Order read, for resuming Adjourned Debate on Amendment proposed to Question [9th June], "That the Bill be now read a second time;" and which Amendment was,
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 the House of Lords as an English Court of Final Appeal,"—(Mr. Charley,)
§ —instead thereof.
§ Question again proposed, "That the words proposed to be left out stand part of the Question."
§ Debate resumed.
said, that the measure introduced into the judicial system of the country most vital and important changes. It proposed to reconstitute and remodel the Law Courts of the country; to abolish the House of Lords as an ultimate Court of Appeal; and by a schedule of rules so vague and uncertain that no practitioner could determine whether for the future Equity or Common Law pleading was to prevail, to create a new form of procedure in substitution for that which was well defined and well understood. The charges against our present system of Judicature were embodied in the speech of the Attorney General. That hon. and learned Gentleman said that at the present time there were two systems of Jurisprudence in this country—one a system of Law, and the other a system of Equity—and that those two systems were invariably conflicting with each other. He (Mr. Lopes) submitted that it was not a very true description of the two systems. It was perfectly true that a system of Equity had grown up in this country in order to meet the requirements of modern times—requirements that the Common Law was not sufficiently elastic to meet; but these two systems were not disconnected, distinct, and antagonistic systems; on the contrary, they were closely allied. They 845 were both administered under the same Statute Law, and proceeded according to the same great maxims of Jurisprudence. He perfectly agreed with the Attorney General that it was impossible to have a fusion of Law and Equity, and all they could aim at was to have a concurrent administration of the two systems. But how would the consolidation of all the Courts into one Supreme Court in any way promote a concurrent administration of the two systems? Was any one so credulous as to believe that, after this Bill became law, if anybody desired to enforce a contract he would do otherwise than go into Division No. I., which would be the Equity Court, and file a Bill for specific performance; or so credulous as to believe that if anybody wished to sue for damages he would go anywhere else than to Divisions II., III., and IV., which would be the Common Law Courts? It was proposed by this Bill to disestablish these Courts in order to re-establish them under another name. If the object of consolidating the Courts was to promote more easy interchange of legal and judicial strength, the Government ought by a bold measure to do away with the old lines of demarcation, and constitute a Supreme Court free from any barriers of the kind. The Attorney General said one of the great evils we had to contend with was that at present a suitor often could not obtain full redress without being driven from one Court to another. That he (Mr. Lopes) admitted was an evil which required a remedy; but the Judicature Commissioners had suggested a much more easy remedy for it than was proposed by this Bill. They advised that there should be a concurrent administration of these two systems, and that every superior Court should have the power of deciding all questions of Law and Equity between the parties. Many years ago the Court of Exchequer administered not only Law, but Equity. [The ATTORNEY GENERAL: It administered both systems, but not by means of the same procedure.] Both systems were administered by means of the same Judges, and he defied the Attorney General to say that plan was unsatisfactory to the suitors, or that they had any reason to complain of it. The hon. and learned Member for Denbighshire (Mr. Osborne Morgan), said that the Common Law Judges could not administer Equity. 846 But there was no such great mystery in the administration of Equity that a highly-trained legal man could not deal with all questions of Equity as well as Law that might arise in any ordinary actions. He (Mr. Lopes) appealed to the Attorney General whether there was one case out of 50 of the cases which came before the Common Law Courts in which a question of Equity arose. It was not very long since the Court of Chancery was empowered by Act of Parliament to administer certain portions of Mercantile Law, and he appealed to members of the Equity Bar whether Judges of the Court of Chancery had proved unequal to the occasion and had not given satisfaction to the suitors. Then, again, the duties of the Divorce and Probate Court had been discharged by three Common Law Judges new to those duties, not only with the approbation, but the admiration of the profession and of the whole community. He did not agree with the hon. and learned Member (Mr. Osborne Morgan) that if new functions devolved upon Common Law Judges they would be unwilling to use them. The Judges had been willing to use the powers already given to them. The true state of the case was this—that although the different Commissions which had sat on these questions over and over again recommended that large powers should be given to the Judges so as to enable them to deal with every case that came before them, yet when the House was called on to give effect to these different recommendations, the Acts of Parliament passed had always fallen short of the power required to carry the recommendation into effect. He maintained—and that was the Attorney General's own statement—that the two main objects to be sought in the Bill were, first, the concurrent administration of Law and Equity; and, secondly, the giving of power to every Judge to afford full redress to the suitors, and that in order to secure these objects it was not necessary to reconstitute the old Courts of this kingdom. The objects might be obtained in the much easier way recommended by the Commissions referred to. If, however, it was necessary to consolidate the Courts, the Bill proposed to do so in a most imperfect way by keeping up old distinctions which were useless. Then it was proposed to abolish the Appellate Jurisdiction of the House of Lords for 847 English cases, and many expressions had been used which were far from courteous or respectful to the noble and learned Lords who exercised jurisdiction there. The hon. and learned Gentleman (Mr. Osborne Morgan) spoke of them as a kind of Greenwich Pensioners. The Solicitor General called them octogenarians. The Attorney General contented himself with describing them as an irresponsible body—which he supposed might be applied without much harm being meant or done to any Court of Final Appeal. He would not abolish the Appellate Jurisdiction of the House of Lords, because he believed such abolition to be unconstitutional. He would not stop to ask whether it might detract from the dignity of the House of Lords, but was it not possible that it might detract from the strength and dignity of the Judicial Bench? The Judiciary of this country had always been regarded as part of our political system. The Judges had always been the Constitutional advisers of the House of Lords; but they were now reduced, from this high position in the State, to be a mere Department of the Executive. With respect to the character and composition of the House of Lords as an Ultimate Court of Appeal, he readily admitted that it should not continue to be an Ultimate Court of Appeal without certain additions to its strength as such, and certain provisions for a more continuous sitting at Westminster. But those were matters which it would not be difficult to bring about. As a Court of Ultimate Appeal the House of Lords had hitherto possessed the confidence of the country; and the decisions of that tribunal, as recorded in the Reports, had almost invariably been received by the profession with respect and satisfaction. What were we about to substitute? The Court of Exchequer Chamber and the Lords Justices were to be abolished as Courts of Appeal. In their place were appointed nine gentlemen. The five ex officio Judges who were also to be members could not sit upon it, for they were to act as the heads of their respective Courts, and not even Judges could be in two places at once. Nor could you rely upon the attendance of the additional and unpaid members. There would thus in practice be nine members of the Court of Appeal. But under the Bill, the Court of Appeal might be subdivided 848 into three Courts, of which three members would be a quorum. Would anybody contend that a Court constituted of three Judges as the only and the final Court of Appeal could be so satisfactory a Court as the Exchequer Chamber and the House of Lords? But the House of Lords would still have jurisdiction in Scotch and Irish cases; the Judicial Committee would still deal with colonial and ecclesiastical cases; and these, with the new Court, would form three Courts of Appeal, perhaps giving contrary decisions in some respects. This would be a very unsatisfactory state of things. The proposal to refer the Bill to a Select Committee was justified by the skeleton schedule of rules alone. It was a complicated and technical subject, and he would only say, therefore, that the schedule would do away with two established systems of pleading, well-known and understood, and substitute a third of which we knew nothing. Such a subject could not be considered in this House. Nor was the matter an unimportant one, for this schedule contained the machinery upon which depended the success or failure of the new system. Surely the settlement of the rules was a matter for a Select Committee? The hon. and learned Member for Taunton (Mr. James) was of this opinion before he changed his mind, as hon. Gentlemen on the Government side of the House were accustomed to do. The hon. and learned Member thought the passage of this Bill this Session would be imperilled if it was sent to a Select Committee; but it had better be dropped at once than allowed to pass in an imperfect state. It had been said that professional men could not spare the time to sit on the Bill in Committee; but they had never been asked. It was by no means certain they would not, and certainly a Select Committee would be a less tax on their time than a Committee of the Whole House. The Solicitor General had furnished a most unanswerable argument in favour of this course. If a longer time had been devoted to the Bill, he had said at the close of his speech, it might have been made more perfect and more workable. No stronger argument could be urged for sending it to a Select Committee, and he left the proposal with confidence in the hands of the Solicitor General. There were two matters of detail which especially required atten- 849 tion. He strongly objected to the provisions enabling a Judge to refer matters involving "any local and scientific questions" to a referee. The power was too large. At present a Judge had no power to refer except in the case of mere matter of account, and then it must be to a Master or officer of the Court. Under these powers the Judges could send almost any case to a referee, for what case did not involve local or scientific matters or questions of account? The hon. and learned Member for Dungarvan (Mr. Matthews) had rightly said this was creating a number of inferior Judges, for it was absurd to suppose the Judges would reject the opinion of a referee on a matter of fact when once it had been taken. The Solicitor General, in reply to this, had charged the hon. and learned Member for Dungarvan with not having read the Bill; but if he denied this interpretation of the clause, he laid himself open to the charge that he had not read the Bill, at least for any useful purpose. He also objected to the proposal to remit proceedings before notice of trial to Registrars, especially because there would be no appeal from their decision. In London these proceedings were deemed most important, and an appeal was allowed at every stage. Besides, the proposal in the Bill would work unfairly to one of two litigants living at a distance from each other. We should have District Registrars all over the country discharging the same duties, but coming to different conclusions. For instance, the District Registrar of Liverpool might take a different view from the District Registrar of Exeter, the consequence being that there would be no uniformity in the decisions. The best course for the Government to pursue would be to let the Bill he fallow until next Session. That would be much better than passing a measure which the Solicitor General admitted to be wanting in detail and not so workable as it might be made. If the measure was a good one, it would stand the test of criticism and come before the House in a stronger form. If not, it might be discussed and digested during the long vacation, and many of its defects might then be cured.
