COMMITTEE. [Progress 4th July.] (Hansard, 7 July 1873)

HC Deb 07 July 1873 vol 216 cc1865-89 1865

§ Bill considered in Committee.

§ (In the Committee.)

§ Clause 24 (Vacations).

§ Amendment proposed, in page 17, line 10, to leave out from the words "upon any" to the words "hereinafter mentioned," all inclusive, in line 15:—(Mr. Vernon Harcourt.)

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

§ MR. RYLANDS,
in supporting the Amendment, said, that Parliament had a right to ask that the vacations of the Judges, who were public servants, and who as such were paid for their services, should not depend upon their own absolute decision. If the Amendment were carried, he believed it would tend to satisfy the demands of the public, who had a right to complain that the Courts were so long closed to suitors.

§ MR. SERJEANT SIMON
protested against the low view which the hon. Member for Warrington (Mr. Rylands) had taken of the subject. He had spoken of the Judges as he might have spoken of clerks behind a counter. The hon. Member's tone was, that because we paid the Judges they ought not to be trusted with a voice as to the vacations. But their salaries, he would observe, were by no means the entire compensa- 1866 tion for their labours and services. The honour and dignity of the Bench were important items and one part of the remuneration which attracted men of eminence to fill Judicial offices. At the same time, he thought that the Courts of Law might make such arrangements that suitors should no longer be kept waiting for three months for the decision of their causes. To leave the Ministers to fix the vacation of the Judges would be to leave these arrangements to those who had not the requisite knowledge, and who, as Ministers of the Crown, ought not to have the smallest control over the independence of the Bench. He should have no objection, however, that Parliament should legislate on the subject.

§ COLONEL BARTTELOT
said, he was informed that of the two Vacation Judges, while the Common Law Judge sat in London, the Chancery Judge did not, so that persons who had to make application to the latter had to go to Carlisle, or wherever he might appoint. That was a glaring fault; and he held that during the Vacation the Chancery Judge should be bound to sit in London.

§ MR. HINDE PALMER
thought the hon. and learned Attorney General might virtually accede to the Amendment by allowing it to stand thus—"Her Majesty in Council may make rules." Of course, Her Majesty would not make rules without consulting proper persons.

THE ATTORNEY GENERAL
said, there was nothing very serious in the Amendment, and there were some Amendments which he intended to propose, which he hoped would meet all the reasonable requirements of his hon. and learned Friend the Member for Oxford (Mr. Harcourt). It was, however, due to the profession and the Judges that the accurate state of the case should be known. At present, the vacations were fixed by Act of Parliament, and everybody took his situation, and everything was conducted on the footing which the Act of Parliament had fixed. He was not, therefore, disposed to allow that a change of that kind should be made by any authority short of Parliament, or some authority to which Parliament had delegated the power. His hon. and learned Friend had told an amusing story about Vice Chancellor Shadwell administering equity in. 1867 his bath; but the truth was, that the Vice Chancellor while taking a bath was once called on to grant an injunction, and having finished his bath he did so. His hon. and learned Friend had remarked that thus far the Bill had done everything for the profession, and nothing for the public. That statement did not accurately describe the effect of the first 24 clauses of the Bill. If, however, the professsion suffered, it would have to get on as best it could; and as he had full confidence in the pugnacity of Englishmen, he thought the profession would get on very well. Neither did he think it at all fair or accurate to say that the vacations had all been regulated, with a view to keep the business in the hands of a few people, and disregarding the general mass of the profession. His hon. and learned Friend did not like to see the Judges trusted with fixing the vacations; but the only alternative which had been suggested was, to place the matter in the hands of the Government, which in that case really meant the Lord Chancellor, for the Lord Chancellor was the man to whom the Government would naturally look for advice, and the Lord Chancellor would never act without consulting the Judges. It was far better to say what was really meant, and the clause was therefore drawn in plain terms; for if the Committee meant that those at the head of the profession should have charge of the arrangements, it was better that they should say so. Some rather strong and extravagant statements had been made by his hon. and learned Friend. It was not correct to say that there was a terrible collapse of business, and, in fact, that nothing was done during the Long Vacation. A great many very important Courts were going on until the middle of September. The circuits were going on, and many important avenues of business were open up to that time. His hon. and learned Friend had forgotten that in Chancery, the Accountant General no longer existed, and that the Paymaster General's office was always open, and there was no longer any difficulty in getting out large sums of money. Then there was a Vacation Judge who sat and attended to all pressing business. About the Vice Chancellors he had not the same individual knowledge; but he felt sure if it was the Vice Chancellors' duty to sit during the vacation, 1868 they did their duty. He had heard distinguished Equity lawyers say that the Court of Chancery was always open, and that if you wanted any real damage remedied or wrong prevented you could always get it done in the Long Vacation. But the Courts of Common Law were governed by ancient and obsolete rules which could scarcely admit of justification now, and he saw no reason why those Courts should not be as accessible during the Long Vacation as the Equity Courts. It was right, therefore, to say that something more should be done, and that Law should not cease any more than Equity. But what did the Bill propose to do? Why in the very next section it said— Provision shall be made by Rules of Court for the hearing during vacation by the Judges of the High Court of Justice and the Court of Appeal respectively of all such applications as may require to be immediately or promptly heard. And the 36th section provided that any Judge of the said High Court of Justice might, subject to any rules of Court exercise in Court or in Chambers all or any part of the jurisdiction vested in the said High Court in all such causes and matters, and in all such proceedings in any causes or matters as before the passing of the Act might have been heard in Court or in Chambers respectively, by a single Judge of any of the Courts whose jurisdiction is hereby transferred to the said High Court, or as might be directed or authorized to be so heard by any Rules of Court to be hereafter made. In all such cases, any Judge sitting in Court shall be deemed to constitute a Court. If what his hon. and learned Friend wanted was that there should be no period during the Long Vacation when either at Law or in Equity wrongs should remain unredressed, he was prepared to agree with him; that was perfectly reasonable, and it was provided for in the Bill. But if his hon. and learned Friend wanted that there should be no difference between the Long Vacation and the rest of the year; that there should be no break, but a permanently sitting Court, only with a relay of Judges and counsel, he was utterly opposed to him. It was an unreasonable request, and he could give no countenance to it. He frankly admitted that there was an objection to the present state of things, 1869 and that it was only reasonable it should be removed if possible, so far as it was not already removed by the Bill as it stood. He did not think the vacations were unreasonably long, and felt satisfied, that it was true economy to keep matters as they were at present in that respect, as he did not see that we should be a bit the better for killing off all our Judges by working them too continuously. Every country with which he was acquainted found vacations necessary; and he believed they were true economy. He was quite willing, however, to make certain alterations in the clause, so as to provide that the consent of the Lord Chancellor would be required before the recommendation of the Judges could be carried out. There ought to be some one who would be responsible to the public for any change that was made, and who, when any question was raised, could say—"I am the person by whose authority or under whose consent the thing was done." He therefore proposed, after the word "herein," to insert "with the consent of the Lord Chancellor." He was also prepared to make another alteration. He believed the present vacations were quite long enough, though not unreasonably long, and he would add a Proviso to the clause, declaring that the total duration of the vacations should never in any case exceed the time now given to them. Further than that, he was not prepared to go. He did not believe that the Judges as a body would be insensible to calls of duty.

