which had succeeded in these departments be tried with respect to justice. Lord Bacon had suggested that Commissioners should be appointed to keep their eyes on the working of the laws, and that suggestion had been sanctioned by Lord Langdale in a speech which he delivered in 1836; and again in the last speech which he addressed to the House of Lords when he used the fact of the establishment of the local jurisdiction of the County Courts as a still further argument in favour of taking steps by the establishment of a central authority—whether in a Minister or a Board—to bring the law into harmony with common sense. I stated, when I brought the subject forward in 1855, that I would again bring it forward in the next Session; I then redeemed my pledge, and in 1856 I once more called the attention of the House to it. Just before that occasion the writer of an article in the 23rd volume of the Law Review, quoting an able article in The Times, also drew public attention to it. I was likewise supported on that occasion by the noble Lord (Lord J. Russell) the Member for London. Sir, the House then will not be surprised that, upheld by all these authorities, I should again bring the subject forward from a desire to improve the law and the legal profession. The Commission on the subject of legal education has called attention to that most important subject, on which the most enlightened principles have been laid down. Such principles should surely be honoured and recognised in Parliament. If we have legal education carried out on these principles—if we have statute law re-constructed on such principles—if we have also a Minister of Justice to carry out these principles, we shall 543 have a system of judicature which will do honour to our country, instead of one which exposes us to severe criticism, and is openly derided and decried. It is certainly a disgrace to such a country as this to have the profession of the law removed from what is enlightened and liberal; and the appointment of a Minister of Justice to give his special attention to the subject of law reforms, will at once elevate it into importance and secure it success. But what, Sir, are the objections against the measure? People say, "What, are you going to have a Minister of Justice in the French fashion?" Sir, I do not care about the name. I want the thing—a separate department for the affairs of justice; and we are unwise in supposing ourselves so entirely superior to our continental neighbours. I found, upon a recent occasion, upon a question of jurisprudence, on which our own text writers afforded not sufficient light,—I found full information on applying to foreign jurists, who at once solved the question by reference to legal principles recognised in their system of jurisprudence; and this gave me a lesson, and impressed me with the belief that it is very unwise to bolster ourselves up in the idea that we have nothing to learn from foreign nations. We ought rather to be ready to refer to any source of improvement, and be willing to learn in any quarter how to improve our legal system; and one way to do this will be to have a Minister of Justice, whose business it will be to devote his whole attention to the subject. It is said that it will be an expense. But, Sir, the people of this country never grudge the expense in order to attain a really beneficial object: and it is very gratifying to observe, in and out of the House, a growing desire for law reform. That great writer, Niebuhr, somewhere says, that two courses were open to England, either to endeavour to interfere and domineer over the Continent, or to busy herself with great moral, legal, and social reforms amongst her people. Let us take the latter course, by which this country will but fulfil the great mission assigned to her by Milton, of "teaching the nations how to live." We have no longer to lavish vast resources upon war; we have a peace budget promised, and I trust that we shall not grudge a moderate sum to carry out the great object of a good administration of justice. It is said it will interfere with the Lord Chancellor. But as to that—as 544 matters now stand we find that, for example, as to the Statute Law, some officer must be appointed to examine the statutes which are passed. The fact is that the Chancellor cannot do everything. As a witty Lord Chief Baron in Ireland once said, "Samson was a strong man, and Solomon a wise man, but both together could not pay their rent if they had not got it:" and the multiplicity of the Chancellor's avocations made it practically impossible that he should attend to all that concerned the administration of justice. Then, as to the law officers of the Crown, they also have enough to do with their ordinary duties, and my hon. and learned Friend (Sir F. Kelly) recently complained that he had found it impossible to get hold of the Attorney General for half an hour. Now, a Minister of Justice would be accessible to any one; would be always able to attend to drafts of Bills, &c., and would be on all occasions bound to make it his business to receive suggestions as to legal reforms and as to pending legislation. It is said by some that the measure would interfere with the Secretary for the Home Department. But it would not interfere with anything he can properly do. Neither he nor the Chancellor can pretend, even together, to make themselves responsible for all that regards the administration of justice. It is said we should interfere with the Irish Executive. Sir, I want to interfere with the Irish Executive. I remember the right hon. Gentleman the Member for Carlisle (Sir J. Graham) alluding to the "trickery" of "old Dublin Castle." There is no part of the United Kingdom to which such a reform is more vital than to Ireland. We want laws framed on English principles, and a system of justice like that of England. We want, in the appointment of Judges and other parts of our judicial system, to see an end put to the "trickery of the Castle." Let all our laws be Imperial. Let our judicial system and our jurisprudence be Imperial. That is the very characteristic and proud distinction of a great empire. I have recently read with great interest the report of the Minister of Justice in France. Nothing can be more admirable. It gives the state of every court in the country. It reveals the condition of every single tribunal. It shows what Judges are industrious and energetic, and which of them dilly-dally with their business and delay their suitors. If we had such a Minister in this country we should not have an Incumbered Estates 545 Court in such a condition. Last year we were assured here that two Commissioners could do the business of that court and also of the Court of Chancery and now it turns out that there were then 500 abstracts of title in one office unopened, 700 petitions unexamined, and 200 schedules unsettled. The consequences to the suitors have been most injurious, their money is locked up, and they were paying, meanwhile, ruinous interest. If we had a Minister of Justice such a scandal could not occur, or, if it did, we should not have to root it out by the slow process of reluctant returns: but we could easily extract the facts by inquiries of the Minister in his place in Parliament. He would be directly responsible, and would take care that there was a due discharge of judicial business. As to Ireland, then, above all, let there be an end of Castle trickery; and let there for that end be one great Department of Justice, guided by the same principles and regulating an Imperial system of judicature. It is said again, this would interfere with the freedom of Parliament, but how the having a proper and responsisible Minister here to explain all matters relative to justice—how this should interfere with the freedom of Parliament, I am at a loss to understand. There may be difficulties in the way of what I propose, but, surely, none that are insuperable. It is an old adage, that where there is a will there is a way; and if the Government made up their minds to confer upon the country this great public benefit, they can easily do so. How long are we to go on in the present miserable state of confusion and inconsistency? Let the House look at the real merits of the question, and they will not surely hesitate to confer this great boon upon the country.
