§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 5 (Constitution of High Court of Justice).
§ Amendment proposed, in page 2, line 16, to leave out from the word "one," to the word "mentioned," in line 18, inclusive.—(Mr. Attorney General.)
§ DR. BALLsaid, this was a question of very considerable importance. It was neither more nor less than whether there should be an additional Judge in the 1624 Equity Division. He distrusted judicial statistics. Twenty ordinary causes might not be equal to one such case as was now before Lord Westbury and Lord Cairns. Was it proposed to maintain these exceptional tribunals, with Judges exceptionally paid to deal with exceptional cases, referred to them by special legislation? The worst economy in a public point of view was economy in judical power; and he preferred on this question the opinion of the Equity lawyers. He was not of opinion that a Common Law Judge was incompetent to deal with Equity cases. In Ireland, the Bar practised in all the Courts, without detriment to the suitors; but this was not the question before the Committee, for there was not even a Common Law Judge to spare. He feared that on this point of additional Judges the Law Officers of the Crown spoke from their briefs rather than their convictions. Like "the power behind the Throne," the influence of the Chancellor of the Exchequer was felt, though he himself was absent, and it was his views which led to the Amendment in the Bill on this question.
§ SIR FRANCIS GOLDSMIDwas not convinced by the Solicitor General's argument of the previous evening, that an additional Vice Chancellor was not required in order that the business of the Court of Chancery might be satisfactorily disposed of. He (Sir Francis Goldsmid) however, had not risen for the purpose of further arguing this point—which, in his opinion, had been already sufficiently discussed—but to give an entirely distinct reason for retaining the words on the omission of which the Committee was about to vote. Even if the additional Judge was not wanted as Vice Chancellor, he would be most useful in helping the Common Law Judges who were now for the first time to be, not merely authorized, but required, to decide on equitable matters. It would be remembered that on the second reading, the hon. and learned Member for Denbighshire (Mr. Osborne Morgan), had most ably argued for the necessity of adding a Judge instructed in Equity to each of the Courts of Queen's Bench, Common Pleas, and Exchequer, and that the Attorney General had admitted that the Judges of those Courts themselves recognized the need of such assistance, 1625 and desired that it might be given; and although he had added that this could not be done at once, he had intimated that advantage would be taken of the first vacancy in each Court, to supply the aid required. But now this hope was to be indefinitely postponed. Having, in order to strengthen the equitable element in the Court of Appeal, given up the idea of transferring three Common Law Judges to that Court, he was left with 15 Puisne Judges instead of 12, and therefore proposed to add, at the end of the clause now under discussion, a Proviso that there should be no fresh appointment until after four vacancies. Thus the Courts of Common Law, when for the first time required to administer Equity, would, during that very period of transition which involved the principal difficulty, be left without the equitable aid which the Attorney General admitted that they needed and desired. Now, although we did not regard the Common Law Judges as heaven-born geniuses, who were able to decide equitable questions to which they were not accustomed, as satisfactorily as if they had studied them all their lives, we did consider them to be extremely learned, intelligent, honourable, and estimable individuals. Were we then to make by this Bill such arrangements that we should be compelled to look upon the early deaths or resignations of four of these highly esteemed personages, as events to be anxiously desired for the benefit of the public, and even for the ease of mind of their own colleagues? Hon. Members would doubt-loss recollect that in narratives of shipwrecks, of returns from unsuccessful voyages to the Polar regions, or of the adventures of men lost in pathless deserts, they had been horrified by reading that the unfortunate adventurers had sometimes been driven by approaching starvation to decide by lot which of their number should be sacrificed in order to save the rest from perishing by hunger. He (Sir Francis Goldsmid) was not without apprehension that this measure would lead to some calamity of an analogous character. He almost feared that on some gloomy morning—not of Michaelmas Term, for Terms would have been abolished—but of that dull season which we had hitherto designated as Michaelmas Term, our feelings would be harrowed 1626 up by the intelligence that Her Majesty's 15 Puisne Judges, unable any longer to bear the burden of deciding equitable questions without the help of an Equity colleague, had met and determined by lot, not which four of them should be put to death, but which four should undergo that official extinction which we term resignation, in order to obtain for the rest the aid which all of them already felt to be absolutely indispensable. Supposing them not to be capable of such an act of desperate heroism, most serious impediments to the administration of justice during the transitional period must be the result of the ill-judged parsimony of the Government. If, then, the Attorney General meant inexorably to insist on his Proviso prohibiting the filling up of any vacancy until four vacancies should have occurred, let him at least consent to retain the words on the omission of which the Committee was now about to vote, so that there might be one Judge trained to Equity, who might be kept en disponibilité, and whose assistance a Court of Law before which an equitable point should arise might be entitled to require.
