§ Order for Second Reading read.
THE ATTORNEY GENERAL,in moving that the Bill be now read a second time, said, it would be his duty to state as shortly and as clearly as possible the general principles of the measure to which he was about to ask the House to give its assent. So far as the drafting of the measure was concerned, his noble and learned Friend the Lord Chancellor—taking, in some degree, the Law Officers of the Crown into his counsel—was responsible; but the noble and learned Lord would, no doubt, admit that the Bill itself was, to a large extent, an embodiment of the recommendations of the Judicature Commissions, 641 which was itself the result of a considerable amount of Parliamentary discussion which had been had on the subject, and which had created an opinion out-of-doors on the question. No doubt, the matter had first taken tangible form in the memorable speech which had been delivered by the noble and learned Lord in that House in 1867, and the influence and authority of the noble and learned Lord had doubtless given to the question an impulse which it might otherwise have wanted. The subject was fortunately one entirely removed from the ordinary regions of party politics; but while labouring under that disadvantage, every candid person must admit, at the same time, that it was one on which it was necessary that a competent opinion should be created out-of-doors before the attention of Parliament could be successfully directed towards it. He hoped that by that time there had been sufficient discussion in and out of that House to enable them to deal with it once for all, and that the Bill would be found, he would not say so perfect as to shut out all future legislation, but a large and valuable contribution to that portion of law reform. Without entering into a lengthened history of the subject, or a defence of the law of England as at present administered, or of the tribunals which administered that law, he might say, as one who had passed a large portion of his life in its study, that he had formed a strong opinion that, whatever might be the defects in the law, they were to be attributed, not to the learned Judges who administered it, but to the fact that the system on which it was founded, having grown up during the Middle Ages, was incapable of being adapted to the requirements of modern times. While saying, on the whole, that whatever might be its defects, it was founded on substantial justice and common sense, yet it was beyond controversy, that in many instances our procedure was impracticable and inconvenient, for no one practically conversant with its details could deny that there were certain great defects in them which ought to be remedied. First of all, there was the broad distinction which had become inveterate between what was called in this country Law and Equity. In other countries, the distinction existed, and must always exist; but in this country alone, Law and 642 Equity were made the subject of separate and even conflicting jurisdiction. A second defect of their system had been a great waste of judicial power. Many questions which came before the Common Law Courts were questions rather for the determination of a single Judge than a Court of four persons, highly paid, and generally men of first-rate ability. It was no answer to the statement that there had been a great waste of judicial power, to say that as the business of the country had increased more Judges had been made, because so long as we went on making more Judges and occupied them in the same Courts, we really only intensified the mischief, and did not to any appreciable extent diminish the evil of a waste of judicial power. Another great defect of the present system had been the Terms and Vacations of the legal year. The Terms had been altered in some respects, that was to say the beginning and the end of Terms had been fixed by Act of Parliament, but, practically speaking, and without going into antiquarian discussion, the Terms and the Vacations remained what they were in the Middle Ages. Many things could be done in Term only, and the singular practical inconvenience which arose from that cause must have struck everyone having any knowledge of the subject. An example of that had occurred recently. His noble and learned Friend had stated in the other House, that a question arising on a summons which was issued by a magistrate in November last, with reference to an alleged breach of the Parks Regulation Act, could not be decided, owing to the present system of Vacations, by a Common Law Court before the latter part of January last, although many other similar cases were depending on the decision with reference to that summons. Another great defect of our present system had been the exceedingly imperfect constitution, and the still more imperfect working, at any rate, on the Common Law side, of our Courts of Appeal. The operation of their intermediate Court of Appeal was bad and intermittent; and no man, whatever might be his view of the constitutional position of the House of Lords, who had had any knowledge of its practical working, could deny, that a more indefensible institution as a judicial institution it was hardly possible to con- 643 ceive. Although lawyers had been able to maintain a poor sort of living, still everyone knew that the people who went into a Court of Law were greatly the exception. Very few persons, comparatively speaking, ever went to law, and very few who had gone once would ever go again; and those people who had enjoyed the luxury of an appeal to the House of Lords must be very few indeed. When they had got a great appeal decided by that august tribunal, and when they had the satisfaction of paying the highly deserving recipients whom they must pay for that luxury, both sides probably went away with a thankful feeling of relief, and with a hope that they would never hear of the House of Lords again in its judicial capacity. These were matters which lay upon the surface, and which he hoped it would be found this Bill satisfactorily dealt with. The subject of the Appellate Jurisdiction of the House of Lords was not among those referred by Lord Chelmsford when Lord Chancellor (in 1867) to the Judicature Commission. They reported during Lord Hatherley's Chancellorship, and on two occasions, Lord Hatherley attempted to deal with the question and put their Report in the shape of a Bill. But those Bills at the time, and now, appeared to him (the Attorney General) to carry the seed of their own want of success in two important respects. Those Bills proposed to relegate to an authority beyond the walls of Parliament the Appellate Jurisdiction exercised by the House of Lords, and laid down a principle upon which what was called a fusion of Law and Equity was to be effected. That Bill was never submitted to a vote of the House of Commons. It omitted to define the principles on which the Judges were to act in the carrying out of the Law Reform which it was introduced to establish. He thought Parliament could not properly decline to give its tacit or express assent to the principles on which the Judges should act in such a work. In both of these respects, this Bill was free from the objections to the Bill introduced by Lord Hatherley. This Bill broadly and intelligibly laid down the principles upon which the Courts should proceed in the carrying out of the Law Reform which it proposed. A most able analysis of this Bill had been published by a grandson of the late distinguished Lord Chief Baron Pollock. He would 644 now proceed as briefly as he could to describe the general proposals of the measure. The great defect in the system was the conflict of jurisdiction that existed between the Courts of Law and the Courts of Equity. Most descriptions which were epigrammatic and antithetical were sure to be incorrect; and it was not correct to say, as he had heard it stated, that they had established one set of Courts for correcting the intolerable injustice which another set of Courts had committed. At the same time, that description contained truth. No doubt, the Courts of Common Law, without the ameliorating and softening hand of Equity, would have administered a system under which this country, with its various complicated relations, would have found it impossible to live. There had been an inconvenient contest between the Courts of Law and the Courts of Equity, and that would be put an end to at once if the Bill passed. There were Courts of Law and Courts of Equity, each of them separate and distinct, with co-ordinate jurisdiction, unable to interfere with each other, except as the Court of Chancery interfered with suits at Common Law. These defects were known both to lawyers and suitors; but the public at large were not interested in them, and therefore let things go on as they were. The first and main principle of the Bill was that there should be one Queen's Court—the Queen's Court of Supreme Jurisdiction; and in that Court perfect Law and perfect Equity should be together administered. That Supreme Court, into which all the existing Courts would be merged, would itself be divided into a High Court of Justice and an Appellate Court, of which the various Courts of Appeal and of First Instance would respectively form part. The Bill was not one for the fusion of Law and Equity. Law and Equity would remain, and for this reason—they were not the creatures of statute; an inherent distinction existed between them, and the subject-matter of Law and of Equity was not the same, and could not be made the same by Act of Parliament. The defect of our legal system was, not that Law and Equity existed, but that if a man went for relief to a Court of Law, and an equitable claim or an equitable defence arose, he must go to some other Court and begin afresh. Law and Equity, therefore, would remain if the Bill passed, but they would be adminis- 645 tered concurrently, and no one would be sent to get in one Court the relief which another Court had refused to give. It seemed to him that that was the only intelligible way of dealing with the question. Great authorities had no doubt declared that Law and Equity might be fused by enactment; but in his opinion, to do so would be to decline to grapple with the real difficulty of the case. If an Act were passed doing no more than fuse Law and Equity, it would take 20 years of decisions and hecatombs of suitors to make out what Parliament meant and had not taken the trouble to define. It was more philosophical to admit the innate distinction between Law and Equity, which you could not get rid of by Act of Parliament, and to say, not that the distinction should not exist, but that the Courts should administer relief according to legal principles when these applied, or else according to equitable principles. That was what the Bill proposed, with the addition that, whenever the principles of Law and Equity conflicted, equitable principles should prevail. Few Common lawyers would deny that where the two principles differed Equity was right and Common Law wrong; and the Bill, therefore, did homage in such cases to the superior breadth and wisdom of Equity. Though the separate jurisdiction of the Courts would be merged in the one Supreme Court, it was more philosophical to recognize facts, and as for the general convenience, as it was impossible you could have 31 or 32 Judges all sitting together, there must be Divisions of the Court, the question arose—what shall they be called? Now, he thought it very important to preserve historical associations wherever you could do so. England was not the least great in its legal history and associations, and to destroy all those associations in the nomenclature of the Law Courts would be unwise. As the things remained it was well that the names also should remain. Instead, therefore, of calling these different Courts by names which were not only new but new-fangled, it was proposed to call them by the old names—the Chancery, Queen's Bench, Common Pleas, Exchequer, Bankruptcy Divisions, and so on. Further, as there must be a division of labour, and the Courts must consider criminal informations, election petitions, registration appeals, questions 646 of real property, specific performance, winding-up cases, questions between husband and wife, the enforcement of trusts, and so on, it was far more convenient, while getting rid of any conflict of jurisdiction, that the work which the Courts now did they should continue to do, at all events in the first instance. Every Division of a Court would have the jurisdiction to hear any class of business; but if it were found that some kinds of business could be better decided by one Division than another, this business might be transferred, without cost or inconvenience to the suitor. He hoped that we should thus get rid of the scandals of our present procedure, and that, while preserving necessary and inevitable distinctions, we should not allow them to obstruct the process of substantial relief to suitors. That brought him face to face with the Amendment of his hon. and learned Friend the Member for Denbigh (Mr. Osborne Morgan), which ran thus—
