§ Order for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Attorney General.)
§ SIR GEORGE BOWYER, in rising to move the Amendment of which he had given Notice, said, he was not in Parliament last year, and therefore was unable to say how an Act involving such an important subject as the Appellate Jurisdiction could have passed, he would not say in haste, but at least not with that degree of consideration which the constitutional importance of the question demanded. At all events, he intended to propose that the matter should be reconsidered, and he did so on the ground that the Attorney General for Ireland last year opposed that portion of the Bill which dealt with the Appellate Jurisdiction; the Attorney General for England opposed it, the present Lord Advocate opposed it, and the right hon. Gentleman at the head of Her Majesty's Government was not then, or now, enthusiastic for the change. The right hon. Gentleman was too great a constitutional statesman not to see the import of the transfer of the Appellate Jurisdiction, and the serious consequences which might flow from it. He believed he might say that the right hon. Gentlemen who were now on the Treasury Bench and opposed the change last year, were not more favourable to it now, though circumstances compelled them to support it. The bench, the bar, and the solicitors in Scotland were opposed to the change, and the same might be said in regard to Ireland; while with regard to England, a short time ago a Petition was presented, signed by almost every gentleman in large practice at the bar of England, expressing regret at the abolition of the Appellate Jurisdiction of the House of Lords, as they considered that jurisdiction ought not to have been abolished unless a better Court could be 134 devised. He was prepared to show that a better Court had not been devised. This Bill provided that the Court should be called an Imperial Court of Appeal instead of Her Majesty's Court of Appeal. He could only conjecture the cause of that change of name. It was probably because in the Acts of Union with Scotland and Ireland, there were stipulations that appeals from those two countries should not come to an English Court, but to the House of Lords, which was a Court common to the Three Kingdoms. By calling it an Imperial Court, that difficulty was attempted to be got rid of; but there was not much in a name, for it could never make the new Court stand in the position of the House of Lords. That new Court was to supersede the Judicial Committee of the Privy Council. No Court of Appeal had given so much satisfaction as the Judicial Committee of the Privy Council, and he regretted it was now to be superseded by a Court composed of a miscellaneous body of Judges, who would know nothing of the different laws which prevailed in India and our Colonies. With regard to the more important subject—the Court of Appeal constituted by this Bill—he objected to the provision which made one of the two or more Divisions a Court of Appeal to the other as altogether anomalous in the English law. The First Divisional Court of Imperial Appeal was to consist of the Lord Chancellor and two other ex officio Judges—namely, the Lord Chief Justice of England and the Master of the Rolls in England for the first two years, and the Lord Chief Justice of the Court of Common Pleas and the Lord Chief Baron of the Exchequer in England for the next two years, and so on in rotation every succeeding two years. That would give them a shifting and sandy tribunal; whereas the Court of Ultimate Appeal in England ought to be a steady tribunal, having a jurisprudence of its own. Those ex officio Judges ought to be sitting in their own Courts, where they had important duties to discharge, and not be taken away to be made a Court of Appeal. It might be said that similar changes took place in the House of Lords, but it consisted of a small body of experienced Judges of high standing, and the jurisprudence of that tribunal had, on the whole, been kept remarkably steady. Lord Moncrieff, a competent authority on the sub- 135 ject, spoke of the great pains and labour which the House of Lords bestowed upon Scotch appeals, and said that although the law of the two countries was different, yet the people and the Judges of Scotland had great confidence in the House of Lords, and would not have the game confidence in any other Court of Appeal. By Clause 5 Her Majesty might appoint three additional Judges of the Supreme Court, but they were to be appointed, not by Letters Patent under the Great Seal—the usual practice of the Constitution—but by warrant; and those three Judges were to sit for three years only, after which three others were to be appointed for a like period. If a vacancy occurred in the Supreme Court of Appeal, the Lord Chancellor was to have power to fill it up. Such a Court would not command the confidence of the country, because it would be at the disposal of the Government of the day. He could not conceive a course which it would be more unsafe to pursue, and the matter was one which, in his opinion, was worthy of the most serious attention of the House. The tendency of the present Bill, as well as of the Bill of last year, was, he might add, to give enormous power to the Lord Chancellor with regard to making what were called "arrangements"—a power which he thought was extremely unconstitutional. In the Bill of last year, also, one of the most important provisions was that there should be only one step in appeals, and had he been in Parliament when it passed he should have opposed that principle with all the influence which he could command. It was a principle which was unknown in any country in the world, and which was altogether foreign to the Constitution of this country. If there were an intermediate Court of Appeal only the most important eases would go to the ultimate Court, and the effect would be that the Supreme Court would not have too much to do, and that it would be able to give sufficient time to the cases which came before it—the result being that those cases would be satisfactorily adjudicated, as in the instance of appeals to the House of Lords, while Judges overworked, or working at high pressure, could not get through the business before them as well as they might otherwise do. He stated, during the progress of the Bill of last year through Parlia- 136 ment, that he was quite sure that the result of having only one step of appeal would be to overwhelm the Supreme Court with work—an opinion which, he found, was shared by men of great experience in the legal profession. Well, the principle of having only one step of appeal had to be given up this year. There was to be no appeal except in two cases—either where the Judges were not unanimous, or where the decision of the divisional Court reversed any question of law material to the judgment of the case. The Judges, although unanimous, might yet be wrong. This provision deprived, the subject of the power of appeal to the higher tribunal, and so far it was a provision which had never previously existed. "With regard to the second point, if the Court decided one way, and on appeal that decision was confirmed, the subject would be deprived of any power to bring his case before the Supreme Court of Appeal for ultimate adjudication. That was neither reasonable nor constitutional, and had hitherto been altogether unknown in the law of England. The right of appeal was a right emanating from the duty of the Crown to administer justice towards a subject; and, although the second Court might agree with the first, he maintained that the subject had a right to go to the ultimate Court of Appeal, in order to ascertain whether those two Courts were right or wrong. He objected to this provision, and urged that the Court of Appeal constituted by this Amendment Act was not a satisfactory Court, and was not worthy to supersede the jurisdiction of the House of Lords. He now came to the question of abolishing that jurisdiction. Great weight ought, he thought, to be given to the connection which had existed between it and the Crown and Parliament, and it ought not, he contended, to be abolished, except on very conclusive grounds, and without substituting for it something better, because if something only equally good were offered no sufficient ground for change would have been established. The House of Lords was one of the greatest Courts of Appeal which the world had ever seen, and the most august. It had been connected with the history of the country from the earliest times; it was coeval with the monarchy, and formed a part of the privileges of Parliament taken as a col- 137 lective body. The House ought, therefore, to look with jealousy on any change of so ancient, so great, and so historic an institution. It might, indeed, be said that the House of Lords itself had given up its Prerogative in regard to appeals; but, even so, the House of Commons, which was a co-ordinate branch of the Legislature, was not bound to acquiesce in that decision. Every man had a right to give up what belonged to himself, but no man had a right to give up what belonged to himself and others; and the country had a right to a Court of Appeal in the House of Lords if it was a good one, or the best which could be formed under the circumstances. In considering this subject, the House of Commons must cast aside the fact of the House of Lords having given a decision upon it, and ought not to be satisfied with registering their Lordships' decree. The Lords agreed to give up their jurisdiction under circumstances which did not now exist, and when there was to be only one step of appeal. He should be told the thing had been settled, and ought not to be re-opened; but they were fortunate in having the opportunity of reconsidering their decision, and if they had made a mistake it would be a greater mistake to persevere in it; they ought rather to be thankful of the opportunity of correcting it. It was determined that the House of Lords should no longer be the Supreme Court of Appeal; because, as there was to be only one, it was considered the mass of business would be so great they would not have the strength to do it. This was no longer the case, for under