§ Order for Committee read.
§ Motion made and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Gladstone.)
said, he had to offer a few remarks on the important subject mooted by the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), and, if the statement he had to make should be conformable to the views of his right hon. Friend, it might save both him and the House some trouble. His right hon. Friend had proposed that whatever might be the final Court of Appeal constituted under the Bill, the same should be the final Court of Appeal for Ireland and 1562 Scotland. With reference to that Motion, it was right that he should recall to the recollection of the House the declarations of his noble and learned Friend the Lord Chancellor and of his hon. and learned Friend the Attorney General in introducing the Bill respectively to both Houses of Parliament. They stated that it was obvious it could not be considered, in the abstract, a merit in a measure of this kind, that it should deal with the Court of Appeal for one of the three countries only, leaving Scotch and Irish appeals to be still decided by the House of Lords. On the contrary, it was their view, as it must be the view of all, that to establish one Court of Appeal for all three countries was a great object of policy in the improvement of our jurisprudence. That being so, they had to give to Parliament the reason which led them and the Government to think that it was better, as the circumstances then stood, to confine their efforts to the establishment of a Court of Appeal for England alone. That reason was of a simple character, because it relied entirely on the opinion stated to prevail in Scotland and Ireland. They founded themselves on what they deemed to be no uncertain indications of that opinion, for evidence had been taken before the Committee of the House of Lords, to the effect that the "profession" and the people of Scotland and Ireland would greatly prefer that the Appellate Jurisdiction should continue in the House of Lords. That was the reason which induced the Government to adopt the form of the Bill as it now stood. But his right hon. Friend having raised the question anew, the Government had thought it their duty to make new inquiries, under the altered circumstances of the case, for the circumstances of the case had greatly altered. The opinion of Ireland and Scotland, which was unfavourable to the transfer of their appeals, was founded on the supposition that the appellate jurisdiction of the House of Lords was to continue in its entirety, and that the House of Lords would not only have the machinery, but the habits and traditions of a Court of Appeal in pretty constant action; whereas, on the contrary, by the introduction of the Bill, the position of the House of Lords would be materially, he might say essentially, changed, not only with respect to the mass of English 1563 appeals, but likewise with respect to the residue of business from Ireland and Scotland which would still theoretically and legally remain to it. No one could suppose that if the Bill were to pass, the House of Lords could continue to possess and exercise the same legal force, or to enjoy the same judicial weight in the country. The question which the Government had to put, therefore, was whether, presuming the jurisdiction of the House of Lords to be taken away as far as regarded English appeals, Irish and Scotch appeals should still remain to be decided by it. The question of the removal of English appeals might now be regarded as concluded. In the first place, it had been proposed by the Government to the House of Lords. In the second place, it had unanimously, or, at least, with substantial unanimity, been voted by the House of Lords, there having been no division on the subject, and a Bill removing that jurisdiction had been sent from the House of Lords to that House. In the House of Commons a greater diversity of opinion had been expressed by individual Members; but, after long and interesting debates of a discursive character on various provisions of the Bill, no division had been taken on this subject; and that House, following the steps of the other House of Parliament, had voted the removal of the appellate jurisdiction in English cases from the House of Lords. That being so, those who represented Ireland and Scotland were not only willing but desirous that the jurisdiction as to Irish and Scotch appeals should be removed from the House of Lords, and that the Bill should be adapted to those altered circumstances, o as to give the measure a character of greater completeness and efficiency. The question, therefore, which arose was, whether it would be possible so to adapt the measure without endangering its passing during the present Session, for he need not say that to endanger a measure which had been the result of such prolonged labour and consideration, and which contemplated improvements of such great importance, would be entirely contrary to the duty and inclinations of the Government. Well, the Government had arrived at the conclusion that it would be quite practicable to introduce into the present measure the changes necessary for effecting the purpose his 1564 right hon. Friend had in view, as the Government understood it, without imposing upon Parliament any such additional labour or introducing any such great alterations into the structure of the Bill as would make it run any serious risk. He understood, however, that both in Ireland and in Scotland certain consequential changes might be found necessary owing to the transfer of Scotch and Irish Appeals to the new tribunal. He was not prepared, however, to say that it would be practicable to deal with these consequential changes during the present year, considering the point of the Session at which we had arrived. The question was, whether it would be possible to give the Court such a constitution and form as to make it a thoroughly satisfactory Court of Appeal for all these cases. That he understood was the object of the Motion of his right hon. Friend, and to that extent they concurred with him, and they would be prepared to propose changes, the precise form of which he could not now undertake to indicate, which, according to their views, and he hoped according to the judgment of the House, would have that effect. Now, as to the form of procedure, he would say one word. It would be possible to proceed in several methods for this purpose. It might be possible to introduce a separate Bill, introducing provisions so as to make the Bill applicable to Scotch and Irish appeals; but he did not ask the House to proceed in that method, because an element of uncertainty might be introduced with regard to the fate of that Bill which he was desirous to avoid. They might also proceed, by way of Instruction, to enable the Committee to change the Bill, so as to apply to Scotch and Irish appeals; but as no Notice had been given, that could not be done with regularity to-day, and though he believed it was not absolutely prevented by the forms of the House, it was not thought desirable to give Instruction to the Committee during the period when the Bill was in Progress. It was better that after the Speaker left the Chair and the House had entered on the details of the Bill, no change of that kind should be made at that stage. There was another course which was perfectly regular, and would be satisfactory to the House to pursue. What he should propose was this—to go through the Bill on the 1565 clauses as it stood, without touching in the Committee the subject-matter of the Amendment of his right hon. Friend; but while the House was in Committee, they would give Notice of the provisions they proposed to introduce to give effect to that Amendment, and when they had reported the Bill after Committee, they would propose to re-commit it for the purpose of giving effect to those changes. He hoped he had sufficiently explained to his right hon. Friend and the House the views they entertained, and the satisfaction with which they felt themselves able to accede to the Amendment of which he had given Notice.
§ DR. BALL
said, he must express his deep regret that the Government had thought it desirable to abolish the hereditary Court of Appeal in the House of Lords, and he must say that a great opportunity had been lost for preserving that Court. It was a tribunal of high reputation, credit, and authority, and if it could have been retained, no one would have been a stronger advocate for its retention than himself. But, since it was to be abolished, he thought it most undesirable that there should exist several distinct Courts of appeal dealing with the same law, considering the danger of conflicting decisions on the same subject. It therefore became a matter of vital importance that the Representatives of Ireland and Scotland should consider how they would be placed by this Bill. The view taken in Ireland had been modified by the course of circumstances. The Judges there had come to an unanimous resolution, expressing the wish that Irish appeals should be heard by the same tribunal that heard English appeals. The Irish Bar had come to a similar resolution; they had also passed another resolution, that in the Court of Appeal the Irish Bench should have a fair representation in the constitution of the tribunal. With respect to the Statute and Common Law of Ireland, while the latter was the same as that of England, the former was not, in consequence of the legislation of the Irish Parliament, and also in consequence of the practice which had since prevailed of legislating exceptionally for Ireland; and, therefore, a fair representation of the Irish Bench was necessary. If, in the constitution of the tribunal, the Members composing it were small in number, of course the Irish representa- 1566 tion would be proportionally small; but if, on the other hand, the tribunal was numerously composed, then the Irish representation should be increased and adjusted in proportion. Then, with regard to Scotland, whose laws were different in many respects from those of England, it would be necessary that Scotland should also have a fair judicial representation in the constitution of the tribunal. He hoped the right hon. Gentleman at the head of the Government would not think that they were making any extraordinary or extravagant demands. In asking what he did for Ireland, he felt he only asked what was fair, and that the Irish Judges should have the same salaries as the English Judges.
§ MR. BOUVERIE
thought the statement of his right hon. Friend at the head of the Government must be satisfactory to all those who were disposed to support the Motion of which he (Mr. Bouverie) had given Notice. There was now no necessity for him to make that Motion, the course of proceeding indicated by his right hon. Friend being perfectly satisfactory to effect the object he had in view. On the part of his Scotch Colleagues, who sympathized with the object of his Motion, he would say that they also sympathized with what had fallen from the right hon. and learned Gentleman opposite (Dr. Ball), that to make the Court satisfactory and efficient, it would be necessary to have a fair representation of the Judges of the two sister countries on the Appellate Tribunal. He was glad his right hon. Friend had acceded to his proposal. The Government had originally concurred in the object of the Motion; but they had been deterred from making the proposal by an apprehension that the Representatives of the sister countries would not concur in the change. The fact, however, was, that when English appeals were removed from the House of Lords, it would have been impossible to retain the Irish and Scotch appeals there, because such appellate jurisdiction was a mere off-shoot of the more ancient appellate jurisdiction for England. That jurisdiction, he believed, had existed before Parliament itself, for it was part of flue authority of the Concilium Magnum. It might have been possible under other circumstances to have modified and retained the jurisdiction of the House of Lords. But that time had gone by, when the House 1567 of Lords themselves had abandoned all desire to retain the appellate jurisdiction; and it would have been impossible after that to have set it up again by legislation. He should give a hearty support to the Government in carrying out their plan. And with regard to the claim of Scotland and Ireland, he did not think that anyone could have any sound objection to it.