That, in order to ensure the due administration of Law and Equity by the High Court of Justice as provided by this Bill, it is expedient that provision should be made for the appointment to each division of such Court of one or more Judge or Judges practically conversant with the principles and administration of Equity.That hon. and learned Gentleman, in this matter, might be regarded as the spokesman of a number of distinguished men who had addressed the Lord Chancellor on the subject, and it was not unnatural that men who had grown up under a system such as that administered in the Court of Chancery should be anxious respecting the tendency of a Bill dealing with it. Although his (the Attorney General's) knowledge of Equity procedure was naturally imperfect, he could assure his hon. and learned Friend he would give very little support to a measure which would prevent the full operation and development of that admirable and beneficent system, whatever faults might be incidental to its working. But if his hon. and learned Friend thought him prejudiced in favour of Common Law he would probably recollect that the Lord Chancellor, who originally introduced this Bill to the notice of Parliament, was for many years the ornament of the Courts of Equity, and that he of all men would be the last to injure a system to which he owed, and which owed him, so much. His hon. and learned Friend the Solicitor General, 647 also, was one of the most powerful among those who now practised in those Courts, and no one would suppose he would willingly impair a system he so thoroughly understood, and of which he was so great an ornament. Being himself a representative of what Lord Westbury had been pleased to describe as the degraded and baser parts of the law—a description which gave evidence of a not very accurate acquaintance with the subject with which the noble and learned Lord dealt—he could not hope that his professions of tenderness for Equity would have as much weight as the fact that the sympathies of the Lord Chancellor and the Solicitor General were distinctly in favour of it. The Judges, his hon. and learned Friend perhaps knew, had loudly called for help. In effect they had said—"If we are to be turned into Courts of Equity, for God's sake send us some men who understand Equity, and do not leave us a prey to distinguished Equity counsel" —such, perhaps, as my hon. and learned Friend. It was manifest, therefore, that in both the Equity and Common Law Courts there should be persons competent to give information on points respecting which the Judges, having been brought up under a different system, were naturally wanting. It would not do for the Bench to be inferior to the Bar. Of course, it must always be that some distinguished members of the Bar should be superior to some upon the Bench; but those were exceptional cases, and it could not be tolerated that the Bar as a body should be superior in knowledge to the Bench. It was, therefore, obvious that it would be impossible to work this Bill properly, unless some such thing as his hon. and learned Friend suggested was done. If the Fates were kind, and permitted the continuance of his noble and learned Friend in office, it was his intention that everything necessary and proper for the administration of the law under the Bill should be done. He was not authorized to speak in the name of hon. Gentlemen opposite, but be believed that what he had said of the Lord Chancellor could be said with equal truth of Lord Cairns, should he again fill the office he so worthily filled some years ago. In fact, it would be impossible to administer the Bill satisfactorily, except in the sense suggested by his hon. and learned Friend's Amendment. Still, 648 that was a very different thing from enacting that such a course should be pursued; because to enact what his hon. and learned Friend's Amendment pointed to would be to stereotype on the face of an Act of Parliament that distinction between Law and Equity which it was the object of the Bill to destroy. Henceforth, if this Bill came into operation, all men practising in the Courts would soon be sufficiently accomplished to deal with the law on either side. Of course, a period of transition would occur, during which some difficulty would be experienced, but the transitional period would not be of long duration. Under the circumstances, therefore, he thought his hon. and learned Friend would see that it was most inexpedient to press his Amendment, and that he would be content with an assurance that his object should be carried out. So much for the High Court of Justice, but the Bill would be imperfect without the creation also of a Court of Appeal. What could be more anomalous than the present state of the Courts of Appeal? As far as Common Law cases were concerned, there were two Courts of Appeal—first, the Exchequer Chamber, and then the House of Lords. In the Court of Chancery, speaking under correction, he would say there was not always a reference to an intermediate Court of Appeal; in certain cases there might be an appeal to the House of Lords, without the intermediate appeal to the Lords Justices. Then there was the Judicial Committee of the Privy Council for appeals from the Colonies, Ecclesiastical and Admiralty cases. The Exchequer Chamber had almost every fault that a Court of Appeal could have. It was uncertain—he would speak tremblingly of the Judges in the presence of the right hon. and learned Gentleman (Dr. Ball); but they were men who had feelings, and he had known eases when a judgment of a particular Court, if there were any means of overruling it, was pretty sure to be overruled in the Exchequer Chamber. Then, there was no absolute necessity that the Exchequer Chamber should have a larger number of Judges than the Court which it overruled, and it had often happened that where the two Courts were divided, it was the opinion held by the minority of Judges which had prevailed. The Court sat, too, but for a very limited time, and that time was uncertain. The 649 Lords Justices formed a much better Court of Appeal, and for a very long time had given satisfaction. The Privy Council, too, for something like 25 or 26 years was about as good a Court as this Empire contained; but it became exceedingly difficult to maintain it in that high state of efficiency, because, as it was until lately an entirely unpaid Court, it was almost entirely dependent on the services of unpaid Judges. At last it became almost impossible for it to continue its sittings. The Judicial Committee still remained an absolutely good Court; but that had happened which some predicted when the Bill for its improvement was before Parliament. It would be said that if we were to have paid and unpaid Judges on the tribunal, in a short time it would be the paid Judges only that would attend. It had not quite come to that, but very nearly so, and he could not help thinking that the sort of august character which the Privy Council possessed was in peril of being lowered and the Court brought to the condition simply of a well-officered and well-filled tribunal. As for the House of Lords, it was his duty, whatever hon. Gentlemen opposite might think, to say what he thought of it as a judicial institution. For his part, he would say that if this Bill did nothing else but get rid of the House of Lords as a judicial tribunal it would be worth while to pass it. He could not believe that if suitors had any power of combination the House of Lords would have lasted as a judicial institution to the present time, such were the expenses and delays of it. He was himself in a case which had been pending in the House of Lords for six or seven years. The utter irresponsibility of the Judges who composed it made it a perfectly in-defensible institution. He did not know what would be said now of Chancery Appeals, but he did know that some time ago they used to be decided by a single Peer, and a caustic Lord Justice used to say that the way they were decided made him hold up his hands in respectful amazement. Practically, at present the Common Law Appeals were decided by a single Judge, for there was not a single Common Law Lord but one who attended the sittings of the House of Lords. Lord Penzance was too ill at present to attend, and before he generally was too busy. He recollected cases 650 in which the unanimous opinion of the Court of Common Pleas and of the Court of Exchequer was overruled by this single Common Law Lord, the Judges not being summoned. Besides, the House of Lords now was not what it used to be in former times. Everyone knew that it was to the House of Lords, as a co-ordinate branch of the Legislature, and to the whole Peerage that the Constitution wisely, or unwisely, in trusted the declaration upon appeal of what was the law of England; the Judges were in those days habitually summoned as their advisers, and the House of Lords, in 99 cases out of 100, or even in a still larger proportion, followed the advice given by the Judges. It was perfectly true that Lord Eldon said he had the right to overrule all the Judges in England, but that was a right which neither that noble and learned Lord nor the House of Lords itself had ever yet exercised. The House of Lords was at that time a convenient medium through which to ascertain the judgment of all the Judges; but that was not the case now. The whole character of the House of Lords was definitely changed in the famous cases of The Queen v. O'Connell. The lay Members of the House attended in large numbers on that occasion, as they had done in former days; but the Duke of Wellington earnestly advised them to take no part in the decision. They acted upon his advice and abstained from voting, and the Law Lords divided according to their political sentiments. He had no doubt that they were perfectly honest in what they did, but the fact was that the noble and learned Lords who were opposed in opinion to O'Connell voted against him, and those who were in favour of his views voted for him. From that day to this an appeal to the House of Lords had really been an appeal to two or three Law Lords who happened to attend, for the rule of the House now was, that the Judges were not summoned unless both parties desired it. [Dissent.] He might be wrong about the rule, but, at all events, the Judges were very seldom summoned. Practically the Appellate Jurisdiction of the House of Lords was in different hands from what it used to be, and from what the constitution intended it should be, and he saw no reason for maintaining the new state of things for which there 651 was no precedent, and which was found extremely inconvenient. That, indeed, might be said to be the opinion of the House of Lords itself, which had passed that Bill and sent it down to them with those provisions. Now, the Court of Appeal which it was proposed to create would consist of 12 or 14 persons. There would be five ex officio Members—the Lord Chancellor, the three Chief Judges of the Common Law Courts, the Master of the Rolls; the four paid Judges of the Privy Council—who took office with the understanding that they should be available for any reconstruction of the Court of Supreme Appeal—and three others—an ex-Lord Chancellor or Judge, and certain Scotch and Irish Judges, if they thought fit to come. The Court of Appeal would sit in two divisions all the year round, according to rules to be drawn up, and the present unintelligible and inconvenient distinction between Terms and Vacations would be abolished. Except an increase to the salary of the Judges of the Admiralty Court, as proposed by the House of Lords, and an increase of £1,000 a-year to the salaries of the paid Members of the Court of Appeal other than the ex officio Members, the Bill did not create any additional charge to the country—or, at least, certainly no permanent additional charge. Speaking on these matters on the second reading, it would be understood that he spoke with entire reserve; that the whole of those matters were absolutely open, and that he was merely describing the Bill as it came from the other House. The Judges of the High Court would be reduced to the old standard at which they stood before the House of Commons transferred the Election Petition business to them, and made that a reason for adding three members to the Judicial Bench. Experience had shown that the Election Judges—those at least who had been added—had not their time fully occupied, and it was desirable that highly-paid persons should be fully employed. To the new Court of Appeal it was proposed to transfer the whole of the English appeals to the House of Lords, and also the whole judicial business of the Privy Council, excepting the ecclesiastical appeals. The jurisdiction of the House of Lords would be kept alive for the hearing of Scotch and Irish appeals. If the Scotch