§ Constitution and Judges of Supreme Court.
§ Clause 6 (Constitution of Court of Appeal).
§ Motion made, and Question proposed, "That the Clause be postponed."—(Mr. Spencer Walpole.)
§ MR. DISRAELI
I have hitherto refrained from troubling the Committee with remarks on this Bill for two reasons. The first is that I am favourable to the policy of Her Majesty's Government on this subject—that is to say, I am favourable to a reform in the Judicature of this country, and that our Judicature should consist of a Court of Primary Decision and of a Court of Conclusive Appeal, and that both of these Courts should be formed of the most efficient elements. Sir, the second reason why I have refrained from making any remarks in the course of this Bill has been that I was myself once called upon to consider the subject, and I am well aware of the difficulties connected with it. I therefore refrained from any observations which might, perhaps, have increased those difficulties. So far as I myself am concerned, my frame of mind may be fairly described as that of one who watched the mode in which Her Majesty's Government sought to solve 1713 those difficulties in a spirit of respectful curiosity. But what has happened with regard to this measure? Within the last 48 hours so many remarkable circumstances have occurred, and Her Majesty's Government has taken so unexpected a line—unexpected not only by the House and by their own supporters, but I should imagine, from the expression of their own countenances, by themselves—that I do not consider it consistent with my duty to continue silent when I believe that the Committee has in an inconsiderate manner placed themselves in a position of considerable peril to the public interests. Now, it is just as well, when we are dealing with matters of this kind, that we should have a just conception of what it is we are undertaking to grapple with. We are dealing with a subject very dear to the people of this country—namely, the administration of justice. I do not think there is any subject in which the people of England take so profound and so keen an interest. They have a stronger feeling with regard to the administration of justice than they have even with respect to the incidence of taxation, because, in fact, its influence is more extensive. Very few people are discontented, as far as taxation is concerned, unless they are touched by a direct tax which is only contributed to the Treasury, after all, by a minority of the people; but the whole country is interested in the administration of justice. It is highly desirable, therefore, that in any step which we take we should have a clear conception of what we are attempting to accomplish, and that we should really have from the Government a precise statement of what they wish to achieve. At present I confess I am somewhat at a loss upon those two heads, and the only object which I have in making these remarks is that before we pass any further clauses I may be able to obtain a clearer idea of what is the object of the Government, what is the course by which they really propose to effect that object, and what may be the consequences if that object be attained.
It may be well for a moment, and only for a moment, to consider how it is that we are dealing with this subject—namely, the reform of the Judicature of this country. We should be in error if we supposed that Her Majesty's Go- 1714 vernment had taken up this question as a matter of choice, or in a spirit of caprice, or that, in proposing to reform the Judicature of this country, they were only bringing forward a subject which might excite the interest of the constituencies. The circumstances which have led to the necessity of legislating upon this head are not of a trivial or temporary character. It is now half a century since the question was raised whether the system of Judicature prevailing in this country which had long been so vaunted was altogether a system which secured to the subject a satisfactory administration of justice. Its purity and its impartiality have never been impugned; but its efficiency was years ago questioned—first by scholars in their study; then it was canvassed by eminent lawyers and statesmen; then that criticism led to the institution of Commissions; then the subject was discussed in the public Press, in all the forms of that Press, from daily journals to Quarterly Reviews, until at last a body of public opinion, ripe and strong upon the subject, had been created, the influence of which could no longer be resisted by any Government, and in due time the Judicature Commission was appointed. The Judicature Commission recommended, generally speaking changes in harmony with those which had long been accepted by persons of great authority and influence, and which had been advocated by the Press universally. I mention these things to show that it was quite impossible for any Government to leave this question of Judicature untouched and believing that reform of the Judicature was necessary, I should have been glad to have seen a measure brought forward by any Government which would effect this object. Well, Her Majesty's Government brought forward a measure which certainly might have done this. There might be controversy as to the preferable mode by which those results might be obtained; but no one can deny that in the Bill sent down to this House there were elements which under the influence of the criticism of the Committee might have been moulded and matured successfully, so as to establish two great Courts, the one of Primary Decision and the other of Conclusive Appeal, thereby accomplishing those two objects which practical men and philosophers, the Press, and learned 1715 Committees and Commissions of Inquiry had all agreed to recommend, and which now, after a considerable number of years, have been generally accepted by all those leading men who have given their minds to the subject as most desirable objects to accomplish. Now, I will address the Committee strictly with reference to the Motion before it for postponing Clause 6. In effecting the object I have described Her Majesty's Government had called upon the House of Lords and the other Courts of Appeal in this country to surrender their Jurisdiction, and the House of Lords, as all know by the Bill now before us, made no difficulty on that head. If it was necessary to have one sole Court of Appeal it was, of course, necessary, unless you concentrated all its duties in the House of Lords, to devise a new Court in which all other Courts of Appeal and all other tribunals of that character should be absorbed. And here I would mention the regret which I feel that there should have been some misapprehension as to the conduct of the House of Lords, as I have collected in the course of the various discussions on the subject. The question is always treated as if the House of Lords had relinquished their duties because they felt that they were unable any longer to fulfil them. But that is an error. The House of Lords did not for a moment acknowledge that they were unable to fulfil those duties which the Constitution of this country at present delegates to them. On the contrary, we have it in evidence—evidence before the Committee of the House of Lords on the subject—evidence adduced by the Lord Chancellor and the late Lord Chancellor (Lord Hatherley)—that the duties of the House of Lords as a Court of Appeal were never performed in a more satisfactory manner than in this generation, and especially during the last few years. Evidence to that effect is abundant. Indeed the House of Lords, we know as a Court of Appeal was a popular tribunal, particularly in Ireland and in Scotland. We have complete evidence on that subject taken before the Lords themselves, and it is acknowledged in the Report of the Committee, many Members of which were Members of Her Majesty's Government. On that point, therefore, there can be no doubt. How did it then become inevitable—and I dwell on this 1716 topic because I know some dissatisfaction exists among my Friends around me on the subject—how did it become inevitable that the House of Lords, whilst they were performing in the most satisfactory manner their duties as a Court of Appeal, should have consented to relinquish that jurisdiction? It arose in this manner. So long as you had an intermediary appeal in England—and you had more than one—the number of appeals, which are considerable in the country, were sifted by the Intermediary Courts, and the only issues that went to the House of Lords were of that gravity, either as regards the amount of property or the possession of precious privileges, which those interested would not consent to have decided by one appeal. Therefore, the business of the House of Lords might be accurately described by these figures. The appeals that came up were from 50 to 60 per annum, and the House of Lords dealt with them in the most satisfactory manner. The very appeals to them upon matters of such commanding interest showed the confidence of the country, and that the decisions at which they arrived were satisfactory to the suitors. Nor should it be omitted that so prompt was the transaction of their business that there were no arrears; so that if there had been no change the House of Lords were capable of perfectly fulfilling those duties which the present constitution of the country devolves on them as a Court of Appeal. But the moment you terminated the Intermediary Courts of Appeal, the Exchequer Chamber, the Committee of the Privy Council, and others, the appeals, which are now 50 or 60, would be described by a very different figure—they would be 500 or 600; and the House of Lords felt that by their constitution they would be quite inadequate to transact business of that amount; and they felt also the unsuitableness and incongruity that a Senate like the House of Lords should be called on to decide on a point of procedure in a Court of Law, on some interlocutory motion and such like, but which, if there was only one tribunal of ultimate appeal, must all go to the House of Lords. It was therefore perfectly clear that if the Government adopted this new principle—if you had only one tribunal of appeal in this country—unless very much more compli- 1717 cated and different changes than those proposed in this Bill were adopted, it would be impossible that the House of Lords could grapple with the business you proposed to call on them to transact. That was the reason why the House of of Lords willingly relinquished their jurisdiction of appeal; but that jurisdiction the House of Lords, in relinquishing, were conscious they had performed in an unexceptionable manner, and one which has never been for a moment seriously impugned.