§ SIR FRANCIS GOLDSMID
said, that having passed more than a quarter of a century of his life at the Chancery bar, he still, although he had now left it upwards of half that time, retained 850 sufficient interest in all matters connected with the administration of justice to be desirous to make a few observations on the very important measure now under consideration. He would first address himself to the Amendment of the hon. and learned Member for Salford (Mr. Charley), who had not received much encouragement in the course of the debate, the only speakers by whom he was strenuously supported being the hon. and learned Members for Dungarvan and Launceston (Mr. Matthews and Mr. Lopes). Without travelling again over all the arguments so ably urged by the Attorney General in his opening speech, he (Sir Francis Goldsmid) would mention two or three practical considerations which were of themselves sufficient to show the expediency of abolishing the House of Lords as an English Court of Appeal. In his early days at the bar the prevailing impression certainly was that ex-Chancellors were—he would not say bound—but certainly expected to give, in return for their retiring pensions, constant attendance on the hearing of appeals, unless prevented by some grave cause, such as serious illness. But whatever understanding of this kind might have existed 30 or 40 years ago, there was clearly no such understanding now. Noble and learned Lords absented themselves if there was the slightest personal inconvenience in their attending; and during the last few years some of them had given, for a proper consideration, their services in private arbitrations. This last practice not only had the effect of leaving to them for the hearing of appeals only those fractions of their time which they did not require for recreation, and could not more profitably employ elsewhere, but it had a more serious consequence still, to which the Law Officers of the Crown had been probably prevented from referring by the restraints of official reserve. He (Sir Francis Goldsmid), however, felt himself at liberty to declare his opinion that this new usage tended seriously to lower the character of the House of Lords as a Court of Appeal, and to render inapplicable all that had been said of its prestige and of the reverence felt for it. How, indeed, could suitors retain such reverence when the learned individuals who one day formed a part of the Supreme Court were found the next day devoting their time to 851 matters of which any eminent barrister might dispose, and in which the most eminent barristers usually declined to employ themselves, because they preferred a different kind of occupation? These noble Lords indicated by the course they pursued their concurrence in the idea mentioned by the Attorney General a few nights ago, that a lawyer's opinion obtained without direct payment was usually worth exactly the sum given for it. Then, again, the hon. Members who contended against the abolition of the jurisdiction of the Upper House in English Appeals must feel how hopeless their contention became through the very fact that that House had sent down to us the measure under consideration. These hon. Members were, to use a French phrase, "more royalist than the king," more attached to the authority of the House of Peers than the Peers themselves. This position of things recalled the old legend about the Pope who was accused of heresy before his own tribunal, found himself guilty, adjudged himself to be burned, and was burned accordingly—"Judico me cremari," he said. "Et crematus fuit." The House of Lords had pronounced sentence, not indeed against themselves personally, but against their Appellate Jurisdiction; and we might well lay to heart the principle suggested by the legend, that when accused parties condemned and passed sentence on themselves, the sentence might be carried into effect without much risk of injustice. It was strange that the hon. and learned Member for Salford (Mr. Charley) and others who had cited the arguments used by eminent Law Lords not many years ago in defence of the Appellate Jurisdiction did not perceive that these arguments had now become authorities on the other side. For when we found that such distinguished men had by these arguments indicated not long since their natural leaning in favour of the authority of their order, and that nevertheless some of them actually supported, and the others acquiesced in, the present Bill, we were driven to the conclusion that they had been unable to dispute the accumulating proofs of the inconvenience of the Appellate Jurisdiction, or to withstand the irresistible logic of facts. He (Sir Francis Goldsmid) would now pass to the Amendment of the hon. and learned Member for Denbighshire (Mr. 852 Osborne Morgan) for the appointment of an Equity Judge to each Division of the proposed High Court of Justice. In that Amendment he (Sir Francis Goldsmid) concurred, on the simple principle that men, however able, generally did best the work to which they were most accustomed. He understood that in "another place" that principle had been contested by some of the leading supporters of the Bill. But, however that might be, it had been frankly admitted by the Attorney General; and the only question that remained between him and the hon. and learned Member for Denbighshire was how and when the requisite assistance of an Equity Colleague was to be provided for each of the Courts of Queen's Bench, Common Pleas, and Exchequer. The Attorney General objected to that being done by an express provision in the Bill. But he would at least admit that the Bill ought not to contain provisions which would make it difficult or impossible, and that, for the present, at least, the 28th and 31st clauses did. [The ATTORNEY GENERAL here intimated that he proposed to alter those clauses so as to obviate any difficulty about the appointment of the Judges required.] That being the case, he would not pursue this branch of the subject, but would say a few words on two or three other points. The hon. and learned Member who had last spoken (Mr. Lopes) had said that all that was required was to enable all the Courts to decide questions of Equity as well as Law. But, independently of the creation of a new Court of Appeal, this, as he (Sir Francis Goldsmid) understood the matter, was the principal thing that was done by the Bill. To the proposal to refer the Bill to a Select Committee he could not agree. The hon. and learned Member for East Sussex (Mr. Gregory) had disputed, but the hon. and learned Members for Dungarvan and Launceston (Mr. Matthews and Mr. Lopes) had frankly admitted, that reference to a Select Committee was another phrase for postponement to next Session; and, indeed, considering the vehement dissent which the hon. and learned Member for Dungarvan had expressed from the most important portions of the Bill, it was to be wondered that, instead of deferring it till next Session, he did not propose to defer it to the next century. 853 True it was that there were some slips in the Bill. He (Sir Francis Goldsmid) had himself remarked one in Clause 21, Sub-section 3, which sub-section was intended to enable a defendant to bring before the Court another person as defendant, in order that the whole matter might be adjudicated upon. The provision as it stood would enable B, against whom A had brought an action to recover possession of an estate in Yorkshire, to tack to the action a proceeding against C, who had never had anything to do with Yorkshire, for an assault committed by him against B in the streets of London. But this, and some other minor errors, might be easily corrected. It was not a measure ill-drawn throughout, and of which the imperfections could only be removed, if at all, by the labours of a Select Committee. On the contrary, the Bill, as a whole, was framed with a skill worthy of the distinguished man who was understood to be its author. He (Sir Francis Goldsmid) therefore hoped that it would be allowed to go to a Committee of the Whole House, and he had no doubt that it would be reported by that Committee in a shape which would make it workable, useful to suitors, and beneficial to the country.
§ SIR RICHARD BAGGALLAY
said, that the gravity of the question and the importance of its being dealt with at an early period were admitted on all hands; but whether the present was the best time for so doing was a matter of doubt, for he had a strong conviction that until they had codified the law, and provided fitting habitations for our several tribunals, it was impossible to expect that they could have even approximately any complete amalgamation or blending of the two systems of Law and Equity. Still, they might with great advantage pave the way for that improved and more perfect system to which they hoped at some time to attain by carrying into effect the following three substantial proposals of the Bill now under consideration:—Firstly, the consolidation into one Supreme Court of the several Superior Courts of Law and Equity, together with the Probate, Divorce, and Admiralty Courts, and also the London District Court of Bankruptcy; and the vesting in that Supreme Court and its various Divisions and sub-divisions of all the jurisdiction and authority which 854 could now be exercised by either or all of the several Courts of which it was to be constituted. Secondly, the introduction into that Supreme Court of a procedure as uniform as might be consistent with the various classes of cases brought under its cognizance. And, thirdly, that in all cases where the rules of Law and Equity conflicted, effect should be given to the rules of Equity. To each of those three propositions he gave his full and entire assent, believing that if they could be carried out they would be taking a decided step in the direction of that amalgamation of Law and Equity to which they were all looking forward. However, as regarded two of those propositions, he dissented in several respects from the particular modes in which it was now sought to give them effect. He might be told that these were matters of detail for consideration in Committee rather than on the second reading; but, nevertheless, they involved principles of very great importance, and he trusted the Attorney General might see in some of the objections which he was about to state further reasons, in addition to those already urged, for agreeing to refer the Bill to a Select Committee. His chief objection to the measure was the proposed constitution of the Supreme Court of Appeal. It was to be composed of three classes of Judges. The first class consisted of Chancery Judges who had hitherto—with the exception of the Master of the Rolls—sat as a Court of Appeal in Lincoln's Inn, dealing with appeals from the Court of Chancery alone. The second class consisted of Common Law Judges who had heretofore sat at Westminster Hall, in the Exchequer Chamber, disposing of questions of Common Law; and the third, of Judges who had sat in the Council Chamber at Whitehall hearing, among other cases, appeals from the colonies. How could they expect that any change would be made in the nature of the duties which these several classes of Judges would have to discharge when that Bill became law until they had provided proper accommodation for them in the new Courts? While things remained as they were now, did anybody suppose they would have Judges going from Lincoln's Inn to assist other Judges at Westminster? The inevitable result of what was proposed by the Bill would be, that they would have the same Judges, though under different names, 855 discharging the same duties in respect to appeals as they did at present. He was bound to say he did not see any great objection to that. Some years must elapse before they had the law codified and the new Courts built, and in the meantime what they were going to do must be in the nature of an experiment, or transition only. If, then, they conferred on all the Judges equal power and authority, and also applied an uniform procedure to the several Courts, he should not object to the Courts of Appeal remaining substantially as they were now, provided the appellate jurisdiction of the House of Lords was not abolished. With regard to the appellate jurisdiction of the House of Lords, his objection to abolishing it did not arise out of any feeling but by so doing the importance or the dignity of their Lordships' House would be interfered with, for they were all aware that for many years past that jurisdiction had been exercised, not by the House in its integrity, but by the judicial Members of it, and every suggestion for increasing its judicial power had proceeded upon principles which would have rendered the tribunal still less than before a representative of the hereditary element of their Lordships' House. Until, however, it had been ascertained what would be the working of the new Court of Appeal which it was proposed to create, it was not, in his opinion, desirable to part with the ultimate right of appeal to the House of Lords. After the new Court was constituted, and had done some work, it might be found that the appeal to the House of Lords could be safely and advantageously abolished; but until that was ascertained, it was of the utmost importance in the interests of the public at large to retain the appellate jurisdiction of the Peers. This was exactly the view taken by the Judicature Commissioners in their first Report. The Commissioners said—"It might hereafter deserve consideration, after experience of the working of the Court, whether its decisions may not be made final;" but "in the meantime" they recommended that there should be an appeal to the House of Lords. His hon. and learned Friend the Solicitor General, referring to what had been stated by his hon. and learned Friend the Member for Dungarvan. (Mr. Matthews), drew attention to an earlier 856 passage in the Report, which he seemed to think took away from the effect of the passage he had just quoted; but he saw nothing of that kind in the paragraph referred to. The passage to which the Solicitor General referred was to this effect—the Commissioners did not consider it within the scope of their Commission to pronounce upon the constitution of the House of Lords, considered as a Court of Appeal; their only suggestion was this—that inasmuch as the Lord Chancellor was President of that tribunal when it sat he was prevented from sitting in the Court of Chancery for four days a-week while Parliament was in Session. They had indicated no doubt or hesitation as to the qualification of the House of Lords for the exercise of its appellate jurisdiction. Looking to the names appended to the Report of the Commissioners—and it was impossible to have selected a body of men better qualified for the discharge of the duty intrusted to them—he observed that the name of the Attorney General was among those who concurred in the Report. They had, therefore, got the distinct recommendation of the Commissioners to the effect that, until they had experience of the newly-suggested Court of Appeal they should retain the House of Lords as a Court of Ultimate Appeal. The practical results of the labours of the House of Lords would show how important it was to reserve to suitors the right and privilege which they now possessed. By reference to the reported cases of the decisions of the House of Lords he found that, during the last seven years, in 23 English and Irish appeals they had reversed the decisions of the first Appellate Court, and in 11 of those the first Appellate Court had affirmed the decision of the Court of First Instance. In every one of these cases, therefore, the suitor would have been denied the justice which he ultimately got, if it had not been for the existence of the House of Lords as a Court of Final Appeal, and he had never heard it asserted that any of those decisions had given dissatisfaction either to the profession or to the public at large. There was another view that might be taken of this matter. If they were asked to abolish the appellate jurisdiction of the House of Lords, not on the ground that a new Appeal Court was certain to work well, but because the House of 857 Lords was unsatisfactory as an appellate tribunal, would it become more efficient, if, when deprived of the Lord Chancellor and perhaps of some of the other Law Lords, it was retained as a Court of Appeal for Scotch and Irish cases? Another objection to the new Court of Appeal was the inadequate proportion of Equity to Common Law Judges. As at present proposed, the Court of Appeal was to be composed of Common Law and Equity Judges in the proportion of three to one, and yet this was the Court which was to give effect to the rules of Equity when the rules of Law and Equity conflicted. The public would not be satisfied with such a constitution of the Court of Appeal unless there was an ultimate right of taking a case to the House of Lords. As to the High Court of Justice, the Attorney General, assenting to the spirit of the Amendment of the hon. and learned Member for Denbighshire (Mr. Osborne Morgan) for adding an Equity Judge to each of the Common Law Divisions, had stated that the Lord Chancellor intended, as vacancies arose on the Common Law Bench, to appoint Equity lawyers, and that he had reason to believe Lord Cairns, in the event of a change of Government, was prepared to do the same. It was a strange thing that the House should be asked to pass a Bill admittedly defective on a promise or suggestion that the deficiency would be supplied by the present or a prospective Chancellor. It was the more unsatisfactory because, as he read the Bill, Common Law Judges would no longer be appointed by the Lord Chancellor, but, as the Equity Judges were now, by the Premier. He had shown that he objected to the immediate abolition of the appellate jurisdiction of the House of Lords, and to the want of sufficient provision of Equity Judges in the constitution of the Supreme Court. There were a variety of other matters in the Bill which required very careful consideration; but they were mere matters of detail which could be very well settled in Committee. The appointment of referees and district Registrars within certain limits might be very desirable; but so far as regarded the extreme power proposed to be conferred upon them it would be most disastrous if the Bill passed in its present form, and would lead to enormous expense on the part of the suitors without conferring on them 858 any corresponding advantage. If they passed beyond the clauses of the Bill to the number of rules contained in the Schedule, there was ample work provided for many days' consideration, and, in his opinion, it would be utterly impossible to deal with all those questions in a Committee of that House. He believed the Bill might be amended in a form to make it workable, and that if it could not be done within the compass of the present Session, the public would gain by the delay, even if the measure should pass over into another Session. He, however, saw no reason for that delay if the Government would agree to refer the Bill to a Select Committee. He trusted that at the proper time the House would be prepared to remove from the Bill the clause which abolished the appellate jurisdiction of the House of Lords; and that the Government would assist those on the Opposition side of the House who really wished to see a workable Bill passed by allowing it to go to a Select Committee.