and Irish people preferred that that should be so, they were en- 652 titled to have their preference, and as an Englishman he had no right to meddle with it. He had always thought the defect of the Judicial Committee of the Privy Council, if it had a defect, was in ecclesiastical matters, and that the presence of Bishops on that tribunal contributed nothing whatever to the weight of its decisions as legal decisions, while it affected to give them a sort of factitious spiritual influence which three Bishops who happened to be Privy Councillors could not possibly confer. He thought that questions of property and law, even as far as the interests of the Church herself were concerned, ought to be decided by lawyers. However, they had to deal with questions which were not strictly legal questions, and therefore the Judicial Committee would remain for the purpose of ecclesiastical appeals. As he had stated, there would be two Divisions of the Supreme Court, to one of which would be entrusted the cases now dealt with by the Judicial Committee. In that case, the whole jurisdiction and process being thus transferred to the Supreme Court, the decisions would still remain as the decisions of the Queen herself, Her Majesty being advised by the Judges of that Court, as she was now advised by the Judicial Committee. They would sit continuously all the year round, and as he had said before, the present inconvenient distinction between Terms and Vacations would be abolished. There would also be sittings in London and Middlesex. Another important provision in the Bill was the power of appointing official and regularly constituted referees. It was proposed that the Judge in Chambers or the Court should be able at any stage of the case, if it clearly appeared not to be a case fit for trial in Court or for adjudication by a Judge and jury, to refer it by an Order. There would be attached to the Courts certain official referees, who would take those references as part of their regular duty. He hoped that portion of the Bill would be found satisfactory, and get rid, in working, of one of the justest causes of complaint that existed, at all events, on the Common Law side of the question, He did not mean to go at length into the Schedule of Procedure, which would be found exceedingly important. That was matter rather of discussion clause by clause in Committee than one which could usefully occupy the attention of 653 the House at the present stage. In general, it was an attempt to initiate a more sensible and intelligible mode of procedure—to get rid, if possible, of the defects both of Chancery and Common Law procedure, and to produce something in the shape not of pleading, but procedure, that should be at once sensible and satisfactory. Such in outline was this measure which he had introduced—he knew how imperfectly—to the attention of the House. There were two subjects connected with the question of Law Reform—the Reform of the Law itself and the reform of the procedure by which the Law was administered; and they were very distinct. In some respects this Bill, in different portions of it, dealt with both these subjects; and he trusted it would be found to deal with them satisfactorily. At any rate, such as it was, he begged leave to recommend it to the attention of the House of Commons. So far as the Government were concerned, they did not aspire or pretend to any greater responsibility or merit in the question than having recognized the position of public opinion, and striven, as far as they could, to give effect to it. He asked the House to recollect that the Bill came to them with the sanction of the House of Lords—it came to them from the House of Lords, which had shown both great wisdom and patriotism in declining any longer to stand in the way of a great public advantage, for which there was a great public demand. The Government proposed to do no more than accept the will of Parliament, to become, in this respect, the ministers of its will and interpreters, as far as they understood them, of the wishes of the people—perfectly content, if they could conduct the Bill to a successful issue, to give credit when they found it was due to others for having by intelligent discussion brought about that state of public opinion and feeling which rendered that or any other measure possible. With regard to the Notice of the hon. Member for East Sussex (Mr. Gregory) to send the Bill to a Select Committee, that was a Motion contingent on the second reading, and could not come before them unless the second reading was carried. He would, therefore, say no more than this—Here was a large, important, and valuable contribution to Law Reform; they had waited for it long enough, too long— 654 and he would be no party to any proceeding that had any tendency to imperil its success, or even, in any appreciable manner to delay its progress.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)
§ MR. CHARLEY,in rising to propose the Amendment, of which he had given Notice, said, the hon. and learned Gentleman the Attorney General had pronounced a sweeping condemnation on the appellate jurisdiction of the House of Lords, and affirmed that it was utterly indefensible. He (Mr. Charley) begged to move—
That it is inexpedient to abolish the jurisdiction of the House of Lords as an English Court of Final Appeal.The Attorney General said that the present Bill was founded on the Report of the Judicature Commission. That Commission had recommended that there should be a new Court of Appeal created in substitution for the Court of Exchequer Chamber and the Court of Appeal in Chancery, and that there should be an appeal to the House of Lords both from the new Court of Appeal and also directly, subject to the consent of the respondent, from the High Court of Justice. By its 17th clause, the present measure swept away the appellate jurisdiction of the House of Lords in England altogether. The Commissioners were anxious that an opportunity should be afforded of testing the efficiency of the new Court of Appeal before touching the appellate jurisdiction of the House of Lords, and that in any case a second appeal should be retained. The Bill, therefore ignored the recommendations of the Judicature Commission. To the first Report were attached the names of the present Lord Chancellor and the Attorney General. The hon. and learned Gentleman further said, that the House of Lords had voluntarily abandoned their appellate jurisdiction; but, in 1856, a Select Committee of the House of Lords considered the question of their appellate jurisdiction; on that Committee sat, not merely distinguished laymen like Lords Derby and Lansdowne—but the greatest lawyers of the day—Lords Lyndhurst, Brougham, Cranworth, Campbell, and St. Leonards, and they unanimously recommended that the appellate jurisdiction should be re- 655 tained. Last year also a Select Committee sat on the same subject, and recommended not the abolition, but rather the extension of the appellate jurisdiction. The House of Lords itself, though it had passed the present Bill, had not been unanimous in its support. Lord Cairns had pointed out that it would be highly impolitic in their Lordships to abolish altogether a second Court of Appeal. Lord Redesdale—no mean authority—had stoutly opposed the Bill throughout. As to the new Court of Appeal created by the Bill itself, it was a great defect, he thought, that several of the Judges who were to be members of the Court of Appeal would have to sit in the High Court of Justice. He (Mr. Charley) mainly objected to the abolition of the appellate jurisdiction of the Lords on constitutional but also on legal grounds. A decision of the House of Lords had an air of authority about it which the decision of an ordinary Judge did not possess; it was severed off sharply from the decisions of the Courts below by a a barrier of prestige and traditional respect, and therefore the existence of the appellate jurisdiction of that House tended to give fixity to our law. The ordinary Judges cited it with a respect which they did not show to the decisions of one another. It was said, however, that the abolition of the appellate jurisdiction of the House of Lords was a very pressing law reform; but a Return obtained by his hon. Friend the Member for East Sussex (Mr. G. Gregory), showed that while in 1870–71, there were no fewer than 428 appeals from one Court of Chancery to another, there were, during the same period, only 35 appeals from the Court of Chancery to the House of Lords. That, he thought, furnished a conclusive answer to the argument that the abolition of the appellate jurisdiction of the House of Lords was a very pressing law reform. To begin the work of law reform with the appellate jurisdiction of the House of Lords seemed to him like commencing to build a house at the roof. Again the Bill did not touch Scotch or Irish appeals. A Peer of the realm only would do for Scotland and Ireland, a Commoner was quite good enough for England. The Scotch were proverbially a shrewd people, and not over given to sentimentality, and yet they were susceptible to the traditional influence and 656 authority of the House of Lords. Sir James Moncrieff had said that the dignity of the final Court of Appeal was the reason why the people of Scotland were reluctant to part with it. Mr. Hope, Lord Justice Clerk said, that if a single person, other than a Peer of the realm, were placed upon the final Court of Appeal, it would lose all its authority in Scotland. The Scotch law differed from the English, the English and Irish law were very similar. Under this Bill the similarity between the English and Irish law would exist no longer; it would, in consequence, introduce confusion where union now existed. They knew how admirably the Judges performed the duty of giving their advice on legal questions in the House of Lords, and it always had great weight; but if this Bill passed, the occupation of the Judges as the constitutional assistants of the House of Lords would be gone, and the new Court of Appeal would have no power whatever to summon them to give advice. But it was on constitutional grounds that he mainly objected to the measure. The balance of power between the two Houses of Parliament was essential to our liberties; but this Bill would rudely shake that balance, which had already been sufficiently disturbed. The leading distinction between the two Houses had always been the enjoyment by the House of Lords of judicial authority which was denied to the House of Commons. The exclusive right of the House of Lords to exercise the judicial powers of the High Court of Parliament was as well ascertained as the exclusive right of the House of Commons to originate money Bills. In the reign of Henry IV. the House of Commons solemnly affirmed that the right of judgments in Parliament appertained to the Lords and not to the Commons; and although, in 1675, the House of Commons denied that the Lords had the right to hear appeals from the Court of Chancery, that right had now for two centuries passed unchallenged. Addressing in 1675, the assembled Peers, the then Earl of Shaftesbury said—This matter is no less than your whole judicature; and your judicature is the life and soul of the dignity of the peerage in England; you will quickly grow burthensome, if you grow useless; you have now the greatest and most useful end of Parliaments principally in you, which is not to make new laws, but to redress grievances, and to maintain the old land marks. 657 …it is not only your interest, but the interest of the nation, that you maintain your rights."