So far as to the position of the House of Lords; but Her Majesty's Government in dealing with this question on the lines upon which they were building, and in the Bill they have consequently placed before us, dealt with it with prudence and sagacity. Their conduct was prudent, but it was inevitable. They refrained from dealing with the ultimate appeal of Ireland and Scotland to the House of Lords. I was therefore very much astonished when the other night, to my great surprise, the right hon. Gentleman opposite announced to the House that, without discussion and without debate, he was going to accede to the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie). I wish, therefore to know whether the right hon. Gentleman and the Committee have duly considered what must be the consequences of our adopting that course; because I cannot, from the Amendments which have been placed on the Table by Her Majesty's Ministers, assure myself that these consequences have been foreseen. I certainly do not find that there are any remedial arrangements proposed to prevent the ill consequences which seem inevitable. Now, Sir, the appeals which are brought up to Westminster from Ireland and Scotland are not very numerous. They are much more numerous from Scotland than from Ireland; but I suppose if I take them in the course of the year at from 30 to 40 I should not be making an inaccurate statement. Well, now, I want to know from Her Majesty's Government whether they are going to treat, or why they do not treat Ireland and Scotland in respect to the institution of this Court of Appeal on the same conditions as they did England. In England, we are told, the subject is to enjoy what, according to the results of all enlightened inquiries 1718 on the matter, is a great privilege—he is to enjoy in the administration of justice the privilege of being free in the decision of his issue from continued and repeated appeals; he is to have a single Appellate Tribunal. As I collect from Her Majesty's Government, that is not a privilege that is to be accorded to Scotchmen and Irishmen, and I cannot understand why. It appears to me utterly impossible that we can legislate with any prospect of arriving at a satisfactory termination if we avoid this difficulty. Suppose we agree to the suggestion which I collect from the Amendments which are to modify this 6th clause as proposed by the Government—suppose we arrive at the arrangement which the Government in the first instance recommends, what happens? The Irishman and the Scotchman alike possess Courts of Intermediate Appeal in their own countries; but they are also to have an Ultimate Court of Appeal in England. In order to effect this object we are to have Irish and Scotch Judges appointed. Well, now, with the two ex officio Irish and Scotch Judges, and two Judges appointed in a different manner, the business they would have to decide according to the average time required for Scotch and Irish appeals will probably occupy from Scotland two or three months, and from Ireland two or three weeks. You will therefore have the Irish and Scotch Judges so appointed kicking their heels about London, doing nothing, and they will be called in to decide English appeals; and what effect will that have on the constitution and character of the single Court of Appeal which you have engaged to secure for the people of England. The right hon. Gentleman has applied this Bill to Ireland and Scotland; suppose as the result of discussion the right hon. Gentleman advances in his opinions another step—suppose he abolishes the intermediate Courts of Appeal in Ireland and Scotland, and puts the three countries on exactly the same footing; then there will be ample business for both the Irish and Scotch Judges. It is possible that, as the result of discussion, he may be driven to that logical and reasonable conclusion, but in what position may we find ourselves? The Scotch and Irish appeals, which may be now 30 or 40, would become 300 or 400; you would have appeals on points of prac- 1719 tice, on the most insignificant subjects on interlocutory questions from Ireland and Scotland, argued here at considerable expense, which I need not dilate upon; and you would have solicitors and perhaps barristers brought from Edinburgh to discuss these matters. Can a more retrograde movement be conceived? We have now been for a century, more or less, mitigating and abolishing the centralized judicature which the Normans established in this country. The boast of this generation is the institution of County Courts. Every Session we are developing the attributes of the County Courts, increasing their power and extending their sphere, and in every way raising their influence upon the people. Now you would institute a system which would call upon the people in Ireland and Scotland, upon every insignificant subject upon which the laws of this country allow of an appeal, to travel to Westminster at an immense expense, bringing counsel, solicitors, and agents to argue these points. Do you think you can do that without creating a great mass of discontent? It is the question which at the end of the last century caused so much feeling in Ireland, when the question arose whether a writ of error in the Court of Queen's Bench in Ireland should run to the Court of Queen's Bench in Westminster, upon which Mr. Grattan made such passionate appeals to his country and created such a feeling that England was obliged to yield. You are actually on the eve of reviving the very legislation which was then so odious, and which, if you had persisted in maintaining it, might have led to serious consequences. Upon these topics we ought to have a clear intimation of the intentions of the Government. We ought not to be told that something is to be done on another occasion to complete this plan—that, no doubt, something further is intended, and will in due time be proposed. This is a system the parts of which must all hang together. If you really believe, as I am prepared to agree, that it is a high privilege gained for any subject in the administration of justice that there shall be only a single and conclusive Court of Appeal, you have no right to deprive an Irishman and a Scotchman of the same privilege. If you do not legislate in this instance with regard to Ire- 1720 land and Scotland the same as for England, you are leaving the Irish and the Scotch to make an inevitable demand, and that will be—Let us have only one Court of Appeal, and let us have it in Dublin for Ireland, and in Edinburgh for Scotland. That may or may not be a desirable course; but it is the inevitable consequence of the course you are now pursuing.
We have heard a great deal lately about a sudden change of feeling in Scotland and in Ireland on this matter. It was understood at the beginning of the debates that Ireland and Scotland were perfectly content with the appeal which they now enjoy to the House of Lords; it was mentioned on the authority of the Prime Minister, who even dilated on the subject, and that was the triumphant defence which the right hon. Gentleman had against expanding the provisions of this Bill to Ireland and Scotland. Now all this has been suddenly changed; but what evidence have we of the change of feeling? It is said the Lord Advocate has held a meeting of Scotch Members. I am no great admirer of the way in which Scotch business is conducted in this House, or rather out of this House. It appears to me a somewhat strange, scarcely constitutional course that the Lord Advocate should have it in his power to call a meeting of Scotch Members upon a subject of public gravity like the present and communicate to us their opinions without our being favoured with them in debate. I entirely object to that mode of conducting Scotch business; and if it is continued, how are we to remedy our unfortunate ignorance of Scotch business and above all master the mystery of Scotch law? The Lord Advocate gives a dinner party to some Scotch Members, not more numerous than an ordinary dinner party; and then he informs us that he met some 20 Scotch Members and extracted from them the opinion that the feeling of Scotland, which for 200 years has been strongly in favour of carrying their appeals to the House of Lords, has entirely and suddenly changed. I say that evidence is not sufficient. In Dublin we have a most extraordinary meeting of lawyers who pass resolutions the result of which is that they want to keep their own Intermediary Court of Appeal, which furnishes them with plenty 1721 of business, and to enjoy the privilege of having a couple of their members nominated Judges of the Court of Appeal in England. On such conditions, that they are to have a local Court of Appeal and an Imperial Court of Appeal, too, they are very much in favour of the arrangement proposed by the Government.
We have always been led to believes that the great object of a Court of Appeal of the character we desire—recommended by all these Commissions and Committees and learned legists who have devoted themselves to the study of the subject—that the great object is to secure harmony and uniformity of decision. A Court of Appeal should steady the law, and to effect such a purpose it must consist of homogeneous elements. How are you dealing with it in this Bill in regard to attaining such objects, and especially this Bill as modified by the Amendments placed on the Table with respect to the 6th clause? Whether you retain the local intermediate Courts of Appeal in Scotland or not—and I think you will find it impossible—it will be expected, for the very reason that you have selected Scotch Judges, that they should give their minds to Scotch appeals, and that Irish Judges shall give their attention to Irish appeals. You have already decided that India Judges shall give their special attention to Indian causes, and, of course, the English Judges will attend to English causes. Thus you will have four Courts, instead of the great desideratum of a single Final Court of Appeal; and, instead of harmony and unanimity of decision and a steady law, you will have four Courts acting on different grooves, all giving, for aught I know, different decisions. What a position is this, that instead of a single Court of Appeal, consisting of first-rate men, you will have, perhaps, on the very same day different portions of it—those portions all being tribunals of equal and supreme authority—giving absolutely contradictory judgments.