§ DR. BALL
said, he did not know what would become of the unfortunate Law Officers if they were worked all the year round. Human beings must have some rest, and nothing would be gained b: abridging the vacation. He was opposed to interfering in any manner with the present system of leaving to the discretion of the Judges what should be the limit of the vacation, believing, as he did, that they were totally incapable of doing anything that they did not consider to be justified by the requirements of the case. No ground whatever had been shown for interfering with it.

§ In reply to Mr. T. HUGHES,

THE SOLICITOR GENERAL
said, that, in consequence of the change which had been made relative to the Accountant General's Department the Paymaster 1870 General's office was open all the year round, and there would be no difficulty in payments being made in the case of infants coming of age during the vacation, or in other cases of a pressing nature, in which payments had been ordered. With regard to the presence of an Equity Judge in London during the vacation, he hoped arrangements would be made to provide for that; but he did not think it would be desirable that provision should be made in that matter by Act of Parliament. He must again assert that the public had benefited by all the law reforms of this century, and he challenged the hon. and learned Member for Oxford to prove his assertion to the contrary. He was by no means unprepared or unwilling to accept the criticism of the hon. and learned Member that his own diction was occasionally more forcible than elegant; but he would remind the hon. and learned Member of the proverb about those who live in glass houses. As to his statement about there being as good fish in the sea as ever came out of it, it must not be forgotten that you must catch your fish; you must not get rid of those who are fit on the chance of finding others in the wide expanse of the sea. It was an undeserved slur on the Judges to say they consulted their own interests in preference to those of the public. All the present Judges had accepted office under statutes by which the vacations were secured to them. If the Judges and the Queen in Council did not do what was right, the hon. and learned Member could bring in an amending Bill.

§ MR. VERNON HARCOURT
said, it was hardly worth while noticing the speech of the hon. and learned Solicitor General, who had the advantage in the matter of diction, while his degree of earnestness in the matter of law reform was sufficiently well known. No answer had been given to the question whether the Vacation Vice Chancellor would remain in town; all that had been conceded was that on the whole Carlisle was a little too far off for a Vacation Judge's residence. In the present state of the law, if a Vice Chancellor had wrongly refused an injunction, injustice might be done for months before there could be an appeal; and as the Judges had hitherto so interpreted the law as to allow of a Judge being at an inaccessible 1871 distance, what security was there they would not continue to do so, and why should not security be taken in this Bill? As to the alteration the hon. and learned Attorney General proposed to make with reference to the duration of the vacations, it was no great concession to say that they should not be made longer than they were at present, considering that, taken altogether, they extended to some four months in the year. The 36th clause provided that one Judge should on occasions do the business of two Judges. Well that might be, but what was wanted was to strengthen the 25th clause. Why need the 21 Judges all work together and all stop together? He was glad the Attorney General did not endorse the interests of peace theory of the hon. and learned Member for Londonderry (Mr. C. E. Lewis), who managed to enjoy his own vacation without closing the office of the firm of solicitors with which he was connected.

MR. LOPES
said, he was never more astounded than in hearing it proposed that the Judges should have a vacation extending over four months. In his opinion, speaking of the Common Law Judges, ten weeks would be amply sufficient vacation. Practically the Long Vacation was only of about ten weeks' duration, and there was a Judge always sitting in Chambers in London during the whole of that time.