§ MR. DISRAELI
It appears to me to be not a very satisfactory proposition that the House should be called on to decide on this important measure upon bringing up the Report of the Committee. I agree that it is an inconvenient, even though it may be a legitimate course, to move an Instruction whilst we are in Committee; but it appears to me that there is a mode of proceeding that would get us out of the difficulty in a satisfactory manner; and that is that this debate should be adjourned whilst Mr. Speaker is in the Chair, and that before we go into Committee these Instructions should be put upon the Paper. Though I do not put my knowledge upon the subject in competition with that of many hon. Gentlemen who have studied it, yet I should feel—and I think the majority of the House would feel great difficulty in deciding upon the many points which we should have to consider without having the distinct propositions of the Government before us. It appears to me that no time would be lost by following the course which I venture to recommend to the right hon. Gentleman at the head of Her Majesty's Government, that he should not ask the House to proceed in the manner that he has indicated, which is, I think, unusual and unsatisfactory; but that he should adjourn this debate before Mr. Speaker leaves the Chair, and that then he should frame his instructions and place them before the House, in complete comprehension of the Bill on which we have to decide.
THE ATTORNEY GENERAL
hoped the House would not assent to the proposal of the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), which, though it sounded reasonable, would in truth postpone the Bill almost indefinitely. Although the subject was of importance, the absolute changes in the structure of the Bill suggested by the Government were really 1568 small in themselves, and would best be carried out in the manner proposed by the Prime Minister; as, if any other course were pursued, it would lead to a considerable prolongation of the Session. The Government did not propose to deal with the Courts of Scotland and Ireland as regarded First Instance, but so to deal with the question at present, as to make the Bill as short and simple as could be. He admitted that what was now proposed should be done upon full consideration by those whose interests were affected, with whom it might be necessary to have some communication upon the subject; but meanwhile there was plenty to do; the Bill might proceed; the full Notice would be given of the changes which would be necessary.
§ MR. BOURKE
said, he was desirous to express his strong opinion in favour of the views expressed to the House by his right hon. Friend the Member for the University of Dublin (Dr. Ball), in reference to a just representation of Ireland in the constitution of the tribunal. He was convinced that the further the House proceeded with the Bill the greater would be their conviction that they had committed a fatal error in abolishing the appellate jurisdiction of the House of Lords. It would be almost impossible to constitute a Court of Appeal which would give the same satisfaction and be as economical; and never had a change of such magnitude been made upon such slight authority, for, excepting the speech of the hon. and learned Gentleman the Attorney General, there was not a single great authority, living or dead, in favour of the change. It was a great constitutional amendment upon which the country had had no opportunity of giving an opinion; and he believed that when the country and the various Law Societies considered this question they would come to the conclusion that there was no Court of Appeal so efficient and so economical as a properly-constituted House of Lords. Certain accidental deficiencies no doubt existed in that tribunal, but they might easily be remedied—for instance, by the appointment of three Law Lords with salaries, and by providing that the House should sit to hear appeals all the year round. It would be satisfactory if the right hon. Gentleman at the head of the Government would state to the House what were the changes which he con- 1569 templated in reference to Scotland and Ireland; and speaking for Ireland, he would say that the feeling in that country was strongly in favour of the maintenance of the jurisdiction of the House of Lords. Another point for consideration was the cost of the proposed Appeal Court. It was understood that the Court in its constitution would include the three Chief Judges of the Common Law Courts, and three Puisne Judges, and if so, the additional expense of constituting a new Court of Appeal, compared with the existing tribunal, would be very considerable. He hoped the Government would adopt the suggestion of the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), and would see that, although the changes to be made were small, they would still require great consideration. Until the House knew what the changes were to be which were to result from the communications between the Law Officers for Scotland and those for Ireland, it would be proceeding in the dark if it passed a single clause of the Bill.
§ MR. VERNON HARCOURT
said, he did not wish to delay or imperil the Bill, but he saw great difficulties in accepting it as it stood. It was true the proposal to include Scotland and Ireland did not affect the question of Courts of First Instance, but it most materially affected the whole question of the Appellate jurisdiction; and he could not understand how they were to deal with the 6th clause, and the clauses which hung upon it, without ascertaining how they were to deal with the Irish and Scotch elements of the Appellate Court. It affected not only organization, but also the financial clauses, which had been little explained, and were unintelligible until they knew what the, scheme was to be. He concurred in the announced intention of the Government to make one great Court of Appeal for the whole Empire. This ought to be a very great Court, and one with the most consummate authority, because it was to settle the law finally for a great people. He also concurred in the conclusion that the jurisdiction of the House of Lords ought to be abolished, but he had never concealed from himself the gravity of such a step, and that nothing could justify its being taken, except the substitution for it of a Court most carefully constituted. He concurred, too, 1570 in the abolition of the intermediate appeal to the Exchequer Chamber and the Lords Justices; but the very fact of intermediate appeal being abolished made it the more necessary to be extremely careful in considering the character of the new Court of Appeal. How was that Court to be constituted? What was wanted was a Court, homogeneous in its nature, and composed of the most eminent men that could be procured. Well, in the House of Lords we had a Court of a more or less homogeneous character; but that to be established by the Bill would consist of three separate elements, different in character, constitution, rank, and emolument. There were to be three classes of Judges—ex officio, ordinary, and occasional; and that, on the face of it, would be a grave defect in a Final Court of Appeal, and would diminish its authority. The hon. and learned Gentleman the Attorney General, moreover, proposed to reduce the salaries of the Members to £5,000, and so put thorn on the level of the Court below, from which they wore to be a Court of Appeal. Why, as the Bill stood, there was every element introduced which was calculated to throw discredit upon the Final and Ultimate Court of Appeal in this country. The ex officio Judges were to be the Lord Chancellor, the Chiefs of the Courts of Common Law, and the Master of the Rolls, who were also to be occupied as Judges of the Court of First Instance, where their principal and ordinary occupation would be. Of course, these ex officio Judges would not attend to their ex officio duties any more than other ex officio officers, except on show occasions, such as the hearing of ecclesiastical cases which excited the sectarian mind. How often did ex officio Members attend the Judicial Committee of the Privy Council? What were termed the occasional Judges, the Law Lords, were to attend, if they gave their consent in writing; but there was to be no compulsion whatever as regarded their attendance. He (Mr. Harcourt), however, thought that functionaries, however high, if they received pensions from the State, ought to render services if they were able to do so. The unknown quantity of the equation was made up of the Irish and Scotch Judges, of whom they were to know no more until they got into Committee. The result would be, 1571 we should have nine ordinary Judges left, and they would be the only Judges who would do work. There would be the three Judges of the present Committee of the Privy Council, who would have enough to do in hearing Indian and Colonial appeals; three more, the Lords Justices, with the Lord Chancellor, would have plenty to do in hearing Chancery appeals and the appeals which now went to the House of Lords; and there would remain to settle the whole law of England three Puisne Judges, who were to be substituted for the Exchequer Chamber and the House of Lords. He ventured to think that neither the country nor the profession would be satisfied with such an Appeal Court as that. Why, we might have three Puisne Judges in the Upper Court, over-ruling three Puisne Judges in the Court below; or we might have a greater number of Judges of superior ability in the Court below over-ruled by a smaller number of Judges of less authority. He could not part with the jurisdiction of the House of Lords and of the Exchequer Chamber for such a Court as that. The Court of Final Appeal ought not to consist of fewer than five Members under any circumstances, if there were to be three Members in the Court below. Ex officio Judges were also a mistake; we ought to have Judges whose attendance could be counted upon, and who could be required to attend. One of the great evils of the House of Lords was that there was no power of compelling noble Lords to attend, and, therefore, one never knew who would be there. His Amendment was directed against those distinctions in the Appellate Court, and to make it consist of Members whose attendance could always be relied upon. He would remove the present Chief Justices, the Chief Baron, and the Master of the Rolls altogether out of the Court of First Instance, and put them in the Appellate Court, and appoint as their successors the ordinary Judges of Appeal. In that way we should get a homogeneous Court of Appeal, of which the Lord Chancellor should be President, and the Lord Chief Justice of England Vice President. The Chief Justices, the Chief Baron, and the Master of the Rolls should continue in receipt of their present salaries, and their successors fall to the level of the rest of the Court. With them, he would associate four 1572 Judges of the Privy Council, two Lords Justices, and two Scotch and Irish Judges, and such of the ex-Chancellors as they could command the services of. That would