the name of a rehearing there was to be a second step of appeal, so that the circumstances were totally changed, and no one could say the Lords would be unequal to dealing with the appeals. It was said the House of Lords sat only while Parliament was sitting; but that was six months of the year, and the judicial year was eight months, so that it was only a question of two months. Nor was there any reason why the House of Lords should not continue to sit for judicial purposes after Parliament was up. On that point, he would refer to the authority of Lord Chief Justice Hale, who, in his Jurisdiction of the House of Lords, said, there was nothing unconstitutional in that House sitting for the transaction of ju- 138 dicial business when Parliament was not sitting, and there were precedents which fully supported this view. It had been established that an impeachment did not abate by Prorogation or Dissolution. This Session four or five ex-Chancellors had been sitting regularly from day to day, and they had been aided by a Scotch Judge recently deceased. These Judges constituted such a Court as might be envied by any country in the world. There was no difficulty in strengthening the House of Lords as much as might be necessary. He regretted that the proposal to introduce life Peers broke down; but the House of Lords had the power of calling in the assistance of the Judges, and Sir Launcelot Shadwell and others had sat as Lord Speaker of the House without having been made Peers. There was no reason at all why assistants should not be associated with the Lords in the hearing of appeals; and by adopting this expedient there would be no difficulty in giving the Lords from time to time whatever strength they required. If the House of Lords required strengthening in its judicial capacity it would be easy to supply the additional strength. But generally there was, as at present, a sufficient number of Law Lords for the discharge of the judicial duties. There was also this to be taken into account, that the number of appeals to the House of Lords if this Bill were passed—supposing that House to continue to exercise its judicial functions—would be less than it had been hitherto, because the greater part of the appeals would be disposed of by the First Court of Appeal. Still, we should have a great independent constitutional Court for ultimate appeal in important cases instead of this mushroom Court instituted in defiance of constitutional principles, and the principles on which Courts of Appeal ought to be constructed. He called upon the Government, as a Conservative Government, to consider this constitutional question. A more revolutionary proposal than that of the abolition of the Appellate Jurisdiction of the House of Lords had never been brought before Parliament, and it was surprising to find it supported by a party calling itself Conservative. He knew the opinion of the Attorney General was the same as his. [The ATTORNEY GENERAL dissented.] The hon. and learned Gentleman shook his head, but he knew 139 it was so. The Attorney General for Ireland was of the same opinion. The judicial character of the House of Lords was interwoven with its history, was a necessary part of its constitution, and was the very spirit of its existence. By taking away that character a great wound would be inflicted upon it, and a step would he taken that would lead to the downfall of the House. He had heard it argued that the Court of Appeal in the House of Lords was not the House of Lords, but merely a council of Law Lords. That was no argument against the authority of the House, for the appeals were decided by order of the House. The House deferred to the opinion of those who were best qualified among its Members. But that did not derogate from the authority of the House as a Supreme Court. He would appeal to the Prime Minister to consider what the effect of this measure must be from a constitutional point of view. The right hon. Gentleman appeared to have betaken himself to the tranquillity of slumber. [Mr. DISRAELI dissented.] Well, he was glad that the right hon. Gentleman had heard him, and he was sure he would give the question his best consideration. Was the jurisdiction of the House of Lords as a Court of Final Appeal to be abolished in favour of this new mushroom Court, which had nothing to recommend it but its novelty, having no history, no dignity, and no status in the country; or was it to remain with the House of Lords, where it had been from the earliest times, and which had always proved satisfactory to the country and to the bar? The hon. and learned Baronet concluded by moving his Resolution.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "as it is admitted that the House of Lords is preferred by Ireland and Scotland as their final court of appeal to any other that has been proposed, and as a satisfactory court of appeal has not yet been established nor proposed for England, it will be expedient, instead of proceeding to create a new court for all the three kingdoms, that the provisions of the Supreme Court of Judicature Act of last Session which prohibit appeal to the House of Lords be repealed, and that time be thereby allowed for the adoption of such improvements in the constitution and practices of the House of Lords in the discharge of its judicial functions as may remove the objections which have been taken to it as a court of judicature,"—(Sir George Bowyer,)
§ —instead thereof.
140§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. CHARLEYsaid, that considering the position which he took up last year, it would be ungenerous if he left the hon. and learned Baronet (Sir George Bowyer) to fight this question alone. If he erred in supporting the Motion of the hon. and learned Baronet, he erred with all the Conservative lawyers who spoke on this question last year. On the broad ground taken by the hon. and learned Member for Frome (Mr. Lopes), whom he regarded as a Constitutional authority, he contended that to abolish the Appellate Jurisdiction of the House of Lords was unconstitutional. That High Court in the discharge of its duty claimed the support and confidence of the people of this country. He respectfully asked Her Majesty's Government to reconsider this subject. Of all the arguments that had been advanced in favour of the abolition of the Appellate Jurisdiction of the House of Lords, he thought the weakest was that the House of Lords had surrendered its jurisdiction. The hon. and learned Baronet had justly condemned that argument. He entirely endorsed what had been said last year by the Attorney General for Ireland, that this jurisdiction was—
a trust—a duty cast upon it by the Constitution. and the will of the people of England through that Constitution. That House had no right to abandon a sacred trust and a duty." [3 Hansard, ccxvi. 892.]Of the House of Lords the following words had been used with great truth:—Si antiquitatem spectes est vetustissima, si dignitatem est honoratissima, si juris-dictionem est capacissima. He would say to the hon. and learned Baronet that this question could be better raised upon the 10th clause of the Bill than upon going into Committee. The best course, therefore, for the hon. and learned Baronet to pursue would be to move the rejection of the 10th clause, which directly raised this question. This Bill repealed the 20th section of the Judicature Act of last Session, the effect of which was to do away with the Appellate Jurisdiction of the House of Lords, and if a portion of the 9th, the 10th, and the 22nd sections were omitted, the result would be that the Appellate 141 Jurisdiction of the House of Lords would remain.
MR. OSBORNE MORGANsaid, the real answer to the hon. and learned Baronet's Resolution was that it came too late. The House discussed this question very fully twelve months ago, and by a very large majority the House came to the conclusion that the Appellate Jurisdiction of the House of Lords ought to be abolished. The conclusion, he believed, was arrived at upon the ground that there were certain inherent defects in the constitution of the House of Lords which no legislation could remedy and which made that House an unsatisfactory tribunal for the hearing of appeals. The great defect in the constitution of that body had been and necessarily must be the difficulty of procuring anything like a certain attendance of Members to hear appeals. The decision of the House of Commons by a very large majority that the Appellate Jurisdiction of the House of Lords should be abolished had been endorsed by the general approbation of the country. He could say for his own profession that the decision the House arrived at last year had their almost unanimous approval. For himself, he regretted that the question of the Appellate Jurisdiction for the Three Kingdoms had not been dealt with at one and the same time, seeing that such a course would have been preferable to piecemeal legislation; but having put an end to the jurisdiction as far as England was concerned, they were bound to do the same for Scotland and Ireland.
§ MR. GREGORYsaid, that the Bill was simply a completion of the one passed last Session, and it ought, consequently, to be passed, although he quite admitted that certain of the objections which had been urged by the hon. and learned Baronet to the abolition of the Appellate Jurisdiction of the House of Lords possessed considerable weight; but it must be borne in mind that this was primarily a question for that House itself to consider. If the House of Lords had seen fit to abolish their own jurisdiction he could not see how the House of Commons could thrust it back upon them by refusing to entertain the present Bill. Therefore, it was almost superfluous to consider the Motion proposed by the hon. and learned Baronet. He (Mr. Gregory) considered the Appellate Jurisdiction of the House of Lords not so 142 much a matter of obligation as of Prerogative; it was a Privilege, not matter of statute, nor hardly of common law. It would be most dangerous to force the administration of the law upon unwilling Judges. There were undoubtedly things in the present Bill susceptible of improvement, but these might be remedied in Committee.
