§ Sittings and Distribution of Business.
§ Clause 31 (Assignment of certain business to particular Divisions of High Court subject to Rules).
§ Amendment proposed, in page 20, line 34, 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."
THE ATTORNEY GENERALsaid, he found by consultation with the highest authority that by withdrawing the Amendment—should the Committee assent to it—the clause might be postponed. He was willing, with the assent of hon. Gentleman, that that course should be adopted.
§ Amendment, by leave, withdrawn.
§ Clause postponed.
§ Clause 32 (Option for any Plaintiff (subject to Rules) to choose in what Division he will sue) agreed to.
§ Clause 33 (Power of transfer) agreed to.
§ Clause 34 (Sittings in London and Middlesex and on Circuits) agreed to.
§ Clause 35 (Rota of Judges for election petitions) agreed to.
§ Clause 36 (Powers of one or more Judges not constituting a Divisional Court).
§ MR. VERNON HARCOURTmoved, at end of clause, to add—
And within twelve months after the passing of this Act rules of court shall be made defining what proceeding, causes, or matters shall be deemed proper to be heard by a single judge.
THE SOLICITOR GENERALagreed in the spirit of the proposal; but he hoped the Amendment would not be pressed, as it was quite intended such rules should be made.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 37 (Divisional Courts of the High Court of Justice) agreed to.
40§ Clause 38 (Divisional Courts for business of Queen's Bench, Common Pleas, and Exchequer Divisions) agreed to.
§ Clause 39 (Distribution of business among the Judges of the Chancery and Probate, Divorce, and Admiralty Divisions of the High Court).
§ Amendment agreed to.
§ MR. ASSHETON CROSSsaid, this clause raised precisely the same question as had been raised last night. He asked that it be postponed.
§ Clause, as amended, agreed to.
§ Clause 40 (Divisional Courts for business of the Chancery Division) agreed to.
§ Clause 41 (Divisional Courts for business belonging to the Division) agreed to.
§ Clause 42 (Appeals from Inferior Courts to be determined by Divisional Courts).
MR. HENLEYexpressed a doubt whether "cases" sent up from Quarter Sessions would come under the term "appeals" provided for in this clause.
MR. STAVELEY HILLregretted that provision had not been made in the clause for cheap and easy appeals from the County Courts. An appeal might be provided to the Court of Assize.
§ MR. ASSHETON CROSSthought that such an appeal would be very inconvenient, as the Judges of Assize had already plenty to do.
§ MR. VERNON HARCOURTjoined in the regret expressed by the hon. and learned Member (Mr. S. Hill.) It was quite clear that the present Bill must be followed by another measure localizing jurisdiction and improving the local administration of justice.
§ Clause agreed to.
§ Clause 43 (Cases and points may be reserved for or directed to be argued before Divisional Courts) agreed to.
§ Clause 44 (Provision for Crown Cases reserved).
