THE LORD CHANCELLOR
rose to call attention to the present condition of the Supreme Court of Judicature Act, 1873, and to state the course which Her Majesty's Government intend to pursue in relation thereto, and said: My Lords, I have often experienced your Lordships' indulgence when bringing under your notice subjects which did not possess much interest in themselves; and I have no doubt that I shall receive your forbearance to-night when entering into some matters of detail which are familiar to many of your Lordships, but which, at the same time, I feel bound to bring before you in order that you may have a complete and adequate view of the present condition of the legislation as to the Judicature of this country.
My Lords, I must ask you to go back for a moment to the issuing of the Judicature Commission in 1867. My Lords, in that year the Speech from the Throne at the opening of the Session had called 575 the attention of Parliament to the subject of Law Reform, and it had particularly noticed the delays and the pressure of business which were accruing in the Courts of Assize and at the sittings for jury causes in the City of London. My Lords, that notice of the arrears of business in those tribunals was followed in the issuing, by the Government of the late Lord Derby, of the Commission called the Judicature Commission. I have seen lately some observations which have been made on the composition of that Commission and on the manner in which it discharged its work. I had the honour of being Chairman of that Commission, and—speaking for those who were associated with me on it—I venture to say, after some experience of Commissions, that a stronger Commission never was appointed, and that no Commission ever devoted itself with a greater sacrifice of time and labour to the work intrusted to it than the Judicature Commission did from the time of its first meeting till the close of its labours. My Lords, it is said that the Commission did not adopt a proper course in not taking evidence. In reply, I will remind your Lordships that there were on the Commission Judges and members of the Bar who on the questions which it had to consider possessed in their own minds all that evidence could have supplied them with. Beyond the knowledge which they possessed all that evidence would have afforded them would have been matter of opinion. On the knowledge which they so abundantly possessed they made those recommendations which have been so often referred to in the first Report of the Judicature Commission. Their first recommendation was that all the Courts of Law and Equity and the Court of Admiralty and the Court of Probate should be consolidated into one Supreme Court, which should possess the authority and power of all those Courts, and should sit in several Divisions. They recommended, in the next place, that a uniform system of pleading and procedure should be adopted in the Courts constituting the Supreme Court. They recommended, again, that uniformity should be adopted as to the sittings of the Court and as to the vacations. They recommended, in the next place, that there should be a rearrangement of the Circuits and Assizes of the country and that arrangements 576 should be made for the continuous sittings for jury trials in London and Middlesex. And they recommended that as to the administrative department of the law there should be consolidation and simplification of the offices with a view to economy of time and money. Those were their recommendations on the five heads I have mentioned.
But over and above these recommendations there was this further recommendation—that a Court of Appeal should be constituted which should take the place of the Court of Appeal in Chancery and of the Exchequer Chamber. To use the words of the Commission, they recommended that there "should be a Court of Appeal common to all the Divisions of the Supreme Court constantly sitting and easy of access." They did not contemplate that there should be any change in respect to what is called "intermediate appeal." They proposed that there should be two appeals—one intermediate and one final; and the recommendation to which I have just referred had reference to the intermediate appeal. The Commission contemplated that the Court of Final Appeal should remain as it then was. That was the Report of the Commission.
My Lords, I pass over the legislation which was attempted in 1871, and come at once to what was done in 1873. The measure introduced in this latter year followed the Report of the Judicature Commission as regards the five heads of recommendations which I have enumerated; but it departed from the Report of the Commission with regard to the subject of appeals. It provided a Court of Appeal which was to be the First and Final Court of Appeal. In other words, it abolished the intermediate Court of Appeal, and constituted a Court going altogether beyond what would be required for an intermediate Court of Appeal. Your Lordships will find it convenient to bear in mind the character of the Court of Appeal constituted by that measure. There were to have been in it five ex officio members—the Lord Chancellor, the Master of the Rolls, the Chiefs of the three Common Law Courts—nine ordinary Judges of Appeal; and, in addition to that judicial staff, persons who had filled high judicial office and were willing to sit as members of that Court of Appeal. My Lords, that Court of Appeal was intended for England 577 only; and my noble and learned Friend (Lord. Selborne), who in 1873 filled the place which I have now the honour to occupy, when introducing the measure to your Lordships' House, explained that he did not include Ireland and Scotland, because those countries had separate judicatures of their own, and both countries were satisfied with the arrangement which then existed for the final hearing of the appeals from their Courts. The Bill introduced by my noble and learned Friend passed into law, and the time fixed for its coming into operation was the 1st of November, 1874. But the duty was cast on the Judges of framing before that date a complete code of Rules, based on an outline contained