§ MR. COLLIER
seconded the Motion, and said he feared that the House was getting tired of the very name of law reform; so much was said during each Session about law reform, and so little done, at the end of it, that the House might begin to think that there was an understanding among the lawyers to treat the question as the subject of talk rather than of action. If, however, the House had become indifferent to law reform, the people were sincere in their desire for it; and there was a general impression throughout the country that the administration of our law was behind the civilisation of the age. The country looked with little favour on courts of law and courts of equity 546 dealing with the same subject matter on opposite principles: with still less did they see a third set of courts, the ecclesiastical, acting on a third set of principles and by a third mode of procedure. Indeed, no spectacle could be more humilating and disgraceful to our jurisprudence than to behold the machinery of the three sets of courts at work at the same time grinding, crushing, and tearing in pieces an unfortunate estate. They had seen with no edification the fight between the Courts of Chancery and Bankruptcy, over the dead body of the British Bank. If they looked to the highest Courts of Appeal, they had for certain matters the Judicial Committee of the Privy Council, which performed its functions in a satisfactory manner; and for other matters they had the House of Lords, which did not perform its functions in a satisfactory manner, which by the consent of all required alteration, but which it seemed impossible to reform. Turning from the tribunals to the law, they found the statute-book a rude undigested mass, defying all efforts to expurgate and consolidate it from the days of Lord Bacon down to those of Mr. Bellenden Ker. All that the country knew was that they had a heavy bill to pay, without being able precisely to ascertain for what. Then there was the state of the law as regarded the transfer of land, constituting a grievous burthen upon landed property. Our law of husband and wife was more discreditable than that of any other civilised country. By that law we prohibited divorce, while we granted a statutory indulgence to break the law to those who were rich enough to pay for it. Then there was the state of the law as to Church discipline, which was most unsatisfactory; then also the mercantile law of England and Scotland differed materially, and no attempt was made to harmonize them; and from the speech of the right hon. and learned Gentleman, it appeared that there was the same complaint as to the laws of England and Ireland. Measures of law reform were from time to time passed, which although undoubtedly beneficial, were rather adapted to the exigences of the particular case than based on any comprehensive view of the law of England as a whole, and were commonly framed with little regard for the harmony of the different parts of the machinery for the administration of justice, or for the science of jurisprudence. The people were accordingly dissatisfied, and with reason, with the pre- 547 sent state of the law and the administration of justice in this country; and what had been done to remedy it? Recourse had been had to Commissions, but the inquiries of those Commissions were a vague and desultory mode of dealing with the question, and their reports generally proved abortive. Those Commissions were frequently composed of Members of different opinions, who disagreed, came to a dead lock, and then each man reported for himself. Every Session, however, there was promulgated a programme of law reform; the result of which was that the lawyers in Parliament had some field days, made long speeches, to which the House was not very willing to listen; the question was aired and ventilated, and then all the proposed measures laid on the shelf. He did not say whose fault this was. He did not say it was the fault of the Government. The noble Lord at the head of the Government no doubt wished law reform to be carried out, but it could not be expected that he would give as much attention to that subject as to measures on which the fate of his Government depended. The noble Lord knew that the right hon. Gentleman opposite did not expect to turn out the Government on the question of law reform, that right hon. Gentleman was no doubt profoundly indifferent whether or not there was a secret treaty between the noble Lord and the proctors guaranteeing to them their possessions in Doctors' Commons—which was a more likely thing than the other secret treaty of which they had heard so much. It was thought that in this Session, looking to the programme laid down by the Attorney General at Aylesbury, the question of law reform would have been really dealt with; but, contrasting the programme of the Attorney General with the speech of the Lord Chancellor last night, he must say that there was but little hope on that subject. The Ecclesiastical Courts seemed to have been dropped by the Attorney General and taken up by the Lord Chancellor; and, of all the abortive measures on that subject, that of the Lord Chancellor was the most abortive. As to the transfer of the jurisdiction of the Ecclesiastical Courts to the Court of Chancery, to that he was sure the House of Commons could never consent. The Attorney General had never wished that to be done, and it was desirable to remove an impression which was abroad that the hon. and learned Gentlemen had any such desire. It was clear 548 that we had nothing to expect this year in the way of law reform. He did not blame the Government or the law officers of the Crown for this; the fault rested not with the men, but the system. The Lord Chancellor having no efficient staff to assist him, could not, even if relieved of all his judicial duties, be the Minister of Justice, which the right hon. Gentleman (Mr. Napier) proposed, nor be at the head of the department which it was sought to establish. It was equally impossible for the Attorney or Solicitor General to perform such functions. They could not be responsible for Cabinet measures, not being themselves in the Cabinet. The wonder was, not that the Attorney and Solicitor General had done so little, but that they had accomplished so much. Unfortunately the engagements of the Lord Chancellor and the other law officers were such that they had not time for the requisite communication with each other. They did not act with any unity or concentration, and, if he might be allowed to use the expression, he would say that in the shipwreck of law reform, the law officers of the Crown might be seen each clinging to his own plank, and drifting in different directions. Nobody being to blame in this matter, he I would now proceed to the consideration of the question how could the system be altered, and that led him to the consideration of the proposition of the right hon. Gentleman. The right hon. Gentleman had abstained from using the term "Minister of Justice," but he proposed to frame a responsible department for the administration of justice. That was a proposition which he (Mr. Collier) had no hesitation in affirming, and he would endeavour to point out the functions which such a department would be expected to perform. To the office of that department there ought to be returned all the judicial statistics relating to the working of every tribunal throughout the country. It was a remarkable fact that no other country was so deficient in judicial statistics as England, and he trusted that if such a department should ever be established the collection of such statistics should form one of its duties. That office would be open to receive and record suggestions of improvement from the Judges and any other persons by whom suggestions might be offered. By that department might be conducted scientifically and methodically all those inquiries which had hitherto been delegated to a variety of Commissioners. The next great 549 and important function which such a department ought to undertake should be the progressive amendment of the law. Under that head he included the consolidation of the statute law. The system adopted by the Statute Law Commission was not the best and most expeditious mode of proceeding, and unless some alteration should be made, the House might look forward to a long series of consolidation bills stretching over a period of which no man now living could expect to see the end. It seemed to him that the more methodical mode of proceeding with the great work of the consolidation of the statutes would be to place it under the supervision of one officer, with a competent staff to assist him—that the work should be undertaken as a whole, and then submitted to Parliament for consideration. Instead of being brought forward in five hundred different Bills it would be much better that the great work should be confirmed by one Act of Parliament. Then, again, this Department of Public Justice ought to have the care of preparing and passing through Parliament such measures of law reform as the Government might determine upon, and for which the Government ought to be responsible. He should like to see questions of this kind dealt with by Government in a methodical manner. He should like to see them come down and make propositions for reforming the laws of the country, by which propositions they would determine to stand or fall. The department now proposed might perform the functions of correcting current legislation, which it had been suggested ought to be performed by a Board under the control of the two Houses of Parliament. He did not mean that any Department of Justice, or any Minister, should be allowed to dictate to any Member the course which he ought to pursue. He did not think it would be right to interfere with private legislation, but he believed that every hon. Member would be glad to have a responsible department to apply to for information. It was a matter for grave consideration whether the Minister of Justice, or the head of the department, might not be conveniently entrusted with the power of supervision over certain parts of the administration of justice—such as the County Court Judges and the Justices; and it would be most important to consider whether the functions exercised by the Home Secretary, amounting, in fact, to a decision on criminal appeal, might not be satisfactorily per- 550 formed by the head of the new department. He believed that these functions of the Home Office had never been better performed than at the present time; but the question was, whether it would not be more satisfactory to place in other hands the power of reversing the decision of a Judge and jury?—whether such a power ought not to be exercised by a high legal authority, and conducted by a more regular form of procedure? That seemed to him to be an outline of the functions which might be advantageously performed by the Department of Justice now proposed. The right hon. Gentleman's Motion did not specify whether the head of the department should be in the House of Lords or the House of Commons. Now, it would be perfectly consistent with the Resolution that the Lord Chancellor should be appointed Minister of Justice, and it would be for the Government to consider whether, with the assistance of a competent staff, he would not be able satisfactorily to perform the functions of the office. If the duties of the office should be too onerous for the Lord Chancellor, then it would be most desirable that the head of the department should be a Member of the House of Commons, and he thought, in many respects, that would be the most advantageous course. That question, however, was left entirely open for the consideration of the Government. It might be said that the Resolution was vague and that nothing ever came from abstract Resolutions. But it ought to be remembered that such Resolutions had frequently led to important results—such as the passing of the Limited Liability Act, and the measure carried out by the right hon. Member for Manchester. If this department were established it would accomplish what had been long earnestly desired by the greatest Law reformers of the age. He trusted the House would, by affirming the present Resolution, convince the country that it was in earnest on the subject, and that it was desirous of taking one of the most important steps of modern times towards rendering the administration of justice consonant to the wants of the country and advancing civilisation of the people.