§ MR. W. FOWLERasked how the bankruptcy business was to be managed under the new arrangement? At present it was, to a great extent, blocked, owing to the condition of business in the Court of Chancery. The present position of the Chamber business in that Court was also most unsatisfactory. Were the Judges to be relieved from this business? The Committee ought to know how this was to be arranged before deciding against the appointment of an additional Judge. A vast increase of work and of the time absorbed in the work done in the Courts of Chancery would certainly ensue if vivâ voce evidence were to be largely taken there, and this fact would increase the necessity for an additional Equity Judge. The present mode of examination of witnesses in Chancery had been treated with contempt on all sides, but the proposed change could not be made with the present staff of Judges. He would oppose the Amendment.
THE ATTORNEY GENERALsaid, that if on an Amendment like that which was moved to appoint an additional Judge, the provisions of the 1627 whole Bill were to be discussed, they should never be able to get through with it. Both his right hon. Friend at the head of the Government and the Chancellor of the Exchequer had felt that where well-grounded complaints were made as to the construction of the Court, considerations of expense should not be allowed to stand in the way. Nor was there any pretence for saying there was "a power behind" the Law Officers of the Crown which prevented necessary appointments on economical grounds. But he altogether denied that the large appointment of Equity Judges which had been suggested was necessary; the staff of Common Law Judges was quite sufficient to do the work that had to be done without the necessity of three other Equitable Judges to help them. The question now before the Committee, however, was as to the necessity for appointing an additional Vice Chancellor. On this point the figures quoted yesterday by the Solicitor General clearly showed that whatever arrears of business in Chancery now existed were due to melancholy personal causes of an exceptional character. This charge was one which the Government thought would impose a wholly unnecessary burden upon the public. He must, therefore, oppose it.
§ SIR FRANCIS GOLDSMIDsaid, that having many years since left the Bar, he would not be suspected of being biassed by any personal interest, and that he was convinced that he was furthering the interests of justice and therefore of true economy in voting for the Amendment.
§ MR. VERNON HARCOURTsaid, he thought there was no case whatever for the appointment of an additional Equity Judge. What was wanted was not greater judicial force but a better distribution of it. As the Common Law Judges were hereafter to decide equitable points, it must follow that pro tanto the Equity Judges would have less to do than they now had. Yet there was upon the Paper an Amendment that the Courts of Equity were to be at liberty to send an action to be tried elsewhere—a power which seemed fatal to the principle that suitors were to receive complete justice in the one Court in which their case was first heard. He should vote for the proposal of the Attorney General.
§ Question put, "That the words 'one other Judge to be appointed by Her Majesty' stand part of the Clause."
§ The Committee divided:—Ayes 73; Noes 141: Majority 68.
THE ATTORNEY GENERALproposed the first of three Amendments, which was the insertion, in line 22, after "such," of "if any," the others being in line 23, to leave out "transferred to," and insert "appointed ordinary Judges of." Same line, after "appeal," to leave out to end of clause.
§ MR. VERNON HARCOURT,who had given Notice of his intention to move, in line 22, to leave out from "except such," to "this Act," in line 24, contended that the proposed Amendments of the Government would give them power to create three additional Judges and to incur an annual expenditure of £15,000 for which there was no justification. This was the result of the original error of the Government in introducing their divisional system. The demand was not made in the House of Lords, which was not likely to have overlooked the alleged claims of Equity jurisprudence, which it was professedly designed to meet. He should certainly take the sense of the Committee upon this Amendment.