41§ MR. VERNON HARCOURTmoved, in page 26, at end to add, as fresh paragraphs—
Where a petition is presented to a principal Secretary of State praying for a remission, commutation, or alteration of a sentence passed upon a person upon conviction for any treason felony or misdemeanor, it shall be lawful for Her Majesty, if Her Majesty in Her discretion think fit, with the advice of a principal Secretary of State, to refer the matter of the petition to Her Majesty's Court of Appeal for their consideration and advice in the matter of the petition.The Court to whom a petition or the case of any person is referred as aforesaid may in their discretion and with the consent of such person direct a new trial, either upon the same or upon a different indictment or information, and either for the same or for a different offence of which the person appears to the court to have been guilty, in such manner and upon such conditions (if any) as they think fit, and may order the person to be detained in custody pending such new trial or to be discharged upon such terms as to bail or otherwise as they think fit; and any new trial so ordered may be had in all respects as if the person had not been convicted upon the former trial, and no plea of autrefois convict shall be allowed in respect of his conviction upon such former trial.Subject to any roles of court, petitions referred to the court under the provisions of this section shall be considered in such manner as the court may from time to time determine, either with or without hearing witnesses or arguments, and either in open court or otherwise.The hon. and learned Gentleman said, this Bill had dealt largely and he hoped efficiently with civil procedure; but it was remarkable that the Bill left our criminal procedure very much where it was. In questions of law affecting criminal trials it did not meet the justice of the case. Cases were constantly occuring of capital offences and sentences in which the public mind was so dissatisfied with the judgment given by the Judge and jury that in the absence of anything like a regular jurisdiction of appeal a most irregular appellate jurisdiction was created in the Home Secretary. Nobody was satisfied with the manner in which that appellate jurisdiction had arisen. A man was tried for his life and condemned to death. A Petition was sent to the Home Secretary, who had to review the sentence, not on any miscarriage of law, but on some allegation either that the facts at the trial were not accurately decided upon, or that the sentence was extreme. The Home Secretary had cast on him a most responsible and painful duty which he 42 had very little means of adequately discharging. He had to receive the statements of parties and come to a decision, which, in many cases, reversed the sentence of a responsible Judge and jury on what, after all, must be unsworn and only ex parte evidence. He had been strongly impressed with the mischief of this state of things by what had occurred in the case of Smethurst, which came under the consideration of his right hon. Friend the late Sir George Lewis. It was a case which depended on medical testimony, and the Judge and jury had come to the conclusion that the man was guilty, and he was sentenced to death. That sentence, however, was reversed on medical testimony tendered to the Home Secretary by other doctors of perhaps equal eminence, but whose evidence was unsworn. He did not propose to interfere in any way with the Prerogative of mercy; but in many cases where the Prerogative of the Crown was concerned, the Crown did not desire to be inops consilii. A great part of the jurisdiction of the Privy Council rested on the prerogative of advice from the Judicial Committee; and it was quite possible, without departing from the doctrine of Prerogative, for the Crown to obtain responsible advice in a manner more satisfactory than that of seeking it from the Executive Government. What he proposed was that Her Majesty might, at her discretion—it was not to be compulsory—refer the Petition of a person convicted of treason or felony to the Court of Appeal for consideration and advice. He believed that this course would relieve the Home Secretary from a painful responsibility by handing over to persons conversant with questions of this character the authority to recommend to the Crown the exercise of the Prerogative of mercy. His object was, not to limit the Prerogative of the Crown, but merely to secure that it should have competent advice. He knew that some of the most eminent of the Judges were favourable to a change of this character. For the present, he would be satisfied with an assurance that the matter would be considered between this time and the Report on the Bill. The hon. and learned Gentleman concluded by formally moving the first paragraph of his Amendment to carry out his views.
THE ATTORNEY GENERALsaid, the question was a most important one—indeed, one of the most serious that could be raised; but it was not germane, and ought not to be raised at this stage of the Bill. He would give to it the attention which its importance called for. As his hon. and learned Friend had mentioned Sir George Lewis, he would recommend him to read a speech by that distinguished man, made when he was Home Secretary, which was an exhaustive argument against the principle of the Amendment. He hoped his hon. and learned Friend would not at present press the matter further on the attention of the Committee.
§ DR. BALLcalled attention to the State trials of O'Connell, Smith O'Brien, and Mills, and to the procedure in cases of the writ of error, as sued out in Ireland. In that country the initiative in State prosecutions was taken by the Attorney General; and he (Dr. Ball) was desirous to know whether, under this Supreme Court of Judicature Bill, the practice with regard to the writ of error in Ireland would continue as at present?
MR. STAVELEY HILLconsidered the question, relating as it did to cases of criminal appeal, was a most important one, and thought that a clear explanation ought to be given to the question put to the Attorney General on the subject by the right hon. Gentleman the Member for Oxfordshire (Mr. Henley). He was prepared to vote for the Amendment if his hon. and learned Friend the Member for Oxford (Mr. Harcourt) went to a division.