—[Parliamentary History, 1675, 793.]He regretted, he might add, that Lord Westbury had not been able to be present at the debates on the Bill in "another place;" because no one could be more competent, from his experience while at the Bar, to speak on the subject of the appellate jurisdiction of the other House. That noble and learned Lord, when giving his evidence before the Select Committee in 1856, said he wished the House of Lords to be the great appellate tribunal for the whole Empire—the one final Court of Appeal, absorbing the jurisdiction of the Judicial Committee of the Privy Council. Three main objections had been raised against the appellate jurisdiction of the House of Lords. It was said that it did not sit for the hearing of appeals during the Recess, and that there was, consequently, great inconvenience to suitors. That was so, no doubt, but then it was an inconvenience which was susceptible of a remedy, proposals had been made by eminent authorities, that the House should sit during the Recess for the hearing of appeals. In 1836 Lord Lang-dale proposed that the King should have power, on an address from the House of Lords to extend the time for the hearing of appeals, notwithstanding a Prorogation or even a Dissolution. In 1841 Lord St. Leonards carried a Resolution in that House to the same effect. In 1856 the Select Committee of the House of Lords reported that it was desirable that power should be given to the House to resume its sittings during the Recess for the purpose of hearing appeals, notwithstanding the Prorogation of Parliament, and in 1870 Lord Hatherley drew up a Bill under which the Judicial Committee of the House of Lords was to be permitted to sit for the hearing of appeals during the Recess. There was then a general concurrence of authorities in favour of this proposal. Secondly, it was said that there was an absence of judicial form in the manner in which the Lords conducted the hearing. Lord Selborne had himself made suggestions to remedy that objection; he had suggested that the Law Lords, when hearing appeals should sit in their robes, as Peers of the realm, which he said "were quite as good as wigs and gowns." But the most substantial objection was that 658 the number of the Law Lords was fluctuating and their attendance irregular. In 1856 the present Lord Chancellor and Lord Westbury were quite agreed as to the method that should be adopted for strengthening the legal power of the House of Lords. They thought that a minimum number of three, and a maximum number of five permanent Lords of Appeal should be created to assist the Lord Chancellor and the Law Lords in the exercise of the appellate jurisdiction of the House; such Lords to be selected from ex-Judges and invested with life peerages, and to receive an adequate salary, so as to induce men of eminence to serve in that capacity. It was proposed by the Select Committee of 1856 itself that two Deputy Speakers to the House of Lords should be appointed to sit permanently for the hearing of appeals, to be selected from ex-Judges who had filled some distinguished legal office for five years, and that a salary of £6,000 per annum should be given to each. A Bill founded on those recommendations passed through the House of Lords, and was approved on its second reading by a majority of the House of Commons. On the occasion of the second reading of that Bill, the present Lord Chancellor made a most remarkable speech. The noble Lord said—He entertained strong objections against the project for removing the jurisdiction of the House of Lords to the Privy Council, or constituting a new tribunal, consolidating in fact, the two. But then he was tempted to ask, after all, was the traditional respect in which the jurisdiction of the House of Lords was held so utterly baseless that no advantage whatever was to be derived in the administration of justice from the high dignity with which it was associated by being united to one great branch of the Legislature Did the independence of the judicial system gain nothing by having its root and fountain-head in the House of Lords, where unquestionably it was unassailable by corruption, or by the influence of the Crown, and where it was brought into immediate and close contact with the legislative power, so that the same Judges who administer justice in the House of Lords, might also suggest acts of the Legislature to correct any defects and errors in the law? He confessed he could not divest himself of the notion that the administration of justice did gain something in dignity, independence, and stability, from its association with the House of Lords; and he believed, also, that the opinion, which had so long prevailed, was not unfounded which supposed that the House of Lords gained something of dignity honour, independence, and stability, from its association with the administration of justice.659If it be possible," he added, "to establish a satisfactory Court of final appeal in the House of Lords, consistently with constitutional principle and the interests of the country, would it not be as well—would it not be better—to do so, rather than to annihilate all the prestige of centuries and all the traditional respect which the country had been accustomed to feel for the jurisdiction so exercised, for the sake of attempting some new experiment, the success of which no one could foretell "—[3 Hansard, cxlii. 458–9.]The present Bill swarmed with provisoes, that, after all this grand agglomeration of Courts of Justice had taken place, powers should be exercised and rights enforced just as if the Bill had not passed. One was almost tempted to quote the saying of the witty and hon. Member for Waterford (Mr. Osborne), and say that after all this fuss and confusion it was to be a case of "as you were!" But however inoperative the Bill might be in other respects, it would cause a great change in the position of the House of Lords as an integral part of the Constitution. The House of Lords would cease to exercise the judicial powers of the High Court of Parliament. Parliament would no doubt continue to be as hitherto a deliberative and legislative assembly, but it would cease to be what our ancestors intended it to be—the last resort of the suitor who complained that the law had been misinterpreted by the Judges, who wield the equitable jurisdiction or by the Judges of the land.
§ MR. BOURKE,in seconding the Amendment, complained that the Bill had received as bare an amount of discussion as had ever been accorded to a Bill, and the high authority by which it had been recommended to the House had not only been sufficient to bear down all opposition, however well founded it might be, but it had had the effect of stifling all discussion. If the object to be obtained was the fusion of Law and Equity, the first step must be the joining together of all the Courts of Law into one great Court of Judicature. He could not help regretting that there was no immediate prospect of the new Law Courts being completed, because that fact would be the greatest obstacle to the carrying out of the measure. The distance between the present Courts of Equity and Law would act as an antagonistic power to the fusion of Law and Equity; and although, in theory, the Bill did abolish the different Courts, yet 660 when they came to look at the details of it, they would find that it re-established the old Courts. That being so, he very much feared the state of matters would revert to what it was at present. Modern efforts had been made to bring what was good in Courts of Equity into the Common Law Courts, and to transport what was good in the Common Law Courts into the Courts of Equity, and these efforts had been conspicuous failures. The reason had been that the Legislature had not perceived the difficulties which arose in practice, and from endeavouring to give power to the Courts of Law and Equity to administer both systems, when these Courts respectively had power to administer only one. The hon. and learned Gentleman the Attorney General, however, in reference to the subject, had given so correct a definition of the phrase "Fusion of Law and Equity" that it would be impossible hereafter to mistake what was meant by that phrase. He believed there could be no doubt that when the House came to examine the Bill it would be found to be a mere skeleton. If they looked into it they would find it altogether vague in most of the essential provisions with regard to procedure, and the truth was that it left to be decided by Rules hereafter nearly the whole of the procedure with which it dealt. The 20th clause laid down that the jurisdiction was to be exercised in the manner defined in the Act, that was one way; 2nd, by Rules and Orders named in the Act; and 3rd, by Rules and Orders which were to be made from time to time hereafter. The Rules and Orders really related to the most important subjects which procedure could deal with, such as the Courts of Justice and Appeal, and the regulations of the circuits, so that it would be possible for the Judges to make any rules they pleased with regard, for example, to circuits, though these were arranged at present by Act of Parliament. The Judges were also to have power to determine all matters not named in the Schedule. As those matters were of a most important character, he thought the Bill ought to contain specific provisions with regard to them. There was also a clause in the Bill on which he thought a great deal more information ought to be given to the House before they passed it, and that was the clause relating to the appointment of a referee. 661 That clause provided that any matter which should require any preliminary investigation, and any matter of accounts that should require a scientific or local inquiry, should be referred to a referee. Now, there were a vast number of cases on every circuit and at every Assize which might be classed under those heads, and there was nothing to be found in the Bill as to the position or qualifications of these referees; they might be barristers, or attorneys, or gentlemen at large. Under those circumstances, he hoped that they would have the fullest possible information with regard to the business qualifications and the remuneration of these referees. The Bill certainly made important changes in the law which required the greatest possible consideration. With regard to the district registries, that was a part of the Bill about which he had great doubt. These district registries looked very convenient things; but when they came to see how they worked they would prove the reverse. The Bill also made important changes in law, especially with regard to the administration of the assets of insolvent estates, and those changes would require the greatest possible consideration. With regard to the abolition of the right of appeal to the House of Lords, it was asked how it happened that the House of Lords seemed to have so easily abandoned a jurisdiction which they had held for many centuries? It was urged that as that House had itself consented to abandon its jurisdiction, it was not for the House of Commons to object. But when they remembered the way in which the case had been put to the House of Lords, it was no wonder they had consented to part with their jurisdiction. The case was put before them as if the House of Lords were endeavouring to retain a jurisdiction prejudicial to the public, and only retained by them to support their own dignity and importance. Under those circumstances, it was not surprising that the House of Lords did not for a moment allow any consideration connected with their order to obstruct a reform recommended to them on high authority. The jurisdiction in cases of appeal was not, however, within the sole control of the House of Lords. It had been conferred upon the House by the Constitution, sanctioned by many Acts of Parliament, and it concerned that House as much as the 662 House of Lords, nay, even more, carefully to examine whether the appellate jurisdiction which the Upper House had so long exercised on behalf of the people of England could be so advantageously exercised by any other body of men existing or to be constituted hereafter. The opinion of the Lord Chief Justice had been quoted in justification of this proposal. He would yield to none in admiration of the Lord Chief Justice, who, in addition to the high qualifications which he daily exhibited in the administration of justice, had earned the lasting gratitude of his fellow-countrymen in the part he sustained in the Arbitration of Geneva. He (Mr. Bourke) was, however, obliged to dissent from the opinion that the appellate jurisdiction of the House of Lords was a "shadowy authority." He believed it was the most popular Court in the kingdom, and that though the Appellate Court consisted of a limited number of Law Lords, yet the tribunal possessed from its peculiar construction an authority which could not be conferred upon any other Court of Appeal. When authority was cited on one side it was only to be met by citing authority on the other side, and Sir Richard Bethell (now Lord Westbury), told a Committee of the House of Lords in 1856, on the constitution of the Court of Appeal, that he by no means desired that this jurisdiction should be taken away from the House of Lords. Sir Fitzroy Kelly, Sir Roundell Palmer, Mr. Rolt, Mr. Napier, Mr. Inglis, and the right hon. John Hope, the Lord Justice Clerk of Scotland, also expressed opinions in favour of retaining the appellate jurisdiction of the House of Lords, with certain improvements and alterations. The present measure moreover proposed to do away with that jurisdiction as far as English cases were concerned, but to retain it with regard to Irish and Scotch cases. Now, if the House of Lords were as strong a Court as the Scotch and Irish had a right to demand, it was certainly good enough for the English people. If, on the other hand, it were a weak Court, the grossest scandal would be brought on the administration in this country of Scotch and Irish business, and we should be putting an affront on that portion of Her Majesty's subjects which we ought for political reasons least to offend in these days of Horne Rule. Indeed, he knew 663 of nothing more likely to encourage the Home Rulers than by doing away with the appellate jurisdiction to degrade that House in the opinion of this country. Again, he knew of nothing more likely to weaken the legislative authority of the Second Chamber than to take out of it all judicial power, and the authority of all those who had devoted their lives to the study of the law, for he thought it unlikely that any Law Lord would be appointed except the Lord Chancellor. Further, he objected to the proposed scheme, because it broke up the Judicial Committee of the Privy Council, inasmuch as the salaried Judges of the Judicial Committee would be taken away and put into the new Appeal Court. The Judicial Committee, as at present constituted, thoroughly possessed the confidence of the suitors, and the House should be very careful not to transfer the jurisdiction from a Court which they approved to one which they knew nothing about. The great bulk of the business transacted by the Privy Council came to it from India and the Colonies. Moreover, it was substantially sui generis, and different from that which would come before an Appeal Court. Now, as the Privy Council was regarded with respect and confidence by our various colonists, he thought it highly inexpedient, impolitic, and dangerous to transfer its jurisdiction to another tribunal, the bulk of whose business would be totally different from that which occupied its attention. Another objection to the new Court of Appeal was that many of the Judges were connected with a Court of First Instance, and this was a condition which had been condemned over and over again by competent authorities, including Lord Campbell and Lord Westbury. In conclusion, he hoped the House would seriously consider the operation of the Bill before they consented to give it a second reading, because he was sure the result of such consideration would be that they would entertain favourably the proposition of the hon. Member for East Sussex (Mr. Gregory) to refer it to a Select Committee, which was the only practical way of dealing with the subject.