MR. OSBORNE MORGANsaid, he thought that nothing could be more inconvenient than, when they were discussing the constitution of the Court below, they should he called upon to debate questions relating to the Court of Appeal. He trusted the hon. and learned Gentleman (Mr. Harcourt) would wait until they came to the 6th clause.
THE ATTORNEY GENERALexplained the scheme as it originally stood and as it was now submitted, contending that there was a difficulty which could be solved only by the temporary appointment of three Judges, and referring to a later Amendment which would limit the total number of Judges, and which would bind the Government in the future against the abuse which the hon. and learned Member (Mr. Harcourt) contemplated in the permanent appointment of three additional Judges. The temporary difficulty was that of finding the requisite number of Equity Judges for the Court of Appeal.
§ DR. BALLsaid, he understood that the Government merely proposed to extend 1629 the range of the power of selection. He was in favour of extending the area of selection, and therefore would support the Amendment of the Attorney General. The necessity for any such Amendment showed that the Lords had been rather slovenly, and that misunderstanding further evinced how requisite it was to exercise vigilance in reviewing their Lordships' work.
§ MR. VERNON HARCOURTsaid, the point of his objection to the Attorney General's Amendment appeared to have been somewhat misunderstood. What he took exception to was not that the area of selection should be extended, but that the number of the Judges should be increased. There was one point in reference to the Appellate Court to which the Attorney General had not alluded, and that was with regard to the Law Lords and the ex-Lord Chancellors. The Committee was called upon to vote £15,000 more money because the the Law Lords were not to do any work in the new Court of Appeal. The Amendment to which the Government had consented the day before absolutely denuded these Lords of any judicial occupation. How was the Government to justify this demand for an additional expenditure of £15,000 on the assumption that five noble Lords, each receiving £5,000 a-year, were to do no work in the Appellate Court? If Lord Cairns, Lord Westbury, and Lord Hatherley sat in the Court of Appeal there would be six Judges of the highest character and competence to do the Equity work, and he could not therefore see the necessity for empowering the Government to appoint three additional Judges. For his own part, he would never admit the principle that men in the prime of life, and in full possession of their faculties, should receive pensions and not serve their country. He did not mean to say that these noble Lords would refuse to serve; but their work was to be abolished. This was an extraordinary proposal, a departure from the original intention, acquiesced in by the House of Lords, that no additional Judges should be appointed, and the Government had not till now given any indication that they would make such a proposal. On these grounds he maintained that this claim for additional Judges failed altogether.
MR. GLADSTONEsaid, it was true the Government were asking the House of Commons to give them a very considerable extension of their discretionary power. Whereas the Bill as it now stood, in providing for the addition of three members of the High Court of Appeal, bound the Government to choose those three members from the existing Common Law Judges, and precluded them from putting any one into the place of the three Judges so transplanted, the Government were asking power to select them on the responsibility of the Crown from any quarter, subject only to this limitation—that the reduction of the number of Common Law Judges which was now contemplated to take place immediately must, by the Bill as proposed to be amended, take place upon the termination of three existing Judgeships. That was a very great responsibility, no doubt, which the Government proposed to undertake; but they were not asking Parliament positively to enact that these three additional Judgeships should be created for the moment. They were asking Parliament to give them power which might for a time entail the maintenance of one, two, or three additional Judges; but they were not thereby relieving themselves from responsibility with respect to the appointment of those additional Judges. If arrangements were made after this Bill became law, the effect of which was to add to the number of Judges, it would be in the power of the Government to say to Parliament not that the Legislature had directed them to make such addition, but that Parliament had placed it in their power to do so if they should find it necessary; and so far only as they found it necessary would it be competent for them to make such additional appointments. His hon. and learned Friend (Mr. Harcourt) asked why the Government should seek to assume that discretion. For two reasons. One had been referred to by the right hon. and learned Gentleman opposite (Dr. Ball)—namely, with the view of enlarging the area of of selection. The Attorney General had given additional force to the proposition by pointing out the necessity of having a sufficient amount of Equity power in the High Court of Judicature to be created under the Bill. He (Mr. Gladstone) quite admitted that the services of ex-Lord Chancellors should be available 