HC Deb 03 July 1873 vol 216 cc1748-56

Jurisdiction and Law.

Clause 13 (Jurisdiction of High Court of Justice).


moved in line 30, after "Commissioners," to insert— 13. The Court of Chancery of the County Palatine of Lancaster. 14. The Court of Chancery of the County Palatine of Durham.


said, the hon. and learned Member was not in his place when the matter was dis- cussed previously, and explained that his object would be attained by an Amendment of Clause 22, from which would be eliminated words that restricted the changes to be made in the administration of the law to the newly-constituted Courts. By striking out the names of those Courts the administration of the law would extend to the two Chancery Courts of the Counties Palatine. They had not the remotest intention of abolishing the Court of Chancery of the County Palatine of Lancaster—a very good Court, and one they could not attempt to take away without having the people of Lancashire fairly up in arms against them.


said, he was glad to hear the Solicitor General's admission as to the character of the Court of Chancery of the County Palatine, which was one of the very best possible tribunals in the whole kingdom. He might add that the Court of Common Pleas of the County Palatine had become just as popular as the Court of Chancery; and the same argument applied to both of those tribunals.


said, he would withdraw his Amendment.

Amendment, by leave, withdrawn.


then proposed to omit in line 26 the words "The Court of Common Pleas of the County Palatine of Lancaster," observing that the popularity of the Government in Lancashire was not great, and it certainly would not be increased if they destroyed the Court of Common Pleas there. There was a great desire in Lancashire to know whether, under the Bill, the Assizes would be held there more frequently.

Amendment proposed, in page 7, line 26, to leave out the words "the Court of Common Pleas at Lancaster."—(Mr. Cross.)

Question proposed, "That the words proposed to be left out stand part of the Clause."


said, he could not support the Amendment, because he believed that Bill not only continued the benefits conferred by the Court of Common Pleas in the County Palatine of Lancaster, but would extend them to all the other great and populous parts of the country.


opposed the Amendment, and said, the existence of the Court of Common Pleas at Lancaster did not in any way benefit the suitors. It ought not to be withdrawn from the operation of the Bill.


observed that the question was not one for lawyers but for suitors, and they were in favour of the retention of the Courts. Every case tried in the Court of Common Pleas cost the suitor £10 or £12 less than the cases tried in the other superior Courts.


said, he could not support the Amendment, as the Court was merely a nominal one, and the machinery which was the valuable part of it, would be continued under other provisions of the Bill.


said, that he would agree to the clause if it were shown that the advantages which Lancashire derived from the existence of this Court would not be taken away, but really extended to other parts of the kingdom.


agreed with the hon. Gentleman opposite (Mr. Cross), that the question was one rather for suitors than lawyers. There was no intention on the part of the framers of the Bill to interfere in the slightest degree with the benefits which this Court conferred. The whole jurisdiction of the Court would be exercised as it was at present, except that it would be exercised by Judges of the High Court sent as Commissioners of Assize. All the local advantages arising from the machinery of the Court would be preserved by other clauses in the Bill.


said, the Judges did not try causes in the Court of Common Pleas at Lancaster as Judges of the Court, but by virtue of the Commission under which the Assizes were held. The position of the attorneys practising in the Court was peculiar, and, if the Court were abolished they would be entitled to compensation. Had that question been considered? He did not want to leave the case of Lancaster dependent on the chance of passing provisions, which would confer on other counties advantages corresponding to those which Lancaster derived from its local Court, because such provisions would threaten the agency business of the London attorneys, and therefore might be successfully opposed by them.


said, the case of the attorneys practising in the Court of Lancaster was worthy of consideration and should have it.

Question put.

The Committee divided:—Ayes 129; Noes 95: Majority 34.

Clause ordered to stand part of the Bill.

Clauses 14 to 16, inclusive, agreed to.