§ MR. BRISTOWEwas of opinion that in Crown Cases Reserved the questions in issue might be brought under the consideration of, and adjudicated upon by a smaller number of Judges than under the existing system was required to constitute the Tribunal of Appeal.
§ MR. VERNON HARCOURTsaid, he could not agree with the Attorney General that this question was not germane to the case now under consideration. With regard to the question put by the right hon. Gentleman the Member for Oxfordshire (Mr. Henley), in reference to cases of criminal appeal, he considered it a most serious one, and hoped it would receive all the attention due to it.
§ MR. BUTTreferred to the state of the law governing questions of appeal in cases of conspiracy, felony, and misdemeanour prior to Lord Campbell's Bill, and said, looking at the clause in the present Supreme Court of Judicature Bill, it was identical in its provisions and objects with Lord Campbell's Bill, which was a great improvement in the law on the question of appeal.
§ DR. BALLconsidered the case a most important one, and suggested that a clause might be introduced on the Report to amend the Bill.
§ MR. VERNON HARCOURTsaid, that, although he would not press the Amendment, he would take the opinion of the House upon it on the Report.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 45 (Motions for new trials to be heard by Divisional Courts).
§ MR. MATTHEWScalled the attention of the Committee to the importance of the clause, and moved, in page 26, line 33, after "divisional court," to leave out to end of clause.
§ MR. GREGORYsaid, from the clause, as it now stood, there was no appeal whatever. In his opinion, the words "and no appeal shall lie from any judgment," &c., ought to be struck out.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 46 (What orders shall not be subject to appeal).
MR. LOPESsaid, the word "procedure" admitted of very wide interpretation, such as discovery, interrogatories, &c., and suggested that it should be struck out.
§ MR. MATTHEWSsaid, the word "practice" also admitted of wide and various interpretations, involving questions of costs, &c., and submitted that it, too, ought to be struck out.
§ MR. WATKIN WILLIAMSsaid, that as the law now stood a plaintiff 45 making affidavit might swear before a Judge in a private room that the defendant had no defence, and the Judge might issue execution and debar the defendant from adopting proceedings in his defence. If this clause passed with the words "practice" and "procedure" in it, there would be no appeal.
THE ATTORNEY GENERALintimated that the view taken of the clause was correct, and agreed to confine the application of the section to "costs" only.
§ Amendment accordingly made.
§ MR. WHALLEYmoved that the word "costs" should also be struck out.
MR. LOPESobserved that as the Committee had already left out the words "practice" and "procedure" the clause would become altogether useless were the hon. Member's Amendment agreed to.
§ Amendment negatived.
§ Clause, as amended, agreed to.
§ Clause 47 (As to discharging orders made in Chambers) agreed to.
§ Clause 48 (Provision for absence or vacancy in the office of a Judge).
§ MR. AMPHLETTmoved, in page 27, line 13, leave out from "during" to "of any such judge," in line 16; in line 19, leave out "the judge so absent," and insert "any judge absent from illness or any other cause;" in same line, leave out "the" before "judge," at the end, and insert "any."
§ Amendments agreed to.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 49 (Power of a single Judge in Court of Appeal) agreed to.
§ Clause 50 (Divisional Courts of Court of Appeal).
§ MR. GREGORYmoved, in page 27, line 32, after "either" leave out "by the whole Court or."
THE ATTORNEY GENERALprotested against having to repeat all the arguments with which he had combated the Amendments on Clause 6. The Committee having passed Clause 6 had virtually passed this clause, which was its natural consequence.
§ MR. WATKIN WILLIAMSsaid, the clause gave an intermediate appeal in cases of magnitude and difficulty, with- 46 out giving an absolute right of appeal in frivolous cases for the purposes of delay or of defeating justice. If an absolute right of an intermediate appeal was given all the inconveniences of the present system would be reproduced.