1631 for the country, and he had a strong expectation, from the high position of those noble and learned Lords, that they would be ready to give the public the benefit of their valuable professional assistance; but he doubted very much whether they would be more likely to obtain that assistance by asserting in too positive a form their title to receive it. They could not give legislative form to their expectation, because they could not assure Parliament that it would be fulfilled. The only course they could take was to ask Parliament to invest the Government with a discretion, to be used upon their responsibility and in the face of proved necessity, which would enable them to make sure of having a sufficiency of Equity power. But there was another and very sufficient reason for the Amendment. It was intended to constitute one High Court of Appeal for the three kingdoms, and he did not think the just claim to have Irish and Scotch Judges upon the Court would be adequately met by the simple addition of ex officio Judges; it would therefore not be wise to make it binding to transfer all the three Judges at the moment into the Court of Appeal from among the Common Law Judges. He did not say what proposal it might be the duty of the Government to make as to the number of persons to be put into the Appeal Court; but the earliest opportunity would be taken of announcing their decision upon that matter to the House.
§ MR. GREGORYsaid, he was desirous to know whether the transference of Vice Chancellors to the High Court of Appeal would leave vacancies to be filled up, or whether the judicial representation of the Court of Chancery was to be reduced as a result of appointments to the High Court of Appeal?
THE SOLICITOR GENERALsaid, if the hon. and learned Gentleman would look at page 19 of the. Amendments he would see an Amendment which provided that any deficiency in the number of Judges in the three Vice Chancellors' Courts that might be caused for the purposes of this Act might be supplied by the appointment of new Judges—that was to say, whenever the office of a Judge of the Chancery Division of the High Court of Justice became vacant a new Judge would be appointed. He would remind the Committee that when these Amendments were put upon the 1632 Paper they had no right to expect that the ex-Lord Chancellors would serve regularly upon the Court of Appeal, because Irish and Scotch appeals were at that time reserved to the House of Lords. Now, however, that the Government had acceded to the proposal of the right hon. Member for Kilmarnock (Mr. Bouverie), there would be no necessity for having Law Lords in the House of Lords at all; and if, as there was a reasonable expectation, some of them would agree to serve in the Court of Appeal to that extent, the deficiency of Equity power could be supplied. Of the five ex-Chancellors who received among them pensions amounting to £25,000 a-year, one, Lord St. Leonards, was over 90 years of age. His health was remarkably good, but he was not able to hear well, and therefore was not in a state to assist in the Court of Appeal. Thus there was one of those alleged available Judges disposed of. The next ex-Chancellor, a very wonderful man for his age, was in his 80th year. He might serve if he pleased, but you could not reckon upon the continued service of a man of that age. Another Law Lord was 73; he very much feared he would not be able to serve by reason of ill-health. The next was 72 years old. He was entitled certainly, if he thought fit, to enjoy his pension without any further service. He had served for 15 years as a Judge, and was fairly entitled to enjoy his pension without longer service. The list was, therefore, reduced to one. That noble and learned Lord (Lord Cairns) was in the vigour of health and intellect; but they had no right to call upon him for continued service, although he might, if he chose, gracefully accede to what he must know was the general wish. They had no right to speculate on his services merely in consequence of the public wish or expectation. Besides, in case of a change of Government, Lord Cairns might be called on to occupy his former position; but in that case they would doubtless have the services of the present Lord Chancellor. The Government, therefore, must take the power to provide additional Judges for the administration of justice if it should be necessary. They were not, however, guilty of any needless extravagance. Their proposal, with a view to strengthen the Equity department of the Court of Appeal, was very moderate indeed. Two 1633 Equity Judges in one Division would probably be sufficient. They did not propose of necessity to appoint more than one, but they wished to be unfettered for this reason—that they might reckon on having to appoint members of the Scotch and Irish Bench or Bar, not with the view of increasing the charge on the public, but simply to provide for carrying out fairly the plan proposed by his right hon. Friend the Member for Kilmarnock, and accepted by the Government. It was quite possible that changes might occur in the constitution of the Courts before the Bill came into operation, and by reason of these changes they might find more Equity Judges available than there were at present. If that should happen, it might be in the power of the Government to avail themselves of the services of those Judges without increasing the charge to the public.