§ MR. WEST
congratulated the House and the Government on the approval of the three main propositions of the Bill which had just been expressed by an hon. and learned Gentleman who occupied so high a position in the profession. With regard to patronage, he would remind the hon. and learned Gentleman that, while the Lord Chancellor appointed the Puisne Judges, the Prime Minister appointed all the Chiefs of the Common Law Courts, as also to any new judicial offices which might be created. He would also remind the hon. and learned Gentleman that the Appellate Jurisdiction of the House of Lords was expressly excluded from the consideration of the Judicature Commission, and that even in those circumstances the Commissioners stated in their Report that that jurisdiction greatly impaired the efficiency of the Court of Chancery during the Session of Parliament by withdrawing the Lord Chancellor from the Court. As to the other objections of the hon. and learned Gentleman that there was a great want of Equity power in the High Court of Justice, there was no doubt considerable force in that criticism. It had just been proposed that the House of Lords should remain supreme over the new Court of Appeal, thus creating another step before the suitor could get to the final Court. [Sir 859 RICHARD BAGGALLAY observed, that he simply proposed to leave the House of Lords as it was.] But it was proposed that cases could be taken through the new Court of Appeal to the House of Lords. For his part, he believed that the details of the Bill would be best discussed in a Committee of the Whole House. With respect to the proposed establishment of Local Courts, he could speak from experience as to the working of such a system, as to which his hon. and learned Friend opposite (Mr. Matthews) and several others of his learned Friends appeared to be in a state of profound ignorance. The House was aware that, under a Bill passed in the year 1869, District Registries were estabblished for the great and wealthy county of Lancaster, and they had been found to work so satisfactorily that the Lord Chancellor proposed to extend them by the present Bill. It had been said that there was no appeal from the District Registries; but a reference to the 61st clause of the Bill would show that was a mistake. How had those local tribunals worked during the three and a-half years of their existence? From a document published by the Law Society of Liverpool it appeared that in the years 1867–8–9 the number of causes entered for trial at the Assizes at Manchester, Lancaster, and Liverpool was 1,330, and of these only 140 were instituted in the Local Court, the remainder being instituted in the three Courts of Westminster. What occurred after the Act of 1869 came into operation? During the three years 1870–1–2 the number of cases entered was 1,333, of which 772 were instituted in the Local Court and 561 in the Courts at Westminster. This showed that the people of Lancashire approved of the Local Courts. The document to which he had referred further said, that the number of writs issued during the last three and a-half years in Lancashire was 6,706, whilst the number of appearances was only 2,436, so that the great majority of the cases were settled without anything being done beyond issuing the writ. Of 4,292 cases before the local registrars in these Courts, in only 44 cases had there been appeals, and in only 15 cases had the decisions been reversed or varied. The costs in reference to causes commenced in the Local Courts were at least 25 per cent less than if the process had been 860 issued in London. With reference to the proposal to send the Bill to a Select Committee, he could not help thinking that the effect of such a step would be to defeat the measure, and, with much respect for his hon. and learned Friends, he was of opinion that no Select Committee could be formed from among them which would be of greater weight in the mind of the profession and of the country than that which had considered the provisions of the Bill in the House of Lords. He could not help feeling that the postponement of the subject for a single Session would be a matter for deep regret, not only on account of the postponement of this Bill, but because that postponement would have the effect of delaying a still more important reform, which ought to follow—namely, that of the local Courts, Courts which had much more direct influence on the comfort of the people at large than the Superior Courts.
§ MR. AMPHLETT
observed that the absurdity of the present system was, that a man might succeed in one Court, and immediately after be defeated in a Court sitting next door; and this anomaly was dealt with successfully in the present Bill. They had heard a great deal about the fusion of Law and Equity; but in fact the system of Equity was really founded upon the common law; it was the common law corrected and improved by a succession of great Judges, at a time when those Judges assumed to themselves the power of legislation. The Bill left the principles administered in the Equity Courts undisturbed, and simply said that all other Courts in the kingdom must adopt the same principles, so that the principles of the Courts of Equity would become the general law of the country, administered in every Court. But the most important part of the Bill was that which provided for the re-organization of the Courts of Judicature, but the mode in which this was to be done had not met with that general approbation which other parts of the measure had met with. This was not surprising when they found that there was to be no admixture of the Common Law and Equity Judges; that the Equity Judges were to sit in one Division, and the Common Law Judges in another Division by themselves. It was not surprising also that Equity practitioners should look with some 861 anxiety when they found that Equity principles were to be administered by those who were not well cognizant of those principles. It was for this reason that the members of the Equity Courts had drawn up the memorial which had been published. The Attorney General admitted that there were defects in this portion of the Bill which would, it was to be hoped, be remedied by Amendments which would render the measure workable. Such Amendments would perfectly satisfy him (Mr. Amphlett) as to Courts of First Instance; but with regard to the Court of Appeal, out of 14 Judges there were only four Equity ones, and he thought that until the new system got into working order they should strengthen the Equity element. As to the House of Lords, he had a sentimental regret that that House was to be shorn of one of its most distinguished prerogatives, and though he felt bound to concur in the proposal of the Government on that point, his concurrence was in no way due to any belief that the House of Lords had proved themselves an inefficient tribunal. The time had, however, come when the Court of Final Appeal ought to sit en permanence, and the great objection to the House of Lords was that it sat only four days a-week, and for only a third of the year. That was not fair to suitors, and it was for this reason alone that he was unable to support the Amendment of the hon. and learned Member for Salford (Mr. Charley). With respect to the rest of the appellate provisions, he should have very much preferred a Final Court of Appeal of fewer numbers, and composed of the most distinguished individuals—such as the Lord Chancellor and five or six of the most eminent men who could be obtained. Such a tribunal would have been more likely to earn the same confidence which the profession had given to the House of Lords. The proposed Court would consist of 14 persons, sitting in three Divisions, and his great objection to the Bill was not only to so numerous a Court, but that it should be split into three Divisional Courts, each of which was to be final. These Courts were not to be divided into a Chancery, a Common Law, and a Criminal Law Division, because the object was to abolish the distinction between Equity and Common Law. The three Divisional Courts would thus be called 862 upon to decide the same class of questions. What was to be done if they differed, and how was the law to be settled if they came to opposite conclusions? There would not only be these three Courts, but the House of Lords would still sit in appeals from Ireland and Scotland, and the same class of cases would come from Ireland as those before the Divisional Courts. Which of these Courts was to be pre-eminent, and to lay down the rule of law that was to govern these Courts? This state of things would, he feared, lead to great practical inconvenience. It was a perfect novelty; for he did not believe that there existed in any country a system of jurisprudence in which the Courts sat in separate divisions, dealing with the same class of subjects, and each judgment to be final. In Paris the Court was divided into different Chambers; but they took a different class of business. He felt great diffidence in expressing an opinion which conflicted with that of the eminent individuals who prepared this Bill; but the novelty to which he had called attention had never been submitted to the requisite criticism and discussion. The Judicature Commission, it was true, had recommended a division of the Courts, but they had contemplated a final Court over them. No doubt they added that it might hereafter be found advisable to abolish the final Court of Appeal; but he would have preferred that there should be an appeal from these Divisional Courts to a final Court of Appeal. It was said that what was wanted was to put a stop to the present multiplicity of appeals; but if the decision of the Divisional Court were taken as final in all cases in which the Judges were unanimous, it would enormously reduce the number of appeals, and the number would not be greater than the Final Court of Appeal could dispose of. He relied upon the candour of the Attorney General and Solicitor General to give his views any weight which they might seem to deserve, and if they met with any general support he would take the sense of the House upon the question when the Bill got into Committee. It was better to defer any minute criticism until the House went into Committee; but, regarding the Bill as a whole, he should be sorry not to see it pass or to see it delayed. The question, however, remained whether the objections 863 he had now raised could be better discussed in the House or in a Select Committee. As far as his own experience went, the passing of the Bill would be expedited if it were now sent upstairs. The Juries Bill went through that process with great advantage, and would, he believed, have passed through Committee of the Whole House in a single night if it had not received a check by falling foul of the question of Local Taxation, where no one expected to meet with it. He should vote for the second reading; but he trusted that the points he had raised would be seriously considered.
§ MR. NORWOOD
said, there was one unfortunate class of persons who had a deep interest in this question, though they were not lawyers, and he ventured to interrupt the flow of legal eloquence to say a few words on their behalf. They were the suitors, who suffered from the present extremely expensive, dilatory, and unsatisfactory arrangements of our legal procedure, upon which this Bill would effect a vast and important improvement. Sometimes commercial men had a difficulty in knowing which tribunal they ought to apply to in order to get their grievances redressed, and more frequently complete relief could not be obtained in a Court either of Law or Equity; but this Bill proposed that there should be only one portal through which suitors could enter, and afterwards they would find the proper division for the discussion and adjudication of their cases; he approved the Bill because it abolished all the arbitrary distinctions between Courts of Law and Equity; because it shortened and simplified the procedure; because it established one—and that an efficient—Court of Appeal; because it invested the Common Law Judges with equitable powers; because sittings were to be held during the vacation for hearing cases of immediate importance; and because the present system of Terms was to be abolished. As to the provision which enabled the Judges to send cases to referees, he, as a commercial man, thought it would prove a very beneficial one, as it would obviate the inconvenience of the present system, under which cases were frequently referred to arbitration after very considerable expense had been incurred. He also approved the clause which allowed a Judge 864 to decide cases with the assistance of two assessors, instead of trying them before a promiscuous jury. Many improvements might be effected which were not referred to in the Bill now under consideration. For example, local commercial Courts might be established; but as a layman, representing laymen, he heartily supported the measure, because it proceeded in a right direction, and he trusted the Law Officers of the Crown would not consent to its reference to a Select Committee, especially if that Committee were to be composed, as the hon. and learned Member for Dungarvan (Mr. Matthews) had suggested, solely of gentlemen belonging to the legal profession.
§ MR. SERJEANT SIMON
said, the general opinion seemed to be that the Bill would pass the second reading, and, therefore his object in rising was rather to assist the Government by suggestion now, instead of taking them by surprise by Amendments in Committee. He was glad to hear the views of his hon. Friend the Member for Hull (Mr. Norwood). He was surprised to hear some of his hon. and learned Friends express a wish that appeals from the Courts of this country should still be preferred to the House of Lords. The Bill left untouched the constitution of the House of Lords as an Appellate Court in cases from Scotland and Ireland. He agreed to a great extent with the observation of the hon. and learned Member for Taunton (Mr. James) with regard to the Divisions into which it separated the Judges who were to compose the High Court of Judicature. He thought that by cutting up the jurisdiction into these various Divisions, instead of facilitating, they would delay and embarrass the administration of justice. His great objection to this part of the measure was that while it proposed to re-constitute our judicature by throwing all the Courts into one High Court and so combining the Equity and Common Law jurisdiction, it actually retained the distinction which it was its object to do away with. Whilst it proposed to confer Equity jurisdiction upon the Common Law Courts it still separated the Equity from the Common Law Division and preserved the Chancery Court in all its integrity, and almost all its exclusiveness. Instead of a suitor going into any one of the Divisions he pleased 865 to obtain Equity or Law, he would still go to the Court of Chancery when he wanted Equity and to a Common Law Court when he wanted Law. But if the character of the Divisions were changed, and the present staff of Equity Judges were to be distributed over the four Divisions, no additional staff would be required, while Law and Equity would so to speak, be amalgamated, and would be administered concurrently. So vital did he believe that point to be to the operative character of the Bill that he should deem it to be his duty to take the opinion of the House on it in Committee. He was glad to find there was an attempt in the Bill to remedy an admitted grievance, whereby many suitors were kept waiting for an undue period for a decision. The appointment of official referees would, to some extent, meet that point, he thought; and, so far from complaining on the subject, he was very sorry the Bill did not go much farther than it did by appointing permanent arbitration Judges. He found a provision in the Bill whereby the Judge, in cases were the points in dispute, technically termed the "issues," did not appear, might compel the parties to come to an issue. That was done at present, not by compulsory powers, but by the mere process of pleading. It did not appear from the Bill, however, whether the issues were to be settled before going to trial; and that ought to be cleared up, or he could see that great difficulties and inconvenience would arise in practice. He should support the second reading of the Bill, thinking it went a long way in the right direction, though not so far as he had hoped, and he saw no reason for referring it to a Select Committee.