There is another point with reference to these changes which I must bring before the consideration of the Committee, that is the great importance that has always been attached—if you are to have a single Court of Appeal——to this, that that Court of Appeal should consist of first-rate men; that those who 1722 construct and select the Court should have the power and privilege of selecting men for their merits, and for their merits alone; and that nothing but the possession of transcendent qualities as to learning, experience, sagacity and character should sway the decision. Look at what a position you will be placed in by the new propositions of the Government on this head. There are to be two Scotch and two Irish members of this tribunal. I do not wish to make an invidious remark. Both the Bench and the Bar of these countries at present furnish men quite adequate to this position; but this has not always been the case; for there have been times when neither the Bench nor the Bar of Scotland or Ireland could furnish such men. There may have been times when you have found it very difficult, even in England, with its larger area to find adequate men. But by this new change in the Bill you are no longer to appoint only such men, because so far as four of the Judges are concerned you will select them not for excellence, but for nationality. When these four men, have transacted their special business—their Scotch and their Irish business—they will then be deciding upon English business; and, therefore, instead of securing for your Court of Appeal those only who have been appointed for excellence, it is quite possible that you may have your appeals from England decided by Scotch and Irish Judges, who have not been appointed for excellence but for nationality. I think that these are grave considerations, and ought to occupy the attention of the Government. If I could obtain from the Government an admission that they had considered these points I should be the less disheartened. But the Amendments on the Paper do not warrant me in arriving at any such conclusion. What we want is, a complete and coherent tribunal. As regards the Irish and Scotch Judges, we ought to know what the Government intends to do in respect to the Intermediary Courts of Appeal in the sister countries. If those Courts are to remain there is no necessity for appointing Irish and Scotch Judges—the Scotch appeals really occupying only 10 weeks in the Session, and the Irish appeals only about 10 days. If there is to be one sole tribunal of appeal in the country, everybody must agree that both Ireland and 1723 Scotland should be represented. But if those Intermediary Courts are to be retained, you will deprive the English subject of the security promised in the fact of the Prime Minister exercising an unlimited choice in the selection of Judges, and being bound by the responsibility of selecting men of transcendent ability. Instead of that to meet with a result such as I have indicated would be most unsatisfactory. I will not presume to give any advice to Her Majesty's Government, because that is always subject to misapprehension; but if I were to advise them on this occasion it would be as sincere and honest advice as was ever given in this House. Her Majesty's Government have boldly, and to their honour, dealt with a subject of great difficulty. The House has read the Bill a second time. Therefore, the House has sanctioned their policy. But the House, I am sure, cannot be insensible to the imperfect manner in which the Bill carries out that policy, and especially to the manner in which the principles of the Bill have been altered in a sort of haphazard manner without notice and without discussion. Under such circumstances, I think the Government would do well if they took some more time to consider the details, especially as they have been much modified by the enormous concession of the other night; and that when the House shall meet again the Government might give us a Bill which will not only be satisfactory to the House, but will give confidence to the people of this country.
This is the period for agreeable surprises. On Tuesday the late Lord Advocate of Scotland disclosed an idea in recommending the Government to withdraw the Appellate Clauses of this Bill. But the right hon. Gentleman opposite (Mr. Disraeli) has improved on that suggestion in recommending the withdrawal of the whole Bill. He does this in a manner that is bland and genial, and with many compliments to Her Majesty's Government as to the difficulties they have had to encounter and the courage with which they have met them. I am not convinced in the slightest degree by the reasons which the right hon. Gentleman has urged. Those reasons must be viewed in the light of day. I want to know whether the speech of the right hon. Gentleman has really left a clear and 1724 distinct impression on the mind of the House as to the grounds on which, at this time of day, he recommends us to stop short in the labour in which the other House of Parliament and we ourselves have been engaged. Here is a Bill which is the production in the first instance of a Royal Commission. This Bill, in a House where the influence of the right hon. Gentleman predominates, has received, as to its main parts, unanimous approval. It has now come to this House after a long discussion on the second reading, and the opinion of the House has not been challenged by those who are adverse to the Bill, and a unanimous vote has been recorded in its favour. The slender foundation upon which the right hon. Gentleman has contrived to construct the broad recommendations he makes, is the change that has been adopted in compliance with the spirit of the motion of my right hon. Friend the Member for Kilmarnock (Mr. Bouverie). Upon that point he has founded the inverted pyramid he has now presented to the House. Is the right hon. Gentleman right in thinking that it would be for the credit—I do not say of the Government, but of the House of Lords or of the House of Commons—that the resolution he proposes should be adopted? My belief is that if Her Majesty's Government, lured by the complimentary expressions of the right hon. Gentleman, and possibly influenced by the infirmities of human nature at this period of the year, were to adopt the fatal decision of abandoning this work, of which we are about to reap the fruit, we should cover ourselves with ridicule and with the deserved contempt of the country. The right hon. Gentleman has put together a number of ingenious arguments, some of which appear to me to go to the very root of the Bill. The right hon. Gentleman committed himself to this opinion—that if we abolish intermediate jurisdiction in Ireland and in Scotland the consequence of that will be that, instead of having one great Court of Appeal for the three countries, we shall be compelled, in deference to the demand of Ireland and Scotland, to have three Courts of Appeal, and that opinion was founded upon a prior argument, which was this—that as, according to the principles of this Bill, it is of great advantage to the people of this country that intermediate appeals should be abolished, 1725 we should not be justified in withholding that advantage from the people of Ireland and Scotland. If the argument of the right hon. Gentleman be sound, I venture to say we shall not be more fit next year or in any coming Session to deal with the question of a Tribunal of Final Appeal, and a great deal of time has been wasted, and we had better have left things alone. The right hon. Gentleman was rather severe upon the subject. He contemplates the arrival of periods when it will be necessary for the Prime Minister of the day to fill up the vacancies in the Courts of Appeal with inferior men from Ireland and Scotland. This doctrine as to the inferiority of Irishmen and Scotchmen is an awkward doctrine. The right hon. Gentleman is at the head of a party constructed of Members belonging to the three nations respectively. I do not understand what experience has led him to lay down this despairing doctrine. Is it in the choice of the Lord Advocates of his Government that the right hon. Gentleman feels himself entitled to anticipate those unfortunate results? I wish I could offer some consolation to the right hon. Gentleman. It appears to me that his Lord Advocates, including the last one, have been abler and more learned men than the right hon. Gentleman thinks. I see no signs of hopeless and incurable inequality of intellect as regards the Scotch Judges. Nay, more; we have had the idea that the Scotch, besides having a sufficiency of intellect for themselves, were what may be called an exporting nation, used to provide a certain amount of intellect, over and above what the home market required, for the use of their neighbours in the South and elsewhere. I will not push the argument so far as to wound the feelings of Englishmen; but I think I am justified in putting aside so much of the argument of the right hon. Gentleman as depends upon his unhappy anticipation as to the difficulty of finding competent men in Ireland and Scotland to bring into the Court of Appeal. On the contrary, my hope is that a little free trade and free contact between Irish and English Judges, and still more between Irish and English and Scotch Judges, with the new views and lights of law which will come to us here from a legal system so different from our own as that of Scotland, will be highly beneficial to 1726 all three. My pulse, therefore, is not lowered, my anticipations are not darkened. I take rather a cheerful than a gloomy view of this portion of the subject. But then the right hon. Gentleman objects to a declaration of opinion by the Scotch Members. He says it is highly unconstitutional that the opinion of Scotch Members should be gathered by the Lord Advocate at a meeting of the size of an average dinner party. Now, the size of an average dinner party is a small matter; but the hospitality of the right hon. Gentleman must be boundless if he looks upon a meeting of some five-and-thirty Members in this light. If that be the size of the average dinner party which is to govern our domestic arrangements, some of us must provide additional length and breadth in our dining rooms. But the right hon. Gentleman objects on principle to this collection of Scotch Members and seems to think it a bad thing. I will not enter into any general argument upon the question of consultations between Members connected with particular interests or districts; but I think it is a good thing, and that the management of Scotch business in this Parliament, so far from being open to adverse criticism, is an example which we should be glad to follow and extend as far as we can do so. I fear it is not practicable to extend it greatly; but having had some cognizance of the effect of this custom upon the despatch of Scotch business in this House, I differ from the right hon. Gentleman, and think the practice not a bad, but a good one. I am astonished, however, that if the right hon. Gentleman is right in thinking it a bad thing, it should have been the constant habit of his Government to hold these meetings. I am told that my right hon. and learned Friend the Lord Advocate has held but few of these meetings, and is regarded by some Scotch Members as being on that account a degenerate successor of the late Lord Advocate.