in the Schedule of the Act, for the carrying out of the new system when it came into operation. It was in that state of things that Her Majesty's Government found legislation in regard to Judicature when they came into office at the commencement of last year. They found that one of their first duties was one in connection with these Rules which would be necessary for putting the Act in operation, and they found that it would also be necessary for them to consider what course it was desirable should be taken with respect to final appeals in causes coming from Ireland and Scotland—seeing that no provisions were contained in the Act for that purpose. As the time drew near for the coming in force of the Act, and as the preparation of the Rules was proceeded with, it was ascertained that there were a number of details in the measure in reference to which legislative amendment would be required. It was not to be wondered at that in a measure of such novelty and magnitude various points should arise which were not sufficiently provided for by the various sections of the original Bill. The Government ascertained that not only would the Rules require to be prepared, but that some alteration must be made as regarded the provisions in the Act referring to the position of the Judge of Admiralty and the business assigned to the Court of Admiralty; also with regard to Bankruptcy and with regard to the district registries which were to be established throughout the country. The Government in addressing their attention to the question of final appeal under this Act, and the final appeal which 578 ought to be given in cases coming from Scotland and Ireland, resolved to be guided by three cardinal principles. I state this the more emphatically because to those principles Her Majesty's Government have throughout adhered, and from those principles they consider it to be their duty to not in any way depart. Her Majesty's Government considered in the first place that, though there might be cases where appeals would be so trivial or unimportant as not to deserve encouragement, still as a general principle, a double or second appeal should be granted. The second principle which commended itself to Her Majesty's Government was this—that there ought to be one and the same tribunal of final appeal for England, Ireland, and Scotland. The third principle was that whatever provision might be made for appeals, security should be taken that appeals should be heard before an adequate number of the most skilled and experienced judicial minds that you could at any time procure the service of. Applying these principles—which they conceived had already received the assent of Parliament, the Government considered it to be their duty to proceed on what I may describe as the lines pointed out by the Act of 1873. The manner in which the Government proposed to give effect to the principles which I have enumerated was this—They proposed that what may be called the First Division of the Court of Appeal established by the Act of 1873, should be the tribunal by which all appeals from Ireland and Scotland should be heard; and that it should be also the tribunal before which should be heard by way of second appeal any appeal from the English Courts in which the first Court of Appeal was not unanimous, or should have reversed the judgment of the Court below. If the Bill to which I am referring had received the sanction of Parliament there would have been a second appeal, subject to the check imposed against frivolous proceedings by way of appeal; there would have been one and the same tribunal of final appeal for England, Ireland, and Scotland, and in the constitution of the Court itself there would have been a security that no final appeal would be heard otherwise than before anadequate number of the most skilled and experienced judicial minds that you could at any time procure the services of.
579 Those being the propositions as regards the Court of Final Appeal, the Bill introduced by Her Majesty's Government contained those other provisions of detail in respect of which legislation was required in order that the Act of 1873 might be brought into operation. My Lords, I am not going through what occurred last Session—I will come to what has happened in the present one. To the Bill of Her Majesty's Government, so far as regarded the amendments which it might introduce in the Act of 1873, no opposition was offered. The opposition to it which arose in your Lordships' House—and I am not stating this for the purpose of raising any controversy, but merely that your Lordships should have a complete view of the case before you—the opposition was to the provisions in the Bill which raised the question of final appeal. The object of the opposition was to repeal the clauses of the Act of 1873 with regard to English appeals and to prevent the passing of the clauses of the Bill with regard to the Scotch and Irish appeals. Now, my Lords, if the proposal of those who took the view held by my noble Friend at the Table (Lord Redesdale) had been limited to the repeal of the sections of the Act of 1873 having reference to English appeals, possibly the Bill of the Government might have gone through this and the other House of Parliament; because, for the accomplishment of the object which the opposition would have had in view, the sanction of the two Houses of Parliament to the repeal of those clauses would have been required, and anything that might have been done here would not have affected the provisions of the Act of 1873 without the consent of the other House of Parliament: but in order to carry the provisions of the Bill relating to Ireland and Scotland the assent of both Houses would have been required. It was for this reason that Her Majesty's Government—adhering to one of the three principles which they had felt it their duty to propose—that there should be one and the same tribunal of final appeal for England, Ireland, and Scotland—when they saw it was obviously impossible to obtain the assent of your Lordships' House to the provisions relating to Scotland and Ireland, felt bound to withdraw the Bill.