§ MR. AMPHLETTcomplained that no answer had yet been given by the Law Officers of the Crown to the objections which had been urged as to the great evil that must arise from having several Final Courts of Appeal. What he should have liked to see established would be a Court of five of the first men that could be obtained as a Final Court of Appeal, and then to have an Intermediate Court of Appeal, consisting, say, of three Judges, with this restriction—that there should be no appeal from that Intermediate Court if it should agree with the Court below, at least in interlocutory matters. In the event of there not being an agreement with the Court below, the case in dispute might be heard by the full Court.
§ MR. VERNON HARCOURTdenied that hon. Members by accepting the 6th clause were precluded from objecting to this one. On the contrary, he had agreed to Clause 6, with the avowed intention of raising the question of the judicial strength of the Court of Appeal on Clause 50. The proposal of the hon. and learned Member (Mr. Amphlett) that a minimum of seven Judges should sit at the hearing of appeals might meet the difficulty, but then it would set up an Intermediate Court of Appeal, to which he objected. They had abolished the House of Lords, the Exchequer Chamber, and the Judicial Committee of the Privy Council, and they were now going to substitute for them a tribunal of three Puisne Judges. The thing was ridiculous. Under the clause, those three Judges, of whom they knew nothing, would have power to set aside a judgment of the Court of Queen's Bench, presided over by the Lord Chief Justice, and by such Judges as Mr. Justice Blackburn. It would be most unwise and rash to sanction any such thing. He would not allow of there being more than two Divisions in the Court, and he would make the attendance of five Judges the minimum.
MR. LOPESsaid, he was surprised to hear the Attorney General say that the Intermediate Court of Appeal had been conceded; because at an earlier stage of 47 the debate he had referred to the latter part of the 50th clause as already providing what was tantamount to an Intermediate Court of Appeal.
§ MR. HINDE PALMERdenied that the Committee were precluded from considering this section, because they had, by accepting the 6th clause, settled the constitution of the Court of Appeal. He would suggest that the clause should not be confined, as it was at present, to re-hearing before decision, but that it should be extended to re-hearing after decision. No case ought, however, to be re-heard except within a specified time and with the consent of the Court itself.
§ SIR RICHARD BAGGALLAYsaid, he thought that in certain cases there should be a re-hearing of an appeal. It was incorrect to speak of such a proposal as retaining the present system of intermediate appeal. A decision below might be reversed by the Appeal Court by a mere majority of three against two, or two against one; in such a case it should be subject to a re-hearing. He would propose to add at the end of the clause a Proviso that the judgment of a Divisional Court of Appeal, if all the Judges concurred in it, should be final; but that if there was only a majority, the aggrieved person should be entitled to have the case re-heard before an increased number of Judges.
MR. OSBORNE MORGANadded his protest against the dictum laid down by the Attorney General that the Committee was precluded from considering the clause.
§ MR. RATHBONEsaid, the commercial community were extremely anxious that there should not be in Common Law cases any intermediate appeal whatever.
§ MR. JAMESsaid, he hoped the Committee would be able to see its way to supporting the Amendment which stood in the name of the hon. and learned Member for East Worcestershire (Mr. Amphlett). A Court of Appeal which was not stronger in its constitution than the Court appealed from was no Appeal Court at all.
§ MR. W. H. SMITH,as the representative of a commercial community, said, he hoped the suggestion of the hon. and learned Member (Mr. Amphlett) would be adopted. If there was no appeal from the second tribunal a 48 strong feeling would prevail in the commercial community that wrong would be done. At the same time, he thought it would be a great mistake to overload the ultimate Appellate Court with business.
§ MR. W. FOWLERobserved, that under the new system there would be the possibility of having three Appeal Courts deciding in three different ways, and that in such an event there ought to be a guarantee that the party aggrieved should have an opportunity of having the whole matter re-argued. He hoped the Government would yield to the Amendment.