form a fixed permanent tribunal, upon whose attendance we could count, and a Court which would command great respect. If they had three ex-Chancellors to attend, that would give them a fixed Court of 15; without them, it would be a Court of 12, and each division would never be less than five. Having offered those observations on the Court of Appeal, he would now proceed to say a few words with respect to the Court of First Instance, as proposed by the Bill. He apprehended that the object of the authors of the Bill was to do away with all distinctions of jurisdiction—to merge the Courts of First Instance into one homogeneous and harmonious whole, and give it universal jurisdiction, and in that he entirely concurred. That was done absolutely in the first four clauses of the Bill, but what he complained of was that in later clauses, that work of amalgamation was undone. It was like Penelope's web. A web was woven all night in order to be undone the next day. Why, in the name of common sense, were the Lord Chief Justice of Common Pleas, the Lord Chief Baron of the Exchequer, or the Master of the Rolls to be continued? It appeared if the Bill passed as it stood, the whole attempt which it made towards the fusion of Law and Equity would become in the end, a mere nullity. He was willing to agree to any arrangement of a transitional character to meet the present difficulties; but if they looked at the 5th clause they would find that it perpetuated and stereotyped the distinctions in the existing system. What was the object of these Divisions? The hon. and learned Gentleman said, very truly, that business must be distributed. Of course, it must; but to do that it was not necessary to stereotype Divisions of that character. They left the Court of Appeal to distribute its business according to time and circumstances, and why ought not the Court of First Instance to be allowed to act likewise? The reason for maintaining the offices of Lord Chief Justice of the Common Pleas, Lord Chief Baron of the Exchequer, and Master of the Rolls appeared to be a matter of sentiment. The hon. and learned Gentleman said he 1573 did not like to change ancient names; but he was not so weak upon the ancient jurisdiction of the House of Lords. The fact was, the Bill had been spoilt by that desire of maintaining the dignity and the existence of these separate Chiefs in separate Courts. Looking at the measure from that point of view, it was not, he considered, that which the Government had originally intended to propose, but it had been modified to gratify the feelings of the Chief Judges of the Common Law Courts, and it was rather strange that there would be a Chief Baron without any Puisne Judges. The patronage clause would also show the spirit in which the measure had been framed. By the 80th clause the patronage of the Lord Chancellor, of all the Chief Judges, and of the Master of the Rolls, was to be exercised as heretofore, but the patronage of all the Puisne Judges was to be exercised in such manner as Her Majesty might by Sign Manual direct. Why was all the patronage of the Puisne Judges to be placed at the disposal of the Sign Manual? He ventured to suggest that all difficulty would be removed with reference to the maintenance of the dignity, emolument, and offices of the chiefs of the Divisions by removing them into the Appellate Court. These Chiefs of Divisions were of no use at all. Over whom was the Master of the Rolls to preside? By an Amendment he (Mr. Harcourt) perceived that the Master of the Rolls was to be made President of the First Division of the Court, but the Judges in Equity sat alone. The fact was that as the Lords Justices were going up to the Appellate Court, he would have to preside over himself, no doubt with great satisfaction to himself and the public at large. Why the thing was ludicrous in the extreme. To keep him to do the work of a Vice Chancellor, with no difference but in name, with a higher salary and dignity, savoured much of what might be called a job. A few words as to the financial results of the Bill. He ventured to say that the financial character of the Bill entirely depended upon keeping or doing away with these Divisions. If we kept these Divisions, we prevented that distribution of business to the best advantage, and that economy of labour which we could only get by having all the Judges on an equal footing without Divisions, 1574 so as to be able to distribute them to the best advantage. Moreover, if they could weld Equity and Common Law into a homogeneous whole, they would accomplish much, but that could not be done, if these Divisions were maintained. As to the consent of the hon. and learned Gentleman to provide for an increase of the Judicial Staff in Equity, he (Mr. Harcourt) regarded it as a sort of sop to the hon. Member the Cerberus for Denbighshire (Mr. Osborne Morgan). It was absurd to suppose that to enable a Common Law Judge to administer justice in a case in which an Equity question arose, it would be necessary for an Equity Judge to sit beside him to "coach" him in Equity. It was said, that the Common Law Judges knew nothing of Equity, and therefore it was supposed that by such a course, they would have to administer Equity under the guidance of an Equity dry-nurse, placing them very much in the condition of lay Lords in appeals in the House of Lords, who had a lawyer between them, who whispered in their ears what they were to say. The provisions of the Bill did not provide for what he called a fusion of Law and Equity, and the proposal-of an Equity Judge for each of the Common Law Divisions was anything but a complimentary commentary on the scheme for legal education which was proposed last year by the present Lord Chancellor? He (Mr. Harcourt) did not admit that those who had received a good legal education were incapable of administering both Law and Equity. The hon. and learned Solicitor General, who was an Equity lawyer, and had never studied Common Law, never felt any difficulty in giving an opinion on rating or anything else, without a moment's hesitation, although sometimes he was not correct, as in a recent case, when he said that misdemeanour was punishable with three years' imprisonment; but that, no doubt, was a venial error in an Equity barrister. The late Mr. Justice Willes, who had perhaps never been in a criminal Court in his life before his appointment as Judge, was enabled by a few months' study of "Russell on Crime," to become as competent to administer the criminal law as any barrister who had extensively practised at sessions. He, therefore, could not accept the statement, that a Common Law Judge was not capable of admi- 1575 nistering Equity without the assistance of an Equity dry-nurse. They had passed an Act to enable County Court Judges to administer Equity business, and yet Common Law Judges were not thought fit to do the same without having a "coach" beside them. If the Common Law Judges were incapable, who was to "coach" them? There must be some additional Judges to teach them their Equity lessons. How and when were the three Equity Judges who were to "coach" the Common Law Judges to be appointed? Were they to wait, until vacancies arose, in which case the public would suffer; or were they to be appointed at once, which would materially increase the working expenses? They could not arrange when the right man was to die, in the right direction, at the right time, to make a vacancy, and two things must happen: either they must create three additional Judges, or if not—four not being able to do the work of the country—the fusion of Law and Equity must come to an end. The hon. and learned Member for Denbighshire wished to have three additional Judges appointed in Chancery, but there was no provision to that effect in the Bill. If they made the whole of the Courts homogeneous they might do a great deal more work with fewer Judges; but before they proceeded much further with the Bill some estimate should be laid before the House of what was expected to be its financial consequence. He had looked at it very carefully, and he believed that, like all other measures of Law reform, it would only lead to an enormous increase in the Vote for Law and Justice. In all the Law reforms he had witnessed, he had invariably observed them accompanied with the creation of new offices. The same was the case here. The old places were kept up, new ones were created, and the expenditure enormously increased. If they wanted to establish a real fusion of Law and Equity, they must make a real fusion of the Staff as between the Common Law Courts and the Equity Courts. One great matter, which was at the bottom of all Law reform, was not dealt with by this measure at all, and that was the position of the Lord Chancellor. As long as they kept the head of the great judicial system in the position of a political officer, changing according to 1576 the vicissitudes of party, they would never have a judicial system worthy of the name. One of the necessary consequences of the passing of the Bill would be a reform in the office of Lord Chancellor; for it was impossible that one man could properly perform the duties of a Cabinet Minister, the Head of the Court of Appeal, a Judge of the First Instance, a man who had to look after clerical magistrates, to appoint clergy, and to see to lunatics, and all the miscellaneous duties which belonged to the office of Lord Chancellor. They were constructing a new system of Appellate Jurisdiction, with a weather vane at the top, changing with all the changes of party, and having decided on abolishing the Appellate Jurisdiction of the House of Lords there was no excuse for retaining the office of Lord Chancellor as a political office. The Bill had great merit in the object it aimed at, but it had great defects in its method of attempting to achieve those objects. He should like to remedy the defects of the existing system, but he was not at all disposed to accept the proposal that they should pass anything just because it was a reform. There was an attempt to deal summarily in getting through what might be said to be the only Bill of the Session; but that it was the only Bill of the Session, was the very reason why they should try to make it a useful measure, for the country had been 20 years getting a practical measure of Law Reform at all, and after this Bill passed it would probably be many years before the subject would be taken up again. It was said that the Bill contained powers of transformation, by which a great deal might be effected which the Bill did not do, because there were a number of influences at work which had deterred the Government from proposing to deal with them by the Bill. But would not these very influences prevent the Government from using the powers of transformation which the Bill contained? He wished the Bill had been framed with a bolder hand, and thought it was the duty of the House to strengthen the hands of the Government so as to enable them to make the Bill complete and not to lose the best opportunity Parliament had ever had of passing a measure of Law Reform.