THE ATTORNEY GENERAL
said, he would agree to the insertion of words in the following clause, to the effect that provision should be made for the hearing of cases when necessary during the vacation in London and Middlesex.

§ MR. VERNON HARCOURT
said, he would beg leave to withdraw his Amendment in favour of that proposed by the Attorney General.

§ Amendment, by leave, withdrawn.

§ Clause amended, and agreed to.

§ Clause 25 (Sittings in vacation).

§ On the Motion of Mr. ATTORNEY GENERAL, Clause amended by the insertion of the words "in London or Middlesex," at end.

§ Clause, as amended, agreed to.

§ Clause 26 (Jurisdiction of Judges of High Court on circuit).

§ MR. WATKIN WILLIAMS
said, there were, under the existing administration of the law, five separate commis- 1872 sions—namely, of Assize, Nisi Prius, Oyer and Terminer, General Gaol Delivery, and a General Commission of the Peace, under which the business was transacted on circuit, and in that system the Judicature Commission recommended a change. At present, where issues of law and fact were raised, the issues of fact were tried and disposed of by Judge and jury; but the questions of law were decided by the Judges sitting in Banco at Westminster. By the clause, however, as he read it, it was proposed that Judges might be sent down into any district, and there decide all issues, both of law and fact, however raised. He thought such a course most undesirable, and that as it stood, it was calculated to have the effect of decentralizing the High Court at a time when such a course was most unwise and unnecessary. Were Judges to take their law libraries with them to those districts? Without the authorities, it would be undesirable for them to be called upon to decide important and difficult issues of law, and he saw no reason for removing the tribunal constituted to decide such questions of law from Westminster, and he would therefore move an Amendment to leave out in page 17, line 37, the words "or of law, or partly of fact and partly of law."

THE ATTORNEY GENERAL
said, his hon. and learned Friend had, to his mind, altogether misunderstood the clause. He had no idea that, under the clause, questions of law would be decided by the Courts sitting in Banco in the country; but what the clause intended was, that when a Judge of the High Court went into the country to try issues before a jury, he would be clothed, under certain restrictions, with the whole power of the full Court, including questions of law, subject to appeal. That was a leading principle of the Bill, which the Amendment, if carried, would mutilate.

MR. LOPES
thought that on questions of demurrer the matters ought to be submitted to the full Court sitting in Banco at Westminster.

THE ATTORNEY GENERAL
signified his assent.

§ MR. WATKIN WILLIAMS
said, after what the hon. and learned Attorney General had stated, he would, with the assent of the Committee, withdraw his Amendment.

1873

§ MR. WHALLEY
said, the measure was one of the most revolutionary that had ever entered into the mind of any lawyer or statesman to conceive. It was a reversal of all practice and of every theory on which all practice existed. He had never heard of such a thing before, as that a Judge should have power to decide questions of law in district Courts. It was proposed, too, by the Bill, that where there were questions of variance between Law and Equity, that Equity should prevail. At present, the country had a tribunal constituted of four Judges sitting in Banco at Westminster, to whom questions of law raised and reserved at trials were submitted, and he had never heard any expression of dissatisfaction with their decisions; yet it was now proposed to delegate the power of the full Court to one Judge, sitting in a district Court, to decide upon what might be a most important question of law.

§ Amendment, by leave, withdrawn.

§ MR. RATHBONE
moved an Amendment, the effect of which would be to empower any delegation from the Supreme Court going Assizes to decide upon issues both of law and fact, on the application of the plaintiff.

THE ATTORNEY GENERAL
said, he had no objection to the Amendment, if it were so modified as to place both parties to the suit in the same position.

§ Amendment amended accordingly, and agreed to.

§ Clause, as amended, agreed to.

§ Clause 27 (Sittings for trial by jury in London and Middlesex).

§ MR. ASSHETON CROSS
moved as an Amendment, in page 18, line 4, before "Middlesex," to insert "Lancashire;" and in line 9, before "Middlesex," to insert "Lancashire," and said, his object in proposing the Amendment was, that when the Judges arrived at Liverpool, they should continuo to sit there until all the assize business was over. The causes which arose there were of far more importance than to be slurred over in the hurry-scurry of an Assize.

THE ATTORNEY GENERAL
said, he admitted the grievance, but if Government yielded to the hon. Gentleman's request in respect to Liverpool, 1874 it would be impossible to resist similar proposals from Leeds, Bristol, Birmingham, and other large towns, so that the question came to this, whether they were to have a central Court and a central Bar, presided over by highly-trained Judges, or whether they were in different parts of the country to set up Courts of co-ordinate jurisdiction with those at Westminster. The question had been much debated by the Judicature Commission, the majority of whom, after full consideration, were opposed to the setting up of provincial Courts. The Bill was accordingly framed on the view opposed to that taken by the hon. Gentleman, and the House of Lords sanctioned the Bill. He (the Attorney General) under those circumstances, felt it his duty to oppose the Amendment, which went to the root of the Bill; but he admitted that he performed that duty reluctantly, as those persons might be aware who had read the observations he made on the subject during last autumn. However, he hoped that, under the Bill, there would be a greater economy of judicial power, and that some more rational arrangements might be made.