§ MR. WATKIN WILLIAMSsaid, he could not help thinking, while concurring very largely in the observations of the hon. and learned Baronet, that it was really too late to attempt to save the Appellate Jurisdiction of the House of Lords. Universal regret was felt by members of the legal profession at the abandonment of the jurisdiction of the House of Lords. There had been a very natural reticence on the part of the legal profession to give a real, honest opinion upon the subject either in the House or in public; and the question had presented itself to him several times whether they ought to speak out the honest truth about it or whether they ought to be governed by the rules of good taste and propriety, considering their position as practising barristers in Court. He ventured to say that there was a very general, if not a universal, feeling of regret by the members of the legal profession that the jurisdiction of the House of Lords as a final Court of Appeal had been abolished. It was, however, too late to recur to that question now. Years ago the House of Lords had an opportunity of retaining that jurisdiction, but they neglected it, and declined to receive those moderate reforms which would have made their jurisdiction acceptable to the country. He could not help feeling that they—the House of Commons—gave way rather to popular sentiment and popular feeling in abandoning the jurisdiction of the House of Lords rather than facing the thing according to its merits, and consented rather hastily to its abolition. The House of Lords as a Final Court of Appeal had undoubtedly conducted its proceedings with the greatest solemnity, and had given the closest attention to all the arguments brought under its notice. Counsel and suitors were heard fairly and patiently without stint of time. With respect to the Exchequer Chamber, or the Lords Justices in Chancery, suitors did not receive such justice, so much so that nothing was commoner, 143 when a case was adjourned in either of these Courts, than to hear the remark, "the Court will he heard again tomorrow." No doubt, there were complaints against the jurisdiction of the House of Lords propagated over the country, and which aroused popular feeling against the jurisdiction; and the House of Lords in an unfortunate moment consented to give up that jurisdiction. Now it was too late, as they had chosen to give it up, to go hack to that jurisdiction. A memorial, signed by almost every member of the Common Law bar, had been forwarded within the last month to the Lord Chancellor expressing their regret that the jurisdiction of the House of Lords had been abolished without a sufficient substitute for that tribunal being provided. The members of the legal profession, so far from desiring to impede the Act, were most anxious that it should come into operation without delay; but they felt a particular anxiety to see the Rules and Orders of the Court, which were to be framed by the Judges under the direction of the Lord Chancellor, in order to judge whether they were drawn in a spirit calculated to carry out the Judicature Act effectually. Great misgivings had been created in the minds of the Profession on account of the long delay which had occurred in preparing the Rules, and the apparent reluctance to lay them on the Table of the House. On the 21st of April, he put a Question to the Attorney General on the subject, and the answer was unsatisfactory. The hon. and learned Gentleman promised that they should be laid on the Table by the 1st of June; it was now the 16th of July and they had not yet been produced. But these Rules were the very backbone, nay, the flesh and blood, of the measure, and therefore the utmost anxiety was felt to know what they were. Even now great anxiety prevailed lest the Judges might have gone further than was expected, for up to the present moment the profession at large had not had an opportunity of seeing the Rules. After great exertion he and some others had succeeded in obtaining copies of the Rules, and he must candidly say they were, in his judgment, admirably framed, though it was impossible that any Rules carrying out such enormous changes, and travelling over such a vast surface, should not be here and there defective. There was, however, something about the 144 Rules which would demand the attention of the House before parting with the subject, and that was an attempt which was being made to interfere with trial by jury. He should deplore the day when we should part with trial by jury, even in exchange for some more scientific system. But those who were behind the scenes had reason to know that attempts were made by means of these Rules to do away with trial by jury; and if hon. Members had not been informed that those attempts had been abandoned, far stronger opposition would be given to the Bill. His hon. and learned Friend the Member for Taunton (Sir Henry James) would move an Amendment to secure that when the Rules should come into operation next November, trial by jury should be saved from being, if not altogether, at least in a great measure, superseded, and he hoped the House would support his hon. and learned Friend.
THE ATTORNEY GENERALdeclined to enter in detail into the various matters referred to by the two hon. and learned Members who alone spoke in support of the Amendment. That Amendment, if successful, would be the most effectual means of defeating the end which his hon. and learned Friend had in view; for the result would be that while the Appellate Jurisdiction of the House of Lords would be abolished for England, it would remain for Ireland and Scotland, which would thus have a different Court of Appeal from this country. The whole of the arguments which the hon. and learned Baronet had addressed to the House had reference more to the details of the Bill than to the general question, and ought properly to be raised in Committee. The hon. and learned Baronet had referred to observations which he (the Attorney General) had made last year; but he (the Attorney General) did not then go the length of saying that the House of Lords ought to be retained as a Court of Appeal for all time, but only until it should be seen whether the Act of last year would in other respects work satisfactorily. But the opinion of Parliament, as expressed in the last Session, was not in favour of that view; and, whatever might be his own opinion upon the point, he accepted the decision of Parliament as conclusive. The only question now before them was, whether the House was prepared to give effect to the Bill which 145 had come down from the House of Lords, and to afford the same Appellate Jurisdiction for Scotland and Ireland which England possessed? One ground of his original objection to the abolition of the Appellate Jurisdiction of the House of Lords was removed by the provision in the present Bill, under which there would be a second appeal in certain cases where it was desirable. He submitted that the hon. and learned Baronet, having now expressed his views, and having a further opportunity of taking the opinion of the House on the points he had raised when they got into Committee on the Bill, had obtained his object, and should withdraw his Amendment. With regard to what had fallen from the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams), as to the course of proceeding before the Lords Justices in Chancery, and in the Court of Exchequer, he himself had no experience of the way in which justice was administered in the latter tribunal; but he had had as large or larger experience than the hon. and learned Gentleman of the administration of justice in the former, and he did not believe that there were any Judges in this country who more anxiously endeavoured to ascertain all the facts of the cases which they were called upon to decide, and to arrive at a right conclusion, than the two Lords Justices. If any fault at all could be found with them, it was that, in their desire fully to ascertain all the facts of the cases which came before them, they sometimes talked a little too much, in the opinion of some of those who practised before them; but, however this might be, all that they said was for the purpose of eliciting the trnth. [Mr. WATKIN WILLIAMS: That is all that I said.] He accepted the explanation of his hon. and learned Friend, but had certainly understood his observations as made in a different sense. With respect to the Rules under the Judicature Act of last year, the several portions of those Rules were in print at the time he had stated on a previous occasion. They were before the Judges on the 1st of June, and discussed and finally decided upon by them on the 1st of July; and the only reason why they were not now on the Table of the House was, that it was desirable that the Bill now before the House should be first passed, and become a portion of the law of the land in con- 146 junction with the Act of last Session, because the Rules were intended to be Rules under the two Acts, and not under the Act of last Session only.
§ SIR EARDLEY WILMOTexpressed his intention to support any proposal for the maintenance of trial by jury, if it appeared that the new Rules prepared in accordance with this Act in any way interfered with that institution. As to the Appellate Jurisdiction of the House of Lords, he thought the time had come when they might be released from their labours in that respect; and with regard to the new Supreme Court of Appeal, he feared it was one not quite worthy of the wants of the country. He hoped the Bill would be allowed to go into Committee, and that the various details of the Bill would then be thoroughly sifted.
§ THE ATTORNEY GENERAL FOR IRELAND (Dr. BALL)having last year objected to abolishing the ultimate decision of appeals in the House of Lords, and having advocated the retention of the House of Lords as the Supreme Appellate Tribunal for the entire Empire, wished now to state why he was unable to support the proposition of the hon. and learned Baronet the Member for the county of Wexford (Sir George Bowyer). A great opportunity was lost last year of surrounding the ultimate tribunal with the traditional authority and power which the long services of the House of Lords in relation to the jurisprudence of the country gave to its judgments; but while he felt this strongly, he could not but also feel that if they were every year to review their legislative decisions, and if what was solemnly enacted last year was to be reversed in the present, a still greater evil than even the abolition of the House of Lords as their ultimate tribunal would be introduced—namely, a total confusion and uncertainty as to the proceedings of Parliament. Therefore, although he thought it was an error to abolish the Appellate Jurisdiction of a body which had been distinguished for taking a much larger and more expansive view of the law than the inferior Courts, whose judgments it had to review, still he was not prepared to go back and undo the legislation of last Session. Moreover, the present Bill introduced some valuable improvements which he and others strove in vain to get inserted in the measure of last year.
§ MR. BUTTsaid, even allowing that they were to have a now Supreme Court of Appeal for England, he could not admit that it was now too late to consider whether they ought not to retain the House of Lords as the Ultimate Court of Appeal for Ireland. He believed that England had been surprised into assenting to the abolition of the jurisdiction of the House of Lords, and that if the opinion of both branches of the profession was taken they would declare that a mistake had been made.
§ MR. C. E. LEWISexpressed his regret that the hon. and learned Member for Denbigh Boroughs (Mr. Watkin Williams) did not appear to know his own mind last Session; for if he and other learned Gentlemen who thought as he did now had known their own minds, the legislation of which they complained might not have been carried into effect. The fact was that when he himself and some 30 or 40 other Members who took an interest in the subject had spent hour after hour in discussing the present Act, they found themselves quite overborne whenever they challenged a division by some 150 or 200 Members who had never heard a word of the arguments which had been advanced on either side. His opinion, then, was that the course which it would be most desirable to take would be to create a strong Intermediate Court of Appeal, so that the strain on the House of Lords might be rendered less and the difficulties in the way of making it a perfectly satisfactory Final Court of Appeal diminished. But a different course had been taken, and he now felt bound to vote against the Resolution of the hon. and learned Member for Wexford (Sir George Bowyer) simply because he was of opinion that it would be useless to vote for it, and that if carried it would lead to a great deal of confusion. Before he sat down he must protest against the delay which had occurred in laying the now Rules on the Table of the House. It was in the highest degree unsatisfactory, he thought, that they should be produced only just as the House was on the point of breaking up for the Recess, when there would be no adequate opportunity of considering them, especially as they were to come into operation so early as November. All he could say was that he hoped they would not be found to be worse than the Bill, which he had not much expectation of being 148 able to amend, seeing that it was the measure of a strong Government which while it gave way to its opponents sometimes sat upon its friends. On this occasion they were sitting upon the country in the form of the new Judicature Act, and insisting on bringing it into force while the country was ignorant of the new system.