§ MR. HUNT
believed that if the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) had been proceeded with, the defects of the measure would have proved so glaring that it would have been impossible for the Government to resist the proposal. He was never more surprised than when he heard the Prime Minister ask the House to go into Committee as upon an English Bill, with the understanding that when a particular clause was reached it should be turned into a Scotch and Irish Bill as well. There was some excuse for the faults of the measure in the part relating to the Appellate Jurisdiction, they had not the advantage of the same assistance from the Judicature Commission which they had enjoyed with respect to other portions of the Bill. He had always regretted that the question of the appellate jurisdiction of the House of Lords was not referred to that Commission. They had now arrived at the question—what they were to do? The right hon. Gentleman at the head of the Government invited the House to proceed with the Bill as it stood in Committee, with the intention of entirely altering it, as regarded the question of the appellate jurisdiction, on the Report. If they were to proceed on the assumption that the appellate jurisdiction was only to deal with English litigation, and were afterwards to deal with it as affecting Ireland and Scotland also, the House might just as well not have gone into Committee at all. The course proposed reminded him of a letter which, having given very minute instructions as to what was to be done, followed them up by a postscript saying—"Consider this letter as not written." The right course, as it appeared to him, had been suggested by his right hon. Friend the Member for Buckinghamshire (Mr. Disraeli)—namely, to adjourn the debate now, so as to give the Government an opportunity of placing such Amendments on the Paper as might in their view make the Bill applicable to Ireland and Scotland, and then to instruct the Committee to alter the Bill accordingly. The right hon. Gentleman at the head of the Government and the hon. and learned Attorney General did not appear at one with respect to what was to be done. The right hon. Gentleman appeared to think that the necessary Amendments 1578 might be easily effected, while the Attorney General spoke of them as difficult and complicated. [The ATTORNEY GENERAL: Important, but not complicated.] He was in the recollection of the House. The hon. and learned Gentleman intimated that it would be necessary to have communications with persons in different parts of the United Kingdom as to the alterations to be made, and therefore that there would be delay. If the Amendments to be proposed were many and important the House ought to have them before going into Committee; on the other hand, if the Amendments were few and simple a very short time would suffice to enable the Government to put their views before the House. The greater part of the Bill was based upon the recommendations of the Judicature Commission, and therefore had his entire approbation; but he wanted to deal with the matter in a practical way. With regard to the 6th clause, for instance, which related to the constitution of the Court of Appeal, unless the House discussed it with reference to the appellate jurisdiction of that Court for all parts of the kingdom, it would be utterly impossible to deal with that clause at all. The clause dealt with three classes of Judges—ex officio, ordinary, and additional. The number of which the Court was to be composed must have reference to the business to be transacted, and if the appeals from Ireland and Scotland were to be added to the appeals contemplated when the Bill was drawn, Her Majesty's Government would have to state whether that additional business would not in their opinion require additional Judges. It was proposed that there should be five ex officio Judges of the Court of Appeal—the Lord Chancellor, the Chief Justice of the Queen's Bench, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron. Then came the question how many ex officio Judges the Court was to have from Ireland and Scotland. If the number of ex officio Judges was increased, then the point would be raised whether their number would not be out of proportion to the number of the ordinary Judges. There was also an important clause, the 50th, which provided that the Court might sit in sections. Now, great difference of opinion existed as to whether the Court should sit in sections; but if it were determined that it should, the 1579 question would arise whether there should be a Scotch and Irish Judge in each section. There were no fewer than 26 Amendments on the 6th clause at present, but with the views announced by the Government he ventured to predict that several other Amendments would be added by Scotch and Irish Members. He felt it would be so utterly a waste of time to go into Committee until they had the Amendments of Her Majesty's Government on the Paper, that he begged to move that the debate be now adjourned.
§ Motiom made, and Question proposed, "That the Debate be now adjourned."—(Mr. Hunt.)
wished, before the question of adjournment was decided, to call the attention of the House and the Government to one part of the Bill which seemed to be unfair and unjust to the Common Law Judges, and he had reason to know that those eminent and learned persons had that feeling themselves. By the Bill the Government constituted a High Court of Justice, and it was evidently their intention that those who composed it should be on an equality with regard to salary, because the Government bringing into that High Court of Justice one eminent person who received a much lower salary than the others, had raised his salary to the nominal amount which the other Judges received. The Common Law Judges attached to that Court, however, instead of being in receipt of £5,000 a-year, would, after paying certain necessary expenses, be in the inferior position of receiving only £4,500 a-year. The circuit business was daily increasing, and it was of the greatest importance that the Judges should be the most able and eminent men that could be got; but it was not likely that the services of the best men of the Bar could be obtained for that low sum. Another matter ought not to be lost sight of—namely, that these Judges would have to bear the circuit expenses, not only personal, but of the necessary staff. The salaries were fixed 40 years ago, and had relatively decreased, whilst the business cast upon these Judges had vastly increased. It would be most unfortunate that this experiment in its first trial should be attended by heart burnings, or any sense of unfairness on the part of any of the 1580 Members of the new Court; and he would appeal to the Government to consider that for a very small additional expense they might put all the Judges of the High Court upon an equal footing.
THE SOLICITOR GENERAL
observed that the reason why his hon. and learned Friend the Attorney General had objected to the adjournment of the debate was, that he apprehended it would interpose no inconsiderable delay in the progress of the Bill, and he hoped he was expressing the opinion of both sides of the House when he said that was not their desire. The sole reason for delay was that it was said, or supposed, that the alterations that would require to be made in the Bill would be of a structural and extensive character, and could not be readily adapted to the Bill after it had passed through Committee. That was not so. His right hon. and learned Friend the Lord Advocate had gone carefully over the Bill; he had himself done the same; he believed only four clauses would require any alteration, and in these four a very slight amount of alteration was all that would be necessary. The Bill dealt largely with alterations in the constitution of the present English Courts of Appeal and First Instance, but the Government did not propose to interfere in the slightest degree with the judicature of Ireland and Scotland. All that was proposed to be done in acceding to the terms of the Amendment of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) was to transfer to the new Appeal Court the appellate jurisdiction now exercised by the House of Lords with regard to appeals from Ireland and Scotland. Two or three lines would be sufficient for that purpose; and the other alterations, which were simply with regard to the number of persons and the qualifications of the persons who would have to be added to the Court of Appeal, could be effected by a stroke of the pen. Perhaps the House might be in possession of the views of the Government by the time it arrived at the 6th clause, but even if it were not, it would be perfectly practicable and easy to settle the principle of the clause. It was suggested that there was a difference of opinion as to the Appellate Court sitting in sections, but it would be quite impossible for a single Court to dispose of any reasonable 1581 proportion of the business without sectional sittings. Nothing would be easier than to determine the number of the Judges of the Appeal Court having reference to England alone, and, afterwards to decide what addition should be made for Scotch and Irish appeals. There were to be provided for the present English appeals to the Court of Appeal in Chancery, the Exchequer Chamber and the House of Lords. It had been said that in the case of the Scotch appeals, a Scotch Judge must be attached to the section which would have to hear those appeals. The number of appeals to the House of Lords each Session did not exceed 25, and it would be easy to place a Scotch Judge in the section before which they would be brought. If the House would go into Committee, they would not find any of the difficulties which had been suggested, insurmountable or even serious. He purposely abstained from replying to the long speech which the hon. and learned Member for Oxford (Mr. Harcourt) had evidently prepared for the second reading of the Bill, both because time would not allow of his doing so, and because he intended to deal with some of its criticisms in Committee. He hoped the House would not delay the Bill merely for the sake of ascertaining beforehand the exact terms of the Amendment the Government wished to make.
§ MR. NEWDEGATE
protested against such extensive changes being made in the principle of the Bill, without due Notice having been given. The Amendments which were spoken of as only requiring a stroke of the pen would be essential alterations in substance, as much as substituting the name of the American President for that of the Queen in an Oaths Bill. He hoped the House would not consent to proceed any further with the Bill, at all events, until it should be seen what was the scheme of the Government with respect to the constitution of the Final Court of Appeal, that being the point upon which everything turned.
§ MR. MATTHEWS
protested against proceeding with the Bill until the scheme of the Government should be placed upon paper. The hon. and learned Solicitor General would not deny that the Amendments of the Government were important; and surely the Govern- 1582 ment were not going to alter our whole judicial system without having a scheme of their own. Did they know what changes they were going to propose? If so, why need any time be lost? Were Scotland and Ireland to retain their intermediate Courts of Appeal—for they had them—while those of England were swept away? Was it intended to do away with the Irish Court of Exchequer Chamber? [The SOLICITOR GENERAL: I stated that we proposed no such alterations.] In any case, what was the use of discussing Amendments on the subject of the number of Members of the Court of Appeal, if the number must be altered when the whole scheme of the Government was produced? If intermediate appeals were to be retained in Scotland and Ireland, it was manifest that English rules would not be applicable to Irish and Scotch appeals, and the Bill would have to be remodelled in a great measure. Time ought to be allowed to hon. Members to consult their constituencies on the subject. Before the Committee of the House of Lords the Lord Advocate had said—In my opinion, taking into account all I have heard from others upon the subject, to allow an appeal from the Scotch Courts to any tribunal other than the House of Lords would offend the sentiment of the Scotch people.He believed that the Irish people would also object strongly to appeals from the Irish Court of Exchequer Chamber going to any such Court of Appeal as that proposed in the Bill.
§ Question put.
§ The House divided:—Ayes 170; Noes 192: Majority 22.
§ Question again proposed, "That Mr. Speaker do now leave the Chair."