§ MR. HINDE PALMER
congratulated the Government on the general unanimity with which the measure had been received in that House. The consequence of having justice administered in two sets of Courts on opposite principles was that suitors did not know into which branch of judicature they ought to go, and thus great delay, cost, and injustice had been caused. With respect to the objection that had been urged by the hon. and learned Member for Mid-Surrey (Sir Richard Baggallay) that this Bill could not be properly carried into effect until there was a codification of the law and the New Law Courts were built, if the House waited until those 866 schemes were carried out they might be content to give up legislation on the subject for the remainder of their lives. He thought that the mode in which justice would hereafter be administered by a concurrent administration in all branches would tend materially to advance the codification of the law of this country; and as to the necessity of Courts for the two appellate bodies, they could occupy the Lord Chancellor's and Lords Justices' Courts, which this Bill would render vacant. As to the remarks which had fallen from the hon. and learned Member for Dungarvan (Mr. Matthews) to the effect that the Bill was being hurried through the House with haste and treated with levity, he would remind him that it was framed on the lines which had been laid down in the Report of the Judicature Commission in 1869; that the subject had been dealt with by a Bill introduced by Lord Hatherley into the House of Lords in 1870; and that the imperfect constitution of that House as a Court of Appeal had been matter of general complaint for the last half century. It was true that none of the Royal Commissions or Committees which had sat to consider the question of the appellate jurisdiction had ever reported in favour of removing that jurisdiction from the House of Lords, and that their recommendations were directed to the improvement of the tribunal, and not to the abolition of its jurisdiction; but that was because an idea was prevalent that it was necessary to the dignity of the House of Lords that its ancient prestige as the highest Court of Appeal in the kingdom should be preserved. That idea was now dissipated, and the House of Lords itself had earned the gratitude of the country by being itself the first to pass a measure abolishing its appellate jurisdiction. Under these circumstances, it was rather too late for the hon. and learned Member for Salford (Mr. Charley) to bring forward his constitutional objections to the proposal to transfer the appellate jurisdiction to another Court. When the proposed Appellate Court should be divided in opinion amongst themselves, and with the Court below, it had been felt that there ought to be a higher Court to which application might be made. But how was this new Final Court of Appeal to be constituted? Frequent appeals gave a great advantage to the more wealthy 867 suitors. The hon. and learned Member for East Sussex (Mr. Gregory) had told the House that of 400 appeals decided in the Court of Chancery only 35 went to the House of Lords; and for so small a number he did not think it desirable to establish a new Court of Appeal. But besides the impossibility of finding a higher final Court of sufficient authority to review the decisions of so admirably constituted a tribunal, as the one proposed, the Bill provided that when questions of difficulty arose which could not be satisfactorily determined by one Division of the High Court the members of the other Divisions should be called in to assist, and thus the very cream of the legal authority of the country would be available to decide such questions; so that there would be no necessity for any further appeal. The Bill would effect one of the greatest steps that had ever been taken in this country in the way of legal reform, and if there were no other measure, it would be sufficient to stamp the character of the Session and reflect credit on this Parliament There were, however, many faults of detail in the Bill as originally drawn. Thus, while it provided that the principles of equity should prevail in all the Courts of Law, it placed the Courts of Chancery, which were the real Courts of Equity, in the second rank and deprived the latter of their proper head, the Lord Chancellor. He thought it was a decided improvement of the Bill to retain the Lord Chancellor as President of the Equity Court. The Bill proposed that another Vice Chancellor should be added to the Chancery Division. He hoped that nothing would induce the Government to give up that proposition. Of all the false and foolish economies of which Government or Parliament could be guilty was that of starving and stinting the administration of justice. He regarded as one of the best parts of the Bill that clause which provided that an additional Judge in Chancery should be appointed. At the present moment the number of arrears in the Court of Chancery was perfectly frightful. It was said that those arrears were only temporary; but so far from their being temporary, they increased from year to year. According to the last Return, which related to the year 1871, the number of causes and other matters pending in Chancery at the end of the judicial year 868 was nearly 600, and for every year for the last five years was upwards of 500. This was a monstrous state of things in a wealthy civilized country like England. The Bill provided that an additional Judge in Chancery should be appointed when the Bill came into operation—that was to say, in November, 1874; but he thought that an additional Judge should be appointed as soon as the Bill passed. To start the new Court fairly, the field should be clear. As to the proposal to send the Bill to a Select Committee, he did not think the progress of the Bill would be expedited by adopting that course; because all those gentlemen who would be defeated in the divisions of the Select Committee would come before the House when the Select Committee reported to vindicate the propositions on which they had been defeated, and thus the passing of the Bill this Session might be endangered. The Bill approached the accomplishment of a great scheme; and the House of Lords assented to the abolition of their appellate jurisdiction. He thought that, as in the case of the Bankruptcy Bill which was passed a few years ago, all the clauses of the Bill could be discussed most satisfactorily in a Committee of the Whole House. If the Bill was discussed in a Committee of the Whole House the lay and the commercial, as well as the legal Members, could take part with the greatest advantage, and there was no necessity for referring the Bill to a Select Committee. He trusted that before the end of this Session he might have the satisfaction of knowing that he could go to his constituents and claim credit for having taken part in the passing of a Bill that would be for the advantage not only of the legal profession, but of suitors and the public at large.
said, he felt diffidence in venturing to offer a few observations upon a question which might be said to exclusively belong to lawyers; but on a matter of such vast importance—affecting as it did the interests of the whole of the community—he had as great an interest as, if not greater than, the lawyers, in its ultimate working, for after all it was of as much consequence to those who were to be shorn that the work should be well done as it was to the shearers themselves. It was impossible to conceive a larger pleasure than this. It altered completely the administration of the law 869 of England, if even it did not alter the law itself; and his first impression on reading the Bill was that it altered and unsettled everything and settled nothing. That impression was strengthened by the speech of the Attorney General, who admitted that the hon. and learned Gentleman (Mr. Osborne Morgan) had pointed out evils for which future provision would have to be made. As to the appellate jurisdiction of the House of Lords, the first thing that struck one was that only four-fifths of the population of the United Kingdom were affected by the Bill, and that the remainder would continue to have their appeals heard by the tribunal which now heard them. The result of establishing different Courts of Appeal for the several parts of the United Kingdom would be, that different final decisions would be come to and dissatisfaction would arise. When the Home Rulers ascertained that the Law Officers of the Crown had condemned in the strongest terms the present Tribunal of Ultimate Appeal, but yet thought it was good enough for Ireland, who could complain if they used this circumstance as an argument to further their cause? They had for many years been free from any serious matter of treason. Now, what would be the effect in the proposed change of the law if treason again showed its head in the country? There were at present societies going about propagating Republican opinions, and if they ran foul of the law what might happen? They might have the House of Lords deciding on an ultimate appeal from Ireland, that certain acts were treasonable or not treasonable, while a different Court of Appeal might decide just the reverse, and if that did happen it would be a very inconvenient circumstance, for certainly the Home Rulers could not hope for a stronger argument. He deeply regretted that one common Court of Appeal was not framed for the United Kingdom so that we might not have diversities in decisions in respect to the same matter in different parts of the country. The Attorney General had made much of the anomalies in the present law of Appeal; but were the people discontented with it? He had heard no expressions of discontent, and surely the whole system should not be upset merely to correct theoretical defects. The Attorney General had admitted there would be some difficulty at 870 first in Common Lawyers undertaking cases in Equity and the reverse; but he hoped barristers of both sides of the Court would very soon become sufficiently "accomplished" to undertake cases on either side. The Attorney General contemplated some such process as that of putting a wild elephant between two tame ones to break him in, or, to change the figure, he hoped to create ambidexter members of the Bar who would be quite, competent to strike out on both sides. Another point to which he objected was the large powers of reference taken under the Bill. It was a useful power to exercise in many cases; but there was such a disposition shown in the Bill to take everything from the Judges that could be done, as led him to fear that something like the old Masters in Chancery might grow up in the shape of the new official referees that were to be created under the Bill. These points had struck him on reading through the Bill, and he trusted they would not be thought lightly of. In previous years Bills had been concocted and brought into Parliament with as much authority in their favour as the present measure had. Those Bills now, however, had been adversely criticized by the Attorney General. This was an additional reason why that House should exercise as much care and pains as it could in this matter. He therefore supported the proposal to refer the Bill to a Select Committee. He believed there was no desire to impede the progress of the measure; but there was a general wish that, regarding the vast importance of the subject to the great body of the people, the Bill should be carefully examined, in order that, as far as possible, every imperfection should be removed from it.
§ MR. W. FOWLER
agreed with a great deal that had been said as to the considerable difficulty in which they might be in respect to the Supreme Court of Appeal. It was a great anomaly to have one Court of Appeal for England and another for Ireland and Scotland, for it was possible that one law might be laid down with regard to real property in Ireland, and another in England by the two Appellate Courts. If that state of things were unavoidable he would submit to it with great reluctance. It was also objectionable that the Appeal Court should be divided into Divisional Courts, as that might tend to 871 keep up the old distinctions; and this was a point which would deserve to be handled with great care, whether the Bill went to a Select Committee or not. Subject to those exceptions, he thought that the Appellate portion of the measure was one of the best parts of it. The House of Lords themselves had given up their Appellate Jurisdiction; nor could it be said that it was done under Government pressure, for the Government were in a minority in the other House. The House of Lords as at present constituted was totally unfit to discharge the functions of a Court of Appeal, and with the greatest respect for the noble and learned Lord (Lord Chelmsford) he must say that it was highly anomalous that the only Common Law Judge in the House of Lords should reverse the decision of the Court of Exchequer Chamber. He gathered from the debate that the general feeling on both sides was that this might be made a very useful measure; and the only question to be decided after the Bill was read a second time was whether it should be referred to a Select Committee or not. When he read the Bill first he thought it ought to be referred to a Select Committee; but he had since been convinced that if that were done the safety of the Bill would be endangered for the Session, as he doubted whether the Report would be made before a month. Under these circumstances they must discuss the Bill in the House itself, and trust to the reticence and forbearance of Members for getting it through in reasonable time. The main object of the Bill was to establish such a Court that every man who went into it should be able to get complete justice; but to do that it was obvious that every Division of the Court must be efficiently manned. He was glad that the Attorney General had promised that a sufficient number of Equity Judges should be appointed; but one thing more was necessary—when vacancies occurred in the Common Law portion they should not be filled up by Common Law men, so as to get an intermixture of Equity Judges in those Courts. There was another point to which he wished to refer. He could not help thinking that the present state of the business of the Court of Chancery was eminently unsatisfactory. It was admitted that a vast amount of bankruptcy business was done by Regis- 872 trars, contrary to the intention of that House; and it was also admitted by the highest authority that to do that work properly the whole time of a Judge was required. It had been further intended by Parliament, on the abolition of the Masters, that a vast amount of business should be done by the Chief Clerk under the supervision of the Judge; but almost the whole of that important business was done by the Chief Clerk alone, because the Judge had no time to devote to it. In Chancery, under the Bill, the whole time of one Judge would be required to do the work in Chambers. Again, the Bill proposed to effect a great revolution in the mode of taking evidence in the Court of Chancery, by taking it vivâ voce instead of by affidavit. To do the work that was now done by the two Examiners and a large number of Special Examiners would occupy the time of two Judges. To carry out the reforms proposed more judicial power would be required than existed at the present moment. The Schedule appended to the Bill was by no means complete, and must be supplemented by the Judges in various points. Before the Bill passed they should know what sort of pleading they were to have. Was it to be Chancery pleading or pleading by issue as at Common Law? The language used in the Schedule was most obscure and difficult to understand. He had a great predilection for the plain Bill and answer method adopted in Chancery. His general view was that this Bill might be made a very good workable Bill; but he thought it would require large and important alterations, and he was afraid the House must make up its mind to add to the judicial power. He thought they would require to examine the measure with great care and minuteness to see what they were going to do, for there appeared to be a strong tendency on the face of the Bill to keep up the old divisions of Courts, and gradually to drift into the old system so that they might not, after all, get that fusion which they were promised and all desired to have. Serious as were his objections to it, he should vote for the second reading of the Bill; and as to whether it should be sent to a Select Committee, he had come to the conclusion, though not without some doubt or reluctance, that it would be best discussed in Committee of the Whole House.