§ MR. SERJEANT SHERLOCKwas opposed to the transference of the jurisdiction of the House of Lords, of which the country knew a great deal, to a tribunal of which it knew nothing. It had been stated that the present intermediate Courts of Appeal were in an unsatisfactory condition, but this was surely no reason for interfering with the highest Court. Moreover, why should it be proposed to extend to Scotland and Ireland a measure which had not yet come into operation in England and the probable working of which was necessarily doubtful? With regard to the delay which had occurred in placing on the Table the new Rules which had to be drawn up under the Act of last year, he quite concurred in the protest which had been made by the hon. Member for Londonderry (Mr. C. E. Lewis.)
THE SOLICITOR GENERALsaid, he was afraid after the remarks of the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) would tend to confirm the vulgar belief that lawyers were not on all occasions disposed to speak the truth. The hon. and learned Member had observed that the time to speak the truth had now come.
§ MR. WATKIN WILLIAMSexplained that he had spoken not with reference to politics and parties, but to his position as a barrister practising before Courts to whose functions he naturally felt a delicacy in referring.
THE SOLICITOR GENERALsaid, that last year he expressed the opinion that if there was to be a Second Court of Appeal for English Appeals, the House of Lords would serve the purpose well. He did not now shrink from that opinion; but, at the same time, he opposed the Motion of the hon. and learned Member for Wexford, on the ground that the time for discussing the matter had gone by. They were prevented by the action of the House of Lords itself from raising the question. He was aware it had been said that the House of Lords, being in 149 the position of trustees or quasi trustees, was not at liberty to surrender a jurisdiction which it held for the benefit of the people. He listened with intense admiration to such sentiments; but he confessed they did not overwhelm him, for whether the House of Lords had a right to surrender the jurisdiction or not, as a matter of fact it had done it, and done it by a very considerable majority. It would be no use to go to the House of Lords and ask it to preserve a jurisdiction which it had deliberately given up. The rejection of this Bill would only leave the Act of last year incomplete. With regard to the new Rules, he denied that the Government had failed to act in accordance with the provisions of Section 68 of the Act of last year; and he mentioned that, although the Rules had not been officially issued by the Judges, yet they were already in the hands of many Members of the House.
§ MR. SERJEANT SIMONsaid, that his experience of the whole of the last Session had made him almost shrink from attempting to join in any discussion on a legal Bill, because the great majority of hon. Members did not attend to the arguments or take any interest in them. He did not mean to reproach the present Government, because they were only following the precedent set by the late Government. He did not blame the Government so much as the lay Members of the House, who, when a legal question was under discussion, paid no attention to it, and were content to follow the direction of the Government whip. With regard to the Amendment before them, he confessed that when the question of the abolition of the jurisdiction of the House of Lords was under consideration on a former occasion he was in favour of that abolition, because the House of Lords did not, in fact, deliver judgments, but left them to be delivered by two or three Peers only, whose attendance was uncertain. Its constitution was of a very poor description, and by no means such as to command the confidence of the country. A suggestion had been thrown out that that Court might be amended and improved by the creation of life Peers, and appointing Judges to sit there for purely judicial purposes; but if that were done it would be the Appellate Jurisdiction of the House of Lords; and if they were to have a newly-constituted Court 150 of Appeal such as that, they might as well have an entirely new one outside that House and independent of it. He did not believe that parting with their jurisdiction would weaken the prestige or authority of the House of Lords in their legislative capacity. He thought the House of Lords as a Legislative Assembly would command the respect of the country far more by the readiness with which it had parted with its jurisdiction than if it had attempted to retain it. He regretted the course taken last Session with regard to the matter, because it showed how easy it was to pull down and how difficult it was to build up. They had attempted to build up a new tribunal, and had failed in the attempt. He feared that this new Court of Appeal would not be a success. It would not sit in its entirety to judge upon legal questions, but was to be split into divisions of three Judges here, and three there, to take different questions from different parts of the Empire. This would be a defective system as compared with the present. The removal of the jurisdiction from the House of Lords would deprive the subject of the right of a second appeal, which he had always enjoyed at common law. He objected to the phrase "rehearing" in lieu of "appeal." Rehearing was an equity phrase and it usually meant a re-hearing of the case before the same Judge. But a suitor should be entitled to have his case reheard, not before the same Judge, but before another and a higher Court. After, however, what had taken place, he did not think it desirable that his hon. and learned Friend should press his Amendment. If carried, it would not have the effect of restoring the Appellate Jurisdiction of the House of Lords; but if he could see his way to a reconsideration of the abandonment of that jurisdiction he should be disposed to vote for the Amendment.
§ MR. MORGAN LLOYDsaid, that if he had been a Member of the House when the last Judicature Act was introduced, he certainly should have voted against the proposal to do away with the Appellate Jurisdiction of the House of Lords; but he was afraid it was now too late for them to retrace their steps. Indeed nothing ever surprised him more than to see the heads of the legal profession, who represented both political 151 parties, agreeing to give up so ancient an institution without a demand for its abolition being made from below. The public were satisfied with the House of Lords as the ultimate tribunal; and, so far as they had given any expression in regard to the matter, he believed they were averse to any change. It would have been very easy, as had been suggested, to create life Peers, supposing there were not already a sufficient number of Peers qualified to hear appeal cases, and there would have been no difficulty in consolidating the Privy Council and the House of Lords. The result would have been a Court of Appeal which would be respected by every colony of this Empire. It seemed to him to be a mistake to interfere with that Appellate Court. There ought to be a supreme Court of final resort to decide cases of real importance, and to make the law uniform. The Bill proposed to have a sort of intermediate Court of Appeal, but such a Court had no prototype in this country. In regard to trial by jury he was afraid there was a tendency towards doing away with that institution, but if such an attempt should be made, let the question be decided by a vote of that House after ample discussion. With respect to the number of Judges, he thought it would be the worst economy to limit the number too strictly. The present system was a tax upon suitors, jurymen, and witnesses, and tended to create dissatisfaction with the administration of justice in this country. It was better that Judges should wait for work than that suitors should wait to have their cases heard. He had been told by a merchant in the City that if they could not otherwise get a sufficient number of Judges, the City merchants would willingly subscribe to pay the expense of such additional Judges as might be necessary out of their own pockets.
§ MR. MITCHELL HENRYsaid, if there was one thing more technical than another in this matter, it was the Rules framed by the Judges to give effect to the Judicature Act. That Act provided that those Rules should be laid before Parliament within 40 days after being made, and if Parliament was not sitting at the time, then within 40 days after it had assembled. The object was that Parliament should have full opportunity of considering the Rules, for it was never intended that they should be 152 kept back until within three or four days of the Prorogation. Laymen had been blamed for not having taken part in these technical debates; but it was only now that they heard from hon. and learned Gentlemen who had seen the Rules that trial by jury was endangered. A more startling announcement could not have been made. The hon. and learned Member for Taunton (Sir Henry James) had put down an Amendment on the subject. But, suppose, like other hon. and learned Gentlemen, the hon. and learned Member for Taunton had remained silent, these Rules might have come into operation without the lay Members of the House seeing them, and trial by jury might have been done away. He deeply regretted the change which had been made in the Appellate Jurisdiction; it was unpopular in Ireland, and when understood would, he believed, be unpopular in England also. Access to the House of Lords had hitherto been made easy; but when this Bill became law that access to the House of Lords, which had been one of the greatest safeguards of the Constitution, would be done away.
§ MR. HOPWOODdenied that the House of Lords, as a Court of Appeal, was a satisfactory tribunal. From first to last, it was, as a judicial Court, a fiction. Any one who wandered formerly into the House of Lords when sitting as a Court of Appeal, might see the Lord Chancellor sitting with perhaps a lay Lord here, and a Bishop there, deciding what was to be the law for all time, or until both Houses of Parliament should agree to alter it. The Lord Chancellor, it was true, had the power in certain difficult cases to call upon the Common Law Judges for their assistance; but the result was that in such cases the judgment delivered was practically not that of the House of Lords, but of the Common Law Judges, whose opinions were generally followed by the Lord Chancellor in delivering his judgment, which was miscalled that of the House of Lords. Frequently it happened that the Lord. Chancellor had been counsel in the cause brought up on appeal, and was therefore unable to preside in the House. In some instances Chancellors had sat upon appeal from their own judgments in the Court of Chancery. In some a Chancellor sitting alone had reversed the judgments of men as capable as himself, with 153 this great public disadvantage—that a decision in the House of Lords was law irreversible, except by Act of Parliament. If greater mischiefs had not resulted from the House of Lords sitting as a Court of Appeal, it was through the lucky accident that the men who presided over it possessed rare good sense and much learning.