§ MR. RAIKES
said, that, having had no opportunity of expressing his views on the second reading of the Bill, he wished to make a few remarks with regard to the Amendments which he had put on the Paper, as well as on the position in which the House had been placed by the course which the Government had taken with respect to the measure. He presumed from the course which the Government had taken that they were prepared to revolutionize the system of procedure, not only in the English, but also in the Irish and in the Scotch Courts of Law, otherwise we should be placed in the extraordinary 1583 position of having new rules which would have effect under the Court of Appeal in England, but would not have effect in the Irish and Scotch Courts of First Instance, so that decisions in the latter would often be quashed in the former. The Bill also provided for an alteration of the law which had hitherto prevailed in the Admiralty Courts. In fact, upon that subject a change of law was proposed, largely affecting international questions, and at variance with the rules generally recognized by civilized nations, so that there was danger of our getting involved in all sorts of international difficulties. In like manner if they were to make the new Court of Appeal the Court of Appeal for Ireland and Scotland, they would also have to make the 22nd clause extend to the proceedings which had to be taken in all the inferior Courts of both countries, and that would necessitate the re-modelling of the whole Scotch law of which that House was profoundly ignorant. Another point required careful consideration. There was a general opinion that a Minister of Justice was required in this country, and there was an almost equal consensus of opinion that the Lord Chancellor should be that Minister. But that duty could not be imposed upon him when the Bill burdened him by making him President of the Court of Appeal and of the High Court of Justice. In his opinion, it should have been the object of the Bill gradually to withdraw the Lord Chancellor from judicial functions, and concentrate his attention upon his political duties. He had, therefore, given Notice of an Amendment to take the Lord Chancellor from the High Court of Justice, and leave the Lord Chief Justice of England as President of that Court. In the course of time, the Lord Chancellor might probably come to be as little connected with the Court of Appeal as the Chancellor of the Exchequer was with the Court with which he was nominally connected. One anomaly would strike most hon. Members. The Court of Appeal was to supersede the Privy Council for Indian Appeals, and yet it was to be so constituted that Her Majesty would be unable to call to it any Judge who had been a Judge in India until there had been a death vacancy among the first Members of the Court. He therefore proposed that it should be competent to Her Majesty to 1584 nominate as additional Members any Judges who had held judicial offices in India qualifying them now to be Members of the Judicial Committee. Another anomaly in the Bill was, that it ignored the head of the Common Law in Ireland, and made him ineligible as a Judge of the Court of Appeal. That slight ought not to be cast upon him. He submitted that in addition to the Judges named, the Lord Chief Justice of Ireland should be appointed to take part in the judicial proceedings of that tribunal. He was glad to see that the Attorney General proposed to remove the business of the Court of Bankruptcy from the already overworked Court of Chancery; but he regretted that it should have been transferred to the Court of Exchequer, instead of to the Fifth Division, which might be made a much more useful body than it would be under the Bill. The Fifth Division would consist of the Judges of the Probate and Admiralty Courts, whereas each of the other Divisions would consist of five Judges. He proposed to transfer three Common Law Judges to the Fifth Division, and assign to it the Bankruptcy business and the trial of Election Petitions, as well as the Probate and Divorce cases. That Court would then have to decide upon the personal status of parties; it might almost be called a Correctional Court. He had taken this opportunity of explaining his Amendments en bloc, hoping that they might thus be more clearly understood and better considered.
§ MR. BOURKE
said, the questions in issue were of great importance, requiring consideration, and he would therefore move the Adjournment of the House.
§ Question put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Preamble postponed.
§ Clause 1 (Short title) agreed to.
§ Clause 2 (Commencement of Act).
§ MR. BOURKE,
in proposing as an Amendment, that the Act should commence in November, 1875, instead of 1874, said, he thought the Bill could not be satisfactorily framed, unless the House knew exactly what was going to 1585 be done with the County Courts. The question of the County Courts had been considered by the Judicature Commission, and dove-tailed into the larger question of the Supreme Courts. The Bill proposed to introduce great changes with regard to the circuits. The arrangements recommended by the Judicature Commissioners with reference to the County Courts would materially interfere with the circuits. Therefore, he thought no alteration ought to be made in the circuits until those arrangements had been considered. By the Bill Law and Equity were to be fused in the Superior Courts; but the County Courts were to continue to sit as Courts of Law and as Courts of Equity. If, however, the jurisdiction of the County Courts was to be changed, that would alter the opinion of hon. Members as to the necessity of appointing additional Judges. The right hon. Gentleman the First Commissioner of Works had recommended that commercial cases should be tried by Tribunals of Commerce in connection with County Courts. He should like to know whether that recommendation was likely to be adopted, because if it were adopted, the number of County Courts would have to be doubled, and the necessity of appointing additional Superior Judges would be diminished.
In page 1, line 15, to leave out the words "one thousand eight hundred and seventy-four," and insert the words "one thousand eight hundred and seventy-five,"—(Mr. Bourke,)
§ —instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
THE ATTORNEY GENERAL
said, that with the greatest respect to the hon. and learned Gentleman, he could hardly think he was serious in proposing that the operation of the scheme for the improvement of the Superior Courts should be delayed until an alteration was made in the County Court system.
§ Question put.
§ The Committee divided:—Ayes 65; Noes 25: Majority 40.
§ Clause agreed to.
§ Clause 3 (Union of existing Courts into one Supreme Court); and Clause 4 (Division of Supreme Court into a Court of original and a Court of appellate jurisdiction), agreed to.1586
§ Clause 5 (Constitution of High Court of Justice).
§ SIR. RICHARD BAGGALLAY
proposed as an Amendment in page 2, line 12, after "follows," to leave out the words "the first Judges thereof," and insert "there shall be five ox-officio and eighteen ordinary Judges thereof; the ex-officio Judges." The object he had in view in proposing that and other Amendments, to follow in the same clause, was in the first instance to define the constitution of the Court, and then to declare who should be the first Judges appointed to it. This was the course proposed to be adopted in Clause 6, with reference to the Court of Appeal, and it was desirable that there should be uniformity. If the Amendments were carried the Court would include the additional Vice Chancellor provided for in the Bill as it came down from the House of Lords.
THE SOLICITOR GENERAL,
in opposing the Amendment said, that as to the appointment of an additional Vice Chancellor, the Government were of opinion that it would not be expedient to make such an appointment. No mention was made of it in the Bill as it originally stood, and the provision with regard to it was made on an Amendment moved in the other House of Parliament by Lord Cairns, under a misapprehension by that noble Lord of what was intended to be done as to the Master of the Rolls. He had since looked into the question very carefully, and he was quite prepared to admit that if an additional Vice Chancellor were needed, considerations of the mere saving of money ought not to be allowed to enter into the matter. The cost was, at the same time, by no means an immaterial element in the question, and he found that an additional Vice Chancellor, including his staff of clerks, secretary, train-bearer, and other officers, would cost £15,815, besides a charge for pensions which would not be immediate, of about £4,000, making a total of nearly £20,000 a-year. The next point to be considered was, was the now Vice Chancellor wanted? For, if so, even £20,000 a-year ought not to be allowed to stand in the way of his appointment. Lord Cairns gave several reasons in favour of his proposal, alleging, among other things, that there was a large accumulation of business and very large 1587 arrears, which were increasing, in the Court of Chancery. He thought, however, he should be able to satisfy the Committee that the business of the Court had not increased, and the arrears were not increasing. In a letter to The Times from a practising solicitor, it was stated there were 507 cases standing for hearing before the Court of Chancery, and that it would take three years to get through them. Now, at the average rate of proceeding, the Court of Chancery disposed of upwards of 1,000 long causes in each legal year, or nine months' sittings, and instead of occupying three years, the 507 causes in question would occupy only four months and a-half. In proof that there was no increase of arrears within the last five years, the Master of the Rolls had twice to his certain knowledge, and he believed thrice, risen for want of business; and Lord Hatherley's experience when a Vice Chancellor was of a similar character, for he had also risen during that period from the same cause. Again, the Government intended to appoint three lawyers acquainted with Equity to the Common Law Courts, and if there was any accidental pressure, it would therefore be possible to relieve it by sending an additional Judge to the Chancery Division. Another objection raised, was that when evidence was taken vivâ voce, this would necessarily lengthen the time occupied by causes, and therefore they would not be able to dispose of as many causes in the Court of Chancery as they had been in the habit of doing. But he was not at all certain of that. The great causes which took a long time in hearing were generally of two or three classes, such as infringements of patents, obstruction of ancient lights, and the like. Those, however, were properly Common Law actions, and ought never to come into Equity at all. Under the new Bill, they would be tried in the Common Law Courts, and he did not believe, when they took away from it all the Common Law actions, that the business of the Court of Chancery would be at all increased by introducing vivâ voce evidence in the rare cases where it was wanted in an Equity suit. Moreover, the Chancery Division was not meant to be permanent, but merely transitional; and it was hoped in a short period, perhaps about 10 years, to obtain this result—that both practi- 1588 tioners and Judges would have become sufficiently familiar with the principles of Equity to administer it in a satisfactory manner in all the Courts. Something might be done in the meantime to diminish the arrears. Even now the whole number of causes ready for hearing could be disposed of in about four months. The number of arrears must be distinguished from the number of causes set down for hearing, and if the Judges sat six weeks more, in two years he believed they could dispose of the whole of the arrears. The Court of Chancery sat 27 weeks, and it would be no great hardship if it sat three weeks more in each year. The Return which he had obtained would bear out his statement that the business of the Court of Chancery was not increasing. The total number of causes set down for the five years ending Michaelmas, 1871, averaged about 2,000 a-year. The number set down for 1867 was 2,108, and for 1871, 2,194. Of those about three-fifths were long causes. The average number disposed of each week was 82, of which 50 were long causes. Then, again, the Petitions filed, and which were what was called Attendable—that was to say, not Petitions of Course—amounted in 1863 to 2,673, while in 1871 they amounted to 2,430, being 600 below the highest number reached in any intervening year. The total number of special orders of all kinds made on Motions, Causes, and Petitions in 1862 was 5,753; in 1871 it was 5,853; and it varied between those figures from 1863 to 1870. The Return as to bills filed further bore out the assertion that the business of the Court had not increased. In 1862 the number of bills filed was 2,177, whereas in 1871 it fell to 2,015. He might be told that, although the work to be done had not increased, there were at the beginning of Easter Term 46 causes more in arrear, but that had arisen from the fact that one Judge had retired from failing health, and another was, unfortunately ill. The Returns showed that there had been no increase worth mentioning in Chamber business during the five years from 1868 to 1872. The Court of Chancery had been for some years oppressed by orders for winding-up public companies, but that business also was slowly wearing out. The result of his statistics was that in no branch of 1589 Chancery business had there been any increase, and that there had been no increase of arrears except during the last five months, and no increase even then when compared with the commencement of the previous five years. There had, therefore, been no increase in the total business in Chancery requiring the aid of an additional Judge. The increase in the last few months had been partly owing to the painful circumstances which he had already mentioned, and partly to accidental causes and the great complaints had arisen from the fact that at Trinity Term this year there was set down for hearing the largest number of causes that had been known for some years, being 74 more than at Trinity Term last year. He did not believe there was any great Court of Judicature in the world which could give so good an account of itself with respect to arrears as the English Court of Chancery. A single cause might from various circumstances get behind; but the average length of time a cause remained in that Court was not six months from the time it was set down—an interval which his learned friends in the Common Law Courts told him would compare very favourably with the progress of business there. He submitted, then, that no case had been made out for the appointment of an additional Judge. He was satisfied, with Lord Hatherley, that with ordinary industry on the part of the Judges, and with the ordinary run of causes, there would be no necessity for this additional Judge. And he saw no reason to doubt the possibility that by the time this Bill came into operation as an Act—namely, by November, 1874—the Judges might rise before Christmas in that year for want of business. For these reasons he trusted the Committee would negative the Amendment.