§ DR. BALLsaid, that all the Irish, Scotch, and ecclesiastical appeals would go to the new Court, and that this would render the Judges inadequate to their duties. He thought that the judgment below should not be reversed by a mere majority; but he would make a unanimous decision on appeal final.
§ MR. LEEMAN,as a member of the lower branch of the legal profession, supported the Amendment before the Committee, on the ground that it would have a tendency to keep down the cost of legal proceedings, which gave an advantage to rich suitors as compared with poorer ones. The right of appeal was inherent in every subject of the realm, and he therefore objected to any proposal which would vest in the Judges the power to veto the right of appeal.
§ MR. GREGORYbegged to withdraw the Amendment, in order that his hon. and learned Friend (Mr. Amphlett) might move his.
§ Amendment, by leave, withdrawn.
§ MR. AMPHLETTsaid, he collected from the general expression of opinion that seven would be rather too many for a full Court. He should have no objection, therefore, to make the number five. He begged to propose, in page 27, line 32, to leave out "the whole Court," in order to insert "a full Court consisting of the whole or any number not less than five." And should this Amendment be carried, he proposed to move, in line 35, to leave out from "any appeal" to "direct," in line 38, in order to insert—
The judgment of a full Court shall in all cases be final; the judgment of a Divisional Court shall be final if it affirms the order appealed from, but in other cases any party ag- 49 grieved shall be entitled to have such appeal re-heard by a full Court.
§ Amendment proposed,
In page 27, line 32, to leave out the words "the whole court," in order to insert the words "a full court, consisting of the whole or any number not less than five."—(Mr. Amphlett.)
§ Question proposed, "That the words proposed to be left out stand part of' the Clause."
THE ATTORNEY GENERALobserved that what he said before, and what he would now repeat, was that the Committee in passing Clause 6 virtually settled how many persons should sit on the Court of Appeal. The Committee was informed that, though it was desirable that the Court of Appeal should sit in two Divisions, it might sometimes be necessary that it should sit in three. Now, it was impossible to get more than four and two threes out of ten—the number of which the Court of Appeal would be composed, and therefore if the Committee were to say that the Divisional Court should consist of five, it would be impossible to have three Divisions. As for the argument that three strong Judges of the Court below might be overruled by three weak Judges of the Court of Appeal, something similar might happen if the Divisional Court were to consist of five or seven. In the one ease, three strong Judges of the Court below and two weak Judges, as they were called, of the Court of Appeal, might be overruled by three weak Judges of the same Court of Appeal; and in the other case three strong Judges of the Court below and three weak Judges of the Court of Appeal might have their decisions reversed by four weak Judges of the Court of Appeal. If the Committee were to accept the Amendment, the whole scheme of the Bill would be altered, and it would be almost impossible to go on with it.
§ Question put.
§ The Committee divided:—Ayes 177; Noes 144: Majority 33.
§ MR. MATTHEWSproposed to substitute "five" for "three" as the minimum number of Judges in a Divisional Court. It seemed to him to be a perfect satire to substitute for the Exchequer Chamber and the House of Lords a Court presided over by three Judges, of whom two might be Indian Judges. 50 An insufficiency in the number of Judges was no reason why an unsatisfactory and inconclusive Appeal Court should be inflicted on suitors.
§ Amendment proposed, in page 27, line 33, to leave out the word "three," in order to insert the word "five."—(Mr. Matthews.)
§ Question proposed, "That the word 'three' stand part of the Clause."
THE ATTORNEY GENERALsaid, the satire, if there were any, came from the highest authority—the House of Lords. As the Committee had determined, after full and fair discussion, that the number of ordinary Judges should be 10, or at most 11, it was utterly impossible to have 15 Judges. He had no preference for three over five, or five over seven; he would rather have an abundance than a scarcity of Judges; but great men were not to be had for the asking.