§ MR. GORDON
I am not aware that when I was Lord Advocate I held any such meeting, except in one case, when I was not in Parliament, and the Scotch Members were called together to receive an explanation of the provisions of the Public Health Bill.
That explananation reveals, I must say, a rather unconstitutional act. That the Lord Ad- 1727 vocate, being a Member of the House of Commons, should invite some brother Members to consider a certain subject seems to me quite justifiable; but that the Lord Advocate, being a servant of the Crown and no Member of Parliament at all, should convene such meeting is an extension of a usual and established practice as to which I had rather reserve my judgment. But I am told that when it was not convenient for the Lord Advocate to call the Scotch Members together they were called by another person. The objection of the right hon. Gentleman is that they should be called by the Lord Advocate. Apparently he is not a personage of sufficient dignity for that purpose; but I am informed that during the existence of the late Government when the Scotch Members were not summoned by the Lord Advocate, they were called together by a Lord of the Treasury. These points were only the wadding or the padding of the right hon. Gentleman's speech, and I may pass from them with rapidity. He has made one or two other points, of which I hope I can dispose without possessing special or professional knowledge. The right hon. Gentleman is afraid that the Appellate Court by meeting in two Divisions will be in danger of coming to opposite decisions, so that there will be a conflict of law within the bosom of the Court itself. Here, again, I make this comment upon his argument—that if one Court of Appeal be constituted for the three kingdoms, it will still not be possible that all its members should act together upon precisely the same business. The right hon. Gentleman, therefore, proves too much; but if I am correctly informed his apprehension is entirely groundless. He fears that the Divisions of the Court of Appeal will proceed in culpable disregard—at any rate, in occasional disregard—of the judgments of one another, thereby insuring a conflict of decisions. But the difficulty raised is one of which we may say—solvitur ambulando. We have in Scotland a case exactly in point. The judicial body in Scotland is divided into two Houses for the purposes of appeal, and appeals are made from the decision of a single Judge to one or the other of these Houses. When, however, there is the slightest apprehension that variance will be the result of sole action, the two Houses are in the habit of meet- 1728 ing together; and the 50th clause of the Bill enables the Divisional Court of Appeal, under like circumstances, to enlarge itself and include a greater number of Judges. It will thus be in the power of the Court of Appeal to make perfect provision for unity of decision. Then the right hon. Gentleman also fears that the Court of Appeal will be overwhelmed with the multitude of appeals from the County Courts; but the Bill contains no proposal on that head.
§ MR. DISRAELI
The right hon. Gentleman is mistaken. What I wished to show the Committee was that if we abolished intermediary tribunals in Scotland and Ireland, and forced suitors to come to Westminster in order to appeal in comparatively insignificant cases, we should be reviving the Norman system of centralization.
I quite apprehend the argument of the right hon. Gentleman, and it is one which must be weighed and examined when we come to consider the question whether intermediary appeals shall be abolished in Scotland and Ireland. But on this point I think there is a double error in the speech of the right hon. Gentleman. First he assumes that it is necessary to proceed now with regard to these intermediary appeals. I do not admit the necessity. It is perfectly possible to make the requisite provisions with regard to the Court of Appeal before considering the question whether we shall or shall not abolish the power of intermediate appeal in Ireland and Scotland. But it is quite obvious, also, that the question of intermediate appeal is not the same in the three countries, and for the very reason which the right hon. Gentleman has urged—namely, that we should prefer the local, where we can do so, to the central principle, and because while it might be perfectly right to abolish intermediate appeals in London, it might not be expedient to do so in Dublin or Edinburgh. I do not know whether the Lord Advocate would be prepared to give a positive opinion as to intermediate appeals in Scotland; but I think he would hesitate to affirm at this moment the absolute necessity of abolishing intermediate appeals there—[The LORD ADVOCATE: Hear, hear.];—and I am told that is the opinion at which the Irish Bar has arrived.
It also appears to be a decision sound in principle; that is to say, we must keep the administration of justice local as far as we can do so, subject to the further principle that there must be perfect unity in the matter of appeals. In truth, therefore, the question is very simple. If the right hon. Gentleman thinks, as he is entitled to think, that we are wrong in endeavouring to extend the scope of this Bill so as to include Scotch and Irish Appeals, he will have, in consequence of the mode of procedure we propose, the most convenient opportunity of raising that question; because nothing done in the Committee will in the slightest degree commit the right hon. Gentleman, who will be free to exercise his judgment on the partial re-committal of the Bill which we mean to propose. If, on the other hand, as we believe, it is perfectly practicable to introduce those limited changes into the Bill which this extension will require, there is no reason for refusing to go forward with the Bill as it stands, the House being in full possession of the intentions of the Government. In saying that the House is in full possession of the intentions of the Government, I must point out an unfortunate error in a single word of the printed Amendment to be proposed upon re-committal. On a former occasion I intimated that we were engaged in considering whether it would, in our judgment, be necessary to ask the House to give us the power of adding one more Judgeship to the Court of Appeal, thereby increasing the number of other persons to be appointed from three to four. Upon consideration we have come to the conclusion that it is not necessary to ask for such an addition. If, however, upon more careful consideration during the Recess we find it necessary to ask the House for additional judicial strength, it will be our duty to make that demand without fear that the House will decline to meet it. Under these circumstances, the last line of one of the pages of Amendments should read, "such other persons not exceeding three," instead of four, as printed, "as Her Majesty by letters patent may be pleased to appoint." The assumption of the right hon. Gentleman was that 1730 the Court of Appeal would be overburdened with business in consequence of the abolition of the intermediate system in Dublin and Edinburgh. My answer to that is perfectly distinct. First, I do not know it does follow that there would be a very large addition, for I am told that the Appeal business in Scotland is not very large; but whether that be so or not, is a matter which we shall be able to consider with far greater advantage when we come to deal with this intermediate jurisdiction. Meanwhile, the provisions now before us are enough to enable us to constitute the High Court of Judicature in a satisfactory manner as a Court of First Instance for England alone, and as a Court of Appeal for the three kingdoms.