§ SIR JOHN KARSLAKEdefended the House of Lords from the injustice done to it by the hon. and learned Gentleman who had just addressed the House. No doubt some abuses had occurred. It was a misfortune when a Lord Chancellor sat alone to confirm his own judgments. It was also a misfortune when a learned counsel, having been raised to the Bench, sat in judgment upon cases upon which he bad been employed professionally. But whatever might be done to establish a great Appeal Court for the country, he believed they would look in vain for any Court whose judgments would be treated with such profound respect as those of the House of Lords during the last 50 years. The recorded judgments of the House of Lords delivered during the last century would always be looked upon as containing a body of law of the utmost value, and as being decisions that would rule and govern any Court of Appeal that might hereafter he established. He must bear his testimony to the great learning, the great attention, and the great courtesy that had ever distinguished that tribunal, and it was with the greatest reluctance that he had convinced himself that the time had come when, at their own request, and at their own desire, the Appellate Jurisdiction of their Lordships must be abolished, inasmuch as the work that would have to be done would exceed the power of their staff to perform it. The hon. and learned Baronet (Sir George Bowyer) had urged that whereas the other Courts sat eight months in the year, the House of Lords sat to hear appeals only six months in the year; but he forgot that even during the period when the House sat, it only heard appeals during four days in the week, and even then with frequent interruptions, owing to the House having to sit as a Committee for Privileges. It would be impossible, under these circumstances, for the House of Lords to get through the vast influx of business that would result from the 154 passing of the Act of last year—to many clauses of which he had a strong objection—especially if important interests should agitate for a right of appeal, which was now denied them. He might observe incidentally that it was only through the connivance of the Courts, and through the agreement of the parties that the House of Lords had been able to bear and determine, in the Mersey Docks case, the most important question of rating that had been raised for a long period. If, therefore, a right of appeal were given in such matters as that, the increase of business would be so great that it was imperative that a new tribunal should be erected to transact it. The hon. and learned Member for Stockport (Mr. Hopwood) was quite wrong when he stated that the House always followed the opinions of the learned Judges who were called in to assist them. They gave due weight to those opinions; but, having sifted them with much care and industry, their Lordships delivered independent judgments, which in some cases were opposed to the majority of those opinions.
§ SIR GEORGE BOWYERsaid, he would withdraw his Amendment.
§ Amendment, by leave, withdrawn.
§ Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 agreed to (Short title, and construction with 36 & 37 Vict. c. 66).
§ Clause 2 (Commencement of Act).
§ MR. BUTTexpressed his belief that the opinion of the country was decidedly against the Act of last year by which the jurisdiction of the House of Lords was transferred, and that an opportunity ought to be afforded to both the House and the country for reconsideration. It had been too much the practice of late years to delegate the functions of Parliament to the Judges, and in this instance, though the Act of last Session provided that the Rules to be framed and to be adopted by the Judges should be laid before Parliament 40 days before they came into operation, they were to come into operation absolutely on the 2nd of November next. These Rules were of far too great an importance to be either framed or adopted in haste, 155 and it would be far better to proceed in such a matter as this with delay than without sufficient deliberation. He, therefore, proposed an Amendment, the effect of which would be to postpone the time at which the Act would come into operation till the 1st of November, 1875.
§
Amendment proposed,
In page 1, line 14, to leave out from the word "Act," to the end of the Clause, in order to insert the words "and the Supreme Court of Judicature Act shall come into operation on the first day of November, one thousand eight hundred and seventy-five, and not sooner, except as to any provision of either Act which is declared to take effect before its commencement,"—(Mr. Butt,)
§ —instead thereof.
THE ATTORNEY GENERALopposed the Amendment, the substance of which, he said, was identical with that of a new clause of which the hon. and learned Gentleman had also given Notice. With regard to the Rules that were in course of preparation for giving effect to the Act of last Session, it was directed by the Act itself that, after having been prepared by the Judges, they should be laid before each House of Parliament within 40 days thereafter, if Parliament should be then sitting, or failing that, within 40 days after the next meeting of Parliament. All that the Act provided with regard to time was that the Rules should be ready before the 2nd of November, 1874. They had been under the consideration of the Judges, and he hoped to be able to lay them before Parliament previous to its Prorogation; but even if he were unable to do so that was no reason why their coming into operation should be retarded. The preparation of the Rules was as far, if not further, advanced at the present moment than the Act had contemplated. He could not assent to the argument that it was desirable to afford an opportunity of considering whether the legislation of last Session ought not to be repealed. The country had resolved that there ought be be a change in the system of judicature, and was, he believed, satisfied with the new arrangements. The Government desired to keep faith with Parliament in regard to the Rules, as well as in regard to the measure itself, and, as he did not believe there was any general wish to take a retrograde step in the matter, he must oppose the Amendment.
§ MR. WATKIN WILLIAMSalso opposed the Amendment, and expressed a hope that this great measure, the Supreme Court of Judicature Act, would come into operation at the appointed time, the 2nd of November. With respect to the Rules, there could be no doubt considering the great changes they would make, that great difficulty and confusion would ensue; but if the Judges worked the Rules loyally, and the professsion endeavoured to support them in carrying the Rules out, we should be as well prepared for the measure coming into effect at next Michaelmas as ever we should be.
§ MR. SYNANsaid, he thought the Attorney General had not answered the objections taken to the clause by his hon. and learned Friend the Member for Limerick (Mr. Butt). He (Mr. Synan) held that the Act, by fixing a distant date for its taking effect, contemplated that there would be abundant time given to all persons concerned to study the Rules by which the practice of the new Courts was to be guided. Even if the Rules were to be issued now, it seemed to him the time left for that purpose would be insufficient.
MR. SERJEANT SHERLOOKsaid, it appeared to him that the hon. and learned Member for Limerick was fully justified in proposing this Amendment. The Attorney General seemed to think the Rules would be issued in time even if they did not appear till the 31st of October. If that should happen, the result would be, not a fusion of Law and Equity, but the greatest possible confusion.
§ SIR EDWARD COLEBROOKEsaid, that in Scotland very great interest was felt in the question of the Rules being framed in due time before the Act came into operation. By Clause 20 there were some very large powers conferred upon the Judges of the inferior Court of Appeal conjointly with the Lord President of the Court of Session and the Lord Justice Clerk. His attention had been drawn to the terms in which these Rules were to be framed, in such a manner as to raise an apprehension that they might regulate the proceedings of the Court of Appeal in too stringent a manner. Now, without raising any question with regard to their terms, he should to like to ask the learned Attorney General or his learned Friend the 157 Lord Advocate whether he felt complete confidence that these Rules would he framed in such time as would permit of their being amply considered before this Act came into operation. The time was very short. It was possible that his learned Friend might have these Rules in his pocket to table them before the Act passed; but in any case he (Sir Edward Colebrooke) thought that some explanation was necessary in order that the profession might be completely satisfied that there would be ample time for the consideration of these Rules before the Act came into operation.
THE LORD ADVOCATEsaid, that so far as regarded Scotland there were Rules appended to the Bill which would regulate the matters connected with Appeals, and it was not contemplated that there would be any further Rules until there had been experience of the manner in which these Rules worked. Therefore, his hon. Friend need be under no apprehension in reference to that matter. Then in regard to England, he had just been looking into the provisions of the Bill of last Session, and he found that in the 68th section it was provided that—
All Rules of Court made in pursuance of this section shall be laid before both Houses of Parliament within forty days next after the same are made, if Parliament is then sitting, or if not, within forty days after the then next meeting of Parliament.So that it was contemplated that there might be Rules made while Parliament was not sitting and after Prorogation. But then the provision was made that these Rules should be laid before Parliament within 40 days after the meeting of Parliament, and then an opportunity would be given to Parliament for considering them. So that he thought it was contemplated, not that the Rules should be laid on the Table before Parliament was prorogued, but that they might be laid on the Table during the Vacation.
§ MR. MITCHELL HENRYsuggested that the Bill when passed should not come into operation until after the Rules had been published. He hoped his hon. and learned Friend would press his Amendment to a division.
§ MR. SERJEANT SPINKSsaid, that in common justice to the profession and all parties interested, the Rules should not only be laid on the Table, but in the hands of the public a reasonable time before the Act came into operation. The 158 Government might yield a little by postponing its operation until Hilary Term, 1875.
§ MR. MORGAN LLOYDconsidered that the Rules ought to be laid on the Table before the third reading of this Bill.
§ THE ATTORNEY GENERAL FOR IRELAND (Dr. BALL), observed that this clause only said that the Bill should come into operation at the same time as the original Act. His hon. and learned Friend had given Notice of an Amendment that the Act should not come into operation till the 1st of November, 1875. Surely it was unnecessary to discuss that question twice?
§ MR. C. E. LEWISsaid, he hoped the hon. and learned Gentleman would proceed to a division. If the new system was to come into operation in November next, why should they have, to wait till October before they got the code of Rules by which it was to be governed?