MR. OSBORNE MORGANsaid, the question was whether they were bound to make the appointments from the present Judges, or to make them from members of the Bar. He should say, while they had Equity Judges, they should not make new appointments; that was, if the Equity Judges were willing to serve. As the Bill now stood, there were to be nine Judges, seven of them of the Common Law Bar, and two of the Equity Bar; and anyone who knew the barrier between the Common Law Bar and the Equity Bar must be aware of the distinctions between them. He regarded the Amendment of the Government, as proposed by the hon. and learned Gentleman the Attorney General, as a very moderate one, and he hoped the House would support it.
§ MR. MATTHEWSdiffered from those hon. and learned Gentlemen who had spoken as if the public had a right to the services of ex-Chancellors. The public had no such right. When an eminent lawyer was made a Lord Chancellor he received a fixed salary for a precarious office, and gave up a professional income far exceeding that salary. The pension he afterwards obtained was to be considered, not as the wages of his leisure time, but rather as part of the price we paid for the most distinguished eminent men we could find to preside over the legal system; and unless the prospect of the pension were held out to him the services of the most prosperous 1634 lawyer could not be secured. With regard to the Amendment before the Committee, he should support the Government.
§ MR. WESTsaid, the Amendment of the Attorney General altered one of the most important promises held out at the introduction of the Bill—namely, that there should be no increase in the expense of the judicial staff to be created under this Bill, and as the arguments at present stood he was not prepared to vote for the Amendment of the Attorney General if the hon. and learned Member for Oxford (Mr. Harcourt) insisted upon a division. He would, however, suggest to the hon. and learned Member that the present was not the most favourable opportunity for taking a division upon this question, as Irish and Scotch Judges would have to be appointed to the Court of Appeal.
§ MR. T. HUGHESsaid, that after the statement of the First Lord of the Treasury, that the Government would not put this power which they asked for into operation unless they failed to get sufficient assistance on the Equity side from the present members of the highest Court of Appeal, he considered the proposition a just and reasonable one, and he could not vote with the hon. and learned Member for Oxford (Mr. Harcourt). He was entirely opposed also to the suggestion that Judges should be appointed in the Court of Appeal who had not been Judges in Courts of First Instance.
§ MR. VERNON HARCOURTsaid, he had very little expectation of support from hon. and learned Members of the bar in his opposition to the contemplated appointment of three new Judges, whose united salaries were to amount to £15,000. His right hon. and learned Friend the Member for the University of Dublin (Dr. Ball), for instance, made anxious inquiries as to the time when the Bill would come into operation, and the hon. and learned Gentleman the Member for Frome (Mr. T. Hughes) in his innocence supposed, if the Government got the discretionary power which they asked—a power which would place at their disposal salaries amounting to £15,000—that they would not exercise it in appointing new Judges and conferring high salaries upon them. He (Mr. Harcourt) protested against the doctrine that Law Lords were to receive pensions, which were not superannuations, without being 1635 required to render the country some service, if they were able to do so. He would not waste time by dividing upon the Amendment; but when the question of the pensions of the Law Lords arose upon an Amendment of the Attorney General, he would certainly ask the opinion of the Committee as to whether or not the public had a right to expect and ask the services of the Law Lords in the Appellate Court in consideration of their pensions. If the Committee came to an affirmative conclusion, then he thought these three additional Judges might be got rid of.