§ MR. GREGORY
thought that the Government had done right in adopting the proposition of the right hon. Gentleman (Mr. Bouverie); but it necessarily led to a re-consideration of the constitution of the Court of Appeal. He (Mr. Gregory) would admit there were great anomalies in the constitution of the House of Lords as a Court of Appeal; but he thought its jurisdiction might have been preserved if the Chief Justices and other eminent lawyers had been associated with the Law Lords. As, however, the Lords themselves had not thought fit to adopt such a course, this House could only accept the Bill in the shape in which it had been sent down by them. The question resolved itself into one of the Court as now proposed. It was quite evident that we must preserve the intermediate Courts of Appeal in Scotland and Ireland, whereas they were to be abolished in this country, and surely this would be a great anomaly. How would it be possible to work the Court of Appeal as constituted by this Bill? There were to be nine ordinary and certain ex officio Judges, but he doubted whether the latter could be relied upon to attend the sittings of the Court, particularly as some of them were to be taken from Scotland and Ireland. Some, again, would have to preside over the Divisional Courts, and consequently could not be relied upon to sit in the Court of Appeal. All therefore that they could calculate upon were the nine ordinary Judges. These nine Judges were empowered to subdivide themselves into Divisions of not fewer than 1731 three each. Now, it appeared from a Return before the House that the number of appeals to the Lord Chancellor and the Lords Justices in one year were 215, to the Exchequer Chamber 107. Adding to these 25 Scotch and 10 Irish Appeals, they had a total of 357 in the course of the year, which would have to be disposed of by the three Divisions he had just referred to. Now, four of the Judges were taken from the Privy Council for the purpose of forming the Divisions, and how, in their absence, would the business of the Privy Council, which was sufficient to occupy them all the year round, be carried on? Indeed, he was not sure that the Indian business of the Privy Council, relating to Mahomedan law, was not of itself sufficient to occupy the time of one of the Divisions, independently of the ordinary Appeals from the Colonies. He felt convinced that unless there was an intermediate Court appointed to consider and adjudicate upon minor matters the appellate scheme proposed in the Bill would not work in a satisfactory manner. He hoped that in this respect the Government would modify their Bill.
§ MR. MACFIE
said, in reference to the transferring the jurisdiction of the House of Lords in Scotch appeals to the new Appellate Court, he had put himself in communication with his constituents, and in order to get a guide to their views, he had distributed about 30 copies of the Bill; but up to that hour he had not been able to get any reply to his question, and he was not likely to obtain their views for some few days, because it was only that morning that the Amendment which brought Scotland within the scope of the Bill had been put upon the Paper, and it would be next week before his fellow-countrymen in Scotland would have an opportunity of considering the subject. Taking those circumstances into consideration, he submitted it would be well to confine the Bill to England, and in the intermediate months that would elapse between the present discussion and the next Session, let the question be well ventilated and discussed, and canvassed in Scotland, and then no doubt a very sound and tangible conclusion would be arrived at. He thought that the Government might be content with the exaltation which would accrue to them from the glory of having settled this 1732 question so far as England was concerned. By the adoption of the course which he proposed, they would be enabled to go to the country some weeks earlier, which would be a very great comfort to them all. He implored Her Majesty's Government to adopt that alternative. He was sorry to say that, in his opinion, there prevailed on this subject in Scotland the most complete ignorance—an ignorance so great as to entirely mislead. That morning there reached him from the capital of Scotland one of those liberal and popular papers, The Daily Review, and in that paper was a leading article which he would read if it were not against the rule of the House, but as it was he would content himself with describing it. The scope of that article was that with respect to the present state of the appellate jurisdiction of the House of Lords, as regarded Scotch appeals, not only was it not unsatisfactory, but that it ought to be maintained, and that his right hon. Friend the Member for Kilmarnock (Mr. Bouverie) had rendered Scotland infinite service by helping to maintain it. Therefore, not only was it that the people of Scotland were ignorant of the provisions of the Bill, but they misunderstood altogether what it was that Her Majesty's Government aimed at. Now, that was one reason why he thought that it would be better that this part of the Bill should be postponed. He did not think the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) was altogether wrong when he said that substantially Scotland was to be put on a different footing from England. It would in reality, he contended, be an appeal from the Supreme Scotch Court to an English Court, and the result would be injurious, as the people would consider that justice would not be done. By the plan proposed the rich would have an undue advantage over the poor. If the Bill was passed through the House without the knowledge of the people of Scotland, and transferred the discussion of appeals from the House of Lords to this Appellate Tribunal, the Scotch people would most indubitably charge the Scotch Members with having forgotten or having become a party to a breach of the Treaty of Union in submitting to review the discussion of a Court in Scotland to a Court in England ejusdem generis, and in point of fact in 1733 over-riding the judgment of a superior by that of an inferior Court, and thus interfering with the proper flow of justice. He was content with the decisions of the Courts of Session, and thought that if high salaries were given to the Judges there would be very few cases of appeal.
§ MR. AMPHLETT
said, the Government had come to a wise conclusion in yielding to the general wish of the House that appeals from Scotland and Ireland should come to the highest Appellate Court. He had hoped that when the appellate jurisdiction of the House of Lords was abolished one great Court of Appeal, comprising men of the highest legal reputation in the country, would have been established. He agreed with the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) in thinking that great inconvenience and conflict of decisions would arise from having the Supreme Court of Appeal sitting in Divisions, and thus constituting two or more ultimate Courts of Appeal, each of whose decisions should be final. The right hon. Gentleman at the head of the Government had urged that in Scotland there was a precedent for a Court of Ultimate Appeal sitting in Divisions without causing inconvenience; but he seemed to forget that there was in the case of Scotland a further and final appeal to the House of Lords. What he intended to propose in another part of the Bill was that there should be an Appeal Court of five or seven Judges, whose decisions should be final, but also that interlocutory and other matters of that kind should be heard by a Division consisting of three Judges, whose decisions should only be final if they approved the judgment of the Court below. If the interlocutory matters, and all the cases in which there was an agreement between the Divisional Court and the Court below were taken from the Court of Appeal, the residue of the business would be quite manageable, and the Court would be more likely to give a greater amount of satisfaction to the country than it would if divided into sections.
THE SOLICITOR GENERAL
said, that the Government were not at all wedded to the number three, and aware as he was that the suggestions of the hon. and learned Member (Mr. Amphlett) were always made for the purpose of 1734 advancing measures, when the House came to discuss the clause for the number of the presiding Judges, the Government would consider the proposal very carefully. With respect to the question of "Divisions," the difficulties were obvious. The right hon. Member for Buckinghamshire (Mr. Disraeli) had pointed them out; but the fact was they could not get through the appeals without Divisions. As to conflicts arising between those Divisions, there was no reason to be apprehensive on the point. We had at present no theoretical security against conflicts between the two ultimate Courts of Appeal—the Privy Council and the House of Lords—and therefore the difficulty which the right hon. Gentleman pointed out might occur at present. But the answer to his objection was that it never did occur. The fact was the Court which was the stronger prevailed, so that conflict between the Courts was imaginary and not real. If the Judicial Committee were constituted as it was at the time when Lord Kingsdown lent his eminent services to it the House of Lords would pause a long time before deciding a case otherwise than in accordance with the previous decision of the Privy Council. If, on the other hand, the House of Lords was strongly constituted, the House of Lords would prevail. He was very much in favour of a practice followed with great success by the Court of Cassation in Paris and the Court of Appeal in Scotland, and that was, that when any difference of opinion occurred between the Judges to call in the other Judges to consider it. Now, that course could be adopted in the case of a subdivision of the proposed Court of Appeal under the Bill; for in cases where a difference of opinion existed in one, the other could be called in to assist in the consideration of the point. In that way a satisfactory conclusion would at once be arrived at. In his opinion, it was very doubtful whether two Divisions would be sufficient to get through the business; but at present the Judicial Committee of the Privy Council was rapidly getting rid of its arrears, and so might have more time than they required for the disposal of cases coming from India and the Colonies. It was the same with the arrears in the House of Lords, so that he and his hon. and learned Friend the Attorney General were in 1735 hopes that a subdivision of the Court into two branches would be generally enough. The appeals from India oftentimes involved not only English but Hindoo and Mahomedan law; and those from the Colonies not only Common Law and Equity, but French, Roman, and Dutch law. He believed himself it would be desirable to send a Scotch Judge sometimes into the Colonial Division, where questions arising out of laws founded on Roman law sometimes arose, as Scotch law was in a great measure founded upon the principles of Roman law. In his opinion, if there were one Division of the Court of Appeal for cases of Equity and another for those of Common Law no conflict could occur between them. He thought he had shown that it was perfectly practicable to accomplish what they all desired—a substantially numerous, and satisfactorily constituted Appellate Court. With regard to the question of intermediate Courts in Scotland and Ireland, they had only a choice of difficulties. If they abolished Scotch and Irish intermediate Courts of Appeal, Scotch and Irish suitors would be compelled to come to London to obtain justice, which in cases of urgency—injunctions for instance—would amount to a denial of justice; while, on the other hand, if intermediate Courts of Appeal were kept up, there would be the expense of a double appeal, from which England was free. He thought the Government had adopted the lesser evil by allowing for the present the intermediate Courts to remain. But that was open to re-consideration when the judicature of Scotland and Ireland should be dealt with in a future Session.