§ MR. ASSHETON CROSS
said, that having heard the statement of the hon. and learned Gentleman, he was willing to withdraw the Amendment, but hoped the Government would do all in their power to effect its object.

§ MR. SERJEANT SIMON
suggested that when the Government came to consider the question of the re-adjustment of the circuits, they should appoint a separate circuit for Lancashire, in order that the numerous causes which arose in the great commercial cities in that county might be disposed of without unreasonable delay.

§ Amendment, by leave, withdrawn.

§ Clause agreed to.

§ Clause 28 (Divisions of the High Court of Justice).

§ MR. RAIKES
moved as an Amendment, in page 18, line 21, to leave out sub-section 1. Its effect would be to restore to the Common Law Divisions the precedence over the Chancery Divisions of the High Court which the subsection had deprived them of.

§ Amendment proposed, in page 18, line 21, to leave out from the words "one division" to the word "division," in line 28.—(Mr. Raikes.)

1875

THE SOLICITOR GENERAL
said, he regarded the question raised by the hon. and learned Member as of slight importance, and he trusted that he would withdraw his Amendment.

§ MR. RAIKES
said, that under those circumstances, he felt bound to say a few words in support of his Amendment. It was generally understood in this country that the Lord Chief Justice of England had precedence over all other Judges except the Lord Chancellor, and in the Bill as originally introduced by Her Majesty's Government, the Division of the High Court over which the Lord Chief Justice was to preside, was made the First Division. In consequence, however, of the Amendment which was proposed by Lord Cairns, whereby the Lord Chancellor was made President of the High Court, being carried, it was thought fit that the Chancery Division, over which he was to preside, should take the first rank, and, accordingly, the Common Law Division over which the Lord Chief Justice was to preside, was reduced to the second rank. Since the Bill had come to that House, however, an Amendment had been adopted under which the Lord Chancellor was no longer a Member of the High Court, and under those circumstances the Presidency of that Court would again devolve on the Lord Chief Justice and therefore the Common Law Division over which he presided should again take the first rank.

§ MR. WHALLEY
said, he wished to point out that by the Bill, for the first time in that kingdom, they were putting the Court of Chancery, which was a mere excrescence on the Common Law of the Land, and had, in fact, been a curse ever since it had been created, in a position of precedence and dignity before the Common Law Courts. He protested against that precedency being decided upon, without a word of explanation on the subject being offered by the Law Officers of the Crown.

§ MR. GORDON
also remonstrated against the course the Government were pursuing.

THE SOLICITOR GENERAL
said, he had intended to show no want of respect either to the Committee or to the hon. and learned Member, and begged to remind hon. Members that although the Lord Chief Justice of Eng- 1876 land had precedence over all the Equity Judges except the Lord Chancellor, all the Equity Judges had precedence over all the Puisne Common Law Judges. The part of the clause now objected to had been carried by Lord Cairns in the other House, and was in no way dependent upon the position which the Lord Chancellor would hold in the High Court. Moreover, seeing that all the Courts would be amalgamated in a short time, he did not regard the question of precedence as being of much importance.

§ SIR RICHARD BAGGALLAY
said, that if a Division were taken, he should support the clause as it stood.

§ MR. WHALLEY
said, he had never heard so extraordinary a statement as that the Court of Chancery was superior in dignity to the Common Law Courts.

§ MR. AMPHLETT
thought if it was desirable the Bill should pass, it was undesirable to press Amendments which were not of great importance.

§ Question put, "That the words 'one division shall consist of' stand part of the Clause."

§ The Committee divided:—Ayes 48; Noes 13: Majority 35.

§ On the Motion of Mr. SOLICITOR GENERAL, Amendment made in page 18, after line 20, by leaving out sub-sections 1, 2, 3, and 4, and inserting the following sub-sections:—

"1. One division shall consist of the following judges (that is to say): the Master of the Rolls, who shall be President thereof, and the Vice Chancellors of the Court of Chancery, or such of them as shall not be appointed ordinary judges of the Court of Appeal;
"2. One other division shall consist of the following judges (that is to say): the Lord Chief Justice of England, who shall be President thereof, and such of the other judges of the Court of Queen's Bench, as shall not be appointed ordinary judges of the Court of Appeal;
"3. One other division shall consist of the following judges (that is to say): the Lord Chief Justice of the Common Pleas, who shall be President thereof, and such of the other judges of the Court of Common Pleas as shall not be appointed ordinary judges of the Court of Appeal;
"4. One other division shall consist of the following judges (that is to say); the Lord Chief Baron of the Exchequer, who shall be President thereof, and such of the other Barons of the Court of Exchequer as shall not be appointed ordinary judges of the Court of Appeal."

§ MR. C. E. LEWIS
said, that if the clause were adopted as it now stood, the 1877 old divisions between Law and Equity and the old designations of the Law and Equity Courts would be perpetuated. There would still be the Courts of Chancery, Queen's Bench, Exchequer, Common Pleas, Probate, and Admiralty. That fact would, he could not but think, tend to prevent the effecting of that which was the main object of the Bill—namely, the fusion of Law and Equity. They ought not to inscribe any distinction on the portals of the High Court of Justice, and no sufficient reason could, he thought, be assigned for crystallizing those old distinctions, and he should therefore—with a view to the several Divisions of the High Court being known by numbers rather than by names—move that in page 19, line 14, the word "Chancery" be omitted, and the word "First" substituted.