Clause 17 (No appeal from High Court or Court of Appeal to House of Lords, or Judicial Committee).


moved to postpone the consideration of the clause. The question whether the jurisdiction of the House of Lords should be immediately abolished must, he argued, mainly depend on the constitution of the new Court of Appeal, and the way in which its functions were to be exercised. He had on the Notice Paper a Motion for the omission of the clause altogether, and he had three reasons for giving that Notice; his first and chief reason was that the jurisdiction of the House of Lords as a Court of Final Appeal for English causes ought not to be abolished whilst it was retained for Scotch and Irish causes. As originally constituted, the Bill applied only to England; but the Government had since accepted the proposal of the right hon. Member for Kilmarnock (Mr. Bouverie), making it applicable to Scotland and Ireland also; his first objection to the clause was consequently removed. His second reason was that, in many cases it was desirable to have the means of rehearing an appeal. The Bill at present contained no provision for a rehearing, but there were several Notices on the Paper of Amendments to effect that purpose; should no such provision be inserted in the Bill it would be undesirable to part with the existing right of rehearing by the House of Lords. His third reason for objecting to the clause was that it was expedient to retain the present jurisdiction of the House of Lords until there was a reasonable certainty that the proposed Court of Appeal would work well. For the present, however, he would content himself with moving the postponement of the consideration of the clause.

Motion made, and Question proposed, "That Clause 17 be postponed."—(Sir Richard Baggallay.)


said, he understood the hon. and learned Gentleman wished this clause to be postponed upon three grounds. With the first ground for postponement he need not trouble himself, because it was admitted that it had disappeared, it having been admitted on the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) that the three kingdoms should have the same Court to which their final appeals should be presented. The second ground which the hon. and learned Gentleman urged for postponement he could not help thinking was peculiar. The hon. and learned Gentleman wished to preserve the means of having an appeal, before the final Court was applied to; but one of the objects of the Bill was to prevent any appeal to an intermediate tribunal. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) had admitted that it was desirable to abolish the Intermediate Courts of Appeal. The third ground upon which the hon. and learned Gentleman asked for a postponement of this clause was still more curious—namely, that it should be postponed until it was seen how, by the later clauses, this jurisdiction was to be exercised. He (the Attorney General) should have thought it was plain that the Committee should make up their mind in the first instance whether or not they would transfer en bloc this jurisdiction, and that the next question they should deal with was the question how that jurisdiction should be exercised in various circumstances. For some 100 years there had been two co-ordinate Courts of Appeal in this country, yet there had been no conflicting decisions; and, therefore, though there was a metaphysical possibility of such a conflict, as practical men the objection was hardly worth considering. He would urge upon the hon. and learned Gentleman to act upon the principle of common sense, and be guided by experience. The question of maintaining the jurisdiction of the House of Lords had already been discussed, and he hoped that, for the saving of public time, the decision already given by the House would be accepted.