My Lords, that being the history of 580 the Judicature Act and the subsequent Bills up to the withdrawal of our Bill of the present Session, I now come to the position in which I found myself when the noble Earl (Earl Granville), on the withdrawal of the Bill, asked me what course the Government proposed to adopt with reference to the Act of 1873. That was a very natural question, and I promised to give it an early reply. I cannot deny that Her Majesty's Government have received a very considerable" quantity of advice since that time as to the course which they ought to pursue. My Lords, we have been told that one course which we might adopt would be to allow the Act of 1873 to come into operation as it stands next November. The objections which Her Majesty's Government entertain to that course, and which have led them to decline to take it are these:—If the Act were left to come into operation as it stands on the 1st of November next, it would come into operation with those defects and those inperfections which it was the object of a large part of the Bill introduced during the present Session to remove. But in our minds there is this stronger objection to that course—if it were adopted, it would bring into operation a severance in our appellate system, the effect of which would be to send to one tribunal the final appeals from England, and to another the final appeals from Scotland and Ireland. I say that is a course which Her Majesty's Government naturally declines to take; and, speaking for myself, I will say that I can see nothing which would be so fatal to identity of interests between the three portions of the United Kingdom as to make the Court of Ultimate Appeal for England a different one from the Court of Ultimate Appeal for Scotland and Ireland. Then we have been advised to take another course—namely, to postpone the operation of the Act of 1873 for another year. Now, my Lords, those who offer us this advice seem to me to labour under a very important misapprehension as to the proposals for the amendment of our system of Judicature. They seem to me to look—I will not say merely, but certainly to look mainly—at the question of the ultimate tribunal of Appeal, and nearly, if not altogether, to overlook the great work which the Act of 1873 was in other respects intended to accomplish. My Lords, I have said in this 581 House before, and I now say again—that it would be impossible to over-rate the magnitude of the Act of 1873. Beyond all question, it is the largest measure of law reform which I have ever known to be passed in this country. It covers the whole field of the Judicature of the country, and it pervades every nook and cranny of our judicial arrangements. If the measure were to be postponed, I would ask your Lordships to look at what the consequences would be. I will not say that in expectation of the operation of the Act the arrangements of the Courts are paralyzed; but I will say that in expectation of its coming into operation there is a complete want of the necessary arrangements for the development of our system of Judicature. It was only the other day I had occasion to read with some care the Report of a Commission on the administration of the Courts of Justice presided over by Lord Lisgar. That Report contains most valuable information and most valuable suggestions as to nearly all the offices of the Courts; but in almost every page the Commissioners felt obliged to state that until the Judicature Act comes into operation they will be unable to calculate exactly what will be the amount of work to be done, and what ought to be the changes and retrenchments in the staff of the officers of this or that Court. Almost invariably the Commissioners defer their conclusions till after the coming into operation of the Judicature Act; and finally they recommend that in six months after the date when it shall come into operation there should be a departmental Commission appointed to give effect to the general recommendations they suggest. Again, take the case of the local registries. In the Act of 1873 provision is made for the establishment of these registries. I know nothing which at this moment creates greater interest throughout the country. Applications have been coming from all parts of England during the last two years, asking for the appointment of local Registrars. Again, let me take the business of the Assize Courts. I can well remember what led to the issuing of the Judicature Commission. I remember the late Lord Derby stating that he had read a representation as to the state of things in connection with the Assizes for Lancashire, and he told me that he thought a strong case had 582 been made in reference to the immense amount of business to be done at those Assizes and the deficient arrangements for its discharge. Well, my Lords, lately I myself received a deputation from Lancashire who came up to town to complain that the evils with regard to the business of the Assizes is entirely unredressed and asking that a remedy might be applied. I was obliged to say that although I entirely sympathized with their views, yet until the Judicature Act came into operation it would be impossible for me to say what would be our judicial strength or what could be done in the way of economizing time as expected under that Act, and therefore until then it was in vain to ask for any changes, whether in the way of more frequent Assizes or the sending down of a larger number of Judges. Then take the sittings for jury trials in London and Middlesex. I have not a list before me of the state of business at Guildhall when the time came for closing the sittings after last Term, but I believe I shall not be exaggerating when I say that not fewer than 100 cases remained untried—cases in the highest degree interesting to the mercantile community of that great City, and which are undisposed of from the want of greater judicial strength and the power to continue the sittings. I will not say that this is entirely owing to the fact that the Judicature Act has not come into operation; but I do say that until that Act does come into operation no effective remedy for such a state of things can be applied. Then there is the unsettled question of the exact boundary which ought to be drawn between the jurisdiction of the County Courts and the jurisdiction of the Superior Courts; and in this respect it is impossible to make any change until the Judicature Act is in operation. Besides all this there is the case of Ireland. The system of law and judicature in Ireland being almost the same as the system in England, it is proposed to introduce for Ireland a change similar to that which the Judicature Act will effect in this country; but it is idle to bring in a Bill for Ireland—though one is prepared and ready for introduction—until there is a certainty that, at all events within a limited period, the English Act will actually come into operation.