§ Amendment proposed, in page 19, line 14, to leave out the word "Chancery," in order to insert the word "first"—(Mr. Charles Lewis.)

THE SOLICITOR GENERAL
said, that while he did not disagree with it, he hoped the Amendment would not be pressed. The question had already been considered and disposed of on the Motion of the hon. and learned Member for Oxford (Mr. Harcourt), who moved that the titles of Lord Chief Justice of the Queen's Bench, Lord Chief Baron of the Exchequer, and Lord Chief Justice of the Common Pleas should he abolished. That Motion was fully discussed, and it was rejected on a division. It would be going over the same ground to discuss and divide upon the present Amendment.

§ SIR RICHARD BAGGALLAY
hoped that, notwithstanding the verbal opposition of the hon. and learned Solicitor General to the Amendment, he would get the assent of his Colleagues to that which was evidently his own view of the question. There might be some reason for retaining for the present the titles of the heads of the Courts, but what reason was there for retaining for all time the titles by which Law and Equity had always heretofore been separated? He thought that if the Courts were respectively called First, Second, Third, and Fourth Divisions, the object of amalgamating Common Law and Equity would be more readily promoted. It was desirable to get rid of everything indicating 1878 that any Court had a particular class of business appropriated to it.

§ MR. RYLANDS
said, he did not agree that a previous division precluded the Committee from dealing with the Amendment, but would admit there was some strength in the argument as to the House of Lords.

§ MR. GORDON
said, he agreed that that the best way of securing amalgamation was to get rid of the present names, and to distinguish the Divisions by calling them First, Second, Third, and Fourth. If the present distinctive names of the Courts were kept up, the Bill would soon have to be amended by another measure.

§ Question put, "That the word 'Chancery' stand part of the Clause."

§ The Committee divided:—Ayes 55; Noes 20: Majority 35.

§ Clause, as amended, agreed to.

§ Clause 29 (Power to alter division by Order in Council).

§ MR. VERNON HARCOURT
moved, as an Amendment, in page 19, line 36, to leave out "upon any," to "hereinafter mentioned," in line 38. The clause was an important one. In giving power for the reduction of the number of Divisions, the clauses provided ultimately for the diminution of the harmony which it was desirable should prevail in the transaction of the business of the Court. It was under that clause that that transformation would be effected, and it was made absolutely dependent on the Council of Judges. He thought Her Majesty in Council should recommend the reduction of the Divisions. Under the clause, the Order must be laid before Parliament to be confirmed; it was, therefore, really a Parliamentary enactment, and he did not see why the initiative should be reserved for the Council of Judges.

§ MR. GREGORY
said, it would be a severe duty to impose upon the Judges, to ask them to decide upon their own extinction, and he thought it had much better be left to the Queen in Council.

MR. LOPES
hoped the hon. and learned Attorney General would not give way to the Amendment, as the Judges were, of all persons, the most competent to decide upon the organization and arrangements of the Divisions.

THE ATTORNEY GENERAL
said, the clause was absolutely necessary to 1879 the working of the Bill, and it was important that the words in question should be retained exactly as they stood.

§ DR. BALL
said, that when the hon. and learned Member for Oxford (Mr. Harcourt) became a Minister of the Crown he would use his power ruthlessly; and if it were only as a protection for themselves, some weight ought to be given to the Judges.

§ MR. JAMES
thought that, if the matter were left to the Judges, there would be no alteration made in these Divisions at all. It was delegating to those who ought to be reformed or altered, the power of altering or reforming themselves. He preferred the clause as it was proposed to be amended, under which it would be left to the Queen in Council, without consulting the Judges, to arrange for the Divisions of the Court.

§ MR. F. S. POWELL
deprecated the tone in which the Judges were spoken of by hon. Members of the Bar, and considered that great deference ought to be paid to the opinion of those eminent persons, who were by far the most competent to decide upon such a matter as this. Indeed, it should be left to them to decide upon what the course of business should be in their own Courts.

§ MR. WHITWELL
trusted the hon. and learned Attorney General would accept the Amendment.

§ MR. AMPHLETT
hoped the Government would adhere to the clause, which only enabled the Executive to do that by Rules and Orders which they might do by Act of Parliament.

§ MR. SERJEANT SHERLOCK
thought it would be a strange thing if such an alteration as that now proposed were to take place without consulting the Judges. That was an alteration in the system of the law which should be suggested, if at all, by the Judges themselves in the first instance.

§ MR. VERNON HARCOURT,
in replying generally to the objections made to his Amendment, said, that if the decisions were left to the Judges the clause would be utterly worthless.

§ Amendment negatived.

§ On the Motion of Mr. VERNON HARCOURT, Amendment made in page 19, line 44, after "purpose," by inserting— And such order may provide for the extinction of the offices of any of the judges who are The Attorney General 1880 constituted presidents of any of the divisions which may be reduced, and of the salaries, pensions, and patronage attached to such offices, notwithstanding anything in this Act relating to the continuance of such offices, salaries, pensions, and patronage.

THE ATTORNEY GENERAL
moved, as an Amendment, line 8, at end of clause, to add— Provided always, That the total number of the Judges of the Supreme Court shall not be increased by any such Order.