§ MR. HOLKER
held that on such an important matter as that before them every man who pretended to be a lawyer ought to express an opinion upon the merits of this Bill. He confessed he came to its consideration with feelings of approval for most of the main objects which he believed the framers of it had in view, and meant to accomplish; but he could not help entertaining very considerable doubt whether the provisions of the Bill in its present state would achieve those objects or some of them. He did not think that the much-talked-of fusion of Law and Equity would ever be accomplished—and which, in his opinion, it was most desirable to accomplish—if the measure should be allowed to stand in its present shape. They had heard from the Attorney General that the Bill was founded upon the Report of the Judicature Commission of 1869, and the recommendations contained therein. In some of those recommendations he did not quite agree, and, he believed, the Bill itself, in some particulars, departed from them. The Attorney General divided the principal objects which the framers of the Bill intended to accomplish into three—he should rather say into four—branches. The first was the simplification of our legal system by the abolition of the Superior Courts of Justice which now existed, and the erection in their stead of one High Court of Justice in the First Instance. The Bill did not deal at all with the inferior Courts. The second object of the Bill was the amalgamation or blending of the various systems of Law which were now carried on in the Superior Courts of the country, by what was popularly called the fusion of Law and Equity. The third object was the erection of a more satisfactory tribunal of Appeal than the tribunals of Appeal which now existed. The fourth was to construct a system of practice and procedure that would be applicable to the Court so erected under this Bill, and that such system should be plain, simple, intelligible and untechnical. Now, if these or some of these objects were accomplished, he could not but think great good would be gained. There were several minor features in the Bill, some of which would be improvements—perhaps great improvements—in the Law; others would be anything but improvements. But as that part of the 874 Bill could better be discussed in Committee he would not say much respecting them. He should, however, allude to two or three topics. In respect to the question of costs the Bill provided for the transfer of that question from the Courts to official referees or arbitrators, by whatever name they might be called. There was also a provision in the Bill in respect to the establishment of district Registrars. These were very important questions, and such as demanded serious consideration. Now, it appeared to him very essential that the outside public should understand the provisions of this Bill, inasmuch as they were much more interested in it than the lawyers. He knew of no Bill that came before the House that Session more deserving of careful attention than the present one. Let them consider the position of the Superior Courts of this country at the present time. We had the Courts of Equity, not only with an equitable, but, in some degree, a Common Law jurisdiction; our Common Law Courts possessed, on the other hand, not only a Common Law, but, to some extent, an equitable jurisdiction, though it was not much exercised. Then we had the Admiralty Court, the Probate, or Matrimonial Causes Court, and the Ecclesiastical Courts. These last were not particularly touched by the Bill, and he would pass them by; for were he to venture within their precincts he feared their proceedings would be so mysterious that he should not find his way out with a remnant of intelligence left. With respect to the Common Law Courts, it sometimes happened that they acted upon a system which he thought was a disgrace to the jurisprudence of any country. Those Courts had pronounced, after the consideration of the very same facts, different decisions, one of them deciding the law to be one thing, and. another, acting upon the same principle precisely, declaring the law to be quite another thing. Then, again, there was a different procedure in one set of Courts from that of other Courts—different practices and different modes of taking evidence. He thought, then, that any Bill which abolished all those various jurisdictions, and erected one great Court, possessing the jurisdictions and powers of all those existing Courts, was one which would meet the approval of any person really anxious 875 for a good, sound, sensible, and intelligible legal reform. But he could not help thinking, when they considered the many Divisions into which that one Court would be split up for the disposal of the various kinds of business contemplated by this Bill, that great object which it had in view would not be accomplished—he meant the fusion of Law and Equity. We should have, in the first instance, the High Court of Justice, split up into five divisions—namely, the Chancery Division, the Common Law Division, with the three Common Law Courts—the Admiralty Division, the Probate Division, and the Matrimonial Causes Division. Not only were the old names of the Courts to be retained, but the business would be so distributed that each of those Divisions would have that particular business which was peculiar to it, and the jurisdiction would be retained over all the cases in respect to which each of the old Courts had exclusive jurisdiction. It appeared, then to him, that practically we would have the same Courts as at present existed, possessing the same jurisdiction which they now enjoyed. And when they came to work this Bill they would find that things would go on pretty much the same as they had gone on before. If they wanted to amalgamate the present distinctions they ought to obliterate them altogether. If they wanted to fuse Law and Equity they must go about the matter differently than by the present Bill. The first thing the Legislature ought to do was to provide some means by which the Judges that were to preside on this tribunal should be equally conversant with the principles of Law and Equity, and with the various systems they would have ultimately to administer. In order to do that they must, so to speak, compel the Judges to investigate cases in which questions involving the principles of these various systems would arise. They must exercise and train them in the investigation of those systems, and until they were so trained they would not trouble themselves with systems which were novel to them, and which would impose considerable trouble and responsibility upon them. He did not for a moment intend to insinuate that the Judges were unwilling or incapable of engaging in the investigation of fresh systems and novel principles of jurisprudence, or that the Judges of the Com- 876 mon Law Courts were unable to fathom the depths of Equity, grapple with its principles, and deal out its remedies with the greatest possible satisfaction. Some members of the Equity Bar seemed to think that the principles of Equity were so abstruse, so recondite, and so mysterious, that it took a long time for the most brilliant intellect to master them, and they emitted the most pitiable cries at the idea of entrusting them to Common Law Judges. They regarded them pretty much as a lady did her pet dog, and they were afraid to let it out of the gates of Lincoln's Inn lest it should wander in the direction of Westminster, and some rude Common Law Judge should tread on its tail or give it a kick. He (Mr. Holker) believed that those fears were entirely unfounded. The principles of Equity were plain, simple, and intelligible, because founded upon the dictates of natural justice and sound common sense. But if even it were as abstruse, as refined, and shadowy as their Equity friends would have them believe, it would not be found too much for the very eminent men who presided over the Courts of Common Law. When Judges were obliged to investigate and administer a new system they had no difficulty in doing so. The system administered in the Probate and Matrimonial Court was new to Judges in that Court; and could it be said that Sir Cresswell Cresswell, Lord Penzance, and Sir James Hannen had not fully mastered its principles? The Equity Judges themselves had not always a Common Law Jurisdiction, but did they not soon overcome its difficulties and administer it with the greatest satisfaction? It constantly happened that Judges whose experience had been acquired solely as special pleaders or in civil cases went to the Assizes where they had to administer the criminal law, never, perhaps, having been engaged in a criminal case in their life, but did they fail in its administration on that account? In India, in the year 1862, they had amalgamated systems which before that time had been administered in separate Courts, and it was found that the Judges there had no difficulty in making themselves masters of the systems with which they had to deal. At the same time, while saying so much for the capacity of the Judges to master novel systems, he did not think they would do so unless 877 they were obliged. Judges were mortal—at least, he hoped so—and, like other mortals, they gave the preference to subjects which they understood, and looked down upon systems which they did not thoroughly comprehend. If he had his way in the matter, he would abolish the proposed distinction between the various Divisions of the Court. Have one High Court of First Instance, with certain Divisions—as many as were required—retaining the old names if they liked, and let the business be divided between each without reference to its nature. They would find in a short time that if the Judges were obliged to exercise themselves in the investigation of new systems and branches of the science of Jurisprudence, they would do it with the most complete satisfaction. To his mind it was not a good thing that the same Judge should always be engaged investigating the same kind of case. Fresh streams of thought should from time to time be poured upon the subject to give it energy, and force, and power. The suitors of the First Division of the Court would not be prejudiced if the Judges were one day engaged in investigating a breach of coal contract, the next a breach of a specific performance of contract for the sale of property, the next a matrimonial, and the next a case of collision at sea. In the administration of the law, as in many other things, there was utility, as well as charm, in variety. On the grounds which he had stated he feared that the Bill would fall short of accomplishing one of its great objects; but its defects on that point could easily be removed either in Select Committee or in Committee of the Whole House, and he hoped to see it made, what it was in other respects, a really good Bill. He would now make a few remarks upon the Appellate tribunal. He was quite aware of the evils which flowed from their present system of appeal. These double appeals were a serious evil, and were a fruitful cause of expense, delay, and uncertainty. When the defendant was a rich man the suitor was dragged slowly from Court to Court until his resources and patience were exhausted. It was therefore most desirable to have a good tribunal of Appeal. Whether the tribunal constituted by this Bill was a good one or not he could not pause to consider; but he could not avoid thinking that if three 878 Judges were to form a quorum, and were to decide cases, it would give little satisfaction to the suitor. He could not help expressing his regret that it was thought necessary to abolish the Appellate Jurisdiction of the House of Lords. He did not care what the House of Lords did or thought on the matter themselves. It was not a question for the House of Lords, but for the suitors of the country. He was not led astray by any view of the grandeur of the House of Lords or of its ancient prestige. He was too practical and utilitarian to treat the matter in that light, and the reason why he advocated in certain circumstances the retention of the Appellate Jurisdiction was the opinion which he had formed of its efficacy. They had been told by the Attorney and Solicitor General that the House of Lords was not a good tribunal, because there was only one Common Law Lord. [The SOLICITOR GENERAL dissented.] He was glad to hear that the Solicitor General was of opinion that the House of Lords was a good tribunal. [The SOLICITOR, GENERAL: I never said it was a good one.] Then the hon. and learned Gentleman thought it a bad one. However that might be, his (Mr. Holker's) experience, as well as the testimony of a great many other persons, had led him to an opposite conclusion. He did not care what it formerly was, when there was only one Judge sitting in the other House. He took the House of Lords as it now was. Although there might be only one Common Law Judge in that House, there were Law Lords there who understood the Common Law and administered justice with the greatest possible satisfaction. He did not think that there was anybody who had experience in the administration of the Law by the House of Lords for some time past who was not of opinion that the way in which it had been administered by that august tribunal was, on the whole, very satisfactory, and had the unbounded confidence of the country. He did not say that it would not be easy to improve the Appellate tribunal of the House of Lords, for they might have more Law Lords; but because this improvement was required was it necessary that the House of Lords should be abolished? He did not advocate the retention of the House of Lords as a Court of immediate appeal from 879 the Courts to be established under this Bill, for that would impose more business upon them than they could get through; but would it not be necessary in some cases where vast amounts of property were involved, or in other cases of great importance where the Supreme Court thought it necessary to have an appeal to the House of Lords, that there should be such appeal? Suppose the Appeal Court under the Bill should consist of three Judges, who overruled the decision of other three Judges in the Court of First Instance, would it be unjust to allow the matter to go up to the House of Lords? Would it not be most unjust to refuse to allow the suitor to go there? Again, where the Court to be established under this Bill should give leave, ought there not to be an appeal to the House of Lords? If the House of Lords was to continue as a Court of Appeal in Irish and Scotch cases, why should not such appeal be allowed in other cases? The question of establishing local Registries was one that had a great interest for people in the country. It was, in fact, a subject of disagreement between attorneys in the country and attorneys in London; but the House, without regarding one party or the other, should look to the interest of suitors alone; and if it should be shown in Committee that local Registries would produce a considerable saving of expense, or prevent delay, perhaps it might be well to establish them. There was one argument against them which he would bring to the attention of the House. The establishment of these Registries would, he feared, have a very evil effect upon the Junior Bar. He believed that there was nothing so essential to a perfect and satisfactory administration of justice as a good, strong, learned, and independent Bar; and if by this Bill they established local Registries, or erected Local Courts, they would in effect localize the Junior Bar, for the members of it must follow their business. This would withdraw them from London, and it would tend to deteriorate and degrade the Bar to a very great extent, which in itself would be a very great disaster. The question had been raised whether the Bill should be sent to a Select Committee; and surely a matter which was so technical as this should be examined with care. He could not see why the Government should ob- 880 ject to a Select Committee, for there was no hurry. What evil would happen even if the Bill should not pass this Session? Surely hon. Members on the opposite benches were sufficiently bound with laurel that they could spare this Bill for a future Session, when they might be in want of a triumph. In his opinion, if it went to a Select Committee they would probably get a good useful measure of sound legal reform.