§ LORD JOHN MANNERSreminded the Committee that the late Lord Kings-down and the late Lord Devon had given the country the benefit of their competent professional knowledge without pension or remuneration, in discharge of their duty, not only to their order, but to the Sovereign and the country. When it was proposed to abolish the connection which had hitherto existed between the House of Lords and the appellate jurisdiction of the country, then the position of ex-Chancellors qua the appellate jurisdiction was entirely changed. This was one of the many inconveniences which would arise from the hasty and precipitate decision of the Lords as to the abolition of their appellate jurisdiction. He regretted that decision; but, as far as this House was concerned, he did not regard the debate on the interpolated Motion of the hon. and learned Member for Salford (Mr. Charley) as finally settling the question of their Lordships' appellate jurisdiction. The more the Bill was discussed the more did we exhibit our helplessness in the formation of an Appellate Tribunal, which was to be a substitute for the House of Lords. When they came to discuss the clauses which dealt more particularly with the formation and constitution of the proposed substitute for the Court of Appeal, they would find themselves in inextricable confusion.
§ Amendments (Mr. Attorney General) agreed to.
MR. OSBORNE MORGAN,with the object of securing the appointment in each Common Law division of the Court of at least one Judge practically conversant with the practice and principles of Equity, moved, in page 2, line 24, after "this Act," to add— 1636
And so many other judges, to be appointed by Her Majesty by letters patent, as may be required to constitute the several divisions of the court as hereinafter provided; and such other judges may be appointed by Her Majesty, and assigned to their respective divisions by letters patent, either before, at, or after the time appointed for the commencement of this Act: Provided always, That no such appointment shall come into operation before the time appointed for the commencement of this Act.He disclaimed any intention to stereotype the distinctions between Law and Equity; but said the distinctions existed and could not be ignored. He provided by a subsequent Amendment that the offices he proposed to create should not be filled up unless, by death or retirement, the number of Judges in each division fell below five. The object of the Amendment was to provide for a transitional period, and could not cost more than £15,000 altogether.
THE ATTORNEY GENERALopposed the Amendment, not on the ground of economy, because if it could be shown that even a greater outlay would facilitate the administration of justice, he would support it; but here the Court did not require that additional strength which it was the object of the hon. and learned Gentleman's Amendment to confer upon it.
MR. OSBORNE MORGANsaid, that of course it was quite useless to go to a division in which he would be out-voted at once, and he would therefore withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ MR. VERNON HARCOURTmoved, in page 2, line 27, to leave out from "all persons," to "as heretofore," in line 33. As the divisions of the Common Law Courts were to be removed it was not too much to ask for the omission of all statements which regarded the existence of these divisions as permanent matters. Suppose the Queen in Council determined that, the transitional period having passed, the time had come to abolish the divisions in the Courts. What would then be the position of these great officers? The Courts would be abolished, yet the Chief Judges would be perpetuated under their present titles, which could not be affected by an Order in Council, having been created by statute. This would not be the play of Hamlet with the part of Hamlet left out; it would be the part of Hamlet with the play itself omitted.
THE ATTORNEY GENERALsaid, he thought there was no necessity for the omission of these words. The power given to the Queen in the Bill to abolish the divisions would equally give her power to abolish the titles of the Judges composing the divisions. If there was any doubt on this point, he was quite ready to introduce words in clause 29 which would make it clear that the offices would not survive the divisions.
§ Amendment, by leave, withdrawn.
THE ATTORNEY GENERALmoved, in page 2, line 38, at end add—
Provided always, That if at the commencement of this Act the number of puisne justices and junior barons who shall become judges of the said. High Court shall exceed twelve in the whole, no new judge of the said High Court shall be appointed in the place of any such puisne justice or junior baron who shall die or resign while such whole number shall exceed twelve, it being intended that the permanent number of judges of the said High Court shall not exceed twenty-two.
§ Proviso agreed to.
§ Clause, as amended, agreed to.
§ Clause 6 (Constitution of Court of Appeal).