THE ATTORNEY GENERAL
said, that in his opinion the right hon. Gentleman opposite had done good service to the country by bringing forward the Motion now under consideration, and he thought the Resolution submitted to the House the other night by the noble Lord at the head 551 of the Government was a proof that the subject had not escaped the consideration of the Government. The rest of the Motion was the property of the right hon. Gentleman, who had called the attention of the House to the question in the year 1855. He did not complain that the Resolution was couched in general and what might be termed indefinite language, and it must be distinctly understood that in accepting it with a slight modification, the Government did not see in the language used by the right hon. Gentleman, neither did it recognise as a consequence of the adoption of that Resolution, the establishment of a separate officer as Minister of Justice. He did not think that there was any necessity for the appointment of any such officer at the present time. In his opinion all the objects of the Resolution might be more effectually carried out by means of the existing machinery than by introducing a change in the constitution which would require something more than was embodied in the present proposition. There were abundant means at their disposal for effecting all that had been required by the most comprehensive speaker on the subject, without the admission into the Cabinet of any such Minister. It was abundantly clear to those who had given anything beyond a mere superficial consideration to the subject, that it would be impossible to introduce into the Cabinet a new Minister of Justice, so long as the Lord Chancellor and the Home Secretary remained there, without introducing discordant functions, the possibility of disagreements, opposite views, and the absence of that unity which was so essential to the carrying on effectually the business of the country. It would be remembered that in 1851 measures were brought forward for the purpose of reforming the Court of Chancery, and a new tribunal was instituted called the Court of Appeal, or the Court of the Lords Justices. One of the reasons for constituting that tribunal was to relieve the Lord Chancellor of a considerable portion of his judicial duties, which then pressed heavily upon him, and to leave it in his power to discharge the duties which belonged to what might be called the Minister of Justice. He believed, therefore, that it would be in the power of that distinguished officer, if furnished with a sufficient staff, to accomplish all that was necessary to carry into effect the three great objects in view; first, a general superintendence over the admi- 552 nistration of justice in all its departments; secondly, the superintendence, and effective prosecution of the amendment of the law; and thirdly, the giving prompt, effectual, and complete assistance to the conduct of the business of current legislation. There was no subject necessary to be attended to which did not come under one of those heads, and which could not be performed by the officer at the head of the law, but it could not be efficiently performed save by one bred up to the law, and capable of taking part in its administration. If the unnecessary words, "as an urgent measure of administrative reform" were omitted, he was willing to accept the other part of the Resolution. He would endeavour to give a proof of the earnest views of the Government on the subject by briefly stating his opinions, which he trusted would be considered satisfactory by the House. There were in this country a great number of tribunals, none of them armed with the power of doing complete justice—and it was necessary for the people to resort to several of them, in order to obtain a little portion of justice in one and a little portion in another. There was no uniform rule of administration, either with regard to law or procedure. Those facts showed the necessity of establishing some great department to be charged with the duty of carefully watching and superintending the working of these numerous tribunals, and endeavouring to produce harmony and uniformity in a system which in theory and practice was in many respects altogether objectionable. A small portion of the law of insolvency was committed to the Insolvent Court—another portion of the law was committed to the Bankruptcy Court—another was committed to a speculative sort of tribunal under the Winding-up Act—another was committed to the Court of Equity. There were courts of law opposed altogether to courts of equity. The system of criminal procedure was utterly defective. Prosecutions were instituted and conducted without any control. There was no adequate superintendence in point of judicial authority over the sentences and procedures of our criminal courts. In fact the only hope of proper control rested in charging a responsible department with the duty of superintending the system, collecting details as to the working of that system, presenting these details annually to Parliament, and deducing from them those general conclu- 553 sions with regard to the amendment and alteration of the system, both with respect to alterations in principle and practice, which these statistical returns would necessarily suggest to philosophical minds devoted to their examination. There was one subject to which the Government wished to call the particular attention of Parliament, namely, the manner in which criminal proceedings are conducted. Under the present system, different departments instituted prosecutions according to their own judgment. There was no power of controlling them in any effectual manner, and there was no machinery capable of meeting the emergencies which might arise. In many other branches of the law also the same laxity and want of organised system were observable. With regard to the amendment of the law, the House had during the last two or three years, on different occasions, been placed in a very difficult position, on account of the want of a department to which measures of legal reform could be submitted, and from which they might come, ex cathedra, with the authority and recommendation of responsible and talented men. He would illustrate this by referring to what occurred during the last Session, when he had the honour of proposing a Bill on the subject of the alteration of the testamentary courts, and the providing a cheap and efficient mode of answering the purposes now discharged by the ecclesiastical testamentary courts, and improving the administration of justice with regard to the distribution of the estates of testators. The hon and learned Member for Suffolk (Sir Fitzroy Kelly) introduced a different scheme, and a third was added by the hon. and learned Gentleman the Member for Plymouth (Mr. Collier). Amid such conflicting measures it was almost impossible for the House to decide. Under these circumstances he selected the best features of all the Bills, and embodied them in an amended Bill, but at too late a period, considerable time having been lost in discussing the competing schemes. But if any one of the Bills had been presented with the recommendation of the head of a great department, all or most of those difficulties would have been avoided. With regard to current legislation, suggestions as to the measures to be brought forward, and as to the details of those measures, would properly be made in the Report coming from the Department of Justice. He would allude 554 to another circumstance which proved the absolute necessity of some arrangement. The law consisted of the written and the unwritten law. The written consisted of a variety of statutes, many of them inconsistent, obscure, and difficult to explain. But the unwritten law was in a still worse position. It was to be found in many hundred volumes of Reports, which were constantly being added to without any sufficient authority, without any proper superintendence or control. Any gentleman at the Bar who published a volume of cases, and prefixed his name to it, added to the law; and thus year by year, a very considerable number of volumes was produced, and when they were cited in the courts the Judges felt bound to recognise and act upon them as the law. The laws of the country should not be permitted to be embodied in such unauthorised and unauthenticated sources. If, then, the written law demanded revision, consolidation, and reduction, the unwritten law required the same process to be gone through in a tenfold degree. This could not be done except under the guidance of some such department as that which he wished to see established. He was quite sure the House would understand that in the observations which he had made illustrating the necessity of paying immediate attention to the question, he had stated more particularly his own views and opinions, to which the Government were not to be pledged beyond that pledge which resulted from the adoption (with the alteration he had suggested) of the Resolution of the right hon. Gentleman, and the assurance that the result would not be a mere barren matter, but that it would at once be taken into consideration by the Government, and he hoped be productive of the most valuable results.