§ SIR JOHN KARSLAKEsaid, it had been expressly provided by Clause 68 of the former Act that in the event of the Rules not being ready when Parliament was sitting, they should nevertheless come into operation, subject only to this proviso, that they should be laid on the Table when Parliament met. The power of making these Rules was limited by the 68th section, and the learned Judge would, no doubt, keep strictly within that power. There was no doubt any lawyer or solicitor who had to consider the Rules would, without difficulty, understand them before the time they were to come into operation, and be able to advise his client upon them. The rules had been prepared with the utmost care by the learned Judges, and with the one sole object of carrying out the Act as effectually as they could.
MR. OSBORNE MORGANsaid, the Rules had been in his chambers for nearly a week, and he had not yet been able to form an opinion upon them. They constituted a thick volume, and were as much a part of the Act as any of its provisions. Unless a promise was given that they should be laid upon the Table at least a fortnight before the Prorogation of Parliament he should vote for the Amendment.
THE ATTORNEY GENERALdenied that he had acted otherwise than with perfect openness in this matter. He certainly drew attention to the 68th clause, but in almost the same breath he stated that the only reason why the Rules were not on the Table was that this Bill was pending, and that they would be produced the moment the Act was passed. A variety of suggestions had been made as to the time when the Act should come into operation; but he believed the 1st of November was preferable to Hilary or any other Term that had been named. He agreed with what had fallen from his hon. and learned Friend the Member for Huntingdon (Sir John Karslake) that a very few days would be ample time for any legal practitioner to become acquainted with the Rules. He had not got so low an opinion of either branch of the legal profession as to think that, if their attention was directed to the Rules, 48 hours would not be sufficient for understanding them.
MR. GREGOEYsaid, that as soon as the Rules were framed the learned Judge who had special charge of the matter communicated them to the Incorporated Law Society, of which he was a member; and he was glad to have the opportunity of acknowledging his courtesy and consideration in doing so. A committee of the Society was appointed to consider the Rules, and suggestions had been made by them, many of which the learned Judge had adopted, and all had received his serious attention. The Rules were brought into a workable shape, and as soon as they had been put into that shape they were again submitted to members of his profession, including himself, and to members of the Bar. He saw no advantage whatever in postponing the operation of the Act. It would be injurious both to the profession and to the public to do so. He hoped the hon. and learned Gentleman the Member for Limerick would not divide the Committee on the Amendment.
§ MR. SYNANpointed out that at the end of the 20th clause it was provided that the Rules with regard to Scotland and Ireland should come into operation at the same time as the Act of 1873. He considered it quite impossible that that could be done.
§ MR. BUTTclaimed for his Amendment the votes of those Members who had suggested an intermediate time.
§ Question put, "That the words 'except any provision thereof stand part of the Clause."
§ The Committee divided:—Ayes 123; Noes 38: Majority 85.
§ Clause agreed to.
§ Clause 3 (Substitution of Imperial Court of Appeal for Her Majesty's Court of Appeal in 36 & 37 Vict. c. 66. s. 14.) agreed to.
§ Clause 4 (Explanation of principal Act as to number of judges).
§ SIR HENRY JAMESmoved, in page 2, line 13, to leave out from "twenty-one" to the end of the clause, and insert—
So much of the said section as is hereinbefore recited shall he repealed, and the permanent number of the Judges of the said High Court shall be twenty-four, exclusive of the Lord Chancellor.The hon. and learned Gentleman said, the Act of 1873 would practically reduce the staff of Common Law Judges by three, a result which would, in his opinion, prove detrimental. As a rule, he disapproved one Parliament undoing the work of its predecessor, but he thought this objection would not weigh against his present proposal, inasmuch as the decision arrived at in 1873 had not as yet had any effect on the judicial Bench. Down to the year 1830 the number of the Common Law Judges was 12; but in that year, in consequence principally of jurisdiction being given to them over Welsh causes, three more Judges were added to the Bench, so as to make the total number 15. This remained the number until 1868, though during the interval of 30 years our population had much increased, and the whole of our railway system had come into existence. These things had produced much additional litigation, and besides, the course of legislation had cast much extra labour upon the Judges. The Central Criminal Court had been created, parties had been allowed to be examined in their own causes, and the great extension of commerce had led to largely increased litigation in connection with commercial contracts. In 1868 three new Judges were 161 created for the trial of Election Petitions, and these Judges were afterwards utilized for other purposes. The number of 18 Judges had, indeed, been found to be scarcely sufficient to perform the increased duties cast upon them. There was no reason whatever why the number of the Judges should be reduced, except that they would no longer have the duty of sitting as members of the Exchequer Chamber; but this duty was a very light one, because he believed that all the days of sitting in the Exchequer Chamber were under 30 in the year. There would not be a sufficient number of Judges to fulfil the obligations cast upon the judicial Bench by the Rules under the Act of 1873. He had permission to say on behalf of the whole of the Judges of the Court of Exchequer, and also on behalf of several other Judges who had assisted in framing these Rules, that they could not carry on their duties if their number were reduced by three. They could not with such a reduced number—the chiefs of the three Common Law Courts being liable to be called away to sit in the Supreme Court of Appeal—have contemporaneous sittings in Banco and at Nisi Prius, as the object of the Bill was that they should have. Then, with respect to the Circuits, they could only be held by the Queen being represented, not by Judges of the land, but by Queen's Counsel delegated to perform the office of Judge in many parts of the country. The carrying out such legislation might lead to the saving of expenditure, but it would, in his opinion, be false economy. The arrears in the Common Law Courts at present were what had never been known before; and he was authorized by the Chief Baron to say that in all his experience he had never seen such an amount of arrears in his Court. He looked with confidence to the Treasury Bench on this subject, because the Attorney General had placed an Amendment on the Paper, to the effect that if it should please the Crown before the 2nd of November to appoint a Puisne Judge as a Member of the Supreme Court of Appeal, a new Judge might be appointed in his place. If a Judge was necessary on the 2nd of November, he was equally necessary on the 3rd of November, and he therefore hoped the Government would accept his Amendment.
THE CHAIRMANsaid, that the words of the Amendment as they stood might be construed to involve an additional charge on the public revenue. He thought it would be more convenient if the hon. and learned Gentleman would make some alteration, to show that it was not intended to place any additional charge upon the public revenue.
§ SIR HENRY JAMESsaid, his Amendment did not necessarily create any additional charge. By keeping the Judges at 24 there would not, in the ordinary condition of things, be any increased charge.
THE CHAIRMANobserved, that the Amendment proposed to repeal the existing law, which provided there should be only 21 Judges, and to enact that there should be 24. It was a fair construction to put on the Amendment that it would entail an additional expense by the appointment of three additional Judges; and therefore he thought the hon. and learned Gentleman ought to insert a provision that this change should not entail any additional charge.
§ MR. GREGORYobserved that as the Act which it was proposed to amend had not yet come into force, the Amendment did not involve any additional charge.
§ MR. WATKIN WILLIAMSsaid, the object of the Amendment was merely to prevent a clause in the Act of 1873, reducing the number of the Judges, coming into operation, and therefore it did not involve any increased charge.
THE ATTORNEY GENERALsaid, the first clause incorporated the Act of 1873 with this Act, and the Judges would be paid under the Act of 1873.
THE CHAIRMANsaid, he must rule that he could not put the Amendment, and suggested that the Attorney General should obtain the passing of another Resolution, and have the Bill recommitted, in order to introduce a clause he himself had on the Paper and this Amendment.
THE ATTORNEY GENERALsaid, that, as far as he was able, he would give the hon. and learned Member for Taunton an opportunity of moving a Resolution in a Committee of the Whole House, with regard to his proposal, in accordance with the ruling of the Chairman.
§ SIR HENRY JAMESintimated that, in order to raise the question involved in his Amendment, he would move that the clause be struck out.
§ Amendment, by leave, withdrawn; Clause struck out.
§ Clause 5 (Amendment of section 8, of 36 & 37 Vict. c. 66. as to qualifications of judges. Not required to be serjeants-at-law).
§ SIR HENRY JAMESmoved in line, 20, to leave out "any barrister," and insert "any person who has been a barrister in England."
§ Amendment agreed to; Clause, as amended, ordered to stand part of the Bill.
§ Clause 6 (Jurisdiction of Lord Chancellor and Lords Justices in respect of lunatics) agreed to.
§ Clause 7 (Provision as to existing judge of the High Court of Admiralty).
THE ATTORNEY GENERALmoved, at end, to add—
Every Judge of the Probate, Divorce, and Admiralty division of the said High Court appointed after the passing of this Act shall, so far as the state of business in the said division will admit, share with the judges mentioned in section thirty-seven of the principal Act the duty of holding sittings for trials by jury in London and Middlesex, and under commissions of assize, oyer and terminer, and gaol delivery,
§ MR. WATKIN WILLIAMSmoved to insert after "assize" the words "nisi prius."