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "it is inexpedient to abolish the jurisdiction of
664
the House of Lords as an English Court of Final Appeal,"—(Mr. Charley,)
§ —instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
MR. OSBORNE MORGANcontended that the hon. and learned Member for Salford (Mr. Charley), and those who opposed the Bill on the ground that the appellate jurisdiction of the House of Lords was an integral part of the Constitution were bound to go further and to insist not only that it was not competent to abolish it, but that it was not competent to remodel it. It was a strange thing that the constitutional objection had not occurred to the noble and learned Lords who voted for the Bill, and it was a conclusive answer to that objection that the Bill had come from the other House. In the case of the hon. and learned Member, who he suspected had not had much experience of the House of Lords as a Court of Appeal, it must have been that "distance lent enchantment to the view." The Court consisted entirely of volunteers; there was no obligation on any noble and learned Lord, except the Lord Chancellor, to attend; and many of the appeals were from judgments of the Lord Chancellor, so that it was questionable whether he ought to sit in such appeals. The Court was available only four months of the year; and many of the Law Lords had attained to such an age in the public service that we had no right to expect much more work out of them. When Solicitor General, Lord Westbury described the tribunal as one, the members of which, except the Lord Chancellor, felt at liberty to attend or not, as they pleased, and the judicial sittings of which they attended as they did a debate, so that its decisions, instead of being, as they ought to be, as unchangeable as the laws of the Medes and Persians, were unsatisfactory in character, and the Court was inferior to the lowest tribunals in what ought to be the accompaniments of a Court of Justice. Another objection to this tribunal was that men were raised to it on principles different from those on which they were raised to the Judicial Bench. The House of Lords was primarily a political body. He did not mean to insinuate 665 for a moment that the noble and learned Lords were actuated in their judgments by political considerations; still no one could deny that the road to the House of Lords lay through a political gate. Besides, the House of Lords was an hereditary body; and a large family or a limited private means therefore frequently proved an insuperable bar to entering it. In this way many of the most distinguished Judges on the Bench were excluded from the House by personal or political considerations; and as a matter of fact, of 18 Common Law Judges and six Equity Judges, not one was in the House of Lords. In fact, the only Judge at present in the Upper House was the Lord Chancellor himself. However, the re-constitution of the appellate jurisdiction was not the main feature of this Bill. The main object of the Bill was that it should effect a fusion of Law and Equity; and if it did that it would be worth all the judicial reforms ever introduced into this country put together. But the question was, did it effect that fusion? From the 17th century to the present day they had had to witness the monstrous spectacle of Law in Westminster and Equity in Lincoln's-Inn, in a chronic state of opposition; or to use Lord Westbury's words, "we set up two Courts, one Court to do an injustice and the other to redress it when done." But while as anxious as the hon. and learned Gentleman the Attorney General to promote the main object of the Bill, he believed that object was only to be attained in one way—namely, by attaching at least one Equity Judge to each of the Common Law Divisions of the High Court of Justice, and, to elicit a discussion, on the subject, had put an Amendment on the Paper. He felt inclined to withdraw it on hearing the speech of the hon. and learned Gentleman, than which nothing could be more charming; but the speech was one thing and the Bill another, and he preferred to have the assurances given in the speech embodied in the Bill, for neither the hon. and learned Gentleman nor the Government was immortal. He was sorry there was a disposition on the part of the public to regard this as a lawyer's and not as a suitor's question because the public had a great stake in it. The mode in which suitors were now driven from pillar to 666 post—from Law to Equity, or from Equity to Law—was perfectly monstrous, and all lawyers were agreed as to the necessity of abolishing the existing line of demarcation between the two jurisdictions. There was a certain confusion in the minds of those who discussed the questions of Law and Equity. It should be borne in mind that there were two distinctions between Courts of Law and Equity—the one substantial and the other accidental; a difference of principle and a difference of process. The Courts of Law not only administered different kinds of justice, but they administered it in different modes, and it was necessary to keep both distinctions in view. It would be impossible effectually to fuse Law and Equity until all the Courts were provided with the same machinery. The attempts that had been already made in that direction had failed for this reason. Now, this Bill, though it gave equitable jurisdiction to Common Law Courts, provided them with no equitable machinery. It provided that where the rules of Equity and Law conflicted the rules of Equity should prevail; but it did little more. The Act providing for trial by jury in the Chancery Court had become almost a dead letter, scarcely more than half a-dozen such cases had been tried, and the Vice Chancellor's Court had at length been relieved from the incumbrance of a jury box. Another Act giving to the Courts of Common Law jurisdiction in cases of Equity, had become absolutely a dead letter, the reason in each case being that the Judges in each ease felt unequal to the novel task imposed on them. The hon. and learned Gentleman, having referred to the letters addressed to the Lord Chancellor by the whole of the Outer Equity Bar, and by the Inner Equity Bar with one distinguished exception—the Solicitor General, who was not, however, a free agent—proceeded to say, that the Bill proposed to effect that fusion of Law and Equity which was so much to be desired, by providing that Law and Equity should be concurrently administered. But the sections which dealt with the subject, standing alone, really did nothing; they effected nothing but a paper fusion, faultless no doubt in theory, but utterly unworkable in practice. He looked at the subsequent sections of the Bill, and the first thing he 667 saw was that the old Courts were to be perpetuated under different names. The Vice Chancellors were to be called Her Majesty's Judges; but they were to sit by themselves in a Division which was to be called the First or Chancery Division. All the Judges of the Common Law Courts were to sit by themselves. The Court of Queen's Bench was to become the Division of Queen's Bench of the High Court of Justice. The Court of Exchequer was to become the Exchequer Division, and the Court of Common Pleas the Common Pleas Division of the High Court of Justice. The Common Law Judges admitted, and the hon. and learned Gentleman the Attorney General himself also admitted, that they would sit to administer a kind of justice to which they had not been trained. They would sit by themselves, and would not be able to deal with the various equitable questions which would constantly arise. The 31st section, indeed, said that it should be lawful to transfer a Judge from one Division to another, with this proviso, however, that no existing Judge should be transferred unless with his own consent. That being so, it would be impossible to work the Act as it stood unless they could find Chancery Judges willing to be transferred to Common Law Courts. But the arrears in Chancery already had become so great that the Judges, though working night and day, could not keep them down. He held in his hand an extract from the judicial statistics of the years 1860–1 and 1870–1 published last year by Order of the House, and he found that the proceedings in Chambers had risen from 28,083 in 1861, to 42,726 in 1870–71, showing an increase of 14,643 in 10 years, and that the total number of proceedings of all kinds in Equity had risen from 69,008 in 1861 to 84,730 in 1870, showing an increase of 15,722. It would be a long time, therefore, before the Judges in Chancery could find leisure to assist the Common Law Judges even if they were willing to do so. Under the Bill, moreover, they might have an Appeal Court composed exclusively of three Common Law Judges reversing the decision of the whole Chancery Division put together. But then it was said, there would always be a strong Bar to keep the Judges right—that was, incompetent Judges were to be set right by competent 668 Counsel. For his own part he held it to be a first principle that the Bench should be stronger than the Bar. He might be asked what remedy he would propose. It always seemed to him that the true method of fusion would be to make every Court competent to deal with every case which could come before it. The scheme, however, would involve a complete remodelling of the Bill, for which he was not prepared. Perhaps the best course would be to transfer to each Common Law Division one of the present Equity Judges; but that could not be done without the sanction of the Equity Judges themselves. The alternative was the creation of new Judges; and to that the only real objection was a financial one. The Government had actually thrown away £300,000 by allowing the space purchased for the Law Courts nine years ago to remain vacant all that time, and yet they grudged the small sum necessary for the creation of a sufficient number of Judges to administer Equity properly, and that only for a limited time. If ever there was a case of "spoiling the ship for a ha' penny's worth of tar" it was the present. What with concessions to sentiment and concessions to economy, they were throwing away one of the grandest opportunities of reconstructing the whole of our judicial system. They felt themselves bound to build up their edifice with the old materials; them take care they did not build it up on the old lines. If the Bill was left as it now stood the result would be that the Courts of Equity would be Courts of Equity still in everything but the name; the Courts of Law would be Courts of Law still in everything but name, with this distinction, that the old remedy by injunction—awkward, clumsy, and unsatisfactory, no doubt but which yet in the end secured justice—would be done away, so that their last state would be worse than the first, and this boasted fusion of Law and Equity which was to inaugurate a new era in the history of our jurisprudence would turn out to be a mere hocus-pocus transformation scene effected by a vague section in an Act of Parliament.