§ LORD JOHN RUSSELL
said: Sir, the speech of the right hon. and learned Attorney General appears to me to consist of two parts. The first and the larger part is a very powerful argument in favour of the proposition of the right hon. and learned Gentleman (Mr. Napier). The right hon. and learned Gentleman told us of the confusion existing, not only in the law but also in the various tribunals which administer the law in a different manner and upon principles which cannot he reconciled with each other; and he pointed out the defects of the criminal law, and the difficulty arising out of that multitude of statutes to which Lord Hardwicke alluded 555 in the quotation made by the right hon. and learned Gentleman, the difficulty lately described, too, by the Lord Chief Justice of the Queen's Bench, of extracting a clear and definite sense from the various Acts passed through Parliament. Upon that topic, and upon several others, into which I shall certainly not attempt to follow him, the hon. and learned Gentleman has shown the House, in a most convincing manner, not only that the right hon. and learned Gentleman's proposition is founded upon sound principles, but that it requires instant and urgent consideration. I cannot, therefore, but be satisfied at finding the very able arguments of the right hon. and learned Gentleman supported and confirmed, not only by the authority but by the reasoning of the hon. and learned Gentleman. But when I come to the principal question, namely—the adoption of the plan of the right hon. Gentleman—I find that the second part of the hon. and learned Attorney General's speech, in which he considers that question, is eminently unsatisfactory. Not only is it eminently unsatisfactory in itself; but the latter part of it does much to efface the effect of the hon. and learned Gentleman's own arguments and sentiments, for it contains the statement that they are not the arguments and sentiments of the Government, but only those of the hon. and learned Gentleman. When the hon. and learned Gentleman does not confine himself to a statement of his own opinions, when he does not draw his stores from his own knowledge only, but when he expresses the views of the Government, he tells us he is prepared to agree to the Motion with the omission of a few words which he does not think important, although it was evident from another portion of his speech, that their omission would in effect totally alter the scheme of the right hon. and learned Gentleman, and that, instead of having a Minister of Justice, or in the very well chosen words of the right hon. and learned Gentlemen, "a separate and responsible Department," it is intended that we should have the Lord Chancellor, aided by certain officers to be appointed for that purpose. This, at least, is the way in which I understood the hon. and learned Gentleman. Now, it is quite true that by the Act passed in 1851, corrected by the Attorney General, the Lord Chancellor is assisted by two Lords Justices. It is true likewise that, whereas Lord Eldon had great difficulty in per- 556 suading Parliament to give him the assistance of one Vice Chancellor, there are now no less than three Vice Chancellors; but I remember very well that in introducing the Bill for the appointment of the Lords Justices, after consultation with various persons on both sides of the House competent to give me an opinion, I adhered to the general sense of the opinions I received, that the Lord Chancellor ought not to be taken out of a court which dealt with the current administration of justice. Accordingly, the Lord Chancellor remains at the head of the Court of Chancery and frequently sits in it, and thereby is kept completely in the current of judicial decisions; he likewise sits at the head of, and often at present alone, in the Court of Appeal in the House of Lords. The Lord Chancellor has very important duties besides these to discharge, duties interesting to every man in the kingdom; he is a member of the Cabinet Council, generally the only member conversant with the law, and he is, therefore, called upon frequently to give opinions relating either to the peace of the kingdom, or, as must lately have been the case, with regard to Persia and China, in consequence of our disturbed relation with these Powers, on questions of international law and the obligations of States. I do not think that the Lord Chancellor, having these various duties imposed on him, can be expected to be competent to preside over a separate department which is to superintend, not only the general administration of the law, but likewise, as the Attorney General has very clearly explained, all Bills introduced for the amendment of the law—in fact, the whole subject generally known by the name of law reform. I do not believe that the Lord Chancellor will have sufficient time at his disposal to undertake that superintendence. And I can attribute to nothing but the inability of the Lord Chancellor to devote his whole mind to the subject of law reform, the project recently brought forward by him for the reform of the Ecclesiastical Courts, including the question of divorce—a project which appears to me eminently inefficient and unsatisfactory. I will now allude to one part only of the important question with which that project deals. There is nothing more calculated to shock every one who is acquainted with the principles of law and of humanity than those actions of crim. con. which take place from time to time in this country, and in which the intimate letters 557 of a wife, written perhaps in the first month of her marriage, and the affection shown by a wife to her husband in various ways, are made matters of evidence and published to the world for the purpose of increasing by £400 or £500 the amount of damages sought to be recovered for the injury sustained by the husband. I cannot conceive any man devoting his whole attention to this subject, with the desire of reforming the law, who would not at once have swept away such an abominable disgrace. There are other kindred actions, such as actions for seduction, almost as offensive to every sound principle; but, with respect to that action which I have first mentioned, I find that the Lord Chancellor proposes not to abolish, but to limit and restrain it in some way or other. I cannot wonder that the legislation thus introduced by the Lord Chancellor should be imperfect, and I cannot admit that there is any sound ground for the statement of the hon. and learned Gentleman as to the inconvenience which would arise from the adoption of the Motion of the right hon. Gentleman the Member for the University of Dublin, who proposes the formation of a separate and responsible department for the affairs of Public Justice. The hon. and learned Gentleman says that the establishment of such a department would create the chance of discordance, and that there would not be that unity which at present prevails in all the plans for the amendment of the law. But, does that unity prevail, and is there not a good deal of that discordance, which the hon. and learned Gentleman dreads, at present existing? The hon. and learned Member for Plymouth has alluded to what more than once has taken place—namely, that while the Attorney General, like the cook to Sancho Panza, produces a great many excellent dishes, the Lord Chancellor acts the part of the physician, and says, "This is a great deal too much for your health; these dishes are too savoury; you had better not eat them;" and the noble and learned Lord accordingly proceeds some time in July to remove them from before our sight, and does not allow us to indulge our appetite by a taste of any of them. I think, then, that there is not that great danger of discordance arising from the adoption of the right hon. Gentleman's Motion, for I am of opinion that some person, devoting the greater part of his attention to this subject, and consulting, of course, with the Lord Chancellor in the most intimate 558 manner, would be able to introduce and carry measures of law reform far more harmoniously and satisfactorily than we have of late been able to do. I trust, therefore, that the words which the hon. and learned Gentleman proposes to leave out of the Motion will not be omitted. I can understand that the Secretary for the Home Department, if relieved of many of the duties imposed on him of late years—if the inspection of factories and other duties of that kind were taken from him; and if, on the other hand, the Secretary for War were charged with those duties of preserving the public peace which press heavily on the Home Department—I can, I repeat, then conceive that no person could be more fit than the Home Secretary—certainly none better able than the present Home Secretary—to administer a great department for the amendment of the law and for the affairs of Public Justice. Of course he must have fit and competent persons under him, and this House would be found ready to vote the necessary salaries. But either in this way or by a Minister, according to the right hon. Gentleman's proposal, this great Department of Public Justice might be conducted. I own I have no sanguine expectations of any great reforms in law being carried in any other way; and I fear that, unless we proceed by taking some step of this kind, those great objects to which the Attorney General alluded will hardly be carried into effect. I fear, for instance, that in this Session, as in former Sessions, plans will be proposed, will be very much discussed, disputed, and altered, and afterwards, when everybody's attention flags, when men's bodies are exhausted by labour and their minds by the consideration of various political topics, the Bill by general consent will be withdrawn. I wish to see the views of the Attorney General carried into effect. I think he has large and bold views, but I believe I shall assist in carrying them into effect more effectually by declining to accede to his present proposition and by supporting the Motion of the right hon. Gentleman opposite.