§ MR. WATKIN WILLIAMS
said, that during the whole conversation upon the second reading of the Bill, no speaker had avowed an open hostility to the measure or expressed his intention to oppose the second reading. Many, however, had severely criticized the vital principles of the Bill, and there was a scarcely concealed intention on the part of some to attempt to throw it over indefinitely by referring it to a Select Committee. He had no hesitation in saying that if this Bill were referred to a Select Committee it would be lost for the Session, and no one could foresee when, if ever, it could be brought forward again. What, he would ask, was the necessity for sending this Bill to a Select Committee? For nearly 20 years many of them had been anxiously looking forward to the day when a Government would be found willing and also courageous enough to bring forward the great measure which was now before them for a second reading. The opinions of the most enlightened men in the profession had long been in favour of this reform. Royal Commissioners had reported in its favour; and the present Bill came before them recommended by the high authority of the Lord Chancellor and of Lords Cairns and Hatherley. He quite agreed that mere authority, however high, was not a sufficient argument in favour of any Bill; nor could the House of Commons relieve itself of responsibility in any act of legislation, upon the plea that it had been recommended by high authority, and he was glad, therefore, that there had been so full criticism on the Bill on this occasion. When the evils which it was intended to remedy, and the difficulties which stood in the way, were considered and appreciated, he ventured to think that the breadth and simplicity of design of this measure would strongly recommend it to the approval of the House. If the Bill was not perfect it was because 881 the very nature and difficulties of the subject rendered it impossible to deal at once more completely and perfectly with the vast and deeply-rooted subjects which required to be dealt with. The evils to be dealt with were summed up in the dual jurisdiction and twofold litigation, with the mysterious and technical forms of pleading which had too long been a reproach to our judicial system. In no other civilized country was any system of jurisprudence thus artificially divided into what were technically known as Law and Equity, and with us it had been a process of slow and accidental growth. The principal difficulty in the way of reform was the vast machinery of Courts, officers, and of practitioners, which had grown up and adapted itself to the present systems, which it was impossible suddenly to sweep away, and almost as difficult to mould to the new order of things. The present measure was admirably designed to carry out practically the desired reform of fusing the various and sometimes conflicting doctrines and jurisdictions of our Courts, and of simplifying the procedure by gradually moulding the old machinery to the new work. The very objections which had been raised to the Bill illustrated and entirely confirmed this view; one class of objectors had told them that the Bill did absolutely nothing, that it left all the Courts exactly as they were before, each with its old name and old exclusive jurisdiction, and that if anyone went away and came back after five years he would still find the old familiar Courts of Queen's Bench, Common Pleas, and Exchequer, and the Court of Chancery, each exercising its own jurisdiction with the same distinctions as at present. Another class of objectors complained that the Bill altered and revolutionized everything, that it abolished ancient and time-honoured institutions, and swept away great landmarks of the Constitution. Both these objections were untrue, but each contained an important truth, in which lay the real value and perfection of the Bill. The Bill, in fact, provided for a safe and gradual change, and contemplated a transitional period, during which the old order of things would be quietly and almost imperceptibly superseded by the new; and he ventured to say that although at first there would be scarcely any external or visible change, yet if the Judges 882 loyally carried out the provisions of the Bill, many years could not pass without a more sweeping and comprehensive reform being accomplished than had ever resulted before from one single act of legislation. Great and sweeping and novel as were the changes contemplated, this important precaution was taken, that if any practical difficulty should present itself in the way of any Court exercising the novel jurisdiction conferred upon it, the old lines were not abandoned, and the matter or cause giving rise to the difficulty could be at once remitted to that Court which, from past experience, would be most familiar with it. This was exactly carrying out the recommendations of the Judicature Commissioners, who, in their Report of March, 1869, gave it as their opinion that—The first step towards meeting and surmounting the evils complained of would be the consolidation of all the Superior Courts of Law and Equity with the Probate, Divorce, and Admiralty into one Court, to be called 'Her Majesty's Supreme Court,' in which shall be vested all the jurisdiction which is now exercisable by each and all the Courts so consolidated. This consolidation would at once put an end to all conflicts of jurisdiction. No suitor could be defeated because he commenced his suit in the wrong Court, and sending the suitor from Equity to Law or from Law to Equity, to begin his suit over again in order to obtain redress, will be no longer possible. The Supreme Court thus constituted would, of course, be divided into as many Chambers or Divisions as the nature and extent or the convenient despatch of business might require. All suits, however, should be instituted in the Supreme Court, and not in any particular Chamber or Division of it, and each Chamber or Division should possess all the jurisdiction of the Supreme Court with respect to the subject-matter of the suit, and with respect to every defence which may be made thereto, whether on legal or equitable grounds, and should be enabled to grant such relief or to apply such remedies …. as all the present Courts combined have now jurisdiction to administer. We consider it expedient, with a view to facilitate the transition from the old to the new system, and to make the proposed change at first as little inconvenient as possible, that the Courts of Chancery, Queen's Bench, &c., should for the present retain their distinctive titles, and should constitute so many Chambers or Divisions of the Supreme Court.The Commisioners also recommended for the same reason that a classification of the business should, in the first instance, be made on the principle of assigning as nearly as practicable to those various Chambers such suits as would now be commenced in the respective Courts as at present constituted, with power to the 883 Supreme Court to vary this classification as from time to time might be deemed expedient. An objection had been made to the Bill by his hon. and learned Friend the Member for Denbighshire (Mr. Osborne Morgan), who thought that the equitable jurisdiction conferred upon the new Supreme Court could not be efficiently exercised by the Common Law Judges, who would form an over-whelming majority of the Supreme Court, and he contended that it would be necessary to add new Judges so as to provide at least one Equity lawyer for each Division or Chamber of the Supreme Court. He could not concur in this view; but, on the contrary, thought that the number of the Judges was already larger than was necessary or desirable, and that with a better distribution of the business a fewer number could dispose of the whole work. As a Common lawyer himself, he would say if there was anything in the objection, which he did not believe there was, let it be met by filling the next few vacancies from the Equity Bar. There was a popular notion that there was something essentially and radically different between the doctrines of Law and Equity, and that those who were trained in the learning and practice of the Common Law would not be competent to deal with the sublime principles which regulated the decisions of the Court of Chancery. This was a gross fallacy, and one which could mislead those only who were ignorant of our Common Law and of our Constitutional history. The great leading principles both of Law and of Equity were the same; the law which governed the construction of contracts and wills, the interpretation of statutes, and the definition of duties between man and man, was the same in both—the law of evidence was the same in both—in short, there was no radical or fundamental distinction between the two great branches of jurisprudence known as Law and Equity. The distinction was mainly in the manner and kind of remedy which the different Courts had the power to apply, and which of necessity drew to each Court the class of case to which that remedy was most suitable. He felt confident that any man of intelligence and common sense and trained legal intellect would be equally competent to deal with any branch of jurisprudence, and, if he possessed the judicial faculty, would make a good Judge, otherwise he would not, 884 whatever amount of technical knowledge and dexterity he might have acquired in some particular branch of jurisprudence. Experience had proved that this was so, as in the familiar cases of Lord Kenyon and Lord Cranworth, Lord Lyndhurst, Sir William Grant, Sir Cresswell Cress-well, and Lord Penzance. The creation of the new Appellate Court was of the very essence of the Bill; without it the Bill must fail. He did not say that the decisions of the House of Lords had failed to give satisfaction, but the practical defect in the House of Lords as a Court of Appeal was the great delay, the enormous cost, and the uncertainty of its sittings, and the limitation of its sittings to the Session of Parliament. Now, the success of the new scheme was absolutely dependent upon having a speedy and economical appeal to a tribunal constantly at hand and continuously sitting. This Bill provided an Appellate Court of 14 Judges at the least, of the highest judicial experience and ability, who could sit in Divisions of not less than three Judges with power to have any appeal re-heard before the entire body if thought desirable. The inconvenient and unmanageable process of appealing by Bill of Exceptions or Special Case was abolished, and all appeals before this Court were to be by way of re-hearing and upon notice of motion, the importance of which in simplicity, expedition, and completeness would be understood by every man having practical acquaintance with the subject. His hon. and learned Friend the Member for Dungarvan (Mr. Matthews), having begun by approving of the Bill, and stating his intention to support the second reading, proceeded to attack the Bill in detail, and in a speech of great spirit and ability, which naturally produced a great effect upon the House, to demonstrate the uselessness or mischievous character of every important provision in the Bill. As he listened to the speech he scarcely knew whether he heard it with greater regret or astonishment. The learned Gentleman had raised a momentary laugh against his hon. and learned Friends the Attorney General and Solicitor General, whom he accused of not having sufficiently studied the Bill. But there was one fatal defect in the learned Gentleman's speech—namely, that there was not one of the telling arguments which he had addressed to the 885 House which was founded on fact. The most charitable view he could take of his speech was, that he had never read the Bill himself. He would give one example of his inaccuracy. He had said that—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 …. who were to be judges of both low and fact, and from whom there would be no appeal, and over whom the Courts would have no manner of control."—[3 Hansard, ccxvi. 679.]It was impossible for any man who had read the Bill to have made that statement. Clauses 53, 45, and 55 made the referees officers of the Court, gave the Court complete control over them, and enacted that the Court might adopt their reports in whole or in part, or might set them aside or remit them back for, further consideration; thus giving the Court, in fact, the most absolute and complete control over the referees. What, therefore, became of the hon. Gentleman's statements? The truth was, that next to the creation of the new Appeal Court, the institution of the trial by referees was the most valuable part of the Bill—a vast number of causes were unfit for any other mode of trial, and at present the parties were in such cases always ultimately driven to references after an enormous waste of time and money. Under this Bill the Courts had power, in the first instance, to determine the proper and suitable mode of trial. He ventured to express his opinion that the Bill was an admirable one, and fully carried out the recommendations of the Royal Commission; and he sincerely trusted that the House would not listen to the suggestions of sending it to a Select Committee, but would proceed without any unnecessary delay to pass into law one of the greatest measures that had ever been presented to Parliament, and, in spite of prejudice and in opposition to interest, would at last remove from our jurisprudence that which had too long been its reproach and disgrace, and would give us a grand and uniform system worthy of a great and civilized nation.
