HC Deb 04 July 1873 vol 216 cc1787-805

Bill considered in Committee.

(In the Committee.)

Clause 18 (Power to transfer jurisdiction of Judicial Committee by Order in Council).


said, he wished to take that opportunity of giving some explanation with respect to a remark of his which had been the subject of some misunderstanding. In moving the second reading of the Bill, a statement of his as to the Judges occasionally reversing each other's decisions in the Court of Exchequer Chamber had given annoyance to some of those learned persons. Though he did not withdraw his statement, he begged to say that when he made it, he did not carry in his mind any living Judge.


in moving as an Amendment, in page 9, line 36, to leave out from "Council," to "thereto," in line 37, said, he wished to bring before the Committee a subject which was of supreme importance, and which well deserved the consideration of the House. It was one upon which a large number of hon. Members on his side of the House took a deep interest, for they were convinced the reform would be one that would be appreciated. By the section now before the Committee it was provided that Her Majesty might direct that all appeals whatever to Her Majesty in Council "except appeals from any Ecclesiastical Court and Petitions relating thereto," should be referred to the tribunal of Final Appeal, which this Bill proposed to constitute. He wished that the words he had quoted should be omitted, and that the great Court of Final Appeal should decide on all the appeals of the country, so that there should be one tribunal for all. At first Ireland and Scotland were excepted, because it was thought desirable not to overweight the Bill, and it was considered doubtful whether this House would accept the proposal to include them. But the House had shown itself willing to include Ireland and Scotland, and he now asked the Committee to include ecclesiastical cases also, and not to leave them to a separate tribunal, which would be weakened by the Bill, and would grow weaker and weaker as business was withdrawn from it. It could not be denied that the questions on which ecclesiastical appeals were raised were questions, not of altering the law of the Church or its doctrines, but of the construction of documents and contracts, and other matters which legal minds were peculiarly calculated to decide upon, and it gave an impression at present that it was rather a Court of Heresy than a Court of Law when there were ecclesiastical persons sitting upon the tribunal, and that cases were decided rather by a theological bias than by a strict interpretation of the documents before it. He had received letters from the clergy urging that the Amendment of which he had given Notice should be carried, and the Lower House of Convocation, which some might not give weight to as such, yet as a body of clergymen of great importance, had signified their desire that the final appeal in ecclesiastical cases should be given to the Final Court of Appeal for all other causes. That showed that those who were most likely to be interested or implicated in the tribunal for dealing with ecclesiastical appeals wished that it should be a purely legal tribunal. He begged to assure the right hon. Gentleman at the head of the Government and the hon. and learned Attorney General that he did not make this proposal in order to hamper or impede the measure. He had accepted the proposal that there should be one Court of Final Appeal, and it was on that ground that he wished ecclesiastical cases also should be referred to it. The questions to be brought before these tribunals were of a strictly legal character, and ought to be dealt with solely by legal persons. He hoped Her Majesty's Government would be able to accept the suggestion he had made, for while he knew he could not hope to carry it against them, he knew also that there was a vast number of people both in that House and out-of-doors who would be glad to see the Court of Appeal one and final. He therefore hoped they would give it their most serious consideration, and moved to omit from the clause the words which excepted ecclesiastical cases from the jurisdiction of the new Court of Appeal.


supported the Amendment. There was great difference of opinion on both sides of the House as to the point of view in which these ecclesiastical questions were to be regarded, but the proposal of the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy) was one upon which persons of different opinions might come to the same conclusion. The questions to be raised wore legal points of status and property established by statutory and legal authority, and they ought to be discussed by a strictly legal tribunal. In the present Appellate Court, the functions of Convocation were mixed up with those of a Court of Common Law, and apart from that, there frequently arose difficulty in constituting a Court under existing circumstances, and these difficulties would be removed and diminished if the whole of the appeals were appointed to be determined by the same tribunal. The existing state of things was extremely inconvenient, for he remembered that in the Voysey case, when the Archbishop of Canterbury was ill, the Archbishop of York unable to sit, and some objection was taken to the Bishop of London being upon the tribunal, that tribunal could not have been constituted at all if the Archbishop of Canterbury had not got better.