§ MR. H. S. KEATING
hoped that on a subject with respect to which there prevailed so much unanimity, the Attorney General would not create a difference of opinion by insisting on his suggested Amendment. Everybody seemed to agree in the propriety of that being done which the present Motion proposed should be done; and the only point of difference 559 was as to who should preside over this great department. He concurred in opinion with the Attorney General that the Lord Chancellor would be the proper and legitimate president of the department. The noble Lord had suggested that the Secretary for the Home Department might be a proper person for such an office if relieved from some of his present duties; but, in his opinion, the Lord Chancellor was the legitimate and natural officer to be at the head of a department of this kind. That noble and learned Lord was connected with all those departments with which it would be essential to communicate under the scheme of the right hon. Gentleman, and, however efficiently the present Home Secretary conducted the duties of his office, still, whenever he had to interfere with those tribunals by which the administration of justice was conducted, his communications were carried on in a roundabout, indirect, and by no means satisfactory way. It was the absence of that staff which the right hon. and learned Member for Dublin University sought to have appointed, more than the numerous occupations of the Lord Chancellor, that prevented unity of action between the great officers of State on questions of law reform. That staff would furnish him with the means of doing what was at present impossible. The country was indebted to the right hon. and learned Gentleman for the persevering and able manner in which he had pressed his important proposition on the House. Until that proposition was effectually adopted, consolidation of the law would be wholly impossible, for to attempt to consolidate the law in the first instance was to begin at the wrong end. The current legislation must be brought into proper condition before consolidation could become possible. When control over that legislation was given to a department of justice, consolidation could go on gradually and concurrently with it. Her Majesty's Government would find that the opinions which had been expressed by the Attorney General were entertained by both sides of the House; and the Government would therefore be compelled to identify themselves with those opinions. The effectual adoption of the scheme of the right hon. and learned Gentleman (Mr. Napier) would put an end to those continually recurring debates about law reform which must have disgusted the non-legal Members of the House.
THE ATTORNEY GENERAL
—In proposing the omission of the words "as an urgent measure of administrative reform," I did not for a moment desire to curtail the efficiency of the Resolution; but they struck me as being words unusual—and I might almost say a little unseemly—in an Address to the Crown. Inasmuch, however, as some apprehension has been entertained that the omission of those words might impair the efficiency of the Resolution, the Government have not the smallest objection to their remaining in it.
§ MR. WIGRAM
thought it was essential that there should be at the head of the department some officer who would be able to give an undivided attention to the subject. There would be a great deal of business to be done, and it would require the undivided attention of any one, however great his ability might be. There was another essential point which would be this, that the department should be represented by an officer who should have a seat in the House of Commons, whose duty it should be to watch the progress of legislation—to check private legislation where it needed it, and where it did not harmonize with the general scheme of the law, and to conduct in his own person legal improvements.
§ MR. W. EWART
congratulated the right hon. and learned Gentleman (Mr. Napier) on the success of his efforts, and concurred with the last speaker as to the necessity of the proposed Minister of Justice having a seat in that House, in order that he might answer the appeals made to him by the representatives of the people, as was already the case with regard to the heads of the Board of Health, the Poor Law Board, and other public departments. He regarded the scheme of the right hon. and learned Gentleman as the foundation of all law reform.
§ SIR ERSKINE PERRY
thought that the suggestion of the Attorney General that the Lord Chancellor should be at the head of the proposed department was eminently subversive of the object of the Resolution. The headship of the proposed department was one of the questions at issue, and, for his own part, he attached great importance to the opinion which had been expressed by the noble Lord the Member for London, that the Home Office, which already exercised a superintendence over the administration of criminal law throughout the country, ought to be at the head of the proposed system of superin- 561 tendence. Whether, however, the headship of the department was given to the Home Secretary or the Lord Chancellor, no doubt a large staff would be necessary. One objection to making the Lord Chancellor the head of the department appeared to him to be, that he himself as a Judge would natutally fall within the supervision of the department, and it was not reasonable that he should be called upon to judge of his own acts. But there was another reason why he thought that it would be better for a layman to be at the head of the proposed department, which was the able lawyers of the country, from whom the Attorney and Solicitor General were chosen, were excellent practitioners, but not scientific jurists. It was from amongst men who studied the law in their chambers that they choose those who are to form a code. These were the men Napoleon chose to form the code which bore his name. The object of the Resolution would therefore not be fully carried out, unless a layman, assisted by a numerous and able staff, were placed at the head of the proposed department.
§ MR. MONTAGU CHAMBERS
said, that this Resolution was of an extremely comprehensive character, and necessarily imported the appointment of a new and great public officer. It, as one of its objects, comprised a plan for consolidating the written and the unwritten law, one of the greatest efforts that had been made in modern times. They had had debate after debate with reference to the written law; it had been proposed to codify the statutes, to consolidate them, to strike out those which had become obsolete, to modernize and alter antiquated and technical language, and to add to the duties of the department the supervision of the current legislation passing through the two Houses of Parliament. This latter duty alone would require almost the undivided attention of the head or one responsible member of the department. But then there were other duties shadowed forth and suggested with reference to other branches of the law; its proceedings; its statistics of great extent and importance. Take, as one instance, the improvement and administration of the criminal law. Before the proposed department would be placed defects in the existing law, or in its administration. Immediate attention should be paid to all suggestions made on these matters, and there must be a man whose sole duty it was to give them due 562 and careful consideration. One subject had not been touched upon during this very interesting and instructive debate, namely, the expense that this department would be to the country. No doubt many economists would say, "You are about to establish a new department, with a man at the head of it at a salary of £5,000 a year, and, besides that, you are going to afflict the country with a numerous staff to assist that official." He answered no doubt it would turn out that they were desirous of giving the community that very great boon, and by doing that they would save the people an enormous expense. Just let them carry their minds back to the reforms proposed during the last thirty years. What was the course that had been adopted? In the first place, some private Member proposed a Committee. That sat; and then there must be a Royal Commission. They had had Commission after Commission, "dragging its slow length along;" but the results had been very small indeed in comparison with the expenses incurred. In fact, if we had had a competent department of justice at the first, we should have saved an enormous sum. With respect to the proposal to entrust the manifold and complicated duties referred to, to the Lord Chancellor, it was utterly impossible that he could discharge them, or efficiently superintend the new staff of officials that must be established. Assuming that the Lord Chancellor of the day invariably possessed the highest legal and intellectual attainments, great quickness, and untiring industry, his ordinary functions were sufficient to occupy the whole of his time, and exhaust all his energies. According to the opinion of many lawyers, the Lord Chancellor ought never to be withdrawn from the duties devolving upon him as head of the Court of Chancery, and considering the extent of these, and the high political functions he was called upon to perform, he would ask, could the Lord Chancellor, by any possibility, be held blameworthy if measures introduced into Parliament were open to the objections even of men who "read as they run?" It was impossible for the Lord Chancellor to give any or sufficient attention to many measures that were introduced; he was consequently obliged to seek for assistance elsewhere. He was compelled to use the services of confidential persons, to whom was entrusted the preparation of Bills, without any responsibility being attached to them. The 563 result was, that these persons being very frequently incompetent for their task their measures were unsatisfactory. The Lord Chancellor could not, therefore, arrange, or vigilantly, actively, and carefully direct and superintend the operations required for the proposed reform in legislative and administrative justice. Neither could his right hon. Friend the Secretary of State for the Home Department. With all his admiration for the abilities of his right hon. Friend—rejoicing, too, that he had had the advantage of a legal education, he (Mr. M. Chambers) would take leave to suggest that it would be utterly out of the question to cast upon him the duties contemplated by the measure before them. They were behind the world as far as some of their legal departments were concerned, but it was for very sufficient reasons. Timidity was useful sometimes, because timidity was but cautiousness; and in introducing new offices, and changing that which was regarded as our constitutional protection—the law of the land—it was wise and safe to be extremely cautious. The time, however, had come when every one must he perfectly satisfied that, with respect to the legal reforms which the country required, there was need of a department to mature and introduce them. It was said a measure of this kind would interfere with the privileges of private Members, and operate against their introduction of Bills; if that were likely to be the effect of the Resolution, it would have met with his decided opposition. His notion, however, was that it would lend energy and utility to the exertions of private Members; for instead of having crude and ill-considered schemes placed before them by the Government, measures would be introduced in a perfect state, and, as a consequence, they would have more open days, and more time would be allowed for the discussion and passing of Bills introduced by private Members.