Proviso, as amended agreed to. Clause added to the Bill.
§ Clause 8 (London Court of Bankruptcy not to be transferred to High Court of Justice) agreed to.
§ Clause 9 (Amendment of 36 & 37 Vict. c. 66. s. 19. as to appeals to be heard by Imperial Court of Appeal).
MR. MACKINTOSHmoved, in page 5, line 1, to leave out "the Court of Session in Scotland" and insert "any court in Scotland from whence appeal now lies to the House of Lords." His object was simply to guard against the limits of appeal to the new tribunal being narrowed.
THE LORD ADVOCATEsaid, he was sorry he could not accept the Amendment, but he was not aware that there was any Court in Scotland, except the Court of Session, from which appeal could be taken to the House of Lords. It seemed to be thought by his hon. Friend that there could be appeal from the Justiciary Court; but in 1781 and at subsequent times it was decided there 164 could be no such appeal. An attempt was afterwards made to get legislation on the point, but after discussion the proposal was negatived. If there was any new proposal of the same kind, it would have to be brought forward in a measure dealing with the Court of Session; but at present no good could come from inserting the words, because there were no other Courts from which there could be appeals, and indeed their only effect would be to cause confusion.
§ Amendment, by leave, withdrawn.
§ MR. BUTTmoved, in page 5, line 3, to leave out from "any judgment," to "House of Lords," in line 10. The hon. and learned Gentleman said, to carry Irish Appeals to an English Court was a violation of the Articles of Union, and it was done in opposition to the wishes of the great majority of the Irish Members. Was the House prepared, in opposition, to the wishes of the great majority of the Irish Representatives, to violate a distinct Article of the Act of Union? There would be a great inconvenience in bringing these questions to what would be essentially an English Court, which would not give satisfaction to Ireland; whereas the House of Lords as an Appellate Tribunal had given such satisfaction. It was probably too late, however, to make any alteration in this respect, but he wished to move his Amendment. The hon. and learned Member concluded by moving the Amendment.
§ Amendment proposed, in page 5, line 3, to leave out from the words "any judgment," to the words "House of Lords," in line 10.—(Mr. Butt.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ THE ATTORNEY GENERAL FOR IRELAND (Dr. BALL)said, he did not deny that there was a feeling in Ireland in favour of retaining the Appellate Jurisdiction of the House of Lords; but the resolutions of the Judges and the Bar of that country last year were to the effect that, while it would be desirable to maintain the House of Lords as the ultimate Appellate Court for the whole Empire, if it ceased to be so for England and Scotland, Irish Appeals ought to be sent to the same ultimate tribunal as Appeals from the rest of the United 165 Kingdom. The Irish legal system was the same as the English, and if they had one Court of Final Appeal for Ireland and another for England and Scotland they would have conflicting decisions and uncertainty introduced into the law. Moreover, when English and Scotch Appeals were taken from the House of Lords, that tribunal would not retain the same weight and authority as it had hitherto possessed, and Ireland would thus be placed in a disadvantageous position in regard to her Appeals. With regard to the argument that the Imperial Parliament was not competent to alter the Articles of the Act of Union, it was impossible to set up that doctrine after the passing of the Irish Church Act. The Imperial Parliament was as competent to deal with any provision contained in those Articles as the separate Legislatures of the two countries originally wore before they were united.
§ MR. SYNANsaid, the competence of the Imperial Parliament in that matter was disputed, both at the time of the Union and also at present. That Court of Ultimate Appeal would be an English one and it ought not to be forced upon the Irish people against their will.
MR. OSBORNE MORGANsaid, the Irish Appeals which came to the House of Lords averaged from one to three per annum, and it would he absurd to keep up a separate Appellate Court for the hearing of so small a number of cases.
§ SIR EDWARD COLEBROOKEsaid, Scotland would be much more affected by the Act than Ireland. In Scotland there was a strong feeling against the transfer of the jurisdiction of the House of Lords, both amongst advocates and solicitors practising in the Courts. Their opinions had not been made public, however; but they had said to many Members of Parliament that if the jurisdiction of the Upper House were maintained for England it should be for Scotland also. He hoped the Committee would press upon the Government the advisability of making this tribunal a more mixed one.
§ Question put.
§ The Committee divided:—Ayes 191; Noes 29: Majority 162.
§ Clause agreed to.
166§ Clause 10 (Amendment of s. 20 of 36 & 37 Vict. c. 66, as to discontinuance of appeals to House of Lords or Judicial Committee).
§ MR. CHARLEYsaid, that the clause raised the whole question of the Appellate Jurisdiction of the House of Lords, which he was anxious to maintain. The only argument which he had heard in support of the proposal to abolish it was that it was the duty of the Government to endorse the policy of their predecessors, which he denied; and, secondly, that the House of Lords had themselves surrendered it, but he denied their competency to do so without the assent of the House of Commons. The House would be therefore quite justified in declaring that that jurisdiction ought not to be abolished, and he hoped there would be some expression of opinion to that effect.
§ SIR GEORGE BOWYERasked, why it was intended to try the miserable experiment of a Court in which nobody believed? The Judges, Bar, and the people of Ireland and Scotland, were opposed to the change. The Government should reconsider the question.
§ MR. M'CARTHY DOWNINGsaid, the hon. Baronet did not express the opinions of all the Irish Members, for ho, for one, did not agree with the hon. Baronet.
§ MR. BUTTsaid, he could assure the hon. and learned Member that the whole Bar of Ireland was against the change.
THE ATTORNEY GENERALsaid, the Committee were only resuming a discussion that had occupied their attention for several hours that night.
§ MR. WHALLEYsaid, the Act of last Session sanctioning this change was passed with less mature consideration than a measure of such magnitude ought to have been. He hoped the hon. and learned Member for Limerick (Mr. Butt) would take the sense of the Committee upon the clause.
§ MR. BUTTsaid, he would distinctly raise the question on the Report, by moving the omission of the clause. No division was taken upon the question last Session.
§ Clause agreed to.
§ Clause 11 (Amendment of 36 & 37 Vict. c. 66. s. 21. as to power to transfer jurisdiction of Judicial Committee by Order in Council) agreed to.
167§ Clause 12 (Amendment of 36 & 37 Vict. c. 66. s. 53. as to Divisional Courts of Imperial Court of Appeal).