§ MR. VERNON HARCOURTsaid, he thought that what had occurred to-day placed the Committee in greater difficulty than ever, for the Government had not only not made up their minds what they would do with the Scotch and Irish appeals, but were equally in doubt what they would do with regard to the additional Judges. The Prime Minister had reserved to himself a discretion as to the extra Judges who were to constitute the Appellate Court. The Committee did not know who they were to be, where they were to come from, or whether they were to be appointed at all. The Appellate Court, therefore, of which we had any certain information consisted of the two Lords Justices and the four Judges of the Privy Council. If that were to be the new Appellate Court which was to supersede the House of Lords, he was sorry he had voted for the abolition of the appellate jurisdiction of the House of Lords. Before the House proceeded further with the matter, he thought the Attorney General should state what was to be the constitution of the Court. He had already stated his objections to classify these Judges as ex officio, ordinary, and additional Judges, and he would therefore move in page 3, 1638 line 5, to leave out from "there shall be," to "ex-officio Judges," in line 7, and insert "the first Judges thereof."
§ MR. SPENCER WALPOLEsaid, if the Committee went into the clause at all they could not postpone it. He did not think the clause could be properly dealt with until the Committee knew exactly what the scheme of the Government should be, and therefore moved that the clause should be postponed.
THE CHAIRMANsaid, that as there had already been an Amendment moved upon the clause, he could not receive the Motion for postponement unless the Amendment were withdrawn.
THE ATTORNEY GENERALsaid, the Government could not accede to the proposal that the clause should be postponed. It was true they had acceded to certain changes; but these would not affect the constitution of the Court of Appeal as far as it was now under discussion, and the Committee were substantially in possession of the views of the Government upon the subject. He denied that the transfer of Scotch and Irish business to the new Court rendered necessary a postponement of the discussion. His right hon. Friend at the head of the Government had stated that there would probably be some judicial representation of Scotland and Ireland in the Court; but that introduced no uncertainty. All the Committee had to do was to consider the constitution of of the Court as an English Appellate Court, and any Scotch and Irish element hereafter introduced would not make the constitution of the tribunal to any extent uncertain.
§ MR. SPENCER WALPOLEsaid, he did not wish to impede the progress of the Bill; but he contended that until the Committee knew from what source the Scotch and Irish Judges would come they could not legislate with certainty in constituting the Court of Appeal. The number of the Court would also be materially affected by the future proposals of the Government. It would be easier to go on with the other clauses than to prolong a discussion upon the future constitution of the Court.
§ THE LORD ADVOCATEobserved that the postponement of the clause would not gain the object which the right hon. Gentleman had in view, which could only be attained by an Instruction of the House. Under that Instruction 1639 the clause might be modified, and the House would not be in a position to consider that matter until the Report was brought up. He thought the most convenient course would be to pass the clause conditionally, on the understanding that it should be re-considered and committed.
§ MR. GORDONsaid, he thought a discussion of the clause at present would be a waste of time, since it was not the clause which the Government would ultimately propose. He quite understood yesterday that when the Committee came to Clause 6 the Government would state to the Committee the Amendments they proposed, or that some indication would be given of them; but they had not done so. This was one of the most important questions in the Bill. He thought the question of the Appellate Court had been too hastily decided by the House of Lords, and he hoped it would be reconsidered. The Scotch Members who met yesterday were of opinion that, at any rate, there should be a proper representation of Scotland upon the new tribunal. He suggested that the question of the Appellate Court should be postponed for another Session, when the House of Lords and the House of Commons might consider whether the appellate jurisdiction of the House of Lords should be abolished, and, if so, how it should be replaced.