§ MR. GREGORY,who had on the Notice Paper a Motion for referring the Bill to a Select Committee, in the event of its being read a second time, said, he concurred in the main principles of the measure, and was anxious that it should 669 receive the assent of Parliament; but, at the same time, he wished its objects properly carried out, and particularly that the Bill should contain nothing to militate against them. He looked at the Bill under three aspects—first, as establishing a great tribunal of First Instance; secondly, as establishing a Court of Appeal for that tribunal; and, thirdly, as laying down a code of procedure. With respect to the constitution of the Higher Court, he regretted that the author of the Bill had not taken somewhat higher ground in constituting that Court, and that he had not broken up the Court into more Divisions, allotting a smaller number of Judges to each, and mixing Equity and Common Law Judges together. It had been said that each of the Courts would have the power of administering the principles of Law and Equity; but a distinction was drawn between the business assigned to these Courts, and there would be three Divisions of the Court of First Instance sitting almost entirely distinct from the other, and without any communication between them. With respect to the procedure of these Courts, he thought some explanation was required of the Law Officers of the Crown. A Common Law Judge sitting at Nisi Prius was in the habit of postponing, to a certain extent, his decisions on questions of law and referring them to the decision of the full Court, and thus practically rendering two trials necessary; while the Equity Judges had been accustomed single-handed to determine satisfactorily questions both of law and fact as they arose. Now, he saw nothing in the Bill to alter the former practice, while it contained a provision calculated to extend it to the Court of Chancery, which had hitherto performed its functions in a satisfactory manner, for the Bill gave an invitation to the Judges to call for the assistance of a Divisional Court in the decision of cases, instead of relying on their own judgment. The effect would be to perpetuate a practice which now prevailed at law and to extend it to the Court of Chancery. That was a part of the Bill which would require much consideration. Another matter which, he hoped, would not be hastily adopted, was the power given by the Bill to the Judges to refer cases to referees without the assent of the parties. The terms of reference were of the widest character, and would apply to some of 670 the heaviest and most important cases which were now decided by the Courts of Law. They were not told who the referees were to be, how they were to be paid, or whether the appointment was to be temporary or permanent. These were matters as to which the House ought to have further information. It was a very large power, and in many cases it would materially increase the expenses of the suitors; and beyond that, there was no more general complaint at present in the Courts of Common Law than the sending of cases to reference. It was often a very great hardship to parties, as after they had gone to all the expense of preparing for trial they found themselves compelled to incur all the expense over again. No doubt much of the business of the Court of Chancery was conducted in Chambers, and with regard to these proceedings it appeared that during the last year no less than 75,000 appointments were made; but without meaning to cast any imputation upon the officials who sat there, and who performed their duties in an admirable manner, he must say that it was the feeling of the profession that the Judges should exercise more superintendence over the business at Chambers than they did at present. This was a totally different matter, however, from the references now proposed, as under the Bill as it stood, the Courts were to have power to refer cases to the functionaries to be appointed, and whether temporarily or permanently did not appear, upon what terms they thought fit, with or without the consent of the parties. [The ATTORNEY GENERAL: Such a power exists at present.] No doubt, that was so; but only in matters of account, and the reference was to officers of the Court. If the parties were aggrieved by the decision of the Masters of the Court or the clerks of the Judges, there was an instant resort to the Judges themselves for a revision of the order. One other provision of the Bill was of such importance that it ought not to be passed over without notice —namely, that which would enact that where two vessels were in collision and each was found to be in fault, the Common Law rule, and not the rule of the Court of Admiralty, should prevail. The Common Law rule was, that no damages could be recovered by either vessel in such a case; whereas, in the 671 Court of Admiralty, when two vessels were in collision, and both were found to be in fault, the damages were divided, the owners of one ship paying to the owners of the other one-half the amount of the damages sustained. The rule of the Admiralty Court was the common law of Europe, and was also the rule of the Admiralty Court of America; but that would be set aside by the Bill, and that was a matter which deserved the serious consideration of all persons connected with the shipping interest, for the effect of the alteration would be to tempt the stronger ship to run any risk of avoiding injury to itself, even to the extent of sending the weaker vessel to the bottom. He now came to the Court of Appeal. He should be glad if the jurisdiction of the House of Lords as the highest Court of Appeal could be preserved; but inasmuch as the House of Lords themselves had given that point up, he did not see how it could be maintained. And even if that jurisdiction were to be maintained, great alterations would be required in the tribunal itself. It was necessary for the formation of an efficient Court of Appeal not only that it should consist of a number of the most eminent Judges, but that those Judges should be always available. He had some doubts, however, as to the operation of the Court of Appeal which the Bill would provide. The tendency of the ex officio Judges would be, he was afraid, not to sit upon it. Now, a final Court of Appeal had not only to decide the cases which came before it, but to lay down great principles, and establish landmarks, and he was of opinion that there should be one such great Court, to which everybody might ultimately resort. It might be contended that it would be overwhelmed by business; but that would not be so if there were an intermediate Court of Appeal, and he did not think that a final Court of Appeal should have the power of subdividing itself. A short time ago he had moved for a Return of the appeals which had gone to the House of Lords, and out of 425 appeals to the Lord Justices and Lord Chancellor only 35 went ultimately to the House of Lords, showing that a very small number of cases would go to the ultimate tribunal if there was an intermediate Court of Appeal. If provision could be made for the establishment of such an intermediate 672 Court of Appeal—though, as the Bill was drawn, that would be a matter of some difficulty—it should be introduced before proceeding further with the measure. Again, the objection might be urged that a system of that kind was likely to result in great hardship, by leading people to prolong their resistance; but from his experience in the matter of appeals, he could say that it was not the wealthy who had good professional advice, and who had a reputation to lose, who carried their cases to the ultimate Court without sufficient cause, but rather those desperate litigants who had nothing to lose. Coming next to the proposed code of procedure, he thought it would require very considerable attention before it was passed. He could not help thinking that the trace of the Common Law hand was too plainly written in the Schedule of procedure, because the tendency was to substitute that which prevailed in the Common Law Courts for that which prevailed in the Court of Chancery. The Chancery procedure gave great satisfaction to suitors and practitioners, the statements being eminently precise and clear; and he could not understand whether the pleadings in the new Court were to be such as were required in Common Law, or such as were required in the Court of Chancery. Nothing could be more unsatisfactory than the pleadings in the Courts of Common Law, and it would be a most unfortunate thing if this Bill were to extend them to the Court of Chancery. He next came to the question of referring the Bill to a Select Committee, and in advocating that course he could assure the House he was not at all anxious to delay its passing. He maintained that it was not a Bill for a Committee of the Whole House, but for a Select Committee. Many Amendments would no doubt appear on the Paper, but others might be proposed without notice or due consideration; and if they were adopted hastily great injury would be done to the promoters of the Bill, and an irreparable injury might be inflicted upon the suitors. A Committee upstairs, on the other hand, might have the assistance of the Government draftsman, in carrying out its views and in framing the Amendments required to ccarry out their views, and the Amendments could be submitted for the revision and consideration of the Lord Chancellor himself.
§ MR. JAMESsaid, that those who had to frame and introduce a measure of legal reform had sometimes to contend with the personal jealousy of Law Reformers, and sometimes with members of the legal profession, who might think that their interests would be affected by any change in the existing system; but the public, which often wanted Law Reform, seldom demanded it, and it was the duty of the House to see what the public would require, if they had the knowledge and the means of expressing an opinion. The first ground of complaint which the Bill was designed to remedy was the uncertainty of the law. The next was the delay which existed in obtaining justice from the tribunals. The third, which resulted from the joint operation of the former, was the expense to which the suitor was subjected. The present Bill did little to cure the first of these evils, and, with the exception of the legislation contained in the 22nd clause, the countless precedents with which the law abounded would remain, until the day arrived when they might hope to see the work of codification accomplished. With regard, however, to the second and third causes of complaint, the Bill went straight to the principal sources of delay and expense, and provided a remedy. In deciding whether the Bill ought not to be read a second time, let the House see what it proposed to do. It proposed that they should diminish the number of appellate tribunals, and that, instead of having two bad appellate Courts, they should unite the strength of both to make a good one. With regard to the retention of its appellate jurisdiction the House of Lords had judged itself. With men in that House who were naturally prone to defend its privileges and ancient traditions, the House of Lords had decided, almost without any difference of opinion, that the time had come when it had ceased adequately to discharge the duty of an appellate tribunal in the last resort. Nor was it surprising that such should be the case, when they considered how the tribunal was constituted during the hearing of appeals. When English appeals from the Common Law Judges came before it, the Law Lords had the assistance of only one English Peer, who had practised at Common Law, yet who had never himself been a Common Law Judge. The consequence was, that 674 the Peers had to summon to their assistance the very Judges from whom the appeal was brought. These Judges had already expressed their opinions, and counsel calculated how they would decide, just as the hon. Member for Shaftesbury (Mr. Glyn) reckoned up the numbers on each side when a Select Committee was appointed. The present Bill, however, declared that every Judge who sat in an appellate tribunal should be free from bias of this kind. At present it rested with the Members of the appellate tribunal in the House of Lords to attend or not at their pleasure or convenience. One Peer might wish to spend the winter abroad, and another might prefer yachting to sitting en appeals in the House of Lords. The Bill had, therefore, passed without much discussion on the part of those who did not wish to retain their present power. The Bill was formed so as to secure a saving in point of time to suitors. There would not be three steps, but two, to be taken before arriving at a decision. One of the causes of delay and expense was the want of judicial strength. It would be found, however, that, by economizing the existing strength, the object could be obtained without adding to the number of the Judicial Bench. There could be no doubt that the delay was caused by the want of judicial power. A merchant in the City of London might have a cause which in a month would be ready for trial. The probability was that 12 months would elapse before it was reached, another year before the appeal to the Exchequer Chamber could be disposed of, and one, two, or three years before a decision could be obtained in the House of Lords. An interval of four or five years might thus elapse before a cause was determined in the Final Court of Appeal. Contrast this delay with the proceedings in the Admiralty Court. A collision between two vessels occurred either in the river or the Channel on the 19th of February last. There was an appeal to the Judicial Committee of the Privy Council, and before the end of April—namely, in less than three months—the cause had been heard and finally determined. The contrast was owing to the fact that the cause had to go before one appellate Court instead of two, that there was sufficient judicial strength in both Courts, and that the Judges were not overworked. The 675 object of the Bill was to economize the judicial power, so that the suitor could at once proceed to obtain a decision. One objection might be made—that this would involve extra judicial power. Inasmuch, however, as "thrift was great revenue," so an economy of judicial power really meant an increase of judicial strength. Therefore, while he gave his hearty support to the Bill, he thought that by a stroke of the pen they could add to the judicial power by a better economy of it. The 15 Common Law Judges were now divided into three sections—the Queen's Bench, the Common Pleas, and the Exchequer—the existence of which Courts was an anomaly except in their very origin. Instead of putting these 15 Judges into one Court, the Bill proposed to maintain the three Divisions, and a loss of judicial power would be the result. At present a motion for a new trial was argued, and being unfinished it was put off to allow of the intervention of other business; and in that way delay and expense were unnecessarily caused. The maintenance of the existing three Courts was a concession to sentiment only, so as to preserve the dignity of the Chief Justices and the Chief Baron—an object which he should be perfectly ready to attain in some other way; but still in re-arranging the Temple of Justice he thought some regard ought to be paid to the convenience and interests of the worshippers as well as of the priests. If the divisions between these Courts were done away with, they could have one Court sitting for new trials, another for the Crown Paper, and so on, so that there would be no break in the hearing of individual cases. In that way, he believed that without having additional Judges, they would obtain an increase by one-third of their judicial strength. The Bill had also, in his opinion, a tendency to go a little too far in the way of abolishing trial by jury, for under the 30th rule in the Schedule it depended solely on the will of the Judge whether he would remit a case to a jury or try it himself. Of course, that was only a point of detail; but he hoped it would hereafter receive the careful consideration it deserved. Although, at first, he had thought the better course would be to refer this measure to a Select Committee, he had since altered that opinion. At that time of the year some legal 676 Members of the House would, perhaps, be unwilling to give up their time and relinquish professional engagements in order to sit on the Committee; and even if they did, the Bill would be sent back to the House at a period when every Member of the Common Law Bar would be absent on circuit. Under the circumstances, therefore, he thought the House ought now to make an attempt to carry the measure in its entirety, subject to alterations in Committee. Without regarding the Bill as a complete one, he accepted it, because it went in the right direction. Any omissions in the Bill might be to a great extent supplied by the rules and regulations to be framed by the Judges, who would be subject to the vigilant criticism of the profession, the Press, and the public; moreover, these rules would not come into effect until they had been sanctioned by Parliament. He should support the Bill, not because it entirely remedied the defects in our judicial system, but because it marked out a path that would lead us eventually to the fountain of justice, which, when the impurities were removed from it, would allow the pure stream of justice to flow for the benefit of all classes in the community.