MR. OSBORNE MORGAN
said, that as the Amendment raised the whole question of the number of the Judges, he would take the opportunity of calling attention to the pledges given by the hon. and learned Gentleman the Attorney General on the occasion of the second reading of the Bill. He (Mr. Osborne Morgan) had put down an Amendment asserting the expediency of having a Judge who was conversant with the practice and doctrines of Equity attached to each of the Divisions. His hon. and learned Friend, though he advised the withdrawal of the Amendment on the ground that it would stereotype the distinction between Law and Equity, said the Government proposed that instead of the provisions in the Bill, there should be left to the Queen not an unlimited selection, but a selection with certain qualifications of persons not from the Common Law Bar, to fill the places of the three Puisne Judges in the Court of Appeal, and in making that announcement he had stated that he hoped it would afford considerable satisfaction to him (Mr. Morgan). Well, the announcement did afford him considerable satisfaction, but that satisfaction was short-lived. He understood the hon. and learned Gentleman to mean what he said, and he withdrew his Amendment. In fact, he fell an easy prey to the bland and honeyed words of the hon. and learned Gentleman. Next day the hon. and learned Solicitor General said to him, "Don't be too sure of your three Equity Judges." He was sorry he did not prefer the vinegar of the Solicitor General to the oil of the Attorney General. In what way had the Government fulfilled their pledge? In the first place, these three Equity Judges were reduced to two, then they dwindled down to one, and now this one solitary Equity Judge, who also might be taken away by-and-by, was to be purchased at the 1881 expense of a Vice Chancellor. That proceeding had placed him in a very embarrassing position, for he could not help feeling that to a certain extent he had been "jockeyed" by the hon. and learned Gentleman. Moreover, by the Bill, as it now stood, at least six of the Judges of the High Court must either die or resign before the hon. and learned Gentleman could give effect to his other promise that one Equity lawyer should be appointed to each Common Law Division, because no vacancies were to be filled up until the Judges were reduced to 12. He belonged to a profession to which the public proverbially attributed more of the wisdom of the serpent, than the innocence of the dove; but if ever there was a dove who had been outwitted by the wisdom of a serpent he was that unfortunate bird. They were told by the poet that— When lovely woman stoops to folly And finds too late that men betray, the only course for her to pursue was to retire from the scene altogether; now, whether he had stooped to folly or not, he certainly had found that men betray, and therefore, the only course that seemed to him now open, was to withdraw his numerous Amendments, and retire as gracefully as he could. Before doing so, however, he wished to record his opinion that he did not think that way of playing fast and loose with one of the staunchest supporters of the Bill was the best way either to facilitate the passing of the measure, or to raise the character of the Government.

THE ATTORNEY GENERAL
said, if his hon. and learned Friend misunderstood the very plain language which he used he could not help him. When his hon. and learned Friend spoke of being "jockeyed" he should have taken more pains to ascertain that there was some foundation for the accusation than he appeared to have done. He had not the slightest desire to withdraw what he had said on the second reading, No one of common understanding or common fairness of mind could draw such an inference as his hon. and learned Friend had done. He said then, and he repeated now, that there was a strong part in the Equity case, and, speaking in the presence of the head of the Government and of the Chancellor of the Exchequer, he stated that they were prepared to consent to the charge for three new 1882 Judges if they should be required. But he took pains at the same time to explain that he gave no pledge that these three men were to come from the Equity Bar. What he said was, that it would be wise to extend the power of selection to persons other than Members of the Common Law Bench. What right then had his hon. and learned Friend to make such an attack on him as he had done, or to talk of "oil" and ''vinegar?" What right had he to make an attack of that sort upon an honourable man in the presence of honourable men, and to say that he had been "jockeyed?" What had he said, or what had he done that a man of honour need be ashamed of? The right hon. Member for Kilmarnock (Mr. Bouverie) without any communication with him, moved an Amendment which was accepted by the Committee, and the result was that one of the new Judges might possibly be an Irishman, and another a Scotchman. But was it impossible that an Irishman might be a good Equity lawyer? He repudiated with indignation the charge made against him by the hon. and learned Gentleman, and challenged him to show that there was any foundation for that charge.

§ MR. WHALLEY
said, he was under the impression that the Attorney General's conscience was not at ease in the matter. He believed that 99 out of every 100 of the constituents of hon. Members would be astounded at the scope and tenor of the Bill. It seemed to him that they might as well talk about the manner of the discussion as the matter. He did not recollect for 20 years hearing such language as had fallen from speakers in that discussion, but if there was ally chance of anything he said in the House ever being reported, he would say that anything was better than passing the Bill, which was really in effect to put the Court of Chancery at the very head and from of our legal system.

§ DR. BALL
objected to the Judge of the Admiralty Court being taken to the Court of Probate and Divorce. If, however it was clone, his salary should be raised to £5,000.

THE SOLICITOR GENERAL
said, it was a mistake to suppose that the Judge of the Admiralty Court was not in a position to assist the Judge of Divorce in the Supreme Court. Half of the time of the Admiralty Judge would be unoc- 1883 cupied, and could be devoted in the way proposed. Future Judges of the Admiralty Court would receive £5,000 a-year, and the reason why the present Judge was not included in that arrangement was that he received more from the offices he now held.