also supported the Amendment, the operation of which was not analogous to the transfer of the Equity and Common Law Appeals to the Courts proposed to be constituted by the Bill. It was intended that in those cases which had been heretofore heard in the Judicial Committee of the Privy Council, the Judges should still continue to report to Her Majesty, and all Orders would be made by Her Majesty in Council. If the Order was made in ecclesiastical cases by the Judges, and not by the Queen, a serious question might be raised as to the supremacy of the law in Church questions, and as to the connection of Church and State; but as the circumstances were so different, and the Judges in such cases merely acted as the advisers of Her Majesty, there was no reason why they should not sit in the New Court of Appeal instead of in a room at the Privy Council Office. The fact of transferring the jurisdiction was entirely separate from the question of the conditions on which the transfer should be made, and the provisions which should be introduced with regard to the jurisdiction of the new tribunal. That was a question with regard to which not merely individual opinion but general opinion was to be considered. But the transfer of jurisdiction would by no means decide the question as to whether any of the Bishops should sit upon the hearing of ecclesiastical appeals. He did not think the jurisdiction of the Privy Council could be kept up; because when all but ecclesiastical cases were taken from it, there would be no object in introducing into the Judicial Committee of the Privy Council men who were eminent for their general knowledge of the law, and for their capacity to deal with legal questions. Seeing that the proposition made met with the approval of the clergy, and that the Lower House of Convocation desired such a tribunal, he should give the Amendment of his right hon. Friend his cordial support.


supported the Amendment. He was very glad to find that on an ecclesiastical question he was in perfect accordance with the opinions expressed by the right hon. Gentleman the Member for Oxford University (Mr. G. Hardy) a luxury which he could not often allow himself. Nothing could be more imperfect than the present appellate jurisdiction in ecclesiastical affairs. The only argument he had heard against the Amendment was that lawyers were not theologians; but neither were lawyers merchants or bankers. As well might it be urged that a Judge should not try a case of petty larceny unless he were himself a thief. The yoking together of Bishops and Judges on a judicial tribunal reminded him somewhat of the yoking together of those two useful animals whose acting in concert in that way was forbidden by the Levitical law. Without going so far as the late Mr. Justice Maule who had laid it down that to be a good Judge a man ought to have neither politics nor religion, he thought that many of the qualities which would go to make a good Bishop would make a bad Judge; and, certainly, the last cases that Bishops should be empowered to try were those which affected the clergy. The constitution of the Court would also be even more unsatisfactory for the future, because the four Judges who had recently been appointed to the Privy Council would now be transferred to the Supreme Court.


observed that it was the birthright of every layman in this country, that the doctrines of the Church were laid down in certain documents which were binding upon the clergy, and the clergy were entitled to have these documents construed according to strict rules of law. He should, therefore, support the Amendment, and he wished to call attention to this—that in making the change it was absolutely necessary that it should be done in such a way that it should be properly done, and that at the same time the clergy should be satisfied. To satisfy the clergy, it should be provided that whilst the interpretation of the documents to which he had referred rested with the Appellate Court, that Court should not have power to pronounce judgment upon what had passed, but that this proceeding should be left to the Ecclesiastical Court below, in order that the latter might pass sentence. He believed that such a mode of proceeding would tend much to smooth the matter over.


trusted that the Government would look with favour upon the Amendment; because, from a considerable knowledge of the clergy, he believed that there was a growing feeling in favour of some such an alteration in reference to the Court of Appeal in Church cases. The free way in which the Press and society criticized its judgments, so different from the respectful treatment with which the decisions of other Courts were received, proved that its constitution was defective. The combination of two very different classes of minds in the Judicial Committee was really very injurious both to theology and to law. The qualities that made a good Bishop would not tend to make a good Judge; for the very earnestness of character that formed the good Prelate was alien to the cold, impassive, judicial mind. The present Judicial Committee had many of the vices that characterized the old Court of Delegates which it replaced. Like that it was not a fixed Court, with a fixed number of Judges known beforehand. He hoped that the Government would attempt to define the procedure of the Supreme Court in ecclesiastical matters. When judgment was given, we did not get the whole mind of the members of the Ecclesiastical Court. However divergent their private opinions might be, the report of the Crown assumed that they were unanimous, so that the system might be called a gigantic specimen of "knock out." The Report selected merely the points on which the members of the Court might, by hook or by crook, agree. It was, in fact, a mere residuum left after boiling down the various opinions of the members of the Court, and did not command the immediate and spontaneous respect which other judgments did.