§ MR. VERNON HARCOURTprotested against the fallacy, repeated over and over again, that the number of Judges would be so limited. If it were, what was the meaning of ex officio Judges and of additional Judges? By the fixing of the lower number these Judges would be encouraged to stay away from the Courts. If, after what the house had been told as to the constitution, numbers, and character of the Judges of the Supreme Court of Appeal, the Bill should pass, it would effect anything but an improvement in the existing state of things.
§ MR. CAVENDISH BENTINCKsaid, that these morning sittings were unsatisfactory in one respect—that the Members who voted were not those who had heard the debate, but who, when the division bell rang, rushed in and voted whichever way they were told. He hoped the Amendment would be pressed to a division; if so, he should vote for it.
§ MR. W. FOWLERsaid, that if the Bill did not provide enough Judges, it was the duty of the Legislature to see that there were enough. The public were not to be put off with a bad Court of Appeal because there were a certain number of Judges contemplated by the Bill, and because the authors of the Bill held out that the number was not to be increased. In order to render his pro- 51 test articulate he should vote for the Amendment.
§ MR. C. E. LEWISsaid, that under the clause as it stood, if an inheritance to a great estate in Ireland wore in question, the decisions of the Court of Queen's Bench and the Exchequer Chamber in that country might be upset by three Judges in the Appellate Court of this country, or, indeed, by the decision of two out of three. Could such a state of things give satisfaction to the suitor? In the case of the Amendment proposed by his hon. and learned Friend (Mr. Amphlett), it was possible that the Court might sometimes be weak, but under the Bill the probability was that it would always be weak.
§ MR. WHITWELLopposed the Amendment, which he thought to imply not a very high compliment to the Judges and the hon. and learned Gentlemen he saw around him, all of whom would one day adorn the judicial Bench.
§ Question put.
§ The Committee divided:—Ayes 161; Noes 129: Majority 32.
§ MR. PIMmoved, in page 27, line 38, at end of clause to add—
The court of appeal shall sit in Edinburgh for the hearing of appeals against the judgments or orders of any court in Scotland, and shall sit in Dublin for the hearing of appeals against the judgments or orders of any court in Ireland.
THE ATTORNEY GENERALsaid, this was a matter to be dealt with in the clauses relating to Scotland and Ireland, to be brought up on the Report, if the understanding to that effect could be carried out.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 51 (Judges not to sit on appeal from their own jugdments) agreed to.
§ Clause 52 (Arrangements for business of Court of Appeal, and for hearing Appeals transferred from the Judicial Committee of the Privy Council).
§ SIR RICHARD BAGGALLAYmoved in page 28, line 6, to leave out from the word "appeal" to the end of the clause. He objected to the clause, because it provided that a particular class of appeals should be heard in a particular Divisional Court, one of the two into which the Appeal Court would be practically divided, and that the time of that Court should be exclusively occupied 52 with the hearing of those appeals. He also objected to the constitution of the Court.
THE ATTORNEY GENERALsaid, it was of importance that Indian and Colonial Appeals should come in form, not before the Court of Appeal, but, as heretofore, before the Queen in Council, whose judgment the decision of the Court would be. The clause gave to the Queen the power of taking the advice of the Court of Appeal, and of referring appeals to one Division of Judges, being Privy Councillors, who would sit throughout the year so far as was necessary, disposing of the business which the Judicial Committee now transacted. This was what might be called a political clause, and its object was to show respect to our great colonial dependencies, and take away none of the advantages which they now enjoyed with regard to appeals. As to ecclesiastical appeals, it had already been decided that they should be heard only by Judges, not by ecclesiastics, and this clause would provide that they should be heard by the same Judges who before heard them, excepting the Bishops.
§ MR. BERESFORD HOPEsaid, he did not desire to see retired Indian Judges stereotyped into lay Archbishops. There was nothing peculiar in the climate of India to make men good ecclesiastical lawyers.
§ Amendment negatived.
§ Clause agreed to.