§ DR. BALL
said, the House had been engaged for two evenings in discussing not only the second reading and the provisions of the Bill, but also three propositions—two of which had been actually brought forward, and a third, which it 886 was intended to bring forward after the question as to the second reading had been determined. There was, he apprehended, a concurrence of opinion on both sides of the House that the second reading of the Bill should be agreed to, and that it should afterwards receive the careful and attentive consideration of the House, with a view to any alterations which might appear to be real improvements. As to the Amendment of the hon. and learned Member for Salford (Mr. Charley), he would suggest that it should not be pressed to a division, because on the second reading of the Bill it did not come before the House with that weight to which it might otherwise be entitled. It appeared to be antagonistic to the Bill—partly by reason of its inconsistency with the Bill, and partly because it interposed a question of, at least, as great magnitude as the whole Bill. If a division were to be taken at all on this point, it ought to be taken, not on the second reading, but on the clause which effected the alteration complained of in the Resolution. And here he must point out, as an additional reason for not pressing this Resolution at the present time, that the question of the Supreme Appeal to the House of Peers was wholly independent of every part of the Bill except one clause and a few words at the end of another. If, therefore, with the exception of that clause and part of a clause, the Bill became law, the Appellate jurisdiction of the House of Lords might remain in perfect consistency and harmony with it. As to the second Amendment to the Bill—that of the hon. and learned Member for Denbighshire (Mr. Osborne Morgan)—he hoped that that would not be pressed either, because it was entirely inconsistent with the whole principle, scope, intention, purport, and declaration of the Bill, for it proposed to proclaim that the man who practised in Equity, and the man who practised in Common Law, were separated by a line of demarcation which it was impossible to pass. The third Amendment, however—that for referring the Bill to a Select Committee—appeared to him to be well deserving of grave consideration. But it would, perhaps, be more convenient to show first in what respect the proposition would be useful, and in what respect it would be mischievous. No doubt the best course would be that which to some 887 extent had been followed already—namely, that hon. and learned Members of eminence in their profession should point out in what respect the Bill deserved decided approbation, in what respect its clauses were susceptible of amendment, and in what respect its clauses were to be decidedly objected to. He would deal first with that which was the foundation of the whole system of administration of the law. He referred to the Courts of First Instance. A vast deal more had been said as to the effect of the Bill than was justified by its provisions in regard to those Courts. The Bill, undoubtedly, created one High Court for the administration of the law; but immediately afterwards that High Court was re-subdivided into five separate Divisions, and, to his mind, it was a matter of perfect indifference whether those Divisions were called by the names of Courts or by the names of Divisions. He did not quarrel with that subdivision. On the contrary, in all that related to that part of the subject his opinions went entirely with those expressed by the two Law Officers of the Crown in that House. There was, however, a radical and essential distinction in the nature of things between what was termed Equity and Law; but there were an enormous mass of subjects which were common to both. All deeds, documents, wills, and Acts of Parliament were subject to the same rules of construction both in Law and in Equity. Again, many of the relations between human beings were dealt with both by Law and Equity in exactly the same way. But in our complicated and artificial society there was an inevitable necessity for making a distinction in another class of cases. Wherever there was a trust under a will in which the executor might be taken to represent the external action of the law, and the legatees to represent the internal ownerships and obligations which existed among themselves, or wherever there was a trading corporation, which was an abstract entity, in relation to its property, to the external world, but all the members of which, between themselves, had relative rights and connections, it was impossible to say that such a distinction did not come into operation, and this Bill had nowhere infringed on the distinction wherever it really existed. But the Bill gave the power of adminis- 888 tering the two systems in the same Courts. At present, wherever a right which impeded the external relation existed it would be administered in the same Court; but the; nature of things made it obligatory for convenience that there should be a Court like the Court of Chancery, as preserved by this Bill, for administering estates, for enforcing contracts for specific performance, and for other things, and convenience gained by having separate Courts. No doubt, it was intended that these Courts should continue distinct, and the Bill also looked to some extent to the practitioners in them. For example, the same Court was to have the Admiralty jurisdiction, the Divorce jurisdiction, and the Testamentary jurisdiction. It was difficult to understand what connection there could be between frail women and frail ships to bring them before the same tribunal; but the reason for the arrangement was that what was called the Civilian Bar had long practised in these subjects, and the civilians would be found to be intimately acquainted with them. He saw no reason to dissent from the provisions of the Bill with respect to these Courts. Some rules were laid down in the Bill to guide the action of the Courts, and it had been provided that where the doctrines of Law and Equity came in conflict the Equity doctrine should prevail. With that provision he also agreed, but the next was one which, he thought, ought not to be in the Bill. It was one which did not affect the administration of the law or the form of the Courts; but it was absolute and actual law itself. It was contained in the 22nd clause, and provided that 10 changes should be made in the law of the land. He was in favour of the proposed changes; but he thought they ought to be contained in a separate Act. The first of the provisions was a very serious one. It provided that if a person died with property insufficient to pay his debts, the property should be administered according to the principles of the Law of Bankruptcy. He did not know what might be the Law of Bankruptcy in England, but in Ireland a fiat in bankruptcy put all claims upon the same level; and if it were the same here, then those who had a priority of claim would be placed on the same footing as the other creditors. That might be very well for the 889 future; but the Bill was retrospective, and deprived those who had such priority of claim or that which was their present right. Again, this was a provision to be administered by the Supreme Court in England, so that if a man went over to Ireland and died there, his estate would be administered according to one law in England and according to another law in Ireland. This Bill said the property should be administered according to the law of England. Another of these provisions—the 9th—provided that—In any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault the rules hitherto in force in the Courts of Common Law, so far as they have been at variance with the rules in force in the High Court of Admiralty, shall prevail.Now the jurisdiction of the Court of Admiralty did not apply to domicile, but came into action whenever the ship was attached. Hence it would depend upon whether a vessel, after having been in collision at the farthest part of the world, came into Cork or Liverpool, whether she should be assessed in damages according to the old rule or according to the new. He therefore thought that instead of limiting the administration of these provisions to this new Supreme Court in England, they ought to be embodied in a specific Bill, and made a positive enactment. He came to another matter relating to the Primary Courts. That Bill had been several times called a skeleton Bill. Immense powers were given by it to the Judges to make rules. They were to make rules that would regulate the circuits, which were now regulated by statute. He thought the measure bore a great many more marks of an Equity hand than of a Common Law hand in everything except the rules at the end. The proposed improvements of the Law appeared generally to emanate from an Equity mind. They were told that the Lord Chancellor had been his own draftsman; but he took it there had been a second hand employed on the Common Law part of the Bill, and that hand was not equal to the hand that had been engaged on the Equity portion. At every turn it was assumed in the measure that the Judges might alter the rules which Parliament passed. The Judges were to have a meeting every year, with the Lord Chancellor at their 890 head, to adjudicate upon and make those rules. He was anxious at all times to obtain for the Judges all the respect that was due to their office; still he was not for placing in their hands more than a limited power. Their power should, he thought, be confined to procedure. He begged to ask the Law Officers of the Crown whether the Judges would not have power under that Bill to abolish the Western Circuit. Many minutiœ connected with the Bill it was impossible to discuss and decide satisfactorily in that House; and that was a reason for referring the measure to a Select Committee. The patronage involved in a Bill of that kind was a matter of very considerable importance. According to his understanding of the matter, there was to be a very considerable shifting of patronage. In England the Lord Chancellor had, not by a Statute or a Law, but by a sort of comity on the part of successive Prime Ministers, the right to nominate the Puisne Judges in the Common Law Courts; but he had no right to nominate the chiefs of the Common Law Courts, the Vice Chancellors, or the Judges of the Court of Probate and the Court of Admiralty. He would ask for an explanation of a passage in the 5th clause, which appeared to shift from the Prime Minister to whoever was Lord Chancellor a very considerable amount of patronage. When the Attorney General spoke of the appointment of Equity lawyers to the different Courts, the person to whom he alluded as having the right of nomination was the Lord Chancellor for the time being. The clause said that—Whenever the office of a Judge of the said High Court shall become vacant, a new Judge may be appointed thereto by Her Majesty, by Letters Patent. All persons to be hereafter appointed to fill the places of the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron, and their successors respectively, shall continue to be appointed to the same respective offices, with the same precedence.And it went on to declare that—Every Judge who shall be appointed to fill the place of any other Judge of the said High Court of Justice, shall be styled in his appointment 'Judge of Her Majesty's High Court of Justice,' and shall be appointed in the same manner in which the Puisne Justices and Junior Barons of the Superior Courts of Common Law have been heretofore appointed.He presumed the intention of the clause 891 was that the Probate, Admiralty, and new Judges should be appointed by the Lord Chancellor; and many members of the English Bar wished him to have the patronage rather than the Prime Minister, but the feeling of the profession on this point ought to be ascertained by a Select Committee. Every chief ought to have the appointment of the referees of his particular Court; but the amount of patronage that was accumulated in the hands of one individual would not be endured in Ireland. There was, however, this fairness in the matter—that the Bill proposing to give this gigantic amount of patronage to one man would not come into operation until the 2nd of November, 1874, being after the time that the Dissolution would have settled which Government would have the patronage. Cardinal questions, such as the Appellate Jurisdiction and the five Divisions of the Court, should be excluded from the consideration of the Select Committee, and it should confine itself to the minutiœ specially interesting to lawyers as to procedure and the power of making rules. He believed that with the Attorney General in the chair, and his power of soothing the most obstinate, these questions would be settled with slight mutual concessions, and would not be re-opened in the House; whereas if there was no Select Committee they would be discussed at a length disproportionate to their importance, as was the case with the Ballot Bill and the Juries Bill. As to the Schedule, he could not believe it was drawn by Lord Selborne, and the Government must have discovered that it was an error, and would provoke controversy on the most trifling matters. The length of the discussion at this stage about registries, referees, and small matters of procedure and pleading, foreshadowed the length at which they would be discussed in Committee of the Whole House, and a Select Committee would really expedite the matter. As to the referees, he thought the Chief Judge of each Court should appoint the referees connected with his Court, and that there should be provisions as to salaries and qualifications. Up to this point they had, like true statesmen, reformed and amended, nowhere destroyed. He now came to where they had destroyed and where they had created, and with regard both to the destruction 892 and creation he was equally opposed to the present measure. The question was not whether there were defects in the Appellate Jurisdiction of the House of Lords which imperatively demanded interference; but whether it was not their true policy to retain that jurisdiction and amend and improve it. If they adopted another course, history might show that they had been adequate to destruction, but unequal to construction. Not any of the observations which had been made by hon. Members had disposed of the propositions made by eminent Law Lords in former times for making the House of Lords an efficient legal tribunal. The way in which that part of the case had been presented was very singular. His hon. and learned Friend had thrown the authority of the House of Lords itself, and how could he maintain what the House of Lords had cast away? He would pay every respect to the decision of the House of Lords if reasons had been given sufficient to explain the reasons for the surrender of its jurisdiction—namely, that the House of Lords would not place its privileges in the way of the construction of a perfect system. Now the jurisdiction of the House of Lords was no privilege. It was a trust—a duty cast upon it by the Constitution, and the will of the people of England through that Constitution. That House had no right to abandon a sacred trust and a duty. If it was necessary to have a Supreme Court it ought to consist of those who had been accustomed to the discharge of the duty of such a Court. The real question was—and it was one which the House must determine—Was it for the good of the community at large that this paramount authority should be maintained? The jurisdiction of the House of Lords ought to be looked at in two points of view—one political, the other forensic. First, politically, he assumed that the Lords were to remain a second Chamber and an hereditary Peerage. They had had jurisdiction in Common Law cases from time immemorial, and as regarded Equity from the time of Charles II., which was not very long after Equity began. To take away that jurisdiction of the House of Peers would diminish their weight and authority in other and indirect matters. Let the House consider how the great men of the law had been connected with our history, and what influence 893 they had exercised. What brought them there? If there had been no Common Law jurisdiction they would not have been there. What brought them there? The necessity of Governments to strengthen the administration of the Law in that House by the introduction of the ablest lawyers. Then, again, it brought to that House persons of peculiar talent so far as regarded the administration of the law. If the inducement to place lawyers in that House was taken away—which would be the effect of this Bill—it would weaken the strength and power of that body. Looking at the matter forensically, they must arrive at the same conclusion. There was great difficulty in getting legal men to take Peerages. Almost the sole reason was that it might lead