§ MR. MALINS
said, that the hon. Member for Dumfries (Mr. W. Ewart) had expressed a belief that the Resolution was about to pass with the unanimous consent of the House. Now, he for one, at least, could not allow the Resolution to pass without expressing his impression that the whole affair would end in disappointment. They had to-night, undoubtedly, been discussing a most beautiful theory. There was to be a great public officer, who was to superintend all legislation, both home and colonial. Indeed, according to 564 the ideas of an hon. and learned Friend of his who had addressed them that evening, Acts of Parliament were henceforward to be so beautifully framed that the Judges would be perfectly unanimous in construing them, and all differences on points of law would cease. He rose to state his want of concurrence with any such views. With reference to the proper officer to superintend the legal reforms of the country, they had had for generations a great public officer in the Lord Chancellor, whose duty it was to superintend such matters; and the only excuse he had ever heard assigned for the non-performance of those obligations was that the Lord Chancellor had no leisure to attend to them. Now, he begged to say he thought that excuse proceeded upon an extremely erroneous hypothesis. The House was aware that in the year 1851 the Government of the; noble Lord the Member for the City of London passed a Bill appointing two Lords Justices to sit in the Court of Chancery. That step was mainly taken owing to the long illness of Lord Cottenham, and the great arrear of business which had accrued in the Court of Chancery. He believed that at the time the number of appeals awaiting decision were between 70 and 100. However, the Lords Justices were appointed under the general impression that they were to bring to an end a system which had long been objected to—namely, that appeals lay from one Judge to another Judge sitting alone. He was well aware how his hon. and learned Friend the Attorney General had expressed himself against that system, both in public and private. Well, to the great surprise of the profession, those learned persons at once proceeded to sit in a separate court from the Lord Chancellor, and they had continued to do so down to the present time. The noble Lord the Member for the City of London and other hon. Members spoke of the Lord Chancellor as sometimes sitting alone. Why, the rule was the Lord Chancellor always sat alone. There certainly were some exceptional occasions when the full Court sat, either upon the petition of suitors, or at the suggestion of the Judges themselves, which occasions occurred about once a month. [Mr. WIGRAM: Once in three months.] His hon. and learned Friend the Member for the University of Cambride, as well acquainted as he (Mr. Malins) was with the practice of the Court of Chancery, said the exceptions only amounted to once in three 565 months; however, he wished to be within the truth, and he would say that, at all events, the three Judges constituting the Court very rarely sat together. At the same time this he must state, that when they did sit together they constituted, in his opinion, as satisfactory a tribunal as had ever existed in this country. Well, but in consequence of the determination to sit separate, what happened? Why, the Lord Chancellor and the Lords Justices had divided the appeals between them—his Lordship hearing appeals from two of the Vice Chancellors, while the Lords Justices took appeals from the Master of the Rolls and the remaining Vice Chancellor. Now it had been said that the Lord Chancellor had no time to attend to the business of legislation. Well, he would venture to affirm that last year he need have been under no apprehension as to the arrears of the Court of Chancery. On last Monday morning sittings of the Court were commenced that would continue for seven weeks. Now, the Lord Chancellor had three appeals on his paper, while only six stood for hearing before the Lords Justices—one of which would not come on until Easter Term—so that there virtually were only five appeals before them at present. He did not mean to say there was no business for the Lords Justices. On the contrary, they did a great deal of business in bankruptcy and lunacy cases—in fact, there was always business fully to occupy their time. But that there was appeal business to occupy the Lords Justices and the Lord Chancellor he most emphatically denied. Nor did he think there was a greater farce being enacted at the present time than the attempt to keep up two Courts of Appeal in Chancery. He (Mr. Malins) had practised extensively before the Lord Chancellor; and this he would say, that a Judge more patient and more painstaking, a man who more thoroughly and more undividedly attended to the business of his Court, he never appeared before; and when he saw observations upon the noble Lord which he thought totally unwarranted, totally uncalled for, he thought it only fair to express that which was in his own knowledge. He might not always think the Lord Chancellor right; but this he would say, that whatever conclusions the noble Lord arrived at were the results of the most painstaking efforts that man could make. If, therefore, his conclusions sometimes seemed erroneous, it was not from 566 any want of due exertion on his part, nor through absence of ability to guide him, for assuredly he was a man of very considerable ability. And to this must be added, that the Lord Chancellor was, in the highest sense of the term, a gentleman—a man from whose lips no words ever fell which were not fit to be said by one gentleman to another. Having said so much as to individuals, he would address himself to the system, as one which he must thoroughly deprecate—that of an appeal being permitted from one man to one man. He was quite certain, at all events, that it was the intention of the Act of 1851 to put an end to that. He knew that a great difficulty had stood in the way arising out of the Lord Chancellor's political duties; for while the Lord Justices rise at four, the Lord Chancellor frequently rises at two o'clock to attend certain political meetings which take place. Still there were no arrears—no prospect of arrears which could not be disposed of by three Judges sitting together. Now, if one Judge were sufficient to hear appeals, why have two Judges sitting in an adjoining court discharging the same duty? The fact was, a single Judge sitting on appeals never could be satisfactory; neither even in his (Mr. Malins') opinion could two be satisfactory. He ventured to think that if the Lords Justices were to be continued, there was no longer any necessity for the Lord Chancellor sitting on appeals at all. If, however, the Lord Chancellor was the great head of the profession, he was properly from his position the Chief Minister of Justice. It was to him and his subordinates, the law officers of the Crown, that the country had been accustomed to look for the protection of the law, and he trusted the House would be slow to depart from that great constitutional principle. Well, but was the new Minister to be consulted by every Member in that House? Was he, again, to be in the Cabinet. His learned Friend the Attorney General had pointed out the difficulty of placing another great law officer in the Cabinet. What, then, was to be his position? He was to have a seat in that House. Why, how difficult it would be to have an opportunity of speaking to him; and, nevertheless, this law officer was to be the great settler of Acts of Parliament. But had they not already officers answering to that description—gentlemen who prepared Government Bills, and to whom might be referred all Bills introduced into that House? The 567 whole thing was the merest theory; for where could they find the man who could do all that would be required of him? He (Mr. Malins) had tried his hand at law reform. He had succeeded on two occasions in passing a Bill for the amendment of the law, which had been strongly called for, and was still strongly called for by the public. It was a Bill to enable married women to dispose of reversionary interests; and he would venture to say that thousands were watching for that change in the law. Well, in 1853, he succeeded in passing the Bill through that House, receiving for it the support of the law officers of the Crown. Well, the Bill went up to the House of Lords; but he could not find a noble Lord who would do him the honour of moving the second reading of the Bill. In 1854 he was pressed to bring the measure forward again; but his reply was that it was useless to do so, for, although it would pass the Commons, it would find no support in the House of Lords. However, in 1855, he was told he could find support in another place; so again, with the full assent of the law officers, the Bill passed through that House. It then once more went up to the House of Lords, and he was promised that the Bill would be surely read a second time. Well, after a fortnight's delay, he asked how was this? When would the Bill be read a second time? The reply was, "As soon as the Matrimonial and Testamentary Jurisdiction Bills were disposed of." After that he was told the Bill could not be proceeded with because Lord St. Leonard's was away, and he did not approve of the Bill. The Bill again, therefore, fell to the ground; and so, after having twice undergone the ordeal of passing through that House, he had not been able to find a person in another place to move its second reading. He had since received applications to persevere with the Bill, but his answer had been that until he could obtain an assurance of support from noble Lords in another place it was in vain to attempt to pass the Bill. He had, however, since received an intimation from his learned Friend the Attorney General that he would take up the subject now. He mentioned that merely to show the difficulties in the way of private Members in an endeavour to improve the profession to which he had the honour to belong. But why, then, it might be asked, not concur in the appointment of an officer who would remove the difficulties? It was because he believed 568 such an officer as was supposed would have to encounter the same doubts and difficulties as now opposed themselves to the law officers of the Crown. Moreover, if such an officer was appointed, was he to be allowed to continue the practice of his profession? If not, it was perfectly clear he would not be the fitting person to prepare legislation; for he was thus withdrawn from that practical experience of the working of our laws which alone would qualify him to be a practical law reformer. In conclusion, therefore, he would again warn them that, however admirable the plan of his right hon. Friend might appear in theory, in practice it must lead to the greatest disappointment.