joined in the wish that the Amendment might have the assent of the Government, for the question was one which could not be allowed much longer to continue in the condition in which it now was.


said, that for the reasons which had been given by his two right hon. Friends, it seemed to him that it would be absolutely necessary that they should include among the subjects of appeal to the Supreme Court those which were referred to the Judicial Committee of the Privy Council. If they continued to refer such questions to an inferior tribunal to that which decided other appeals, the same weight would not be given to decisions in one case as in the other. No doubt, it would be necessary to consider in Church appeals what Court should ultimately be required to act on the sentence or decree, and it might be necessary to refer any such cause back to the Court which was originally constituted to deal with it. He would not argue the matter now, though he believed it to be a matter of very great importance, in reference to the welfare of the country and of the Church itself—first, that the tribunal to decide on appeal should be simply a judicial tribunal; and secondly, that the people of this country should know and feel that it was so. He believed that the decisions of such a tribunal would not lead to that confusion and disappointment in the minds of men which some decisions had lately given rise to, because it was imagined, very erroneously that they had been determining questions of doctrine. He hoped that the Government would take this matter into their careful consideration.


hoped the Amendment would be adopted. If an Appellate Court of the highest character had to deal with these questions, it would go a great way, leading to that reform of the Ecclesiastical Courts of an inferior kind which he was so anxious to see carried out.


said, it was impossible not to be struck by the very remarkable unanimity of opinion which this Amendment had elicited from hon. Gentlemen whom on ordinary occasions he should expect to see down the two columns of a list of pairs. The right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy) was so kind as to inform him last night that he intended to raise the question, and he then told him that he had every disposition to bring it under the consideration of his Colleagues; but he should be reluctant to introduce any change immediately into the clauses of this Bill, unless there should appear to be very strong grounds for making such a change. He also desired to have an opportunity of making the matter known to those Prelates who were immediately concerned in the decision of the question, and of obtaining their opinions. He attached great weight to the very remarkable concurrence of opinion on both sides of the House—he might almost assume, after what he had heard that day, that there was absolutely no difference of opinion on the subject. He had already taken the opportunity of consulting his own Colleagues, and this was not the first time that the question had come before them. Indeed, his noble and learned Friend the Lord Chancellor had stated "in another place," that his reason for being disinclined to assent to the proposal then made was the apprehension of charging the Bill with an excess of materials. He was sorry it was not in the power of the right hon. Gentleman to give a longer Notice of his intention; at the same time, he would not give the expression of his regret the form of animadversion. No doubt the acceptance of the Amendment of his right hon. Friend the Member for Kilmarnock (Mr. Bouverie) had induced the question, and it was necessary for the right hon. Gentleman the Member for Oxford University to consider the ground well before he committed himself to any declaration on the subject. He did not think that it would be possible upon the merits to maintain the present Court. It was so framed that there was great difficulty in constituting the tribunal, and it was incessantly shifting its component parts. The same Judges did not always sit to try questions of this kind, and there was the suspicion that theological bias would creep into purely legal questions. And, lastly, the fact that it delivered its judgments collectively, so that we had no knowledge of the opinions of its separate Members, whatever were the merits or demerits of the system, was one which was entirely out of analogy with the rest of our judicial tribunals. The sentences, too, were usually pronounced by the Members of the Court respectively, and not by one member of the Court as an integral body. These were general considerations applicable to the constitution and working of the a Court before this Bill; but as had been observed, the introduction of the present measure virtually altered the position of that Court, and the question was whether they should retain that single rag of an isolated jurisdiction which the Court might not be called upon to exercise once in seven years. Although there had been a considerable crop of ecclesiastical suits and judgments lately, yet the result had not been of such a character as to give great encouragement to the multiplication of such suits hereafter. Therefore, taking a practical view of the matter, it would appear rather hard upon the public, when they had long ago come to the conclusion not to vote one shilling for purposes purely denominational, unless there was something very important beyond that mere consideration, that the paraphernalia of a Court and the charges for its officers should be kept up by funds from the Exchequer, simply on the chance that from time to time some ecclesiastical suit might crop up, with which this semi-animate Court might be called upon to deal. If they could refer the decision of these questions to the Appellate Court they would carry them to a Court which was wholly discharged from all consideration of the religious persuasion of its Judges. To some persons it might be an objection to the transfer of the business of the Ecclesiastical Court to the Court of Final Appeal, that only Judges who had received a peculiar training could deal with religious questions; but his opinion was, that men of honesty and integrity and legal competency, who had not received any peculiar training with reference to re- ligious questions, would be well fitted to deal with ecclesiastical suits. If the Judges were men of perfect, upright minds and legal capacity, they would themselves best know how to define the limits of their own action, and how to mark the point at which they should regard the technical knowledge that was required, and then call in extraneous aid to their relief. He, for one, was ready cheerfully to commit to those Judges of the Appeal Court the decision of those questions, wholly irrespective of any question that might hereafter arise connected with the religious persuasion of this or that particular member of the Court. He thought that they should commit a great error if they were to attempt to secure even a shadow of religious conformity on the part of the Members of the Court, or to attempt anything in the nature of a test which would throw upon those Judges a character other than that of Judges. The question really was, whether it was the desire of the House that they should proceed in the matter by at once accepting the Amendment of the right hon. Gentleman opposite. The Motion of the right hon. Gentleman was before them, and considering the extraordinary concurrence of opinion with which it had been received from so many considerable authorities—from persons of diversified views; and considering also that the Government could not see any serious difficulties in the matter—considering, too, the convenience of business, and that the other House would retain its independent action on the subject—he (Mr. Gladstone) did not feel himself justified in pressing for the withdrawal of the Amendment. He should, therefore, allow himself the satisfaction of concurring in what was so generally thought to be an improvement in the Bill.