to the Chancellorship. The effect of the Bill would be to diminish the number of lawyers amongst the Peers. The Bar had derived great lustre from its connection with the House of Peers. Every profession was estimated by the head of it, and, as Sydney Smith said, it would be a sad day when they began levelling down. This Bill would tend to dissociate its connection with the highest and greatest body in the country. It might be said that this speculation would not be fulfilled. He would give an instance in point. When the Whigs quarrelled with Lord Brougham, and Lord Melbourne came into office, his Lordship determined to have no Chancellor Peer in the House of Lords, and put the Great Seal in commission. The arrangement went on for a while, but did not last long, and Lord Melbourne had to appoint Lord Cottenham a Peer. The Ministry was thus forced into the creation of a Law Peer. The Minister would consider simply what would suit his purpose, and not the elevation of the Bar. The Law Lords had generally been chosen for their great eminence in the law. The law had been, was, and would be benefited by keeping up this connection. He held in his hand a most able and valuable work of Lord St. Leonard's upon the law of real property, which testified to the great philosophical as well as legal powers of that learned Lord. The decisions of the House of Lords in the Bridgewater and Banbury Peerage, and other important cases, showed that that House was no mere registry of the decrees of the Courts below; that in its decisions it had gone 894 outside mere technicalities of law; and that its decisions, whenever they had gone against technical law, had been founded upon an expansive and broad public policy. He thought it was a tremendous advantage to take the men of any profession out of the immediate atmosphere of that profession when they were required to pronounce a sound and impartial judgment upon a matter affecting the public interests. In referring to the manner in which the Bill dealt with this appellate jurisdiction, he confessed he was astonished at the arguments put forward both by the Attorney and Solicitor Generals. The former hon. and learned Gentleman observed that as the House of Lords sat only half the year, he saw no reason why they should not sit the whole year. And, again, he said that a Common Law case referred to the House of Lords was generally practically decided by a Common Law Lord. And. yet the principle of the Bill he proposed was, that a good, intellectual, and well-trained mind was as competent to decide a question of Equity as any lawyer. He (Dr. Ball) totally differed from his statement and his reasoning. He maintained that the decision of the House of Lords was the decision of every Judge in that great Assembly. But the Solicitor General said that there were two or three octogenarians amongst the few Law Lords of that House—and he made that statement in the face of the appeals that were coming from Ireland in the several actions which had been taken against the noble Marquess the Chief Secretary for Ireland and Mr. Burke, the Under Secretary, and other persons connected with the Irish Government, in consequence of the proceedings that had taken place at the Phœnix Park meeting, in every one of which actions a verdict had been returned against the Government. The chief point to be decided, touched, in his opinion, some very serious questions of Government—namely, whether a Minister of the Crown was answerable for the acts which took place in the Park on that particular day, when by his orders the police interfered to suppress such meeting. At such a time as that the Solicitor General took care to prepare the people of Ireland for the treatment those appeals were likely to receive from what he called three or four octogenarian Law Lords. Suppose they should die, and the tribunal be re- 895 duced to the Lord Chancellor—a member of the same Cabinet as one of the defendants—and the Irish Lord Chancellor, there would be presented the spectacle of a Ministry judging its own appeal; for, according to the Solicitor General, there was no assurance that any new Law Lords would be appointed. That observation from the Solicitor General appeared to him (Dr. Ball) very like a guarantee that such Peers would not be continued to form that tribunal upon which the Minister had written its doom. The Irish would wish to have the old tribunal preserved; but they had no idea of being consigned to the sort of tribunal which was proposed. The Irish Judges and the Irish Bar had passed some resolutions on the subject, the Judges declaring that it was of essential importance that there should be a right of Final Appeal from the Courts in Ireland to the same tribunal which decided English appeals, and that in the event of a new Court of Appeal being substituted for the House of Lords, a suitable number of Irish Judges, both of Law and Equity, should be associated with the English members of the Appellate tribunal; while the Bar declared that in order to preserve uniformity of decision in the Courts of Law and Equity in England and Ireland, it was essential that there should be the same Final Court of Appeal for both countries; and that as the amount of property involved in many of the Irish cases did not admit of an appeal to England, it was desirable that the Local Courts of Appeal should be preserved. The other day property in Ireland of the value of £50,000 a-year was bequeathed on the same sheet of paper which bequeathed English property also. Were the Irish to be told that the succession to that property might be determined one way in England and another way in Ireland? Was that an enlightened jurisprudence under which one man might be the owner of one property and another of the other under the same will? It was idle to talk of this portion of the Bill as even resembling statesmanship. There was something worse even than that. The great criminal cases which had settled everything came from Ireland. While Ireland had produced the case of "The Queen v. O'Connell," "The Queen v. Mills," and "The Queen v. Gray," there had been a great scarcity of 896 criminal cases from England. If these cases did come the Legislature ought to guarantee that they should be decided by the ablest tribunal that could be procured. If a second O'Connell prosecution should occur, there was not a particle of the language used by the Attorney General that would not recoil upon the English Government at the first moment. He hoped that Scotland, which was equally interested with Ireland, would not slumber on this question. The question also arose what was to be done with the Privy Council? Why had it weight in Ecclesiastical causes? Not because it contained Bishops and men of eminence; but because it contained men who had an adequate knowledge of the law. Under the Bill the Judicial Committee would not have any jurisdiction in English cases except on Ecclesiastical questions. There might be a Minister of ritualistic propensities, and to whom the ambiguity of language constituted its chiefest charm, who might put a Judge on this tribunal with sole reference to its Ecclesiastical decisions. He objected entirely to so great a jurisdiction being left in a tribunal which would be supplied with the sole object of meeting it, and the sole consideration of which would be theology and not law. The only true principle was that the whole Appellate Jurisdiction should be drawn to one great head and fountain which should be surrounded by every accessory of grandeur, hereditary greatness, and tradition that could give it lustre. There was no hurry in legislating on this question, and if the Government contemplated a measure he would recommend them to leave the House of Lords paramount until they were in a position to deal with the Appellate tribunal for the three countries together. The Attorney General stated that the House of Lords, in the O'Connell case, abandoned their jurisdiction at the solicitation of the Duke of Wellington. The Motion was, however, made by Lord Wharncliffe. As to the Appeal Court, he objected to the number of its members. There were to be five ex officio Peers, and nine ordinary members, and there would be power to call in any ex-Chancellors of England or Ireland, or any high judicial functionary from Scotland. Satisfaction would not be given if the decisions of such a man as the Lord Chief 897 Justice of England were to be overruled by any three of the Judges taken from this Court. Under the Bill decisions from the Court of Chancery might be reversed by any three Common Law Judges. He contended that this was a wrong principle. One great advantage of the Appellate Jurisdiction of the House of Lords was that the members of that tribunal were separated from the members of the tribunal from which they heard appeals. Under this Bill they might have three or five Appellate Courts sitting at once, and they might possibly be adjudicating in a directly antagonistic way to each other. How could there be consistency and firmness in the Appellate Court unless the same men were sitting with unity of purpose, feeling, and decision from day to day? He objected also to calling the whole body of the Judges together for the same purpose, for, as an Irish Judge had observed recently, the number of the Judges destroyed the sense of responsibility. Where there were numbers also they were sure to be divided into parties. He would much sooner have five of the greatest men they could get having no other business but that of hearing appeals; not sitting beside men whose decision they might be called on to reverse, but sitting at an altitude from which they could look down upon all from whom appeals came. The ordinary Appellate Judges were to have £6,000 a-year, whilst if an ex-Lord Chancellor, like Lord Cairns, should become attached to the Court he would have only his pension. Since they had had paid Judges at the Privy Council had they got a single unpaid man to sit there? The very same thing would occur again. The Bill seemed to be constructed so as to shut out every appellate Peer except the Lord Chancellor. When they should have some great criminal case come up it would be a very serious thing that they should have the Appellate Court presided over by the Lord Chancellor, a member of the Cabinet which had, perhaps, advised the prosecution. Such a case there was no provision for, and, indeed, it might have to be decided by Equity Judges. It was true that the Judges might make arrangements among themselves; but he contended that the arrangements for an appeal in such a case should not be left to the Judges to make as they should think fit, but that 898 they should be regulated according to the will and decision of Parliament.
THE ATTORNEY GENERAL,
in reply, said, that before they went to a division it would be right that he should say a few words in reference to the debate that had taken place, and mention also those parts of the Bill in which the Government would propose alterations in Committee. In spite of the speech of the right hon. and learned Gentleman (Dr. Ball) he would endeavour to show to the House that the general principles of the Bill were such as they might fitly sanction. As to the Appellate jurisdiction of the House of Lords, to which nine-tenths of the speech of the right hon. and learned Gentleman had been directed, that was, he apprehended, settled, or, if not, he trusted it would in the division which was about to take place be settled for the purpose of the Bill. If it had been doubtful what the Government would do as to the Motion of the hon. and learned Member for Salford (Mr. Charley), they could no longer hesitate after the speech which they had just heard. That speech was in a spirit of such hostility to the Bill that he asked the House at once to settle the great question that had been raised. Whatever might be the opinions of those hon. Members who had spoken he believed that the public opinion for years had been that the Appellate jurisdiction of the House of Lords, so far as England was concerned, could not be permanently maintained. It had become generally acknowledged that it only needed a disposition for change on the part of the House of Lords and a vigorous Lord Chancellor to propose it to put an end to the existing state of things. The right hon. and learned Gentleman (Dr. Ball) had declared that the people and Judges of Ireland were in favour of the present system; it was precisely for that reason that Ireland had been excepted from the operation of the Bill. But if the people of England desired that the Appellate jurisdiction of the House of Lords should be abolished as far as English cases were concerned, why should it be retained because the Irish people wished to retain it for themselves? They had heard of justice to Ireland; but he apprehended that this was a case of justice to England. The right hon. and learned Gentleman expressed his perfect satisfaction with the decisions of the House 899 of Lords. He (the Attorney General) was not equally satisfied. The right hon. and learned Gentleman thought the Brownlow decision, the decision in the case of Lady Wilde, and the decision in the Crimean case satisfactory. But in that he differed altogether from the right hon. and learned Gentleman; neither did he concur in the opinion that the Lords who formed the Court of Appeal in the House of Lords were the greatest statesmen and the wisest men, and perfectly fitted to reverse the decisions of the great Judges of England. There was another matter with which he wished to deal. The hon. and learned Gentleman the Member for Dungarvan (Mr. Matthews) charged him with not reading the Report of the Committee that sat upon the subject. But he was mistaken. The House of Lords did not recommend Peerages for life, but only that the members of the Court of Appeal should be Peers as such, but not be entitled to sit or vote on any subject of a legislative character. The right hon. and learned Gentleman (Dr. Ball) said that three of the heads of the High Court of Justice were to be paid £6,000 a-year; while the remainder of the Judges were to get £5,000 only; so that it was evidently meant to cast a slur on such a distinguished lawyer as Lord Cairns, who would be one of the inferior Judges. Now, his answer to that assertion was that in the original draft of the Bill the salary of all was put down at £5,000 a-year, which was altered in the House of Lords, as the Bill now stood, to £6,000 a-year to the Chiefs of the Court. The right hon. and learned Gentleman had attacked the patronage parts of the Bill. The referees were to be officers of the Court or of the divisions of the Court, and in the latter case the patronage would not rest with the Lord Chancellor, but with the Presidents of those Courts. The right hon. and learned Gentleman should have taken care of his facts before making such allegations. There was one point on which the House was entitled to some explanation. His hon. and learned Friend the Member for Denbighshire (Mr. Osborne Morgan) had dwelt with some warmth on the fact that the new Court of Appeal, which in practice would decide great Equity cases, would, striking out the five ex officio members, consist of a number of distinguished persons, of whom only two would 900 be Equity men. Now, he felt that was not a satisfactory position of affairs. This was a matter in which his right hon. Friend at the head of the Government and the Chancellor of the Exchequer felt they should not haggle about money. If the thing was worth doing, it was worth paying for to do it well; and what was proposed was this—that instead of the provision in the Bill there should be left to the Queen not an unlimited selection, but a selection with certain qualifications, of persons, not from the Common Law Bar, to fill the places of the three Puisne Judges. This might create a permanent charge; but he thought it not unreasonable, and he hoped it would afford considerable satisfaction to his hon. and learned Friend. There were several other changes, not, perhaps, of any great importance, but which he trusted would meet the more reasonable objections which had been brought forward against the Bill. A reference to a Select Committee meant postponement for another year, which, in the present condition of affairs, meant relegating the whole matter to an unknown future. He begged to thank the great body of the House for the temper and spirit in which the Bill had been discussed. The question about the Vice Chancellor was still under consideration, and might be dealt with in Committee. He had only to express a hope, in conclusion, that the House would negative the Amendment of the hon. and learned Member for Salford (Mr. Charley.)
§ MR. CHARLEY
said, his only object had been to secure a full discussion of the measure, and having attained that object, he wished to withdraw his Amendment. ["No!"]
§ Question put, and agreed to.
§ Bill read a second time, and committed for Monday 23rd June.