§ MR. BOURKE
said, in reference to what had fallen from the hon. and learned Solicitor General as to no conflict having arisen between the Judicial Committee of the Privy Council and the House of Lords, that the Privy Council always held itself bound by the decisions of the House of Lords.
THE SOLICITOR GENERAL
That is not so. In the last case I was in before them they said they were not bound by any decision of the House of Lords.
§ MR. BOURKE
said, the hon. and learned Gentleman must of course be right in the particular case to which he had alluded; but it was undoubtedly the law and practice of the Privy Coun- 1736 cil to hold themselves bound by the decision of the House of Lords. With regard to intermediate Courts of Appeal, it had often been said that this Bill was founded upon the recommendations of the Judicature Commission; but the Report of the Commission showed that they merely contemplated this great Court of Appeal as an intermediate Court, and that in certain cases a final appeal should be open to the House of Lords. Now with respect to the Lord Advocate of Scotland, he confessed he was surprised to find him in favour of this Bill, because in his evidence given last Session before a Committee his views were entirely opposed to it.
MR. OSBORNE MORGAN
said, he heard with surprise the suggestion thrown out by the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) when he recommended the Government to withdraw the Bill, and bring in another next year, more maturely considered. But where would the Government be next year? Where would any of those now present be? One thing was perfectly certain—if they dropped the Bill this year they would never have it again, and if they went on at the present rate of progress they would have to sit there till Christmas. He would suggest that the Committee should at once dispose of the Motion, and address itself to the consideration of the clauses of the Bill.
§ MR. WHALLEY
asked the Lord Advocate whether he still held the views which he expressed before the Committee of the House of Lords last Session in favour of the appellate jurisdiction of the Upper House?
§ THE LORD ADVOCATE
said, he had read the Report of the evidence which he gave before the Committee of the House of Lords last Session, he thought for the first time, not many days ago, and no doubt the views which he there found expressed were those he entertained at the time, and he had no hesitation whatever in informing the hon. Member for Peterborough (Mr. Whalley) that they quite tallied with and represented the opinions that he entertained now. He had not in any respect changed his opinions. If the question was as to maintaining the appellate jurisdiction of the House of Lords for the three kingdoms, he, speaking his own sentiments, and chiefly from a Scotch point of view, 1737 repeated the opinion which he expressed before the Committee of the House of Lords. But it must be manifest that the question to which he was now referring was not that which they had to consider there. The House of Lords by passing this Bill had determined so far as they were concerned that their House should no longer remain a Court of Appeal for the three kingdoms. They had resolved that they should no longer exercise appellate jurisdiction with reference to this country of England. It had been announced to them on authorities which he did not for a moment think of questioning, that the opinion of the Irish Bench and Irish Bar, and, so far as could be ascertained, the opinion of the people of Ireland, was, that if the House of Lords should cease to exercise appellate jurisdiction with reference to England, it was no longer desirable that appeals from Ireland should be sent to that House. Now, considering the matter had thus so entirely changed, the confessed that, for his own part, he was of opinion—and he thought that opinion was entirely consistent with what he said before the Committee of the House of Lords—that it was not desirable to retain the appellate jurisdiction of the House of Lords for Scotland only. There were many reasons which might be assigned for the change of opinion, or rather, he should say, for the different conclusions one arrived at, in consequence of the very material change in the circumstances. In the first place, it was very manifest that if they withdrew the appellate jurisdiction of the House of Lords with reference to England, they altered the character of the House in its judicial capacity very materially indeed, not only in the estimate of the country—although that was a great deal—but in truth and in reality. In the second place, it had always appeared to him to be of very great importance that they should have one Imperial Court of Appeal, to entertain in the last resort causes not from Scotland alone, which would be the case if English and Irish appeals were withdrawn from the House of Lords—not for Ireland alone, not for Scotland and Ireland together; not for England alone; but an Imperial Court exercising the supreme jurisdiction in the last resort for the three kingdoms and the colonies.
§ DR. BALL
said, the difficulties found in constituting the new Court went far to support the wisdom of the view originally entertained by the Lord Advocate. If we had retained the House of Lords as the ultimate tribunal of appeal—which he believed the Irish legal Members wished to do—these difficulties would not have arisen. For his own part, he would never abandon the opinion he had expressed from the commencement, that the Appellate Tribunal would have been most efficiently re-constituted by a re-construction and reformation of the Lords themselves as a final Court of Appeal.
§ MR. GORDON
said, it was not always that the Lord Advocate and he concurred in the same views; but they certainly did concur last year in holding that the very best Appellate Court for Scotland would be the House of Lords. He quite admitted that the right hon. and learned Gentleman was entitled to say that the circumstances had been changed, and that he might now come to a different conclusion. But, at the same time, he (Mr. Gordon) ventured still to think that it was desirable to retain the House of Lords as the ultimate appellate jurisdiction for the three kingdoms, and he did not give up the hope that the Committee might yet come to that conclusion. It was admitted that the question of the appellate jurisdiction as constituted, or intended to be constituted, under this Bill, was attended with very great difficulties indeed, and it was certainly from no unwillingness that this measure should pass that he threw out the suggestion that it would be well to excise from this Bill all the different clauses which related to the appellate jurisdiction, leaving that matter for further consideration; because, so far as regarded Scotland, for instance, it was only that day that the proposed changes had been placed upon the Notice Paper. Speaking as a Scotchman, he still entertained the opinion he expressed in 1872. He did not know what was the opinion of the profession of which he had the honour to be a representative, nor did he know the opinion of the Bench with reference to the proposed change, and he would not press the point further, because he understood that these changes would not be moved in this Committee, and that the Bill would afterwards be re-committed for that purpose. If there was one prin- 1739 ciple more dangerous than another in the constitution of a Court of Appeal, it was to have three or two concurrent Courts of Appeal sitting, which might lead to different decisions. His hon. and learned Friend the Solicitor General said they should have a sufficiently numerous Court of Appeal. But the greater the number the greater weight it gave to his objection. What he objected to was that the body being so numerous they could not expect it to be a select body. A great advantage in the House of Lords was that they got the highest legal intellects sitting there as a Court of ultimate resort. Another great advantage was that they had not only the highest intellect sitting on the judicial Bench, but they had also the highest legal and forensic ability applied to the arguments submitted to that Bench. He ventured to say that it was an advantage to have the highest forensic opinion addressed to the pleading of a case, and that it was better it should be removed out of the groove into which too often the junior members of the Bar—those who did not occupy the highest position—were apt to lead it. Because, observe what was now proposed to be done. They were obliged to have a numerous Court of Appeal—18 Judges or more. For what purpose? In order to dispose of some 300 or 400 appeals. The Judges would therefore be employed in the adjudication of points which would not be of great legal importance; whereas in the case of an ultimate appeal to the House of Lords, the appeal related only to a limited number of cases—limited as regarded generally the importance of the interest at stake, or with reference to the general interests involved in the point of law which came before the Court. It was of importance not only to the individual concerned that they should have but one Court of final decision; but it was of importance to the law, and if it was important to the law, it must be of importance to the litigants. Therefore, he ventured to think that the Government was not adopting a right course in making what were now called those intermediate appeals final appeals, and thereby shutting out the final decision of the supreme appeal Court, which had hitherto discharged its duties with satisfaction.