Amendment agreed to; words struck out accordingly.


hoped that, before the clause was passed, the hon. and learned Attorney General would tell the Committee something on a point which had not yet been raised, but which was extremely important with reference to Appellate Jurisdiction. It had been referred to by the hon. Gentleman the Member for the University of Cambridge (Mr. Beresford Hope). It had been the habit of the Judicial Committee of the Privy Council in ecclesiastical cases, and, he believed, in all other cases, to give a unanimous judgment—that was to say, the judgment of the majority of the Judicial Committee was given. But the hon. Gentleman suggested that in the ease of a conflict of opinion each of the Judges in the proposed Court of Appeal should give the reasons of his judgment. In that suggestion he (Mr. Vernon Harcourt) did not concur. He thought that in this Court of Final Appeal, the judgments should appear to be the unanimous judgment of the Court, and that it would not be advantageous in the ease of a conflict of opinion between the Judges to have conflicting opinions of the Judges laid before the public. He did not wish to have this question settled now; but before the Bill left that House the question should be settled one way or the other.


said, that although it was too late to oppose the passing of the clause he could not omit taking that opportunity of entering his protest against the transfer of the jurisdiction of the Privy Council to the New Court of Appeal. It would be a transfer not only to the New Court of Appeal, but a transfer to a Division of that Court; and he believed that the Colonies and India were quite satisfied with the way in which the Judicial Committee dealt with their appeals, and the proposition to transfer their Appeals to the New Court of Final Appeal would cause great dissatisfaction there. The Division of the Court of Appeal would not have the same authority that the Privy Council had, and he warned the Committee that the change would be disadvantageous to the litigants.


said, he did not think there was any ground for the apprehensions which the hon. Member for King's Lynn (Mr. Bourke) appeared to entertain with regard to the effect of this part of the Bill on our fellow-subjects in the colonies. The clause was not compulsory or mandatory, but merely permissive; and he felt sure it would never be put in force when either colonial or Indian appellants objected to the transfer of the jurisdiction.


observed that our system of law was essentially a system based, not on technical rules, but on common sense, and considered that it would be a fatal step to subvert the jurisdiction of the Privy Council and the House of Lords, by which that system was so well represented.


joined with the hon. Member for King's Lynn (Mr. Bourke) in protesting against the transfer of Privy Council cases to the High Court of Appeal.

Clause, as amended, agreed to.

Clause 19 (Transfer of pending business); and Clause 20 (Rules as to exercise of jurisdiction) agreed to.

Clause 21 (Law and equity to be concurrently administered).

On the Motion of Sir FRANCIS GOLDSMID, Amendment made, by inserting in page 12, line 29, before "in," the words "relating to or connected with the original subject of the cause or matter, and."

Clause, as amended, agreed to.