MR. LOCKE KING
said, he thought the fate of the Bill relating to the reversionary interests of married women, instead of telling against the present Motion, was one of the strongest possible arguments in its favour. If we had had a Minister of Justice, in all probability that measure would not have had to wait in vain for some one to take it up in the House of Lords. It was matter of sincere delight to him that the Government had adopted the Resolution of the right hon. Gentleman, because it was a practical measure, calculated to do more for the cause of law reform than anything else that had occurred for many years. It was earnestly to be hoped that the new Minister, whoever he might be, would have his seat in that House; in which case they would have the means of encouraging him when he did right, of urging him to do more when his performances were deficient, and of constantly putting questions to him as to the progress he was making in legal matters. It was highly gratifying to know that the Motion for the appointment of a Minister of Justice would be the means of effectually breaking up and doing away with the Statute Law Commission, which had already swallowed up too much of the public money. Many noble Lords and learned Gentlemen who had highly distinguished themselves were on that Commission, but they had not time to attend to its duties. His complaint lay against its working staff, who had positively done nothing. No less than £50,000 had been fruitlessly spent on these Commissions; and the present Commissions had degenerated into a job. A Friend of the Lord Chancellor had a sinecure place upon it with a salary of £1,000 a year; and a friend of the Lord Chancellor's friend was 569 its secretary, and attended to other work. The Commission, indeed, pretended to have done something, but the only practical result of its labours was one Bill which he (Mr. L. King) had himself been the instrument of passing for it. The other Bills prepared by it were full of every sort of blunder—one of them actually dealing with the subject of South Sea Stock, which had no real existence, having been done away with years ago, and another enacting penalties against societies which had been long obsolete.
§ MR. WARREN
Sir, the House need not fear that I shall trouble it at any length, for I cannot help expressing myself apprehensive lest the great cause of Law Reform should be talked to death by lawyers. So many of us have spoken this evening, that it must have been really quite refreshing to listen to the only two laymen that have addressed us—the noble Lord the Member for London and the hon. Member for East Surrey; and yet the great subject before us is really as capable of being usefully treated by able laymen, as lawyers. I hope the House will not be induced by the remarks of my hon. and learned Friend the Member for Wallingford, to lose sight of the vital importance of the question which we are considering. On no other are keen-sighted and determined thinkers out-of-doors more resolutely set than on this of Law Reform; and unless we here address ourselves to it in a practical, a liberal, and an enlightened spirit, the task of legislation may somehow or other come to be taken out of our hands, by those elsewhere who see that so much requires to be done that we cannot do it, and that they will yet have it done. Sir, the Resolution of my right hon. Friend makes not the slightest allusion to this formidable Minister of Justice, concerning whom we have heard so many misgivings. It is so guardedly worded as to avoid conjuring up that spectre which seems to haunt and oppress the perturbed imagination of my hon. and learned Friend below me (Mr. Malins). The Address to Her Majesty contemplates only "the formation of a separate and responsible department for the affairs of public justice;" and nothing in the able and suggestive speech of the right hon. Mover justifies the trepidation of my learned Friend, to whose own vivid imagination alone he is indebted for the existence of this awful functionary. I repeat it, Sir, that something in this direction must really be done, and done at once. 570 It is loudly demanded out-of-doors, and that demand is echoed unanimously here: and "when we are unanimous our unanimity is wonderful." What I am most afraid of is, lest the Government, which I am glad to see now listening so attentively to this important discussion, should attempt to "keep the word of promise to our ear, and break it to our hope." All I want is, that they should take the matter in hand, in earnest, in a sincere and straightforward spirit. We who sit on this side of the House are thoroughly in earnest on that matter ourselves, and friendly rivals to the other side in the removal of every proved evil, and devising a cautious and practical remedy permanent in its operation. I entreat the noble Viscount at the head of the Government to rise at once and assure us that in acquiescing in this Motion he and his colleagues mean what they say—that they are determined on doing something, and doing it at once: for I can assure him that if he means merely to stave off or quietly cushion the Motion—if his acquiescence be a matter of mere form—that if the Motion is taken up only to be let drop again, this House will deservedly sink in public estimation. Sir, as for that Motion itself, I go heart and soul with my right hon. Friend the mover. As far as I caught the drift and purport of his speech this evening, he aims, if I may so express it, at effecting organic as contradistinguished to functional improvement in our system of legislation. At present it is cumbrous and inconvenient almost beyond the comprehension of those who are not practically cognisant of the fact. I have seen enough of it myself in this House already, before its Committees, and in our Courts of justice. It is there that our blundering tells—pestering tribunals existing for the decision of questions of real and substantial importance, with everlasting doubts and squabblings as to what we meant by the slovenly, obscure, and inconsistent words we have used in the perfunctory discharge of our legislative duties. He tells us, and I agree with him, that there is something wrong with our very mainspring, and therefore the action of our whole machinery cannot but be defective and erroneous. Why should this go on? It is to the last degree discreditable to us. Let the House remember that that great people, the ancient Romans, were so refined and punctilious in cultivating the science of legislation—for they regarded it, as we do not, as a science— 571 that they had laws to instruct them how to make laws. The Lex Licinia and others provided checks against any law unintentionally containing any particular personal privileges, or impairing the force of former laws, or being crowded with multifarious and heterogeneous provisions. Why should not that be so with ourselves? Then, such a thing as came under my notice only this very day, could never have happened, and I will tell it to the House, as an instance, of the mischief we are constantly doing unintentionally. Not long ago, a trading company in the South of England obtained a private Act of Incorporation, and so far all was well. But behold! what does the House think? By a blundering reference in the Act, that constituting another public company of great importance in another part of England, was unknowingly repealed. It had no legal existence. It was, in fact, so to speak, nowhere; and another Act of Parliament was passed in a subsequent Session, indirectly, but effectually remedying the disastrous error, the knowledge of which was confined to three persons only; and this fact is now mentioned for the first time in either House of Parliament. Now I pledge myself to the truth of this statement, and I ask, is it creditable that such a thing could have happened—that great interests should be thus at the mercy of such inconsiderate legislators? It never could have happened had a separate and responsible department for the administration of justice been in existence, and I hope that such a thing never will happen again; but that a tribunal will be called into existence for the deliberate, methodical, and scientific preparation of all new laws of either a public or private nature. One word on another topic touched on by my right hon. Friend, one of very great interest and importance, and I shall sit down. I think he was right in linking with the subject which he brought before us, that of legal education. Sir, ever since I have been able to form an opinion on any question of importance affecting the welfare of the legal profession and of the public, I have been strongly impressed with the necessity of improving our present system of education for the Bar, by instituting a compulsory examination. Unless this be effected, depend upon it all other schemes for promoting the efficient and scientific study of the law will be futile. Let the House just consider, Sir, one thing nearly touching every one of ourselves. Is the House aware 572 that a young gentleman of barely three years' standing is eligible for the office of Revising Barrister—and in that capacity must decide questions of vital importance affecting the elective franchise? And that a blunder of his, in respect of facts, cannot be set right but by a ruinously expensive appeal to a Select Committee of this House, while a blunder in point of law must be rectified by an expensive appeal to the Court of Common Pleas? but observe, it is entirely discretionary with the youthful functionary to grant the liberty of so appealing! Now, have not the public—have not we—a right to some protection or guarantee in a matter thus affecting our vital interests? That those entrusted with matters of such transcendent importance, should come to the discharge of their duties only after having passed the ordeal of a bonâ fide examination into their fitness? I assure the House, and my right hon. Friend, that this is a matter which has long occupied the anxious attention of the Benchers of the four Inns of Court; but a grave difference of opinion exists between them on the subject. In that with which I have the honour to be connected, the Inner Temple, there exists such a difference of opinion; and I appeal to my right hon. Friend opposite, the Chancellor of the Duchy of Lancaster, who is one of the Benchers of that Inn, whether the subject has not occupied our attention long and anxiously, and occasioned repeated discussion. I say again, that I am myself strongly in favour of the compulsory system, and have always been so; but some of the most distinguished of my brother Benchers—two of whom I will take the liberty of mentioning, and their names will be received with the highest respect in this House—I mean Dr. Lushington and Mr. Hallam—are, I believe, of a different opinion. I mention this only to show that the subject is one of real and serious difficulty, and at this moment is under the anxious consideration of the Benchers of all the four Inns. I venture to submit that the matter should be left in their hands, as those of persons deeply interested in maintaining the efficiency and dignity of the legal profession, and thoroughly competent to deal with such a subject. I have little doubt that a satisfactory conclusion will soon be arrived at. In conclusion, I sincerely thank the House for their attention, and again express my hope that we shall receive from the noble Lord opposite an assurance that he will take up the matter before us 573 promptly, and in a right spirit, not as a matter of mere formal and passive acquiescence, but as a real substantial tribute of enlightened deference to public opinion out of doors,—disregarding which, this House may depend upon it, that it will be shorn of all moral power.