§ MR. MATTHEWSsaid, the fact of the debate having been carried on in a very thin House was not encouraging to the friends of Law Reform, for though the Bill was one which vitally affected the interest of every subject of the Queen who had to go into a Court of Law, the debate upon it had been addressed to only 12 or 20 hon. Members. They were, however, all agreed that the Bill should be read a second time, and the only question was, what Amendments should be introduced into it, and whether its provisions should be referred to the consideration of a Select Committee. His own impression was, that such a measure could be much better discussed and amended in a Select Committee of lawyers, than in a mixed Assembly like the House itself, for it wanted that minute and acute criticism which members of the legal profession alone could give, and which, however eminent the noble and learned Lords (the Lord Chancellor and Lord Cairns) might be, neither of them unaided could possibly supply. In point of fact, the Bill ought to be submitted to the criticism of the whole profession, both barristers and 677 solicitors, for months before it came to be finally dealt with by Parliament. From such examination as he had been able to give to the Bill, he could not gather that any essential change was made in the Court of Chancery. The principles and jurisdiction of that Court appeared to be left untouched. Why, in the world, then, did the Bill deal with the Court of Chancery at all? What he feared it would do, would be to make Courts of Common Law bad Courts of Equity. No doubt, if you were to have the principles of Law and Equity concurrently and jointly administered by all our Courts, as everybody desired, there must for a time be bad Courts of Equity. He was prepared to face that danger; but could not the object desired be attained by striking the Court of Chancery out of the Bill? It would then have been a less ambitious, but a more prudent and a safer measure. The advantage of throwing all the Courts into one crucible might be to obtain an easy interchange of judicial force. But you might secure that advantage equally by a single clause in the Bill, providing where necessary for the presence of an Equity Judge as Assessor. There was one great disadvantage in the arrangement proposed—that the whole body of Judges would be placed in one Court under the presidency of a Member of the Executive Government and a Minister, the Lord Chancellor for the time being, instead of under the Lord Chief Justice. He had not attempted to follow out the consequences of that step, but feared it might seriously compromise the independence of our Judges. As to the proposed abolition of the appellate jurisdiction of the House of Lords, he had never heard a great constitutional change proposed with such extraordinary levity. No responsible Commission or Committee had recommended the abolition of those functions, and in his opinion it was unwise to commit the whole appellate jurisdiction of the country to a new tribunal of the working of which we had no experience, doing away with an old landmark of the Constitution. No doubt, theoretical objections might be made to the appellate jurisdiction of the other House, and some practical objections on the score of delay and expense might also be urged; but some of these objections might be removed by a Standing Order. Not only had there been 678 no recommendation that the appellate jurisdiction of the House of Lords should be abolished, but the very last Committee which sat on the subject in 1872 had reported that the present state of its appellate business was satisfactory. Scotch Law Officers from both sides gave evidence before that very Committee, that in Scotland the suitors were perfectly satisfied with the justice administered by the House of Lords, and preferred that appeal to any other, while similar testimony came from Ireland. Any attempt, therefore, to send appeals from Ireland to a Court in Westminster Hall would, he thought, supply fresh fuel to the Home Rule agitation. Were they going to have three different and equally irresponsible Courts of Ultimate Appeal in the United Kingdom—the House of Lords laying down one law for Scotland and Ireland; the new Court laying down a second law for England; and the Privy Council, in ecclesiastical causes, laying down a third law? Besides, the constitution of the new Final Court of Appeal, as contained in the Bill, was otherwise mischievous. It constituted a Court of Final Appeal from the ex officio Judges, ordinary Judges, and additional Judges, and as the ex officio Judges would receive no additional pay for the extra work thrown upon them, it would follow that they would be driven away by the paid Judges, for the Bill did not compel their attendance. In that Court of Appeal, they were putting ex officio unpaid Members alongside paid Members. [The SOLICITOR GENERAL: The ex officio Judges are to be paid.] Where, in the Bill, was it stated that the Lord Chief Justice of England was to be paid extra for attending the Court of Appeal? [The SOLICITOR GENERAL: Not extra.] But the work was extra. The Lord Chief Justice presiding over his own Court at a certain salary would still be continued at the head of his own Court or Division at that salary, and he might if he liked—there were no compulsory words—and when he had leisure, attend the Court of Appeal. Therefore, he was an unpaid Judge as far as related to the Court of Appeal. The Solicitor General, therefore, did not appear to have devoted any special attention to the provisions of the Bill. Those who had been, as he thought, disparagingly described by the hon. Member for Denbighshire, as in- 679 mates of the Greenwich Hospital of the law, were the additional Members, and they were also to go without salaries. For his part, he had always thought the House of Lords, in the persons of Lord Selborne, Lord Hatherley, Lord Cairns, and Lord Westbury, had not represented the invalids of the profession, but rather the most eminent members of it. But such as they were, these "invalids" were put into the Court of Appeal. Now, it was proposed that any three might form a quorum. The inevitable effect of that would be that they would have three distinct Courts of Appeal, an Equity Court of Appeal, a Common Law Court of Appeal, and a Colonial Court of Appeal. They would not get an united Court of Appeal, but three coordinate systems of law would ultimately be decided in the last resort each by a Court of three. The hon. and learned Gentleman the Attorney General had made merry over the House of Lords, where there happened to be only one Common Law Lord; but that might be easily remedied by the Prime Minister removing that hon. and learned Gentleman from those (the Ministerial) benches to a position where he could render even greater services to the country than he did now. Let the ready critics tell them, if they could, into what quagmire the House of Lords, with its so-called "Greenwich Hospital Judges," had carried the law, and point out where it had led the law astray. The House of Lords appeared to him to bring to the decision of those questions just what was wanted to correct the technicalities of the law; a statesmanlike wisdom and the larger-mindedness of men of the world. Then they had been able to lead the law into a direction in which it was beneficial and desirable it should go, and before they cut away its judicial power, they should see their way clearly to establish a more satisfactory tribunal. The proposed system of official referees he looked upon with the greatest dread and dislike. That system came in effect to this—that they were creating a subordinate order of Judges, to be paid by salary, to be part of the patronage of the Lord Chancellor—a matter of grave consideration—whose number and qualifications were left absolutely open by the Bill, against whose decision there was to be no appeal, who were to be judges of both law and fact, to whom there was hardly any case 680 which might not be referred by a Judge, whether from indolence or some of the many other motives that actuated even serene judicial minds, and who were to have power to sit in town or country; so that an official referee might take a journey in the hot weather to Brighton, whither the witnesses would have to follow him. They took no security except appointment by the Lord Chancellor that they would be fit for the discharge of their functions. Thus, too, by a side wind they were sweeping away the whole system of arbitrations by order at Nisi Prius, and substituting that fresh class of officials at great cost to the country—an arrangement which, he believed, would not be satisfactory to the public. The Bill would also give the control of all the interlocutory steps up to notice of trial to 50 or 60 district registrars, some of whom were not lawyers. That was as bad a scheme as could be devised, for it was localizing that which was best done in London by agents who conducted the business in the cheapest and promptest way, and the remission of nice questions of law to the registrars would lead to diversity of judgment and failure of justice. From them, moreover, as far as he could understand the sketchy drawing of the Bill—for it was a skeleton with clothes on—there would be no appeal. He was sure the Lord Chancellor, though he had drawn the Bill, had not drawn the Schedule, for it made the most momentous changes in a flighty way without saying what statutes it repealed. It laid down, for instance, that costs should in all cases be in the discretion of the Court—a bungling way of setting aside a dozen statutes which deprived the Court of discretion over costs, and awarded or withheld costs according to the issue of the case, and the amount of the verdict—and that all existing rules as to pleading should be superseded by the not very intelligible ones contained in the Bill. On another point, moreover, as to the question of costs, which, though an unromantic one, was of vital interest to suitors, the clauses and the Schedule were in actual conflict, for the former provided that a section of the County Courts Act of 1867 as to costs in certain cases should apply to all proceedings, whereas the latter laid down the absolute rule he had mentioned. It was impossible for the House at that time to 681 give the Bill the careful revision it required. One course would be to take the Bill on the responsibility of Lord Selborne and Lord Cairns, but unless the House were thus to abdicate its functions, the best plan would be to let the Bill lie fallow for the winter, so that the opinions of the profession might be collected. The solicitors, for instance, might throw more light on the measure than a Chancellor, ox-Chancellor, or Greenwich pensioner could do, and if that course were adopted, they might, next Session, be in a position to pass a Bill which would do credit to the House and be of advantage to the country.