§ MR. GREGORY
said, he was very much surprised at the speech of the hon. and learned Solicitor General, and he had no doubt the public would be equally surprised. That was said to be a Bill for the fusion of Law and Equity, and for the relief of the suitor, by saving him from being bandied about from one Court to another. But was that a Bill for the fusion of Law and Equity? It could not for a moment be thought so. For what did the hon. and learned Gentleman say? That we were to hope that, by means of the Bill, in the course of 10 1590 or 12 years the practitioners would be so educated in its principles that they would be able to carry them into effect. Therefore, that was a Bill for the education of Judges at the expense of the suitor, who in the meantime would be bandied backward and forward, as it was said he was now. He ventured to think that the discussion which had occurred that evening would give the public a very different opinion regarding this Bill from that expressed by the hon. and learned Gentleman.
MR. OSBORNE MORGAN
said, he had listened to the speech of the hon. and learned Solicitor General with a feeling of astonishment. It appeared to him to be an apt illustration of the saying that there was nothing so fallacious as figures except facts. He had undertaken to prove two propositions—first, that there was no present block in the Court of Chancery; and secondly, that the business of that Court had not sensibly increased of late years. Now, in the Court in which he (Mr. Osborne Morgan) practised—that of Vice Chancellor Wickens—they had not touched a single new cause since Easter, having been occupied for the last two months and a half in disposing of Motions, Petitions, and Further Considerations. During the same period the Court of Vice Chancellor Malins had been occupied in hearing nothing but Motions, Petitions, and Summonses. The fact was, there never was such a block in the Court of Chancery as at present. The number of causes set down for hearing last Term were no fewer than 600; 150 more than were ever set down for hearing at the same time of the year before. With regard to the increase of business in the Court of Chancery, his hon. and learned Friend had quoted Returns for five years only, beginning with 1867, which was an exceptional year. But a wider area should be taken. During the last nine years the number of causes set down had steadily increased from 1, 844 in 1863 to 2,275 in 1871—an increase of 431, or 23 to 24 per cent. Such an increase would justify an increase of the staff to the extent proposed by his hon. and learned Friend the Member for Mid-Surrey (Sir Richard Baggallay). But it was in Chambers that the chief pressure of business had been felt during the last few years. The amount of business transacted there had in- 1591 creased between 60 and 70 per cent, and it was obvious, seeing that there had been no increase in the staff of officials, that the same amount of care and time could not have been bestowed on the work done. The Judges were worn out with Court work before they went into Chambers, and the rapid way in which the work done there—sometimes quite as important as that which was transacted in Court was disposed of—had given rise to a wide-spread belief that business in Chambers was being "scamped" The business had increased to so great an extent that some of the Judges had absolutely broken down under it—they could not go on any longer under such a terrible strain. Tinder these circumstances, he thought it a most reasonable demand that the strength of the Court should be re-in-forced in proportion to the increase of business.
§ MR. C. E. LEWIS,
after referring to the sweeping character of the changes made in 1852 in the Court of Chancery, said, that Bill went to the opposite extreme, crystallized the present system in its worst possible form, kept everything in the old groove, and even aggravated matters by allotting to Equity, causes in which Courts of Common Law exercised an effective jurisdiction—such as the rectification and cancellation of deeds and cases of specific performance of contract. If the 31st clause were to stand, moreover, no case was made out for the appointment of an additional Vice Chancellor. Three classes of cases were mainly chargeable with delays in the Court of Chancery—namely, patent cases, air and light cases, and cases connected with the sewage arrangement of large towns. He wished to refer to one scandal connected with the transaction of Chamber business in the Court of Chancery. Few hon. Members were aware of the way in which Vice Chancellors were driven to conduct their business. They had to dispose of it at 3 or 4 o'clock in the afternoon, after a heavy day's work, and some of the business was really important—such as the custody of infants and the maintenance of wards, and it ought to be transacted by a Vice Chancellor sitting in Chambers one day a-week. He, therefore, hoped that some provision would be made for compelling Judges of the Chancery Division to sit regularly in Chambers, not at the fag 1592 end of the day's work in Court, but separately, on certain days throughout the legal year. He was not impressed with the statistics of the hon. and learned Solicitor General. At least, it would be a novel experience to find 507 litigated causes disposed of in four months and a-half. Neither did he agree with him that they ought to congratulate themselves upon the speed with which business was disposed of in the Court of Chancery. The fact was, that the state of business in that Court was most unsatisfactory, though no doubt there were now exceptional causes for that state of things. Unless the 31st clause was altered in Committee—and he did not anticipate it would be—he could not vote for the appointment of an additional Vice Chancellor.
§ MR. HINDE PALMER
wished to know whether the House of Commons ought to reverse the decision of the House of Lords, with respect to having an additional Judge of the Court of Chancery? He believed that an additional Judge was absolutely essential to the fair working of the measure; and in order to get rid of the arrears which had accumulated; and, therefore, although he was strongly opposed to any unnecessary expenditure of the public money, he should vote for the addition, believing that the expense of delay in the Court of Chancery was of more importance than the expense of the additional Judge.
§ DR. BALL
said, he should support the proposition in favour of the appointment of an additional Judge, because he thought if two changes were made in other parts of the Bill, everybody would perceive that there ought to be an additional Judge in the First Division. There were six Judges in the Chancery Division, whereas the other Divisions only had five. Now, he would remove the Lord Chancellor from the First Division, because he held a strong opinion that the Appellate Judges ought not to sit in the Courts of First Instance, from which the appeals came. Under the present arrangement, the Lord Chancellor of England would actually be liable to have his judgment reversed in that Appellate Court by three Puisne Judges taken out of the Law Courts, and appointed to the office of Lord Justice. He maintained that the Lord Chancellor ought not to be brought into so humili- 1593 ating a position, and consequently he would take him out of the First Division. There was another change which ought to be made. The 14th section excluded from the operation of the Bill the Equity jurisdiction of the Court of Appeal in Chancery of the County Palatine of Lancaster. Now, if the business of that Court were transferred by the Bill to the new Court, there would be an increase of business which the hon. and learned Solicitor General had not alluded to at all, and if the business were not transferred, why should it not be? [The SOLICITOR GENERAL said the original jurisdiction remained.] If that were so, the 22nd section made ten changes in the law which would not operate in the Palatine Court. Why should the exceptional jurisdiction of that Court be preserved? He submitted to his hon. and learned Friends, that they would promote justice by making the changes he had indicated, and they might then leave the additional Judge who had been introduced by the Lords.
§ MR. W. FOWLER
thought the taking of all the evidence in Chancery vivâ voce would involve a large amount of additional work in the Court, and strongly condemned the proposal that actions might be directed to be tried at Law after proceedings had been commenced in Equity. Having listened to the statistics of the hon. and learned Solicitor General, and to the practical argument of the hon. Member for Londonderry (Mr. C. E. Lewis) he was decidedly of opinion that the additional Judge was necessary. The bankruptcy business would require another Judge unless the present block in that part of the business was to continue, and if business which properly belonged to a Judge was no longer to be transacted by Registrars. He was informed that the Government had a new plan in reserve by which Chamber business was to be conducted by gentlemen perfectly competent to discharge the duties, although they were not so highly trained as were the Judges, and he trusted that some legal authority on the Treasury bench would explain that plan to the Committee. In his opinion, the present state of the Chamber business of the Court of Chancery was discreditable to the country; and, unless something was done to effect a satisfactory clearance of that business, more Judges must be appointed. He would suggest 1594 that it would be better if the vote were taken on the proposal of the hon. and learned Attorney General, instead of on the Amendment of the hon. and learned Gentleman opposite (Mr. Raikes).
§ MR. F. S. POWELL
hoped that the Equity jurisdiction of the County Palatine of Lancaster would not be abolished. As a native of the county, he could assert that its abolition would be regarded with dismay.
§ MR. SERJEANT SIMON
said, much might be said in favour of the retention of the Court of the Counties Palatine of Lancaster and Durham; but at the same time, if there was to be a fusion of Law and Equity, he could not see why these Courts should be preserved. As to making an additional Vice Chancellor he did not see the necessity for that if the Bill should pass in its present form.