Clause 22 (Rules of law upon certain points).


proposed an Amendment whereby the proposed alterations of the law would not be confined to the High Court of Justice and Court of Appeal respectively, but would be extended to all England, stating that if it was thought necessary words could be introduced, on the recommitment of the Bill, applying it to Ireland.


in opposing the Amendment, called the attention of the Committee to the state of the jurisdiction of the Admiralty Courts of England and Ireland, and in pointing out how differently it operated, said it was a strange thing that in two countries, separated only by a sail of four hours, viâ Holyhead, the lines of administration of the law relating to Admiralty jurisdiction, in matters of collisions between foreign vessels, were not governed by the same rules. In illustration of that, he mentioned a case of collision in the Pacific Ocean between a Swedish and an American vessel. One of those vessels arrived in Cork, which gave jurisdiction to the Irish Court of Admiralty. The Court pronounced its decision, after having heard the arguments of counsel, awarding damages; but had the ship arrived in an English port instead of an Irish one, the English Court of Admiralty would have divided the damages, in its decision, between the litigating parties. Should the proposition of the hon. and learned Gentleman the Solicitor General be adopted, he hoped steps would be taken on the next stage of the Bill to extend its operation to Ireland, so that the administration of the law should be the same in the two countries.

Amendment agreed to.


moved, in page 14, line 34, to leave out sub-section 2, providing that no claim of a cestui que trust against his trustee for any property held on an express trust shall be held to be barred by any Statute of Limitations. The sub-section imperfectly stated the doctrine of the Court of Equity, and it spoiled it in stating it.


said, the sub-section made no alteration in the law. The words, which were not his, had been very carefully considered, and were designed merely to express the law as it stood.


said, he accepted the view of the hon. and learned Solicitor General that the clause did not make any change, and, therefore, he had not put down an Amendment; but the law worked great injustice in some cases of express trusts on mere incumbrances, which ought to be excepted from the rule that interest might be recovered on demand.


accepted the clause as declaring the law, but thought the specific mention of special trusts weakened the general clause at the end of the Bill. If his hon. and learned Friend who moved that the clause he struck out went to a division he would give his vote in support of the Motion. He doubted, however, the advantage of doing so, for on a division the opinions of hon. Members who understood the subject were swamped by the votes of Gentlemen who had not heard a word of the discussion, and knew no more of the merits of the Amendment than the most ordinary persons who might be called in out of the streets.


thought it useful to have a distinct point of law specifically laid down, notwithstanding the general clause at the end; but he thought the interpretation clause ought to define an express trust. The position of trustees was by no means an enviable one. If the clause was intended to make trustees more indefinitely liable than at present, he would propose its omission; but its object appeared to be to leave the law much where it was at present.


said, the clause would be prejudicial in its operation.


thought that the wording of the sub-section was open to misconstruction, and that the sub-section was unnecessary.


said, the Bill now before the Committee was a measure brought forward by the Government professedly to establish a Supreme Court of Judicature; yet it was a Bill that would not only alter the law, but would alter it in the most absurd and unsatisfactory manner. No more dangerous course than Her Majesty's Government were now trying to establish could possibly be. Where, he asked, did their authority for introducing such a Bill come from? They had abolished the House of Lords as a Court of Appeal; and with regard to the clause under discussion, no lawyer could understand it, and he was sure he could not understand a word of it. The hon. and learned Member for Denbighshire (Mr. Osborne Morgan) had said truly that large bodies of hon. Members voted on Amendments about which they knew no more than the most ordinary persons in the streets, and in that he (Mr. Whalley) entirely agreed. Those hon. Members, when divisions were called for in the evening, rushed in from the dining-room and voted with their party. Not since the 14th century had so bold an attempt been made to supersede the Common Law of England. They abolished the House of Lords, and now they were aiming to supersede the Common Law—the greatest protection of the rights and liberties of the people; and in all matters of difference between it and equity to rule that equity should prevail. He felt in a state of trepidation, alarm, and anxiety on the objects of the proposal.


opposed the sub-section as wholly unnecessary. It reminded him of the old story of making a large hole for the cat and a small one for the kitten. If there was no alteration of the law intended to be made by the sub-section, it was embraced in the general proposition that equity should prevail.


held that the sub-section was necessary not to change, but to preserve the law. The question had been carefully considered by the highest authorities, and it was thought desirable to put in a special clause to declare that the abolition of Courts of Equity should not have the effect of depriving the administration of Equity of the valuable rule with reference to the Statute of Limitations not applying to express trusts.


suggested that the sub-section should be omitted, and reliance placed on the general provisions of the 10th subsection, as the former would probably give rise to doubts.


hoped the Government would not give them the trouble of dividing against the sub-section.


thought the omission of the sub-section might be mischievous. It was sanctioned by a Committee which included men of the highest authority in the profession, and amongst them he would mention the names of Lord Hatherley and Lord Cairns, both of whom filled with distinction the high judicial office of Lord Chancellor.