MR. OSBORNE MORGAN
said, that he certainly understood the hon. and learned Attorney General, replying to an Amendment of his own, to state that the three additional Judges should be taken from the Equity branch of the Law, and that the only reason for choosing them from the Common Law Bar was the addition of Ireland and Scotland.

MR. GLADSTONE
said, that that was a misapprehension on the part of hon. and learned Gentleman. If the Amendment were adopted the Judges would not be able of themselves to make any increase in their numbers, and an increase in that respect would require the passing of an Act of Parliament.

§ MR. HINDE PALMER
said, he did not agree that they were to be precluded from appointing an additional Judge should it be considered necessary in the working of this Bill to do so.

§ MR. VERNON HARCOURT
said, the Order in Council to increase or decrease the number of Judges might be made on the recommendation of the Judges. Did anyone think that the Judges would recommend a decrease in the number of their Order? He should like to have that matter made clear. He hoped the Amendment would be accepted.

§ MR. GREGORY
thought it desirable that the Committee should have some further explanation on the subject.

§ MR. JAMES
said, that that was a lamentable instance of the influence of the hon. and learned Member for Oxford (Mr. Harcourt), supported by the hon. Member for Warrington (Mr. Rylands), over the Attorney General and the Solicitor General. The effect of the Bill would be that three Judges of the Common Law staff would be cut off, and that they would be reduced to 15 Judges. At that moment they were reduced to that number, three of the Judges of the Court of Queen's Bench being engaged in the Trial at Bar; and the consequence was that the business was falling greatly into arrear. He regarded the course proposed by the Government as a retrograde step. The country did not want 1884 to have the number of Judges reduced. That reduction of our judicial strength, moreover, had been effected without the least consideration whether the present number of Judges could do the work or not, but simply with the object of carrying out the economical views of the Chancellor of the Exchequer. Under the present system there had simply been a block in our procedure, because the Judges were not physically capable of getting through the work which came before them. People talked loudly about the law's delay, but that delay arose from a want of judicial strength, and our arrears were increasing day after day. The evil of the present system in this respect would be increased and rendered permanent by the Amendment, which he hoped, therefore the House would reject.

THE ATTORNEY GENERAL,
in explanation, said he did not see that the objections of the hon. and learned Member for Taunton were well founded. The only effect of the Amendment would be to prevent the Judges from adding to their own number, without in any way precluding their number being increased by Act of Parliament.

MR STAVELEY HILL
agreed in the view expressed by the hon. and learned Gentleman the Member for Taunton (Mr. James), and was of opinion that it would be a great injustice to suitors if the number of Judges were reduced to 15.

§ MR. SERJEANT SIMON
supported the proposal of the Government.

MR. GLADSTONE
further explained the object of the clause, and defended the proposal of the Attorney General.

§ MR. WHALLEY
concurred with the Attorney General so far as regarded the words proposed to be added to the clause; but the necessity for the Amendment showed that the Bill had been negligently drawn, and he held that any Member who would help by talking to dismiss the Bill altogether would be rendering a service to his country.

MR. LOPES
took exception to the proposal, maintaining that the number of 15 Judges was entirely inadequate.

§ MR. AMPHLETT
said, the discussion that had taken place on the question, and which occupied more than an hour, appeared to him to be a senseless one. but one impression was to be gathered from it, and that was that the number of 1885 Judges was cut down too much. He shared that feeling, and considered that the Bill was being spoiled by the cutting down of the number of Judges.

§ MR. MATTHEWS
said, in order to reconcile the objections which had been offered to it he would move the insertion in the Attorney General's Amendment of the words "reduced or," so as to make it run thus— provided always, that the total number of the Judges of the Supreme Court shall not be reduced or increased by any such Order" in Council. The power of the Queen in Council ought to be limited to decreasing as well as increasing the Judges, particularly as there was some doubt about the words.

§ Amendment agreed to; words inserted accordingly.

§ Amendment, as amended, agreed to.

§ Clause, as amended, agreed to.

§ Clause 30 (Rules of court to provide for distribution of business) amended, and agreed to.

§ Clause 31 (Assignment of certain business to particular Divisions of High Court subject to rules).

THE ATTORNEY GENERAL
moved, as an Amendment, the omission in page 20, line 24, of the words "and the London Court of Bankruptcy respectively." He proposed that the business of the Court should be transferred to the Court of Exchequer, as being upon the whole the most satisfactory arrangement that could be made, and it would only be temporary.

§ Amendment proposed, in page 20, line 24, to leave out the words "and the London Court of Bankruptcy respectively."—(Mr. Attorney General.)

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

§ MR. JAMES
feared that the object of the Amendment was to cast upon the Court of Exchequer the additional duty of undertaking the business of the Court of Bankruptcy. If that was intended to be the effect of the Amendment, he should certainly oppose it on the ground that the Court had not leisure for any additional business with its existing number of Judges.

§ MR. VERNON HARCOURT
was of opinion that Clause 31 was not required 1886 at all, as preceding clauses sufficiently provided for the distribution of the business. Moreover, the Judges themselves had ample power to draw up rules as to the distribution of business.