I now ask your Lordships to turn for 583 a moment to that portion of the Act which is connected with the question of Ultimate Appeal, and in respect of which it appears to me considerations of urgency must be put on a very different footing. What is the case at the present moment with regard to the two great tribunals of Ultimate Appeal—the Judicial Committee of the Privy Council and your Lordships' House? I remember when, not many years ago—only four years ago, when the Act was passed for the appointment of four salaried members of that tribunal—your Lordships were informed that there were at that time in the Council Office in various stages of maturity for hearing upwards of 300 appeals from the Colonies and from India. Your Lordships and Parliament were struck with the magnitude of those arrears, and you passed the Act to which I have referred. My Lords, I find that at the present moment there are in the office of the Judicial Committee, instead of 300 or 400 appeals, about 100 cases as to which appeals have actually been lodged. But when I turn to see what are the arrears of cases waiting for hearing, I find from the official list that for their sittings which commence next week the whole number of cases ready for hearing amounts to ten—six from Bengal, three from the Court of Admiralty, and one from Canada. I think your Lordships will agree with me that the state of things as regards the Judicial Committee is most satisfactory. I now turn to the Business in your Lordships' House. It is somewhat remarkable that the state of legal business in this House is, I will not say without parallel in my remembrance, but I am told by the officers of the House that they do not remember such a state of things before. At the commencement of this Session your Lordships had standing for hearing 24 appeals. Before your Lordships adjourned for the Easter Recess, of these 24, 20 had been heard and decided; one of the remaining four is now under compromise, and one was heard and disposed of to-day. Between the commencement of this Session and Easter, 29 new appeals have been lodged and have to be disposed of; so that your Lordships' House have, in all, to dispose of two appeals remaining over since before Easter, and 19 new appeals set down for hearing—21 in all. My Lords, 584 I remember the time when it was regarded as a satisfactory position of affairs that all appeals which were remanets at the beginning of the Session had been heard before its close; but this year your Lordships see that virtually all the appeals set down for hearing at the beginning of the Session were disposed of before Easter. So much for the business; now for the Judges. In addition to the Lord Chancellor, we have had the presence during the hearing of appeals of three noble and learned Lords who are ex-Chancellors, and of my noble and learned Friend the late Lord Chancellor of Ireland. I think your Lordships will not consider that unsatisfactory either as regards the disposal of the cases or the number of the Judges. My Lords, such being the considerations of urgency in respect of different portions of the Judicature Act, what Her Majesty's Government propose is this. They propose for the present to detach what I will call the more urgent part of the Act of 1873 from that part which is not equally urgent; and they propose to introduce a Bill which will provide for all those amendments in matter of details which are necessary to be made before the Act of 1873 can be brought into operation. I shall to-night lay such a Bill on the Table, and ask your Lordships to give it a first reading. I may here add that as considerable interest has been evinced in regard of the Rules which were to supplement the Act of 1873, though I did not, in the first instance, think it necessary to burden a Bill with them; yet, yielding to the anxiety expressed that they should appear at the same time, I propose that the Rules which have been approved by the Judges should be printed in the Schedule of the Bill which I shall lay upon the Table. Those Rules will give the Bill an appearance of bulk, the cause of which your Lordships will now understand. The Act of 1873 would come into operation on the 1st of November if Parliament took no further action with respect to it. I am not without hopes that if Parliament agree to the Bill which I am about to introduce both it and the Act of 1873 may be in operation before that date; and I think it would be a great advantage if the Act could be brought into operation even before the Summer Assizes. That, however, must depend not only on this, 585 but also on the other House of Parliament.
Now, my Lords, some explanation is necessary as to an important provision of the Bill—I mean the proposal for an intermediate Court of Appeal; not only is it of importance, but it is of special importance, when you are making large changes in the judicial system of the country and in the law which is to be administered by the primary Courts. As I mentioned, the recommendation as to appeal contained in the Report of the Judicature Commission was for an intermediate Court of Appeal—a Court of Appeal common to all the Divisions of the Supreme Court, constantly sitting and easy of access. We propose that a Court should be constituted, to consist of five ex officio members—the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer. Of course these Judges—I speak more particularly of the three Chiefs of the Common Law Courts—having their primary duties to discharge, cannot be expected to sit constantly in the Court of Appeal—they cannot give more than a portion of their time to this duty, though they will be relieved from sitting in the Exchequer Chamber; but in addition to these five ex officio Judges of the Court of Appeal, there will be five ordinary Judges. You will observe, my Lords, the difference between this proposal and that in the Act of 1873. Under that Act there were to have been nine ordinary members of the Court of Appeal—under our Bill there will be five—the two Lords Justices of the Court of Appeal in Chancery, two of the salaried Members of the Judicial Committee of the Privy Council—because I think the state of business before that Committee will admit of two of the paid Members being appointed on the new Court of Appeal—and one other Judge to be appointed in the manner pointed out in the Judicature Act. I cannot but think it of great importance that the Court of Appeal which is to watch and superintend the proceedings of the primary Courts, should not sit in various Divisions. Now, as regards the number of Judges who must be present. We propose that with regard to all decrees and judgments which lawyers understand by the term "final" decrees and judgments, and 586 which may be popularly described as decrees and judgments which dispose of the whole question, the Court of Appeal shall consist of not fewer than three members. With regard to appeals from interlocutory decrees and judgments—decrees and judgments deciding questions of practice, or which do not dispose of the whole of the merits of the case—we propose that there shall be, at least, two Judges present. We know from the state of business in the Court of Chancery that all such decrees and judgments may be disposed of in that way. That being the course we propose for intermediate appeals, your Lordships will ask what is to be done with the question of final appeal. The proposal of Her Majesty's Government is to detach for the present the large and comprehensive provisions of the Judicature Act from the question of the Court of Pinal Appeal. We propose to ask Parliament to suspend for 12 months the operation of those two clauses of the Act of 1873 which negative or take away the Appellate Jurisdiction of your Lordships' House; we propose, therefore, that during that time, appeals should run, as they run at present, from the intermediate Courts to this House. But we propose that with a view of carefully keeping alive the control of Parliament over the Act of 1873, there shall be no repeal and no alteration of that Act in respect of the provisions relating to Appellate Jurisdiction. Her Majesty's Government desire to present that question in the next Session of Parliament as a separate and distinct question, unembarrassed and unburdened by the numberless questions which arise in the improvement of our general system of Judicature.