Amendment negatived.


proposed, as an Amendment, in page 16, line 22, to leave out "Courts of Common Law," and insert "Court of Admiralty;" and in line 23, to leave out "High Court of Admiralty," and insert "Courts of Common Law." He thought the rule of the Admiralty should prevail especially as the same was the rule in all foreign Courts.


supported the Amendment, as they ought, he thought, to guard against a conflict of law in respect to international matters.


thought neither rule ought to be retained, but that the Judge ought to be vested with a discretionary power to apportion the damage between them. He, however, preferred the Admiralty to the Common Law rule, and as it had been adopted by other countries, a power should be given to the Court to enforce it.


said, he would vote for the Amendment, on the ground that it was desirable to maintain a rule of law which was well known to other countries.


opposed the Amendment, as he preferred the Common Law rule to the proposed alteration.


explained that the Scotch Courts acted on the Admiralty rule.


said, he had been all along in favour of the Admiralty rule, but had yielded to the Lord Chancellor on the point. His own private opinion had always been in favour of the Admiralty rule; and as every member of the legal professsion who had spoken, with the exception of the hon. and learned Member for Denbigh (Mr. Watkin Williams), had also expressed themselves in favour of it, he could not but assent to the Amendment of the hon. Gentleman the Member for East Sussex.

Amendment agreed to.

On the Motion of Mr. HINDE PALMER, Amendment made in page 16, line 26, after "infants," by leaving out to and and including "matter" in line 29.

On the Motion of Mr. HINDE PALMER, the remainder of the sub-section was created into a separate sub-section.

Clause, as amended, agreed to.

Clause 23 (Abolition of terms) agreed to.

Clause 24 (Vacations.)


in moving, as an Amendment, in line 10, to leave out, "upon any," to "hereinafter mentioned," in line 15, said, he had to bring before the Committee an unpopular subject, upon which he should probably have arrayed against him every member of his own profession in that House. But if the Bill were only to be framed in the interest and for the benefit of the lawyers, it would do extremely little for the cause of law re. form. Up to the present moment, the Bill had done very little for the public, and everything that had been done had been accomplished for the lawyers. It had done very little to remove the long delays and the great expense of getting business transacted, which was the great object of having any Bill at all. One of the greatest difficulties of getting the law administered in that country, was the block of business, and the loss of judicial power consequent upon the fact that with reference to a great proportion of the business, it was altogether suspended for a third or fourth of the whole year. The judicial and administrative staff of the country was more expensive than all the public Departments of the State put together; and yet they kept all that plant and capital doing nothing for the period he had mentioned. When last he called attention to this subject his table was covered with letters from solicitors stating the hardships produced to individuals by the suspension of the administrative business of the Court of Chancery during the long vacation. These were some of the evils of the law which the Bill, in its present form, did nothing whatever to remedy, and he could not reconcile his mind to allowing it to pass without asking the House of Commons not to spend £1,500,000 on one of the most costly judicial systems in the world, and yet, practically speaking, to close the Courts against the public for so large a portion of the year. Therefore his Amendment was to leave out those words which made the alteration of the vacation dependent on the will of the Judges. He could see no fair excuse for the present system; and he thought it would be for the advantage of the public if it were put an end to. If there was to be no alteration in the vacation, except upon the report or recommendation of the Judges, it would never be shortened by a single day or hour. The clause authorized the alteration of the vacation, and that in itself amounted to an admission that the present system was not satisfactory. Of course, the Judges must have holidays; but surely, they might be worked in "shifts," like miners, so as to obviate the necessity of suspending the whole administration of the law for a considerable portion of the year. Perhaps it might be asked how the barristers could take their holidays if the Courts were constantly sitting. Well, barristers could easily take their holidays; but the truth was, that those who had control of the business were afraid lest in their absence other men should slip into their places. He had always noticed that somewhat inferior men who attended to business, did it almost as well as very superior men who did attend to it; and, considering that there were as good fish in the sea as ever came out of it, he thought the public would gain by the change. The clause permitted the vacation to be modified, but it contained a Proviso, that that should only be done on the report or recommendation of the Judges, by whose advice Her Majesty was authorized to make the rule. Now, to pass the clause in that form would be tantamount to doing nothing at all; for, if the Judges themselves were willing to make the change, the influence of the Bar would prevent them from doing so. Parliament, in his opinion, ought to take the matter into its own hands, and, therefore, the first Amendment of which he had given Notice was to omit those words which would make the alteration of the vacation dependent on the recommendation of the Judges. It would not be unreasonable to ask that our system of judicature should be made constantly available to the country; but his request was only that there should always be sitting at least one Judge to administer Equity and another to administer Law in one Divisional Court. He believed a single Judge might constitute a Divisional Court. ["No, no!"] There was a distinction between what were called Divisions and Divisional Courts. A Divisional Court, as he understood, was a section of a Division. All he asked was, that there be always sitting in London a Court competent to administer the remedies which belonged to Equity, and another those which belonged to the Common Law, as the two were effectually severed by subsequent clauses of the Bill. He was not satisfied with a Vice Chancellor administering justice perfunctorily, by coming into town occasionally during the vacation, or disposing of litigious business in Wales, or in the Lake district. In entering his protest against the existing system, he appealed to the lay Members against the legal Members, and with the view of moving afterwards a provision to the effect that there should be two Courts permanently accessible, he would now move the omission of the words requiring a report from the Judges to guide the Queen in Council in fixing terms and vacations.