§ SIR RICHARD BAGGALLAY,
in reply, said, that nothing could be more delusive than the hon. and learned Solicitor General's statistics. In opposition to those statistics, he submitted the actual number of cases in arrear on the same day in the years 1870, 1871, 1872, and 1873, and they were respectively 302, 461, 431, and 536. A Court of Equity, disposing of 50 cases a-week, with the evidence already taken, and a subsequent reference to Chambers to take voluminous accounts, was altogether a different thing from a Court of Common Law taking evidence and disposing of a matter once for all. The Judges ought to spend more time in Chambers, and they ought to do work which was now done by the chief clerks. He thought that the course which the present discussion had taken showed the inconvenience of proceeding with the consideration of the constitution of the High Court, before the Committee wore in possession of the views of the Government with regard to the Court of Appeal. It was proposed that the Master of the Rolls should be made a Judge of the Court of Appeal, as well as a Judge of the High Court of Justice. In that case, either the Court of Appeal would lose the services of one of the Equity Judges, or they would have one of the Equity Judges shorn of the proper amount of time necessary for dealing with Equity cases in the first instances. With regard to the suggestion thrown out by some hon. Gentlemen, it certainly did appear to him that 1595 it would be more convenient to take the decision of the Committee on the specific proposition of the hon. and learned Attorney General than upon his own Amendment. Accordingly, if the Committee deemed it desirable to decide the question upon a subsequent Amendment, he was willing to withdraw the Amendment. He did not himself desire to do so, but he placed himself in the hands of the Committee. ["No, no!"]
§ LORD JOHN MANNERS
said, the hon. and learned Member was prepared to withdraw it; but the head of the Government had expressed his determination to prevent him withdrawing it, and so a division must be taken.
§ MR. VERNON HARCOURT
said, he thought it would be highly inconvenient that the division should be taken on the Amendment, because some hon. Gentlemen, who might be disposed to go with his hon. and learned Friend the Member for Mid-Surrey (Sir Richard Baggallay) on the general proposition, would not be able to vote with him. At the same time, if the Government preferred that course, which was not generally considered the most courteous course, he hoped his hon. and learned Friend would allow his Amendment to be negatived without a division.
said, he was much obliged to the hon. and learned Member for Oxford (Mr. Harcourt) for the construction he put upon the motives of the Government; but there was no discourtesy in any hon. Member objecting to an Amendment being negatived, and there might be good reason for exercising the right on this occasion. The Business of the House would be seriously impeded, if a proposal was to be debated at great length and then withdrawn, without any opinion being expressed upon it.
§ Amendment negatived.
§ MR. RAIKES
proposed, as an Amendment in page 2, line 12, to leave out the words "Lord Chancellor," with a view to restoring the Bill to its original form, in which the Lord Chancellor was not named as a Judge of the High Court of Justice. To save the salary of a Vice Chancellor by requiring the Lord Chancellor to sit in the Court below, was like 1596 saving the salary of a Secretary to the Treasury by requiring the Prime Minister to discharge the duties of a Secretary. He thought it would not be conducive to the dignity of the Lord Chancellor to occupy the position of a Judge of First Instance, and be liable to have his judgments overturned by Judges of inferior dignity. The inconvenience of such a state of things might be seen in the practice of the existing Lord Chancellor who combined the function of Judge of a Court of First Instance and also of Appeal, for at present he was also acting Master of the Rolls, and by the present Bill there was a possibility of perpetuating such a system.
THE ATTORNEY GENERAL
said, he could take no exception to the Amendment, as the Lord Chancellor was placed in that position by an Amendment proposed by Lord Cairns, in the other House, with the object of preventing the Lord Chancellor from being a stranger in his own Court. It was not an important matter, and although he preferred the Bill as it originally stood, it would in its altered shape, only leave the Lord Chancellor in the position he now occupied. At present, he exercised an original jurisdiction, and was liable to have his judgments appealed against to the House of Lords. There was nothing derogatory in the clause, and he thought it would be better to retain it as it was.
MR. OSBORNE MORGAN
suggested that the Amendment should be withdrawn, and that the hon. Mover should wait until the Committee had decided how the 28th clause was to stand.
§ MR. VERNON HARCOURT
pointed out that the Lord Chancellor, as the Bill stood, was not made President of the High Court of Appeal; but there was only a clause that the Lord Chief Justice should preside in his absence. He thought the original proposal of the Government was a far better one than the alteration made by the other House.
THE SOLICITOR GENERAL
remarked that there existed a power in the Bill, by which the Divisions could be done away with by Order of Council. The Divisions were only temporary, and were intended to bridge over the time till the Act got into full working. There were several reasons why they should retain the Lord Chancellor in the clause.
THE ATTORNEY GENERAL
said, that although he desired to defer as far as possible to alterations in the original Bill, made on the recommendation of so high an authority as Lord Cairns, he was not prepared to oppose an Amendment which agreed with the original view the Government took of the matter, and which met with the general concurrence of the Committee.
§ Amendment agreed to; words struck out accordingly.
§ MR. VERNON HARCOURT
moved, as an Amendment, in page 2, line 13, the omission of the words "the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer." If the Committee adopted the clause as it stood, they would maintain and perpetuate Divisions of the Court which would virtually leave matters just as they were at present; for the clause not only referred to the high judicial functionaries in question now in office, but also to "their successors." It was, therefore, no temporary provision, but one that might be, and he believed would be, continued. His object was to make the Court of First Instance a homogeneous Court, and to strengthen the Court of Final Appeal by removing to it entirely, the Judges named in his Amendment.
§ Amendment proposed, in page 2, line 13, to leave out the words, "the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer."—(Mr. Vernon Harcourt.)
§ MR. SERJEANT SIMON
supported the Amendment on the ground that if the Divisions were retained, they would simply result in a change of name. The principle of the Bill was the so-called, or he should say miscalled fusion of Law and Equity, and that object would be defeated, if its provisions were not altered in the direction which his hon. and learned Friend the Member for Oxford (Mr. Harcourt) had pointed out. If the proposed Divisions were established Equity and Law would be as distinct in the future as they were at present, and the Bill, if it became law, would simply 1598 be a delusion. For who would commence an Equity suit in any of the Common Law Divisions whilst there was the Equity Division subsisting with its Judges specially versed in Equity learning, with all its officers and administrative arrangements adapted to Equity purposes just as at present? He differed from the Solicitor General in his interpretation of the 29th section. Under that section Her Majesty in Council it was true might, on the Report of the Judges, increase or diminish the present number of Divisions; but the same section gave power to increase as well as reduce the number of Judges attached to any Division, and there was nothing to limit the increase of appointments recommended by the Judges. It was said that in the course of time the Judges of the Common Law Courts would acquire such a knowledge of Equity as would qualify them to administer it; and, on the other hand, that the Judges of the Equity Courts would become equally competent to administer the Common Law; but he denied that the objects which the advocates of this part of the Bill had in view would be attained. He was willing that the Bill should have a trial, but if it passed in its present shape, he believed that all the hopes and aspirations which had been so long entertained of bringing Law and Equity under one common jurisdiction would be disappointed. He believed that the Bill, unless it were amended in this respect, would prove inefficient, and would fail to fulfil the purposes which it purported to effect. For these reasons he should support the Amendment of his hon. and learned Friend.
§ MR. SPENCER WALPOLE
said, his hon. and learned Friend who had just addressed the Committee had fallen into a great mistake in the views he had expressed on the question of the fusion of Law and Equity. He had, with others, erroneously argued as if the transitional state of things under this Bill would be permanent. Many attempts in the nature of a fusion of Law and Equity had been made during the last 10 or 12 years, but there was a broad distinction between the Bill and all previous legislation. The object of the Bill was to bring about a fusion of Law and Equity, so that the suitors might have complete justice done to 1599 them in any one of the Courts to which they might go, and to have one Court of Appeal so constituted that all the most learned and eminent of the Judges should be members of it. Let the House consider what the fusion of Law and Equity meant. It was a system of jurisprudence under which any Court should administer complete justice from the beginning to the end of a suit or cause. The meaning of keeping up these Divisions was, that in the state of transition it would suit the convenience of the suitor to go to a certain Court for one species of relief and to another Court for another species of relief; but it mattered nothing whether the proposed Divisions remained, or whether the number of Judges would be diminished, because if any suitor went into the Common Law Division to ask for some equitable relief the Court would be bound to give it, and if he went into the Equity Division for relief at Common Law the Court would be bound to administer the Common Law, or else it would be set right by the Court of Appeal. The Amendment of the hon. and learned Member for Oxford (Mr. Harcourt) would by depriving the Appellate Court of the presence of the Chief Judges weaken its authority. The object, however, of the hon. and learned Gentleman was, that the services of the Judges of the Appellate Court should be confined to that Court; but that, in his (Mr. Walpole's) opinion, would impair the influence of the Court instead of increasing it. The two important elements of a Court of Appeal wore that the Judges should be independent of the Court below; and, secondly, that they should be familiar with the practice of those Courts; and to take away either of those elements would impair the whole. Entertaining those opinions he could not concur in the views of the hon. and learned Member for Oxford, or in those of the hon. and learned Serjeant who had just spoken.