§ MR. VERNON HARCOURT
said, the Committee were now discussing what was discussed on the second reading—namely, the propriety of abolishing the appellate jurisdiction of the House of Lords. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), who often gave the House new reasons, had given that night this as a new reason for the abolition of the appellate jurisdiction of the House of Lords—that as intermediate appeals were to be abolished the number of appeals to the Appellate Tribunal would thereby be greatly increased and the House of Lords could not undertake to deal with that increase of Appeals. As the Committee had agreed that in the case of England the House of Lords' jurisdiction should be transferred to a new Tribunal, and it was agreed that that new Tribunal should also deal with appeals from Ireland and Scotland, it was idle now to ask for the postponement of the Bill in order that the question about Scotch appeals might be further considered.
§ MR. WHALLEY
appealed to the Government to yield to the arguments which had been advanced in favour of postponing the clause so as to give time, even if it were until next Session of Parliament, for calm and careful consideration of a subject which contemplated such important changes in the present system of administering justice.
§ Motion, by leave, withdrawn.
§ MR. BOURKE
moved, in page 3, line 5, to leave out "five ex officio Judges thereof, and also." He did so upon the authority of Lord Campbell, who had said it was wholly incompatible with the duties of the Chiefs of the various Courts to render any assistance in hearing appeals
THE ATTORNEY GENERAL
opposed the Amendment, and said, with respect to one of those Judges—the Lord Chancellor—it would be impossible to strike him out as one of the ex officio Judges, he having been always accustomed to hear appeals. [Mr. BOURKE: Then I except the Lord Chancellor.] He (the Attorney General) did not understand why the heads of thevarious Courts should not sit in the Court of Appeal 1741 when they had the opportunity of doing so. Almost invariably one of the Chiefs presided in the Court of Exchequer Chamber, and the present Lord Chief Baron attended occasionally in the Privy Council and had this week been present at the sittings of the House of Lords. These distinguished functionaries ought certainly not to be extruded by statute from the Appeal Court, to which, when they could attend it, they would contribute both dignity and weight. He hoped the hon. Member would not press his Amendment.
MR. STAVELEY HILL
supported the Amendment. The argument that the Chiefs sit in the Exchequer Chamber did not apply in this case. The constitution of the Exchequer Chamber was the Judges of two Courts sitting on the judgments of the third Court. It was necessary in that case that the judicial strength should be as great as possible. Without mentioning personal instances, or the present Chiefs, it was well known that the heads of the respective Courts, though quite able to keep their own Courts in order, were often selected for political quite as much as for legal eminence, and were not the best fitted to serve in the Court of Appeal. It was also better to keep that Court distinct from the Court below, so that a case on appeal might be res integra presented to new minds.
MR. OSBORNE MORGAN
said, he could not concur with the hon. Member who had moved the Amendment, nor with the hon. and learned Member who supported it. In his opinion, the Chief Judges of the Common Law Courts, and the Judges of the Equity Courts named in the Bill, would be a great source of strength to the High Court of Appeal.
§ DR. BALL,
while appealing to his hon. and learned Friend (Mr. Bourke) to withdraw the Amendment, expressed great doubt in regard to the attendance of these ex officio Judges, and hoped the hon. and learned Attorney General might see fit to strengthen that part of the Appeal Court which was composed of the Ordinary Judges.
§ MR. BOURKE,
yielding to the reasons given against his proposal, said, he would not put the Committee to the trouble of dividing, and, with the permission of the Committee he would withdraw his Amendment.
§ Amendment, by leave, withdrawn.1742
§ MR. RAIKES
said, he had an Amendment upon the Paper in reference to the number of the Judges which it was proposed should constitute the High Court of Appeal; but as his hon. and learned Friend (Mr. Matthews) had a similar Amendment, he would give way to him, and would not press his own Amendment on the consideration of the Committee.
§ MR. MATTHEWS
moved, in page 3, line 6, to leave out "nine," and insert "six" Judges, of whom to constitute the High Court of Appeal. What was wanted was a Court sufficiently numerous to sit in two Divisions, and not too numerous to sit as one Court. He was not committed to any particular number, but thought that nine, as fixed in the Bill, was too many. Further, he could not see any advantage or strength to be gained by selecting paid members of the Judicial Committee of the Privy Council to form part of the Judicial Bench of the High Court of Appeal. Did the Government think it would be satisfactory to the country to take away the ex-Indian Judges, who thoroughly understood the difficulties of Indian law, to act as Judges in the High Court of Appeal? He deprecated the addition of four paid members of the Judicial Committee of Privy Council to the Appellate Tribunal. An effect of such appointments would be to lower the salaries of the other Judges. What they wanted was to get Equity and Common Law Judges in the composition of the tribunal.
§ Amendment negatived.
§ MR. MATTHEWS
moved, in line 12, after "Chancery," to leave out to "1871" in line 14, the object being to exclude the salaried Judges of the Judicial Committee of the Privy Council from being members of the new Court of Appeal.
§ Amendment proposed, in page 3, line 12, to leave out from the words "the existing Judges," to "1871,"in line 14.—(Mr. Matthews.)
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 62; Noes 12: Majority 50.
MR. OSBORNE MORGAN
said, he had given Notice of an Amendment which he did not mean to press; but he must express his deep disappointment at 1743 the course pursued by the Government in regard to the Equity element in the new Appellate Tribunal and in the Court of First Instance, and also his belief that their niggardly and penurious mode of starting a great scheme would cause it very soon to break down.
THE SOLICITOR GENERAL
(for the ATTORNEY GENERAL) moved in page 3, line 14, to leave out from after "three" and insertother persons as Her Majesty may be pleased to appoint by letters patent, such appointment may be made either before or after the time appointed for the commencement of this Act, but if made before shall take effect at the commencement of this Act.
§ Amendment agreed to.
§ MR. MATTHEWS
moved the omission of the words from line 21 to 35 enabling the Queen to appoint as additional Judges of the Court of Appeal persons qualified by statute to be members of the Judicial Committee of the Privy Council, or who having acted in Scotland as Lord Justice General or Lord Justice Clerk, or in Ireland as Lord Chancellor or Lord Justice of Appeal, should signify their willingness to serve.
THE SOLICITOR GENERAL
opposed the Amendment. There were, no doubt, Judges in Scotland and Ireland who would follow the example of a very distinguished ex-Lord Chancellor of Ireland—Sir Joseph Napier—who constantly served as a member of the Privy Council.
§ MR. GORDON
regarded the terms upon which the English and Irish Judges were empowered to give their gratuitous services in the Court of Appeal—namely, that they should not thereby prejudice their right to receive a pension as being one of the coolest conditions ever inserted in a Bill.
§ Amendment negatived.
THE SOLICITOR GENERAL
proposed the addition to the clause of the following words—Every such additional Judge who shall have been a Lord Chancellor hereafter for the first time appointed to that office, shall be deemed to have undertaken the duty to serve as such additional Judge until he shall have served as Judge for the period of fifteen years in the whole in all or any of the following offices (that is to say): Lord Chancellor, a Judge of any of the Courts of Chancery, Queen's Bench, Common Pleas, Exchequer, Probate, High Court of Justice or Court of Appeal.1744 The object of the Amendment was to place future Lord Chancellors on the same footing in respect of pension as the Common Law Judges. This was important, as, if a time arrived when changes of Ministry were frequent, they might have several comparatively young ex-Lord Chancellors, and under the Bill as he sought to amend it, the country would not lose the benefit of their services. He trusted that this Amendment would receive the favourable consideration of the Committee.