I might stop here, but I cannot do so without making one or two further observations. I say here also that I do not wish to stir up a controversy or enter on debatable ground; but I consider it desirable that those whose minds are turned towards the question of a Court of Pinal Appeal should have before them all the information I have obtained on the subject. I think it extremely important that whenever this question is to be decided, the public and your Lordships should know, as far as I have been able to make observations on the subject, both the extent of the work to be undertaken by any tribunal of Ap- 587 peal and the principles upon which such a tribunal should be constituted. It may appear somewhat paradoxical to say so, but it has always been my opinion that in regard to the constitution of a Tribunal of Ultimate Appeal the matters generally urged are more of form than of substance. I have always been anxious to secure in any Tribunal of Ultimate Appeal what appears to me to be the substance—the presence of an adequate number of the most competent minds you can obtain. I am not, your Lordships will easily understand, speaking of individuals—I am speaking on a broad question as it has been for 100 years, and as it may be for 100 years to come; and I say I believe that neither in this nor in any other country will you ever find more than a very limited number of persons who, from judicial experience and training, would be desirable, or I may say, competent, for the ultimate decision of great questions of appeal. Whether that tribunal is to be found in your Lordships' House, whether it is to be found in the Judicial Committee of the Privy Council, or in a Court which will be neither inside this House nor inside the Privy Council, appears to me to be a matter, I do not say unimportant, but a matter of minor importance. It appears to me to be a matter, perhaps of sentiment, perhaps of prestige, perhaps of traditionary honour and dignity. But I am anxious that those, whoever they may be, who will have to consider the question, should keep alive the broad distinction between what is substance and what is comparatively unsubstantial. My Lords, it was for this reason that before the Committee of your Lordships' House, which sat in 1872, I ventured to propose, and the Committee adopted, a proposal which inside of this House would have secured, I think, a tribunal which would have preserved equally the prestige and the traditionary honour and dignity of the House. It was for this reason, that when my noble and learned Friend (Lord Selborne) introduced his Bill in 1873 I was content with the tribunal which he pro-posed in that Bill, although it was a tribunal of a different character from that which had been suggested in the Committee. It was for this reason that last Session, in answer to my noble Friend the Chairman of Committees, I stated that in the tribunal which the Government then 588 proposed, I was willing to admit there would be wanting the dignity and prestige which must attach to your Lordships' House; but that there would be secured, on the other hand, the presence of those whose judicial strength would constitute the greatest and best security for a satisfactory disposal of appeals. And, my Lords, I think that is the main and cardinal point to be considered when this question comes to be determined. But I wish to go a little further. I think your Lordships ought to be informed, and ought to bear in your minds exactly what is the work which any Tribunal of Ultimate Appeal will have to discharge in this country. It is very remarkable that if you detach, as we propose you should detach, the question of ultimate appeal from the litigation that may arise before any other tribunal, we are able to tell almost to an exactitude what would be the work that that Tribunal of Ultimate Appeal would have to perform. When I look to the Judicial Committee of the Privy Council I find that during the last four years—that is, during the years in which there have been salaried members of the Judicial Committee—there has been an average of 108 appeals disposed of every year. That is a high average—too high an average to be taken as indicating what will have to be done in future years, because four years ago that tribunal having the great arrear of appeals to which I have referred, has had to dispose of more than a normal number of appeals. But I take the number at 108 a-year. Of those appeals there have been 13 from the Admiralty Court. It is not unsafe to suppose that when the Admiralty Courts go to the intermediate Court of Appeal these Admiralty appeals will be reduced by 10 every year. The result will be that, as far as the business of the Judicial Committee is concerned, 98 appeals will have to be disposed of in a year. I find that the average number of appeals disposed of in your Lordships' House in a year is 40. Adding these 40 to the 98 appeals disposed of by the Judicial Committee in a year, there would be 138 appeals to be disposed of in a final stage in this country. Now, how long does it take to dispose of 138 appeals? Your Lordships will be surprised to find how very near a reckoning may be made on that point. I recollect that when Lord Kingsdown presided in 589 the Judicial Committee of the Privy-Council, the allowance that used to be made was that, taking the rough with the smooth in the course of the year, an appeal took a day. I find that taking the last 10 years of the Judicial Committee of the Privy Council—whether it is that counsel have become more elaborate in their arguments or not I do not know—the average is a day and a-third; and in your Lordships' House—probably owing to the same cause and to the interruption of adjournments—the average is a day and three-fourths. For the hearing of 98 appeals in the Judicial Committee 131 days are required, and for the hearing of 40 appeals in this House 70 days are required, which make 201 days altogether; and if you reckon for the Judicial Committee a sitting in the year of 33 weeks of six days each, you have 198 days:—so that the appeals to be disposed of can as nearly as possible be disposed of by a tribunal sitting as one tribunal in the course of the year. I pointed out to your Lordships that in constituting the Court of Intermediate Appeal we propose that there should be only five ordinary Judges. We leave untouched the four other Judges, whose services were taken under the Judicature Act of 1873—I mean the two salaried Judges of the Privy Council and two additional Judges authorized to be appointed under that Act. Now, in whatever form the matter may be dealt with hereafter, it is, at all events, perfectly obvious that Parliament will have even in these materials ample strength to dispose of the amount of appellate business which I have described. I go no farther than this—I do not desire in any way to anticipate the proposals which Her Majesty's Government will deem it right to make next Session on this subject. I have stated to your Lordships as fairly and as fully as I can the amount of work to be done with the proposals we make for the present Session.
My Lords, I will conclude by laying on the Table the Bill to which I have referred. I will ask your Lordships to give it a first reading to-night, and I propose to fix the second reading for Friday next.
A Bill to amend and extend the Supreme Court of Judicature Act 1873, presented by the Lord CHANCELLOR.