§ VISCOUNT PALMERSTON
Sir, agreeing as we do with the Motion of the right hon. and learned Gentleman, I am quite ready to say, that we agree in it, not simply with a view of disposing of the Motion by our acquiescence in it, but for the purpose of endeavouring to give effect to the principles embodied in the Resolution, which appears to receive the general concurrence of the House. That principle I take to be, that a real effort will be made to organise departmental arrangements, for the purpose of providing for and of promoting reform and improvements in the law. With regard to any particular method of effecting these objects, that which has already passed in the course of the debate is sufficient to show how impossible it is for Government at once to state it. It is very easy for persons to agree in regard to existing defects, but when we come to propose a remedy there arises every sort of difference of opinion. Unfortunately, we have been witnesses to this difficulty on many former occasions, and even in this debate we are again witnessing it. According to the old saying—What to avoid does little knowledge need, But to find a remedy, is a task, indeed.Everybody must admit, that we have made, during the latter years, some great improvements in our system of laws. Unfortunately there is, I believe, great room for further amendments. Those amendments, as has been well observed, require the combined efforts of a number of men who have turned their mind, as I may say, to the philosophy of the law. We do not require so much men who have distinguished themselves in the active duties of their profession. What we want are men who have thought deeply, not men who have distinguished themselves by their eloquence, but men who must have the principles of law engraven upon their minds, so as to point out the needed reforms, and direct the course that should be taken for their attainment. Well, we have heard a discussion as to whether there should be a new minister, called a Minister of Justice, or whether we should not build altogether 574 on the existing foundations, and make the most of the organisation we already have, by attaching this new department to that of the Lord Chancellor, or to the Secretary of State for the Home Department. I will not, however, go into this question now, but I think, before we should agree to adopt foreign models, and make what is called a Minister of Justice—before we introduce any new officer into the House, who must be, to a certain extent, a lawyer—who will be called upon to abandon his profession—become a minister of the Administration of the day, and who will be entitled, upon the retirement of such Government, to fall back upon a provision previously made for him—before, I say, the House resolves to adopt an arrangement of that sort, I think it will be right for us to see whether we cannot accomplish our object by attaching the department to some now existing branch of the executive. I can assure the right hon. and learned Gentleman it shall be the duty of the Government to give their most earnest attention to this subject. It is, however, one which he himself admits is surrounded by great difficulties, and which, therefore, demands the most mature consideration. That consideration shall be given to it, and I am not without hopes that those difficulties will be overcome. I am quite sure of one thing—namely, that the right hon. and learned Gentleman is rendering a great service to the country by calling attention to a measure of this character; and if the Motion shall result in being the foundation of a great system of legal improvement to be yet erected, the right hon. and learned Gentleman will, I am sure, deserve the thanks of the country, and will, no doubt, feel that satisfaction within himself which the consciousness of having effected so important an improvement in the laws of the country must necessarily confer. We shall therefore agree to his Resolution as an earnest pledge of the Government to meet the wishes of the House, as well as those of the country, on a subject than which no topic, I believe, can be more interesting. We will endeavour to do our best to give effect to this Resolution, and I therefore most cordially concur in the Motion.
§ MR. HADFIELD
said, he would consent to almost any change that might be proposed, as it was almost impossible matters could be worse than they were at present. The most necessary legal reforms could not be carried without the utmost 575 difficulty. Take the case of testamentary jurisdiction. Bill after Bill had been brought forward on this subject by the Lord Chancellor, but the public expectations had never been satisfied, and he asked the law officers of the Crown whether they thought the measure which had just been brought into the other House had the slightest chance of passing. The law of mortmain, too, which affected every charity and educational institution in England, called for amendment, and though Bills for that object had passed that House, they had always been dropped in the other House for the want of some person to take them up. He hoped, therefore, that the Motion of the right hon. Gentleman the Member for the University of Dublin would give them some relief by clearing the way for these rather important reforms.
said, he was gratified to find that he had the almost unanimous opinion of the House in his favour, and that the noble Lord had given an assurance that the Resolution would be taken into consideration in a bonâ fide manner. That was all he could possibly expect. He had worded the Resolution so as not to have the appearance of dictating either to the House or to the Government, and had purposely framed it in general terms. Nothing, in his opinion, could more strikingly exemplify the necessity for some such measure as he proposed than the case of the Bill referred to by the hon. Member for Wallingford. He said, the Lord Chancellor was the true Minister of Justice, and yet, no doubt in consequence of the great amount of business the noble and learned Lord had to perform, his hon. and learned Friend had not been able to communicate with him on the subject of his very useful Bill; but if there had been an office or department such as he now proposed, his hon. and learned Friend would have had no difficulty in carrying his measure. He had not said whether a layman or a lawyer should be appointed. He should be sorry to say he should not be a layman; he would be equally sorry to say he should not be a lawyer. What concerned him most was, that the duty should be efficiently discharged. He agreed with the noble Lord in thinking that they should first try to make use of such means as now existed, and see how far they could accomplish the object in view; and if these were found inadequate, that then such additions should be made as circumstances rendered 576 necessary. He was sanguine that, however small the beginning might be, it would be a most useful reform—one that would add to the credit of the Government, the honour of that House, and the welfare of the country.
§ Motion agreed to.
That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to take into consideration, as an urgent measure of Administrative Reform, the formation of a separate and responsible Department for the affairs of Public Justice.