THE SOLICITOR GENERALsaid, he would not take the trouble to contradict the assertion of the hon. and learned Gentleman the Member for Dungarvan (Mr. Matthews)—who always showed such confidence in addressing either the House or the Courts—that he had not made himself acquainted with the provisions of the Bill. He must, however, correct the hon. and learned Gentleman's statement that the Judicature Commission recommended the continuance of the House of Lords as an appellate tribunal. [Mr. MATTHEWS: Pro tempore.] The reason why the Commission did not recommend the abolition of the House of Lords [Laughter]—he meant its abolition as a judicial tribunal, for the subject under discussion was limited to this—was that they regarded the question as beyond the scope of their reference, and they therefore simply mentioned that the efficiency of the Court of Chancery was impaired by the withdrawal therefrom of the Lord Chancellor for appeals in the House of Lords. They were told that, if they withdrew from the House of Lords the judicial appeals they would injure its dignity and standing. Was the House of Lords so weak that it could not stand as a Legislative Assembly, if they did not allow three respectable retired Lord Chancellors to adjudicate on appeals? Was not the House of Lords the best judge of its own dignity, and had it not sent down the Bill to that House? Were his hon. and learned Friends opposite the conservators and protectors of the dignity of the House of Lords? Then it was said that the House of Lords was wonderfully efficient as a Court of Appeal. It was true that some persons whose opinions were entitled to considerable 682 weight had said so in 1856, but that was a very long time ago. We had grown wiser since then, and some of those who had held that opinion then had come to look at the matter in a different light now. Since that time we had discovered that the main object of a legal tribunal was to do justice, not by fits and starts, and by means of Judges who were continually changing, but by Judges sitting regularly, who were paid for their services by the State, and who would attend the whole year round with the exception of during the needful vacations. At the present moment, we had no absolute claim upon the attendance of any Law Lord except the Lord Chancellor. It had happened of late years that there had been a fair attendance of Law Lords; but within the present century no Law Lords whatever had attended, and appeals had been heard and decided by three lay Lords, assisted by a subordinate Judge acting in the capacity of Assessor, while for a considerable time only one Law Lord had attended on such occasions. Although, for the present, such a state of things no longer existed, it might recur to-morrow. Most of our present Law Lords were very aged men—one was over 80 years of age, and two were in their 80th year. It was impossible to calculate upon the continued attendance of octogenarians. They had done good service to their country, but there was no reason for our counting upon their continued attendance; and when these Law Lords were cleared away—when these aged individuals retired, what guarantee had we that fresh Judges would take their place, and that there would be more than one or two Law Lords to assist the Lord Chancellor. People talked of the House of Lords as if it were a permanent legal tribunal; but the fact was, that it was not a law tribunal at all, and it was a mere accident that it had a sufficient number of Peers competent to act as Judges in it at the present moment. It was also quite possible that some of the Law Lords might receive offers from Insurance Companies in course of liquidation to act as private arbitrators, and that they might think it consistent with their dignity to accept the office and not to attend any more as Judges in the High Court of Appeal. Such things had occurred and might occur again, and then what would become of the 683 House of Lords as the highest Court of Appeal in the country? In his opinion, that was not the proper appellate tribunal for a great country like this. The question before the House, then, was how were they to create a good fixed appeal tribunal in place of the chance tribunal that at present existed? If the Bill did no more than create such a tribunal the country ought to be grateful to Parliament for passing it into law, and it would prove to be a very large measure of reform indeed. The Bill proposed to establish such a tribunal and to get rid of the Court of intermediate appeal. Moreover, the strongest proof of the desirability, necessity, and utility of the abolition of the House of Lords as a Court of Appeal consisted in the simple fact, that every lawyer in that House had assented to that provision in the Bill; and that the only noble Lord who opposed it, though he inherited a legal name, whatever his other titles to distinction, was not distinguished by legal eminence. In reference to the portion of the Bill which dealt with the fusion of Law and Equity, it provided that wherever the mode in which justice was administered substantially differed as between the Courts of Law and the Courts of Equity, the principles which governed the Courts of Equity should prevail. The hon. and learned Member opposite (Mr. Matthews) had pointed to the 63rd section of the Bill relating to the County Courts as being inconsistent with the provisions in the schedule as to costs, and as an instance of bungling legislation; but if he had carefully studied the details of the measure, he would have found that the provisions in the 63rd section relating to those Courts were not inconsistent, but according to the general rules of interpretation would be read as exceptions to the general provision as to costs in the schedule. The next thing to which his hon. and learned Friend referred was the official referees. He was entirely mistaken on the subject. He said there was no appeal against their report. If he had referred to the Bill he would have found that the referee was to report to the Judge, who would thereupon make any order he might think fit, and that until the Court adopted the report the report was nothing. The present Bill required that matters requiring special knowledge should be specially referred; 684 accounts, for instance, to accountants; matters of science to scientific men, so that the Judge might obtain the assistance of the referees, and the Court could then adopt the report or any part of it. Another objection was, that it would create a judicial tribunal to be presided over by the Lord Chancellor, who was a Cabinet Minister; but the Lord Chancellor presided over a judicial tribunal already, and no objection had ever been made to his doing so on account of his holding a Cabinet office. They were also told that the Court of Chancery was not in the Bill at all, and that all the Bill did, was to make the Common Law Courts bad Chancery Courts. Did the hon. and learned Gentleman know that appeals to the Lord Chancellor were taken away by this Bill? Besides, the Bill made important alterations in the whole course of legal proceedings. A certain portion of the substantive law was altered by the Bill, and, amongst others, the case referred to by the hon. Member for King's Lynn (Mr. Bourke)—namely, the case of insolvent estates. As to that matter, it was thought, after the best consideration, that the Rules which were acted upon in the Court of Bankruptcy with reference to the administration of insolvents' estates should be acted upon in the Court of Chancery. With regard to the district registrars, it had been found by experience gained in Lancashire, that a very large quantity of work might be done cheaply and quickly on the spot in the country by persons who understood the subject, instead of having it inquired into in London at great expense and with great delay. Many of the points that had been mentioned could be better discussed in Committee, and as to the expediency of referring the Bill to a Select Committee, he doubted whether anything would be gained by such a course. His own opinion was that if it were so referred, the minority would not acquiesce in the opinion of the majority, and would fight over again in a Committee of the Whole House, all the points on which they had been at issue. Beyond that, every lawyer who had not been put on the Committee would feel himself almost personally insulted, and would feel it to be his duty to give Notice of a great number of Amendments, and to make a great number of speeches on the Bill, and in that way the Bill would be thrown over for the Session. It was also 685 doubtful whether the Report of the Committee would come down in time for any effectual legislation that Session; but even if it came down at the middle of July, it would be said that all the Common Law Members were on Circuit, and that in their absence the Bill could not be discussed. He did not pretend that the measure was perfect; but if it even presented a fair basis for our future legal procedure and judicial organization, it was a great pity that the Session should pass without this great legal reform. If a very much longer time could be given to elaborate the details, the Bill might have been made more perfect and workable to a greater extent without the aid of general rules to be hereafter made; but he hoped the House would take it with such modifications as might be made in Committee, and pass it into law without further loss of time.
MR. GLADSTONE,interposing, said, that as it would be impossible to finish the discussion that night (it being half-past 11 o'clock), he would move the adjournment of the debate, to enable the right hon. Gentleman the Chancellor of the Exchequer to bring forward his Motion relative to the Cape of Good Hope and Zanzibar Mail Contracts.
§ Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. Gladstone.)
§ MR. DISRAELIasked when the debate would be resumed.
§ MR. DISRAELIsaid, he asked the question for the convenience of hon. Members of the Bar, whose opinions it was desirable they should hear on the subject.
§ MR. WATKIN WILLIAMSsaid, that two o'clock to-morrow would suit the convenience of hon. Members of the Bar.
§ SIR RICHARD BAGGALLAYcomplained of the short Notice of adjournment. It would materially interfere with the arrangements of hon. and learned Gentlemen.
§ MR. HINDE PALMERsaid, that if the debate was resumed at two o'clock, it would of necessity continue till five or six o'clock, which would give ample op- 686 portunity to legal Members of the House to discuss the measure.
§ MR. HOLKERsaid, it would prevent many hon. Members of the Common Law Bar speaking on the Bill if the debate was resumed so early. It would be impossible to discuss the Bill so fully and so satisfactorily if legal gentlemen had not an opportunity of hearing the discussion.
THE ATTORNEY GENERALsaid, that all hon. Members of the House who were members of the legal profession would not necessarily be absent till four o'clock, or be engaged up to that hour elsewhere.
§ MR. ASSHETON CROSSsaid, he thought the Rating Bills were fixed for to-morrow.
§ MR. SPENCER WALPOLEsaid, that was the most important Bill of the Session. The Bill proposed to make great changes, which he was disposed, as at present advised, to support. It was necessary it should be thoroughly discussed, and he ventured to submit that time would not be lost by adjourning the debate till Thursday next.
§ Question put, and agreed to.
§ Debate adjourned till Thursday next.