My Lords, there are some observations of my noble and learned Friend which I think I ought not entirely to pass without notice. In the first place, my noble and learned Friend said—and said truly—that what the Judicature Commission recommended as to a Court of Appeal was an Intermediate Court of Appeal, leaving the final appeal as it was at the time. The Judicature Commission were not authorized to deal in any way whatever with the question of the jurisdiction exercised either by your Lordships' House or by the Judicial Committee of the Privy Council: and in their Report they noticed that limitation of their powers. Although it is true that the Act of 1873 did, as far as it dealt with final appeals go beyond the recommendation of the Judicature Commission, it cannot, I think, with any accuracy be stated—nor did I understand that my noble and learned Friend intended to convey that meaning—that it departed from the recommendations of the Commission upon a point which it was within the province of that Commission to deal. My noble and learned Friend has stated the three cardinal principles which Her Majesty's Government desire to keep in view in dealing with the question of final appeal—the first of them being that there should be in substance a double appeal, with safe-guards against its abuse; the second, that some Court of Final Appeal should dispose of appeals from all the three branches of the United Kingdom; and the third, that the Court of Final Appeal should be as powerfully constituted as possible. If there be in this respect any difference of opinion between my noble and learned Friend and myself it is rather as to the manner in which effect should be given to those principles, and the meaning and extent of the first of them, than on any other point. As far as the constituting a Court of the greatest possible strength is concerned, I agree with my noble and learned Friend without the least qualification or exception. Indeed, I flatter myself that Parliament arrived at that result when it passed the Judicature Act of 1873; and, further, that it amply provided by its 52nd clause for all that might be necessary in the way either of re-hearing or re-arguing cases before the final appeal came to be pronounced. That section was in these terms: 591Any appeal for any reason may be deemed fit to be re-argued before decision, or be reheard before final judgment, and may be so reargued or re-heard before the greater number of Judges if the Court of Appeal think fit so to direct.My noble and learned Friend, in his Bill of last year, proposed to modify that provision by defining the particular cases—namely, those in which the Court of Appeal had differed, or those in which they had reversed judgments, as cases in which a second hearing should be deemed right. When that modification was proposed, though I differed in opinion from my noble and learned Friend, and held that the object he had in view was sufficiently met in the Act of 1873, I was willing to waive that difference of opinion—I did not look upon it as a difference in substance. Passing to another branch of the subject, I may say that I never concealed my opinion as to the desirability of having one Court of Final Appeal for the three branches of the United Kingdom, or that this result would have been ultimately arrived at if the arrangements under the Act of 1873 worked—as I fully believed they would work—well and successfully. At the same time I thought that time and experience might be necessary for that purpose, and that we could, without any serious inconvenience, wait until the matured opinion of Ireland and Scotland had declared itself in favour of their accession to the arrangement which had been adopted in England. My noble and learned Friend said, when I first introduced the Judicature Bill in 1873, that he thought I had done wisely in not proposing in that measure to deal with the subject of Scotch and Irish Appeals; and, on a later occasion, when the noble Lord the Chairman of Committees proposed, during the same Session, to affirm the proposition that there should be one Court of Final Appeal for all parts of the United Kingdom, my noble and learned Friend gave his reasons for not then adopting that conclusion, and showed that there might be sufficient cause for treating the question as to Scotland and Ireland as separate and distinct from that as to England. I gather from what my noble and learned Friend has now said that his present opinion is hardly in accordance with that view; but I have at least the comfort of knowing that our views 592 were not far at variance when, in 1873, I explained my reasons for not including the Scotch and Irish appeals in the Bill which in the course of the Session became the Judicature Act. I do not refer to this fact as if I thought that any man is always bound to adhere to an opinion which he has once expressed upon an important subject; but as, at all events, going some way to justify the course which the late Government took in order, if possible, to solve a difficult and important question, if it was to be solved by means of any alteration of the jurisdiction of your Lordships' House. I do not believe that if it had then been proposed to establish one Court of Final Appeal for all three branches of the United Kingdom your Lordships would have been induced to part with your whole jurisdiction—because at that time Scotland and Ireland, which had a right to be consulted, had not given expression to such a kind of opinion as would have justified that course. It will be in the recollection of your Lordships that when the Bill went to the House of Commons, Notice was given of a Motion which would have had the effect of extending the provisions of the Bill to Scotland and Ireland. At that stage of the measure the then Government for the first time received representations purporting to represent the general feeling of the Judges and the Bar of Scotland and of Ireland, in consequence of which they felt themselves compelled to consent to an extension of their original proposal.—[3 Hansard, ccxvi. 1561.] On this being made known to your Lordships, my noble and learned Friend who is now the occupant of the Woolsack objected to the manner in which the change was proposed to be made, and for that reason it was not possible to persevere with it. I cannot but express my deep regret that this premature proposal was then made; for it was contrary to my original judgment as to the best manner of dealing with the question, and I believe that if no such step had been taken at that time it would have ultimately resulted in the spontaneous accession of Scotland and Ireland to the new system. The course was forced upon the Government of the day, and I think I am justified in complaining of those whose pressure then contributed to that step, but who have since gone round to the opposite view.