§ MR. M'LARENmoved in sub-section 3, line 19, after "appeal," to insert—
of whom one shall have been a judge in the Court of Session in Scotland of not less than one year's standing, or an advocate of not less than fifteen years' standing.The practising advocates of Scotland, he said, were rather scarce in that House. There were only two of them; one was his learned Friend the Lord Advocate, and the other, he was sorry to say, was absent from serious illness. The solicitors of Edinburgh had requested him to bring forward this Amendment, and the Bar of Scotland had a meeting two days ago, at which they unanimously agreed to send a circular to Scotch Members asking them to support this Resolution. Now, he would like to call the attention of the Committee to what took place last year under the late Government. After the Bill had gone through Committee, Mr. Bouverie proposed that it would be advantageous to include Scotland and Ireland in the appeal clause, and Judges from each country. That proposal seemed to be received by the House with general acclamation. The then Prime Minister rose in his place and said he was quite disposed to agree to it, and he afterwards stated that the Attorney General would put the necessary Amendments on the Paper on the following day to carry Mr. Bouverie's proposal into effect. Accordingly, the Attorney General did put the Amendments on the Paper, but a learned Lord, who was deservedly of great weight elsewhere, imagined that this arrangement would be an infringement of the Privileges of the House of Lords. A debate took place on the subject, in the course of which it was argued by the Prime Minister and Mr. Bouverie and many other hon. Members that no infringement of the Privileges of the House of Peers was involved; but as it was found the House of Peers were still opposed to it, the Government of the day thought it would not be advisable to proceed with the clause. The Bill was sent up to the House of Lords in such a form as would have enabled the Lords to have inserted the clause if they thought fit, but their Lordships did not do so. Of the Amendments made by the House of 168 Commons in the Bill, and rejected by the House of Lords, one was to this effect—Leave out 'Chancery' and insert 'being or having been a barrister in England or Ireland, or an advocate in Scotland respectively of not less than 15 years' standing, or a Judge of the High Court of Justice of not less than one year's standing.'The Lords disagreed with that Amendment, for the reason that the Appellate Court not being a Court of Appeal for Scotland or Ireland, its members ought not to be selected from the Bar of either of these countries. Now, that was perfectly true last year, but now the case was entirely altered. The Lords had sent down the present measure constituting an Imperial Court, and therefore it followed by every logical process that the reason which they gave for rejecting the Commons' Amendment last year was a strong reason now for admitting Irish and Scotch barristers to be members of this Court. A good deal had been said about the hostile feeling of Scotland against this Bill. He was not aware that there had been any strong hostility existing in Scotland against the measure; but then the irritation was kept in abeyance, so to speak, by the consideration that the Imperial Court, when formed, should not be a mockery, but a reality; and if that House refused to put a Scotch Judge into the Imperial Court of Appeal, there would be universal dissatisfaction from one end of Scotland to the other. He thought such a refusal would be most unjust and impolitic, and would be a palpable violation of the spirit of the Treaty of Union, if not of the letter. He had formerly taken the liberty of asking the Prime Minister a Question on the subject, and without meaning to cast any imputation on the right hon. Gentleman, he must say that he considered what he said was not so much an answer as a clever mode of evading the spirit of the Question. The clause in the Treaty of Union was to the effect that no cause in Scotland should be cognizable to the Courts of Chancery, Queen's Bench, Common Pleas, or any other Court in Westminster Hall; and that the said Courts, or any other of the like nature, after the Union should have no power to review or alter the acts or sentences of the judicature of Scotland. The Prime Mi- 169 nister said the new Court was neither the Court of Queen's Bench, or Common Pleas, or Chancery, but he (Mr. M'Laren) said it was all three joined together. The right hon. Gentleman said that the reason that the right to appeal to these Courts was taken away was because the Scotch had formerly the right of appeal to their own House of Lords. Now, the Scotch had no House of Lords—the Lords and Commons sat in the same chamber; but the Scotch had a High Court of Appeal—a High Court of Parliament. In England the usage was to appeal to the House of Lords. As a matter of history everyone knew that the lay Lords voted in the House of Lords for about a century after the Union, and the Scotch people knew that when the Union took place their 16 Peers would have a right to vote in every case that came before the House of Lords. He had referred to the Journals of the House of Lords. The way in which the Peers voted on particular questions was not given, but they did give the names of Peers who were present, and he found, when the first appeal from Scotland was disposed of, amongst those present the names of a number of Scotch Peers; and even down to 1810, in the celebrated case relating to the succession of the Dukedom of Roxburghe, Lord Lauderdale intimated that he would vote against the Chancellor, who thereupon called in Lord Melville to vote with him. He mentioned these things to show that there was a Scotch element in the Pinal Court of Appeal from the day of the Union which would now be extinguished, unless a Scotch Judge should be included in the new Court of Appeal; and although it had happened that there had not been many Scotch Judges among the legal Peers, yet there had been important exceptions. For example, Lord Brougham was a distinguished Scotch lawyer before he became an English Judge. If in the Imperial Court of Appeal they kept out the Scotch element they would create great dissatisfaction in Scotland.
§
Amendment proposed,
In page 8, line 19, after the word "appeal," to insert the words "of whom one shall have been a judge in the Court of Session in Scotland of not less than one year's standing, or an advocate of not less than fifteen years' standing."—(Mr. M'Laren.)
§ Question proposed, "That those words be there inserted."
170MR. ASSHETON CROSSsaid, the whole foundation of the argument of his hon. Friend was based on this fallacy—that it was intended to exclude the Scotch Judges from the High Court of Appeal. ["No!"] [Mr. M'LAREN: No. My contention is that they are not expressly included.] That was precisely what he (Mr. Cross) said. It was based on the assumption that there was an intention to exclude them, and this was a fallacy. The intention was that Scotch Judges and barristers should be members of the Court. There were provisions in the Bill that gave ample power for their appointment. He hoped there would be one, and sometimes more than one Scotch Judge in the Court, and he would not like, by agreeing to this Amendment, to seem to indicate that there should only be one. The hon. Member had said it was contrary to the Act of Union, and quoted the provision that there should be no appeal of Scotch cases to the Court of Queen's Bench, the Court of Chancery, or any like Court. But this was not a like Court. It was an Imperial Court, and all that was proposed to be clone was to transfer the appeals from one Imperial Court to another. If the hon. Member wished to be consistent, he must go further, and provide that not only should there be one Scotch Judge on the Court, but that he should be present whenever a Scotch case was tried.
§ MR. LEITHrose for the purpose of supporting the Amendment of his hon. Friend the Member for Edinburgh. He, and those acting with him, did not assert it was the intention of the Government not to appoint a Scotch barrister or Judge to be one of the proposed Imperial Court of Appeal. What they asserted was, that it was not provided by the Bill that a Scotch barrister or Judge was to be a member of the Court. They admitted that the Government might intend to appoint a Scotch member of the Court; but they claimed to have a right to have it distinctly stated in the Bill itself that there should be a Scotch element in the now Imperial Court. The very circumstance: that it was to be an Imperial Court was an argument in their favour. It ought to be an Imperial Court not merely in name, but also in substance, and Scotland as well as England ought to be represented in it. In regard to the appointment of a Scotch 171 member being left open, this was a power which might be exercised or not, as the Minister for the time being might think fit. Scotchmen, however, maintained that they had a right to have a Scotch Judge in the Court. Still, he did not rest his argument entirely on the grounds which his hon. Friend had presented to the Committee with regard to the Act of Union; because he entirely differed from his hon. Friend respecting the language of the Act, which referred to the Courts of First Instance, and to the Courts of Queen's Bench, Common Pleas, and Exchequer. He concurred with the Home Secretary that the proposed Court was in substitution of the Court of Appeal which now existed, and which did not come in the category of the Courts alluded to in the Act of Union. Whether at this day Ave could dispute the right of the Imperial Legislature to alter or repeal the Act of Union, was too deep a question for him to enter into. At all events, the law of Scotland was entirely different from the law of England. It was a foreign law to the law of England. Consequently, Scotchmen could not silently acquiesce in this Imperial Court being comprised entirely of English gentlemen who had not been educated into a knowledge of Scotch law. He was not expounding a mere abstract theory, for it was well known that in 1867 the Government appointed Lord Colonsay to the Court of Appeal in the House of Lords, because it was found necessary to have a Scotch member of the tribunal. [Mr. ASSHETON CROSS: Hear, hear!] The right hon. Gentleman meant, he supposed, to indicate that the Government might, in the exercise of their discretion, appoint a Scotch lawyer to be a member of this Imperial Court. When cases involving Hindoo and Mohammedan law came before the Judicial Committee of the Privy Council, it was provided by statute that that tribunal should have the assistance of lawyers who had held the position of Judges in India. In conclusion, he pointed out that in consequence of his knowledge of the Roman Civil Law, a Scotch Judge would be able to render valuable assistance to the new Court; not only in regard to Scotch appeals, but also when colonial cases came on for consideration.
§ SIR GRAHAM MONTGOMERYsaid, he was quite aware that the Bar of 172 Scotland and the Scotch Society of Solicitors were in favour of the appointment of a Scotch Judge to the High Court of Appeal; but the matter had assumed a different complexion after the speech of the Home Secretary, and, for his own part, he was quite willing to leave it in the hands of the Government.
§ SIR EDWARD COLEBROOKEexpressed his regret that the Home Secretary had risen so early in the discussion, committing Her Majesty's Government to the opinions he had expressed before an opportunity was afforded for anything like a general expression of the views of the Scotch Members. This was a question which excited great interest among the professional public, and a concession on the point at issue would do much towards reconciling people to the change of Appellate Jurisdiction.
§ MR. MARK STEWARTsaid, he could not agree with the Amendment, because it assumed that no Scottish Judge would in future be appointed in the Supreme Court of Judicature. ["No, no!"] That was his impression, and it was, he believed, an assumption entirety without foundation.
§ SIR HENRY JAMESsaid, the effect of the Amendment would be to limit the power of the Crown in the appointment of Judges, a restriction for which there was no precedent. Scotland would continue to enjoy exactly the same benefit she had enjoyed hitherto in the selection of the best persons who could be found. As Scotchmen were not to be excluded, there was no more foundation for the Amendment than there was for one stipulating that six members of the Court should be Englishmen.
§ MR. WHALLEYsaid, the Amendment was based on simple common sense, and if the Bill passed in its present shape it would exclude from the Supreme Appellate Court one of the most essential elements of such a tribunal.
§ MR. RAMSAYsaid, the primary reason for which he supported the proposal was that the law of Scotland was different from that of England, and they wished to secure that there should be one member of the Court with some knowledge of it. They had no fear that Scotch Judges would be excluded.
§ COLONEL MUREalso said, there was no other reason for the new clause being-brought forward except the difference in the laws.
§ MR. M'LARENdisclaimed any political feeling in the matter, and appealed to the Home Secretary to bring up some clause of his own.
§ Question put.
§ The Committee divided:—Ayes 61; Noes 125: Majority 64.
§ Committee report Progress; to sit again To-morrow, at Two of the clock.
§ House adjourned at a quarter after Two o'clock.