said, that the subject should be treated not only as a lawyer's, but as a suitor's question. The real point was, would the work be better done under the system proposed? He thought not. As to the chief clerks of Chancery, there were no more able, overworked, or unpaid public servants, and he believed the only inducement to men of high standing and great professional emoluments to accept the position of Chief Clerk was that they would have a considerable part of the year to refresh their jaded intellects and weakened bodies. It was also questionable whether more work would be got out of the Judges and the Bar if they sat continuously, than was done by them in nine months.


explained that he never intended to work them continuously; but only to introduce such arrangements that, while all the Judges had as long holidays as now in the course of the year, the metropolis should never be left without two accessible Courts.


contended that it was not an unmixed evil for suitors, society, or the country that the Courts should be now and then shut, and that it really encouraged unnecessary litigation by making the Courts too readily accessible at all times. He did not deny that the vacation might be shortened, but that there were others besides lawyers who were interested in the cessation of litigious business for a time.


said, he should support the first Amendment of the hon. and learned Member for Oxford (Mr. Harcourt), not because he thought the vacation should be altogether destroyed, but because the Government of the day and not the Judges were the proper persons to suggest what alterations in it should be made. In his opinion, the vacation was too long. He could not support the hon. and learned Member's second Amendment.


doubted very much whether the public interest would be served if the Judicial Bench were made intolerable. It was all very well for men whose professional life was one continued long vacation to grudge Judges their hardly-earned vacation. The effect of the Amendment would be that two out of four Chancellor Judges must be sitting the whole year. We must treat Judges as human beings, and not attempt to get out of them more work than they were capable of.


in supporting the Amendment, said, he should do so not with the idea of depriving any Judge or barrister of a single holiday he now enjoyed, but in order that there might be continually sitting throughout the year, a certain portion of the High Court to dispose of urgent business or getting through arrears. The present total suspension of legal business was a great inconvenience.


opposed the Amendment, being unwilling to leave Judges at the mercy of Governments who might dislike them, and try to treat them unfairly. He did not know why the hon. and learned Member for Oxford (Mr. Harcourt) wished to take this power from the Judges—they had not done him much harm, if they had not done him much good—or why he should think that every member of the Bar would oppose him. He thought that the proposal merely involved a waste of time, and should have been submitted to the Committee in a more clear and definite shape.


hoped the Committee would not come to a decision on the Amendment until it had been further discussed. The hon. Member was proceeding, but was stopped, in accordance with the rules of the House.

Committee report Progress; to sit again upon Monday next.

And it being now five minutes to Seven of the clock, the House suspended its Sitting.

House resumed its Sitting at Nine of the clock.

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