593 I do not think the time has come for examining in detail the proposals contained in the Bill which my noble and learned Friend now asks us to read the first time; but my noble Friend will excuse me if I venture to suggest a certain degree of apprehension that his Intermediate Court of Appeal may be too weakly constituted for the purpose of working the system embodied in the Judicature Act. It will be in the recollection of your Lordships that representations full of alarm were made to this House by an extraordinarily large number of barristers practising in the Courts of Equity, to the effect that in the fusion of the administration of Law and Equity sufficient consideration would not be given to the principles of Equity. I could not but think that in this view less than justice was done to the members of the Judicial Bench, in supposing that they could neither administer nor acquire a knowledge of the principles of Equity. I felt the more confident on this because I had had large experience of the Judicial Committee of the Privy Council, and had seen how Judges educated either in Equity or at Common Law in the English Courts were able, to the satisfaction of India and the Colonies to administer many branches of law with which they had not originally any acquaintance. Another answer made to these representations was that the keystone of the whole arch was the Court of Appeal, in which would meet together the most experienced representatives both of Equity and Common Law—among them being, as not the least important elements, the Lord Chancellor for the time being and the other noble Lords who had previously filled that office. Their assistance would be most valuable to the Court of Appeal upon all important questions affecting the principles of Equity as they were to be administered after the fusion of the two systems. That Intermediate Court of Appeal will now, as my noble and learned Friend has pointed out, have to discharge in the main the great business of appeal, the ultimate business coming before the Final Court of Appeal being comparatively small in amount. One reason why so few cases come to your Lordships at present is that the existing Courts of Intermediate Appeal are powerfully constituted, and in the great majority of cases give satisfaction to the 594 suitors. If, therefore, there is to be this intermediate appeal followed by a final appeal, it is of the utmost importance that the Intermediate Court should be powerfully constituted with respect to the representation of the principles of Equity. But when I look at the mode in which it is proposed to be constituted what do I find? The Lord Chancellor is to be ex officio a member; but as long as all the business of the final appeal is to be done in this House the Lord Chancellor will be here and not there. As regards the Master of the Rolls too, he must ordinarily be occupied for the most part in his own Court, and can only occasionally be in this Court of Appeal. There remain the Members of the Judicial Committee of the Privy Council. Now I have the very highest opinion of the able and learned gentlemen now serving upon the Judicial Committee of the Privy Council. I quite believe that any one of them would be capable of dealing with equitable cases in the most satisfactory manner. But in order to ensure that full confidence which it is desirable that the profession and the public should have in the constitution of the Court, it is certainly important that a sufficient number of its Judges should have that special experience which is afforded by practice, while at the Bar, in the Courts of Equity. Of those four Judges only two have been brought up in the practice of that system. Altogether this new Court of Appeal is weaker as to Equity than under the circumstances I am bound to say I think desirable. There was one subject on which I think I collected the intention of my noble and learned Friend, although he did not quite clearly express himself respecting it—I mean the Judicial Committee of the Privy Council. I take it for granted that it is the intention of my noble and learned Friend to retain the present system of the Judicial Committee and its jurisdiction unaltered.
The jurisdiction of the Committee with respect to ecclesiastical cases, therefore, remains. I do not know whether that is a public misfortune, but it will carry small comfort to those who were so anxious to destroy the jurisdiction of the Privy Council in ecclesiastical cases. I have observed, on the list of the so-called 595 Committee formed for the restoration of the jurisdiction of this House in English Appeals, the name of at least one noble Lord who last year manifested great anxiety to put an end, at the earliest possible period, to the functions of the Judicial Committee as a Court of Ecclesiastical Appeal. I congratulate that noble Lord on the success of his labours; and, if I might presume to offer him my advice, it would be to hesitate another time before he shows equal zeal for the pursuit of two incompatible objects at the same time. It is only due to my noble and learned Friend that I should state my opinion of the course which the Government have adopted. Had I been in his position I would have preferred to let the Act of 1873 come into operation, rather than suspend it either partially or altogether—for I thoroughly and cordially agree with what has been said as to the evil of prolonging a transition state in our judicial system. Under the circumstances, I am certainly glad that my noble and learned Friend has not encouraged the expectation that the Judicature Act can never come into operation. With reference to the particular arrangements of my noble and learned Friend, I think it better to reserve any further observations which I may have to make till a future stage of the Bill. I may only observe in conclusion that it is to me very satisfactory to find that my noble and learned Friend has not, once and for all, extinguished the hopes which have been entertained of a settlement of this great subject, on the footing of the arrangements made in 1873, but that he has taken a course which will refer to the deliberate judgment of the country the great question whether or not we are to have the best possible Court of Appeal without regard to sentimental or political considerations.