As the hon. and learned Gentleman the Attorney General has made an appeal to men of common sense, perhaps I may be allowed, as one not learned in the law, to make a few remarks. The hon. and learned Gentleman says, that inasmuch as this House has passed the second reading of the Bill, we are not at liberty again to consider the propriety of abolishing the appellate jurisdiction of the House of Lords. But when the House agreed to the second reading of the Bill, it constituted a Court of Appeal for England only, and since the House passed the second reading it has been decided that the final Court of Appeal this Bill would create, shall extend its jurisdiction to Ireland and Scotland, and-include Scotch and Irish Judges. Now, although Englishmen may have such confidence in their own Bar and their own Judges as to be perfectly content with the Court of Appeal first constituted, however much they may regret to see the appellate jurisdiction of the House of Lords abandoned, the Court of Appeal which we are now considering is an indefinite quantity, inasmuch as we do not know exactly what additions are to be made to that Court. With respect to the addition of the Scotch Judges, much as I respect their learning and judgment, when they are concerned in the administration of the law of their own country, I have always heard that the Scotch law is different from the law of England; and although Scotch Judges have sometimes, when Peers attended in the House of Lords to adjudicate upon English appeals, I have heard grave complaints of English causes being judged by Scotch Judges. Then, with regard to the Irish Judges, it is idle to attempt to conceal the fact that influences are operative in the appointment to the highest judicial offices in that country, which, happily, are not operative in England. We know that scenes have occurred in the Court of Chancery in Ireland such as have never been known to occur in the Court of Chancery in England; and the addition of Irish Judges if made to the new Court, will tend to shake the public confidence in that Court, which confidence, if it exists at all, is a confidence of wonderfully recent growth. There is another moot point. The only argument which has been used for the abolition of the jurisdiction of the House of Lords is, that the House of Lords itself has upon the application of Her Majesty's Government given it up. I have asked several Peers whether they knew the real reasons adduced in favour of the appellate jurisdiction being abandoned. No one single Peer has been able to give me a satisfactory reason in answer to that question. I was told that when the Bill got into Committee the jurisdiction was given up; but no Peer to whom I have spoken on the subject has been able to inform me why it was given up. I entertain the greatest objection to this proposal, which appears to have been carried by misfeasance, and for this reason. I have the highest respect for the Judicial Bench; but the historical examples in this country of Courts of Final Jurisdiction not amenable to Parliament, and not connected with the House of Lords, are not favourable. Judges are excellent persons, no doubt; but they are all the better where they have that increased sense of responsibity which connection with one of the Houses of Parliament entails. There is historical evidence of the abuses which are recorded against the Court of High Commission in the times of the Stuarts, and that although there were from 26 to 42 Judges in the Star Chamber, it likewise closed its career in disgrace. Such are the examples that we have of Final Courts of Appeal separated from the House of Lords! I hold another, and it may be an erroneous, opinion; but I hold this—that the Courts connected with such a body as the House of Lords gain, from daily association, an amount of practical knowledge, and a sense of the responsibility constantly incumbent upon them, that are not possessed in the same degree by any Court which is separated altogether from the Upper House of the Legislature. It may be said that this is an old-fashioned objection. Nevertheless, it is a practical one, and comes home to the common sense of the people of this country. Although this House seems inclined to proceed so jauntily with the Bill, I am convinced that the country is not prepared for the great change which is now proposed. I am confident that the country looked forward to another alternative, and it was this—that the learned persons who are to constitute the Court of Appeal, as now proposed, should be made life Peers. That measure was proposed by Lord Russell. It was sanctioned by the late Lord Derby, and has the highest authority in its favour. ["No, no!"] Yes, I say that it was sanctioned by the late Lord Derby, for, although he voted against the creation of life Peerages, not limited to Judges, his speech stands on record, and uncontradicted by himself, that, had the limitation to Judges, who should assist the appellate jurisdiction of the House of Lords, been proposed, that proposal would have received the cordial assent of the late Lord Derby, as it had the advocacy of Lord Russell, the recommendation of Lord Granville, and the assent of a largo proportion of the House of Lords. All such considerations as these may seem slight to lawyers entirely occupied with the technical procedure of the Courts, and who do not trouble themselves to regard the constitutional questions which are involved; but we, who represent those, who are to be the suitors and the subjects of the jurisdiction of this new Court, whose fortunes and whose fate are to be finally decided by this Court of Appeal, look more gravely into these questions; and I am grateful to the hon. and learned Gentleman (Sir Richard Baggallay) who has proposed the further consideration of this subject, and should he divide the House, either in favour of the postponement or the rejection of this clause, he shall have my hearty support.

Question put.

The Committee divided:—Ayes 107; Noes 145: Majority 38.

Question proposed, "That the Clause stand part of the Bill."


moved to report Progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Cavendish Bentinck.)

The Committee divided:—Ayes 98; Noes 149: Majority 51.


moved that the Chairman do now leave the Chair.


said, he hoped his hon. and learned Friend would not press the Motion. The Committee had already divided, and the clause was now in such a position that the Govern- ment might fairly ask that they come to a decision upon it.


explained that had he known the opinion of his right hon. Friend he would not have put the Committee to the trouble of dividing, and he begged to apologize for having done so.

Motion, by leave, withdrawn.

Question put, "That the Clause stand part of the Bill."

The Committee divided:—Ayes 154; Noes 93: Majority 61.

Clause ordered to stand part of the Bill.


moved that the Chairman do report Progress.

Motion agreed to.

Committee report Progress; to sit again To-morrow, at Two of the clock.

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