MR. OSBORNE MORGAN
also opposed the Amendment. It was acknowledged that the present number of Courts of First Instance were not sufficient to transact all the business, and yet the hon and learned Gentleman would cut the staff down still further. The right hon. Gentleman the Member for Cambridge University had stated two reasons why the attempts which had been 1600 hitherto made to bring about a fusion of Law and Equity had failed; but there was a third reason, and that was that we had not men who had been trained in the principles of both Law and Equity, so as to enable them to deal with the questions of Law and Equity that came before them. During a period of transition the Judges must be taken as they were. By degrees both the Bench and the Bar would obtain the necessary training, to enable them to deal with all questions indiscriminately, and perhaps by the time the hon. and learned Gentleman obtained his seat on the Woolsack the Judges themselves would be able to carry out, what in the abstract he would admit to be the true and correct scheme—namely, the suggestion of the hon. and learned Gentleman.
§ MR. HINDE PALMER
observed that the Amendment was directed to sweeping away all distinction between Law and Equity by getting rid of Divisions in the Court. Now, if those Divisions were to be in any sense permanent, he should be inclined to agree with those who thought it would be a great disadvantage to sanction them, but he looked upon them simply as necessarily of a provisional character. He did not think that without those Divisions, by way of initiation, they could possibly get such a scheme as this to work at all. He pointed out that the Divisions offered no obstruction to the general principle of the Bill—namely, the concurrent administration of Law and Equity, for the Bill expressly provided that the suitor should have full relief given to him by whatever tribunal to which he might resort. For those reasons, he could not support the Amendment.
THE ATTORNEY GENERAL
said, his hon. and learned Friend the Member for Oxford (Mr. Harcourt) proposed to omit the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer from the operation of the clause. In doing that he would destroy the divisions of which he complained. As far as that matter was concerned, the Bill represented no more than the direct recommendations of the Judicature Commission, carried into effect by the present Lord Chancellor, and sanctioned by Lord Cairns, Lord Hatherley, and Lord Chelmsford, none of whom could be called bunglers in legislation. It was 1601 in vain, he supposed, for him to say over and over again that the Bill regarded these Divisions as only temporary, for the purpose of bridging over a period of transition. The Bill was to come into operation on the 1st of November, 1874, and at that time there would be in existence the Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the Court of Admiralty, and the other Courts, all having business brought to a certain state of completion, and a number of suitors pressing to have their causes brought on. To talk of the fusion of Law and Equity was to talk ignorantly. Law and Equity were two things inherently distinct, and the distinction was not capable of being destroyed by Act of Parliament. All they could do was to secure that the suitor who went to one Court for his remedy should not be sent about his business without the relief which he could have got in another Court. Would the hon. and learned Gentleman the Member for Dewsbury (Mr. Serjeant Simon) wish that, without regard to common sense and the nature of things, one single Court should be made into a sort of hotchpot, and all property should be handed over, without respect to the nature of the business, now to one Judge now to another? What was intended was not to destroy the Courts of Equity or the Courts of Law, but to take care that in every Court, whether of Law or Equity, if the Equity case raised legal questions they should be there decided, and if the legal case raised equitable questions they should be there decided. In fact, the 21st section laid down in the plainest terms what was to be done if the Bill became law, and showed that the object was not that Law and Equity should be fused, but that they should be concurrently administered. Her Majesty in Council was to be empowered to reduce or increase the number of Divisions, or the number of Judges in any of the Divisions; and it was also provided that all causes commenced in or transferred to the High Court should be distributed among the Divisions in such a manner as might be from time to time determined by rules of Court, or orders of transfer made under the authority of the Act, in such a manner that there should be no longer conflicts of opinion upon the subject. Then came the section which enacted 1602 that subject to the rules of Court, the different Divisions should have those matters assigned to them which common sense would assign to them. This was not bungling, but simple, intelligible, common-sense legislation. There were different matters to be dealt with, and they were to be assigned to the Courts which were eminently fit to deal with them, subject only to the great improvement that there should not be a conflict of jurisdiction, but that the Court should yield a perfect remedy to everybody who had recourse to it. It was said no change was made in the names of the Courts; but what necessity was there for doing so when the nature of things was changed and an entirely new jurisdiction introduced to prevent a great waste of time and money and acute suffering to suitors? Then, again, it was of greater importance than people generally supposed that there should be places which would tempt the more eminent men in the legal profession to leave the Bar and go to the Bench; but the Amendment for the gain of £2,000 a-year to two people would sacrifice historical positions which were among the most valued prizes of the profession. Under the influence of those opinions, he could not accept the Amendment.
§ MR. JAMES
cordially supported the Amendment, which he regarded as of great importance in the public interest. The demand for reform in the judicial system arose not so much from the cost as from the delay of the present procedure; and unless they could increase the judicial strength by numerical addition, or by economizing the power at their disposal, the evils the Bill professed to remedy would remain intact. They had at present 18 Judges; but their respective duties were so arranged that their legal business was in a most unsatisfactory condition. He could see no necessity for insisting upon dividing the Court into three Divisions and perpetuating the distinction between the different Courts of Common Law. His hon. and learned Friend put his objection to the Amendment, on the ground that if it were to be adopted in that transition state of things, a chaotic condition of affairs would be produced. But we should have this chaotic condition of affairs of which his hon. and learned Friend was so much afraid whenever the change was made. The Bill was one of 1603 transition, and time was given for effecting the change, for the Act would not come into operation until 1874. The hon. and learned Attorney General also said that the Bill simply introduced a transition state of things; but if the Committee looked to the 80th clause, the effect was quite otherwise; it was to perpetuate the patronage of the Chief Justice of the Queen's Bench, the Chief Justice of the Common Pleas, and the Chief Baron to all time, while the same consideration was not shown to the Puisne Judges. Higher salaries were to be retained for these inferior Courts, while no allurement was held out for members of the Bar to join the less adequately paid, though superior Appellate Tribunal. He quite admitted that the members of the legal profession would be in favour of retaining those high names to which the Bill gave its sanction; but the Members of that House, when passing a measure of legal reform, ought to put the interest of the public before that of the legal profession. He would prefer the Amendment to apply to the Court of Chancery rather than to the Common Law Courts, and in that sense he hoped it would be pressed to a division.
THE SOLICITOR GENERAL
said, he should like to know what right the hon. and learned Member for Taunton (Mr. James) had to arrogate to himself the monopoly of public spirit among the members of the legal profession? What right had he to tell hon. and learned Gentlemen that they preferred the interest of their profession to that of the public? What right had he to insinuate that they were influenced by greed, by avarice, by desire of personal aggrandizement, and were not desirous as far as in them lay to legislate in the interest of the public? He altogether denied the right of the hon. and learned Gentleman to make any such insinuation. If he believed that any Member of the Committee would impute to him any such motives, he would never have the face to address the House again. The hon. and learned Member for the City of Oxford (Mr. Harcourt) had said that certain things to which he objected were put into the Bill to please the Chief Justices. But what was the answer that the Attorney General gave him? Why, that it was contrary to what he ought to have known to be true; these things 1604 were put into the Bill simply to carry out the recommendations of the Judicature Commission. His hon. and learned Friend had, on a former occasion, proposed that there should be two Chiefs, one with £8,000, and the other with £7,000 a-year. But he had since abandoned that proposition, and now he wanted only one Chief. Was it for his hon. and learned Friend who had changed his own opinion so often, to reproach those who had shown some little deference to the Report of the Judicature Commission? If his hon. and learned Friend was at liberty to change his opinion twice in the course of 12 months, they could not be accused of wilful blindness if they adhered to their first opinion. Now as to the public, he had always held that the legal profession existed for the benefit of the public—for the effectual economical and speedy administration of justice. He believed that, even taking the lowest and the most avaricious view of the matter, it would be found that to improve the administration of justice would increase the gains of the profession by causing an increase of litigation; but taking a higher view—namely, the interest of the public, it was of the utmost importance that the seats on the Bench should be placed in such a condition as to attract the very best legal talent. Besides, they must have the rub of seniority, unless they had Chiefs, and that meant that as a rule the most aged and not the most efficient Judge should preside. The Judges must have a president, and by retaining the Chiefs they secured the most successful advocates, that was the largest experience and the greatest talent for the administration of justice. There could be no greater mischief either in the interests of justice or of the public, than to agree to the Amendment proposed by the hon. and learned Member for the City of Oxford.
§ Motion made, and Question proposed, "That the Chairman report Progress, and ask leave to sit again."—(Mr. Robert Fowler.)
§ Motion negatived,1605
§ DR. BALL
said, he adhered to the opinion that the Master of the Rolls might be left out of the Appellate Division. He objected strongly to the Bill as tending to aggrandize the Members of the Court below, and to place them in a higher position than that occupied by the Members of the Court above. He would have the great places in the Appellate Court. He regarded it as injurious to the Judges themselves that they should have their minds confined to any one particular branch of inquiry. He thought that the Equity principle should be kept separate in respect to testamentary questions—at all events, from the merely legal one. With regard to the Court of Admiralty, his opinion was, that shipping cases, commonly tried in that Court, might be tried on circuit instead of being confined to the Court of Admiralty.
§ MR. VERNON HARCOURT
said, in deference to the appeal which had been made he would not insist on excluding the Master of the Rolls, and would confine his Amendment to leaving out the Lord Chief Justice of the Common Pleas and the Lord Chief Baron of the Exchequer.
§ Proposed Amendment amended accordingly.
In page 2, line 13, to leave out the words "the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer."—(Mr. Vernon Harcourt).
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 152; Noes 96: Majority 56.
§ House resumed.
§ Committee report Progress; to sit again To-morrow, at Two of the clock.