THE ATTORNEY GENERAL,
in defending the Amendment, said, its object was to clear the way for another Amendment. He must explain that he proposed the Amendment for the following reasons:—At present, no doubt, from the illness of one Judge and a vacancy, there were considerable, though temporary, arrears of business in the Court of Chancery. The question, therefore, arose where best could the bankruptcy portion of the business of that Court be transferred, pending suitable arrangements being made for the general distribution of the business. With Judges in Chancery who had to conduct the business of their Courts single-handed, it was impossible that the bankruptcy business could have any more fair play than it had had under the Act of 1869. But there were six Judges of the Court of Exchequer, and he would admit that they were not underworked; but they had less to do than the Judges in any of the other Courts in Westminster Hall, and one could, pending final arrangements, be, without inconvenience, intrusted with the disposal of appeals in Bankruptcy. That was an arrangement which, in the opinion of those who framed the Bill, was vital to the success of the measure, and one which he hoped the Committee would not hesitate to adopt. The Amendment, although only of a temporary character, was essential to the proper working of the 33rd clause, and therefore he hoped it would receive the support of the Committee.

§ MR. AMPHLETT
admitted that the Bankruptcy Act had not had fair play, but that was the fault of the Government. He trusted the Court of Bankruptcy would be kept in the Chancery Division. He thought it would be most injudicious to transfer the business of the Bankruptcy Court to the Court of Exchequer, as thereby Vice Chancellor Bacon, who had just got his Court into good order, would be dispossessed of it. He therefore hoped that nothing would be done to interfere with the position of Vice Chancellor Bacon. At the same time, it was absolutely necessary that they should have Judges in Bankruptcy 1887 of higher rank and judicial experience than Registrars.

§ DR. BALL
thought the Bankruptcy business, being of a very peculiar character, ought not to be thrust on the Exchequer Judges, who would be required to go on circuit, whereas the administration of Bankruptcy ought to be intrusted to a Judge who should constantly sit in London. He also objected to transferring Bankruptcy business from one experienced Judge to five, who would have to choose one from among themselves.

MR. OSBORNE MORGAN
supported the view taken of the question by the hon. and learned Member (Dr. Ball), and hoped to sustain it, if the question went to a division.

§ MR. ASSHETON CROSS
said, that in order to satisfy the Chancellor of the Exchequer, the Treasury wished to avoid the necessity of appointing an additional Vice Chancellor. He strongly objected to the proposed transfer of the Bankruptcy business. The effect of the proposal would be to transfer the business of the Court of Bankruptcy to the Exchequer Court, which was at present the most unpopular Court in the country.

THE SOLICITOR GENERAL
explained that the arrangements were only temporary, being made for the purpose of bridging over the interval between the present time and the future time, when all the Judges would be competent to deal with all these questions of Law and Equity. Common Law men practised in Bankruptcy as well as Equity men; it was common ground; and he thought a much larger number of Common Law barristers than of Equity barristers went into Bankruptcy. This was so well known that it had been originally suggested that one of the Barons of the Court of Exchequer should be Chief Judge of the Court of Bankruptcy. The five Judges of the Court of Exchequer would divide the Bankruptcy business between them. With regard to the objection that had been made, that they would have to go on circuit, he did not apprehend there would ever be fewer than 16 Judges, so that two could remain in town during the Assizes, and they would be fully able to attend to the Bankruptcy business. Further, a re-arrangement of Judicial force would enable the Judges to do more business. It was not necessary to 1888 have four Judges sitting in Banco disposing of cases less important than were disposed of by one Vice Chancellor. If business were done by one or two Judges in such Court, the remaining three or four would be available, and thus more work would be done by the same number of Judges than was done at present.

§ MR. WEST
thought the question was one of such importance that Progress ought to be reported. He would move, therefore, that the Chairman do report Progress.

§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. West.)

MR. GLADSTONE
expressed his willingness to accede to the suggestion.

§ MR. JAMES
said, the result of reporting Progress now would be, that this subject would come up again at the Two o'clock sitting, when many of the legal Members, himself included, could not attend. The question had been fully discussed, and as a division would probably be taken soon after Two o'clock to-morrow, it would be much more convenient for those hon. Members who were engaged in business, if a decision were at once arrived at.

THE ATTORNEY GENERAL
said, that there was a great deal of force in the appeal just made by his hon. and learned Friend (Mr. James). He should therefore propose to postpone the clause, and not renew the discussion upon it tomorrow at Two o'clock.

§ Question put.

§ The Committee divided:—Ayes 145; Noes 138: Majority 7.

§ House resumed.

§ Committee report Progress.

§ Motion made, and Question proposed, "That this House resolve into Committee on this Bill, To-morrow, at Two of the clock."—(Mr. Attorney General.)

§ MR. COLLINS
rose to Order. He wished to know whether a clause could be postponed when the discussion upon it had once begun? He thought the clause having been put should be struck out, and brought up again.

§ MR. J. LOWTHER
said, that an Amendment to the clause having been put from the Chair, the clause must either be negatived, and brought up 1889 subsequently, or it must be proceeded with at Two o'clock to-morrow.

§ MR. DODSON
said, that was a question which might be raised when the House was again in Committee on the Bill, but it could not be entertained by the House itself.

§ MR. JAMES
said, that the question in that case would have to be discussed in the absence of himself and many other. After the assurance of the hon. and learned Attorney General, he should, however, leave the matter in his hands.

THE ATTORNEY GENERAL
said, he could only say that he would do his best to keep faith with his hon. and learned Friend.

§ Question put, and agreed to.

§ Committee to sit again To-morrow at Two of the clock.