MR. GLADSTONEsaid, the real meaning of the objection taken by the hon. and learned Gentleman opposite (Mr. Gordon) was to postpone to another year the discussion of the question of appellate jurisdiction. Such at least was the practical meaning to be attached to his words. He (Mr. Gladstone) did not apprehend, however, that was by any means the object of his right hon. Friend (Mr. Spencer Walpole) who had brought forward this Motion, who had doubtless stated his entire purpose, and whose proposal he would treat upon its merits. He was not aware that there was any embarrassment, and oven if this clause were postponed, the same difficulty would present itself when the clause came on again for discussion, because it might be said that the title of the Bill would still prevent the Committee from including Ireland and Scotland within its provisions. There was but one thing the Government could do towards smoothing the path of the Com- 1640 mittee, and that was to make known the substance of the Amendments they would have to propose. One of these, as to which there was no difficulty, would extend the jurisdiction of the Court of Appeal; but the difficulty which was felt by those hon. Gentlemen who felt any difficulty at all, had relation to the composition of that Court, which, as the Bill stood, consisted of five ex officio members and nine ordinary members, of whom three were to be found by means of new appointments. The Government thought it would be necessary to introduce into the Court of Appeal one ordinary member from the legal profession in Ireland and one ordinary member from the legal profession in Scotland. Together with the ordinary members so appointed it would be right to make an addition to the ex officio members of the Court of Appeal, and this addition would consist of not fewer than one from Scotland and one from Ireland. He was not able, however, yet to say whether it would or would not be expedient to proceed beyond that. This, he thought, comprised the whole substance of the case except as to one point in respect to which the Government had not yet arrived at a conclusion—namely, whether the arrangement he had just sketched out with reference to ordinary members chosen from the legal profession in Ireland and Scotland would or would not require any addition to the number of Judges. This, however, was not a question which need lead to embarrassment, because if there were any addition whatever, it would be the smallest possible addition. His right hon. Friend would now perceive what was the nature of the plan the Government intended to propose, and would probably admit that there could be no advantage in the postponement of the clause on the ground that the Committee would be better able to deal with it at a future period. He saw no reason why time should be lost. It would be necessary to re-commit the Bill; but before then the Government would be able to put the Committee in possession of the exact terms they proposed, and, under these circumstances, he hoped the Committee would proceed at once with the clause.
§ MR. SPENCER WALPOLEfeared that question after question would arise as to the constitution of the Appellate Court as the matter at present stood, and 1641 there would be other questions consequent upon the proposed addition to the duties of the Appellate Court. If his right hon. Friend at the head of the Government could undertake to put into shape the clause of which he had given Notice and the Amendments that he would introduce in reference to the Court of Appeal, so that they would be able to go into the question on Thursday next, he saw no reason why they should not postpone the clause now under consideration, and go on with the other clauses.
MR. HENLEYsaid, that the impression on his mind was that the Government never intended to include Ireland and Scotland; because why should the Committee be left labouring to fit up an appeal clause which would suit for England alone, and would be very unsuited to appeals from Ireland and Scotland.
THE ATTORNEY GENERALsaid, he thought that when the Prime Minister said that he would accept the proposition in good faith, it would be taken that he meant what he said. He would undertake to place the Amendments on the Paper, so that they would be in the hands of hon. Members by Thursday morning, and he trusted that under the circumstances there would be no difficulty in proceeding with the discussion of the clause.
§ SIR RICHARD BAGGALLAYsaid, he thought the better course to adopt now would be simply to report Progress. It was impossible to proceed with this part of the clause without knowing not only how many additional Judges the Government meant to appoint, but also how they meant to deal with the Lord Justice General or the Lord Justice Clerk in Scotland, or the Lord Chancellor, or the Lord Justice of Appeal in Ireland. He hoped the Government would consent to reporting Progress.
MR. GLADSTONEsaid, that he could not accept the principle that they ought to report Progress at a quarter-past 6; but understanding that there would be some difficulty in dealing with the clause without the Amendment of the Government being before the Committee, he was willing to move that the Chairman should report Progress.
MR. GATHORNE HARDYsaid, he hoped that to-morrow afternoon they would be made acquainted with the final 1642 decision of the Government relative to the precise number of the Court, otherwise they might find it necessary to alter the provision they had already passed.
MR. GLADSTONEsaid, it was impossible in a Bill of this kind absolutely to declare the amount of judicial strength they might find it their duty to recommend; but they would come as near as they could towards informing the House either precisely what was intended, or that the question left open should be brought within the narrowest possible limits.
§ MR. MATTHEWSobserved that it would not be possible to introduce these Amendments until the Bill had gone through Committee; and how could they discuss properly the existing clauses with the Amendments hanging over their heads? The Bill had better be re-committed and the matter then discussed, so that there would be no necessity for going over it twice.
§ Committee report Progress; to sit again upon Thursday.