§ MR. JAMES
confessed he did not understand the Amendment. He presumed, in the first place, that no present or ex-Lord Chancellor would be affected by it. [The SOLICITOR GENERAL assented.] He agreed with the principle that a Lord Chancellor, who was usually appointed for only a short time, ought to give his services to the country; but the clause seemed to be hastily drawn. "Until" seemed to refer to the future; but ought it not to read "unless he shall have served?"
THE SOLICITOR GENERAL
said, he was quite willing that the words should be "unless and until." If any other words could be suggested on the Report he should be quite ready to consider them.
§ SIR RICHARD BAGGALLAY
trusted that the Committee would not adopt an Amendment which would put an indignity upon the person called upon to fill one of the highest—if not the highest—office in the State. The effect of this Amendment and a subsequent clause would be to make it imperative upon every Lord Chancellor to bind himself when he went out of office to serve as a junior Judge in the Court of Appeal, over which he formerly presided, until he had made up the period of 15 years, or else to forfeit his pension. Now, the position of Lord Chancellor was very different from that of an ordinary Judge, and the effect of the Amendment would be that it would be no longer sought after, as hitherto, by men of the highest eminence at the Bar.
asked whether there ought not to be some limit as to age. A Lord Chancellor might be appointed at 65, and was he to undertake to act as Judge of Appeal until he was 80? He doubted whether that would be a wise provision, because he could answer for it that people "wore out." ["No!"] 1745 There ought to be some age at which a man might retire from a duty for which he was incompetent.
THE SOLICITOR GENERAL
said, it had not been the practice in England to fix any age at which the Judge should retire. They performed their duties until they were disabled by infirmity. In the case put by the right hon. Gentleman the obligation would be upon the Judge to complete his term of 15 years unless he was prevented from sitting by "any reasonable impediment." If he were 80 years of age and his powers were failing, that would be a "reasonable impediment."
§ MR. CAWLEY
observed, that as long as the Lord Chancellor was a political officer there was a marked difference between him and the other officers. He thought that the present proposal would be an indignity to the Lord Chancellor, and prevent the best men seeking that office.
§ MR. HINDE PALMER
did not think it was desirable to make a bargain with a high officer like the Lord Chancellor; but he thought they should rather trust to his good feeling to voluntarily undertake the duties. He thought the suggestion to postpone the Amendment until Clause A. was reached was a valuable one.
THE ATTORNEY GENERAL
said, that at present £5,000 a-year was granted to a Lord Chancellor on his retirement from office without any contract being made between him and the country. Therefore, there was no use in speaking of enforcing a contract where no contract existed. But it should be remembered that a Lord Chancellor was often appointed in the prime of life, and what the Government wished was that it should become a matter of positive obligation that upon his retirement from office he should give the country the benefit of his, perhaps, very valuable services. If therefore the Bill passed in its present shape, it would become a matter of contract that a Lord Chancellor, on his retirement, should serve on the Court of Appeal, and he did not see that there was any indignity whatever, or anything hurtful to the feelings of any eminent person in such a proposal.
§ MR. DISRAELI
said, he thought the hon. and learned Gentleman had misunderstood the point before the Committee. The argument was not as to the feelings of certain eminent persons; what the Committee had to consider was the interest of the country. He (Mr. Disraeli) thought that it was not for the interest of the country that such an arrangement as the hon. and learned Gentleman described should take place. We called upon a man who was making a very largo income at his profession to renounce it and take office, with all its responsibilities. That office might not last long, and he would have to calculate in what position he would find himself at the close of that career. Now, £5,000 a-year was not an extravagant estimate of what such a man was entitled to, or what he would have to lose by accepting office. If the State made hard bargains, men of commanding ability would refuse to take office, and it would have to be offered to men of secondary capacity, who would eagerly accept it. Before the Act introduced by Lord Brougham, Lord Chancellors on their retirement had £4,000 a-year, without any restriction or condition whatever, and when Lord Brougham increased the pension there was really no condition laid down, though in introducing the Bill he gave utterance to some vague and indefinite observations. What they ought to do was to give a Lord Chancellor retiring upon a pension the right if he chose to become a member of this Court; but to make his pension dependent upon his future services would be a most unwise step. There might be physical, mental, or moral circumstances which would make it undesirable that a person leaving a high political office should enter at all into professional service, and this proposition would make it a matter of necessity. He hoped the Committee would not sanction the Amendment.
said, he thought it would be convenient to postpone this discussion till they came to Clause A, when the whole subject might be considered on its merits. The right hon. Gentleman (Mr. Disraeli) seemed to think that every retiring Chancellor if he had served a day in the office was entitled 1747 to receive a pension of £5,000 a-year, without the obligation to perform any other judicial duty; and that at the time when they proposed to strip the House of Lords of all judicial duties. He entertained a very different opinion, and would contend that it was desirable to apply to Lord Chancellors the condition of this Amendment. In the meantime, however, it was desirable to postpone the Question.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ Clause 7 (Vacancies by resignations of Judges and effect of vacancies generally) agreed to.
§ Clause 8 (Qualifications of Judges. Not required to be Serjeants-at-Law).
§ Amendment proposed, in page 4, line 14, to leave out from the word "Provided" to the end of the Clause.—(Mr. Matthews.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
THE ATTORNEY GENERAL
said, he could not agree to the omission of the words. There was no reason for maintaining Serjeant's Inn. In reply to remarks which had been made, he would say that Judges were not "visitors" of the Inns in the ordinary sense of the word; they had no original or initial jurisdiction, they had an appellate jurisdiction in the matter of discipline only. In respect to finances they were perfectly powerless, and had no control. In the single instance of the discipline committed to the benchers over the members of the Bar, there was an appeal to the Common Law Judges, and to them only. He did not apprehend any inconvenience from Judges having to sit in appeals upon the conduct of different Inns of Court. Of course, a gentleman belonging to any one Inn would not sit as Judge in an appeal upon the conduct of that Inn.
§ MR. SERJEANT SIMON,
as a member of the ancient and honourable order which was attacked by the Proviso before the Committee, protested against the proposal contained in the clause. A Serjeant-at-Law could take a brief from any person; whereas a Queen's Counsel could not, unless he had the licence 1748 of the Crown to do so. The Serjeants were the ancient and legitimate leaders of the Bar, the persons who were essentially the people's counsel, and whose creation was quite independent of anything like political or party influence. He strongly objected to the certain extinction of the order, which would be effected by an enactment to the effect that in future it should not be necessary for barristers to become members of Serjeant's Inn before ascending the Bench.
§ Question put.
§ The Committee divided:—Ayes 85; Noes 39: Majority 46.
§ Clause agreed to.
§ Clauses 9 to 11, inclusive, agreed to.
§ Clause 12 (Provisions for extraordinary duties of Judges of the former Courts).
§ MR. MATTHEWS
moved in page 6, line 12, after "year," to insert—Provided always, That the expenses of the Judges who may be commissioned to go circuits as hereinafter provided shall be borne and paid in like manner as the expenses of the Judges who go the winter circuit are now borne and paid.By the Bill all the members of the High Court of Justice were put on the same footing at £5,000 a-year; but while the Common Law Judges had to go on circuit at considerable expense, the existing Vice Chancellors did not; he thought that they ought to have their expenses allowed them the same as the Judges who went on winter circuit.
ruled that the Amendment related to a red letter clause, which was to be moved as a new clause.
§ Clause agreed to.