regarded the course which his noble and learned Friend on the Woolsack had taken to extricate them from the difficulties arising out of the legislation of 1873 as decidedly, and beyond all question, the best which was open to them under the circumstances. He believed the Act of 1873, as to the greater part of its provisions, would have worked enormous benefits to the community—both in diminishing the delay and reducing the expense—and he believed no benefit could arise 596 from delaying the operation of the Act for another year. But the Act contained one provision which he had always held to be most detrimental—namely, that it created one single Court in England, which would hear between 400 and 500 appeals a-year, which would pronounce judgments that were absolutely irreversible for all time, except through an Act of Parliament, and which would decide the law for ever in all cases of a like nature. A Court possessed of that power would be capable of doing an inconceivable amount of harm to the Judicature of this country. His noble and learned Friend, when he introduced the Bill last year, endeavoured to remedy that evil by providing that there should be a second appeal. There was a considerable difference between the proposal then made by his noble and learned Friend on the Woolsack and that which was made by his noble and learned Friend who had just spoken, in 1873. Under the Act of 1873, there was to be no second hearing, and the judgment of the Court was to be conclusive; unless it was determined by the Court itself that a case should be re-heard—no power was given to the suitor to insist on such an appeal. That was a cardinal provision in the Act of 1873, and it was that provision which took away the ultimate appeal to the House of Lords. Now, however, there was a very general opinion entertained that there ought to be a second appeal, as a matter of right, at the election of the suitor against whom the decision happened to be given, and not merely at the option of the Court. As to the cases of Scotland and Ireland, it was argued that it was unfair to propose the adoption of one system for them, and of another for England; and that if one Court of Appeal was good for English suitors, it must be equally good for those from the other Kingdoms—that was how the matter, as it affected Ireland and Scotland was put; and the bringing of those two countries as regarded a Court of Appeal into the same category with England was not, therefore, placed upon the footing which his noble and learned Friend, who had just sat down, stated. He confessed, he might add, that he had heard with great satisfaction that his noble and learned Friend (Lord Selborne) was pleased with the speech which had been delivered by the 597 noble and learned Lord on the Woolsack on a former occasion, because last year he had taken the opportunity of reading to his noble and learned Friend some remarks of his own when introducing the Judicature Bill, in which he pointed out, in regard to the proposal for bringing Scotland and Ireland into the same category as England, that it was desirable some delay should occur, and some experience of the new Court of Appeal be obtained, before any such proposal was adopted. Yet, notwithstanding those remarks, his noble and learned Friend last year supported a proposal to extend to Ireland and Scotland at once, and without experience of its working, the very same system which was to be applied to this country. His noble and learned Friend had, he thought, very little ground for complaining of the course which had been taken by the noble and learned Lord on the Woolsack on the subject. With respect to the immediate point at issue that evening, he concurred with his noble and learned Friend in thinking that his noble and learned Friend on the Woolsack would do well to reconsider whether the Court with which it was proposed to begin would be strong enough for the work which would come before it. He believed he might add that the effect of the decisions of the new Court would be very much greater if the splitting up of the Court of Appeal into two or three separate sections were not resorted to. He should like to see one Court of sufficient strength to secure for its decisions that weight and authority with the country which it was so desirable should exist. On the whole, the plan of the noble and learned Lord on the Woolsack was one which, in his opinion, would give great satisfaction to the country.
said, he was glad to find that a question the settlement of which had been so long impeded by political feeling was now discussed with the single view to the establishment of as efficient a Court of Appeal as possible. He must, however, protest against the continuance of the delay in the constitution of such a Court. Under the existing system there might be one decision of the Judicial Committee of the Privy Council on an appeal from Australia, and the House of Lords might arrive at a different conclusion on an 598 appeal from home; and one of the best arguments in favour of having one general appellate jurisdiction for the whole Empire was the advantage of avoiding the conflicting decisions that might very well occur between the Privy Council and the House of Lords. It was a great pity that such a state of things should be allowed to continue to exist, and it was disappointing to all law reformers that a measure which proposed to remedy it should be thrown over. If ever there was a measure that had been thoroughly and exhaustively considered, it was the Act of 1873. As to the eases of Scotland and Ireland, much had been said as to the weight of authority among lawyers being against the transference of its jurisdiction from the House of Lords; but those who could give the best evidence on the subject were the leading counsel accustomed to practice before the House as a Court of Appeal, and in that respect no persons could furnish more valuable testimony than his noble and learned Friend on the Woolsack and the noble and learned Lord who had preceded him (Lord Selborne) because of their great experience. Without any feeling of acrimony towards anyone concerned in that matter, he entered a protest against a Bill which had been introduced after so much consideration, and for which even its opponents must admit so much could be said, being entirely dropped—simply on the threat of a Motion that was never made, and without a discussion in that House, and without anybody knowing who those were who had set in motion the peculiar committees that had been formed on that subject. It was deeply to be regretted that under those circumstances the whole matter was to be postponed; and now he was afraid that it might be postponed indefinitely, because ultimately the Government might still further change its mind, and what had been done might be absolutely reversed. With regard to the Judicial Committee of the Privy Council, he had himself brought in a Bill which led to the appointment of four Judges to that tribunal. The Bill was made a temporary one—for two years only—because it was thought to be so certain that some measure constituting a new Court of Appeal would pass the Legislature in a short time. Happily, however, that expectation did not prevent their remedying the grievance under 599 which Indian suitors laboured, and he was gratified at finding that the appointment of those four Judges to the Judicial Committee under that Act had cleared away a mass of Indian appeals and placed the business of the Committee in a satisfactory state. That was a great satisfaction to his mind, because he had been determined that that Act should be carried into effect, although he had met with a good deal of difficulty in doing it. The noble and learned Lord on the Woolsack had the justice to say that those Judges disposed of 108 appeals in the year, and he had not heard a word of complaint on the part of the suitors of that Court. One word as to the Bill which the noble and learned Lord proposed to introduce. There was a difference of opinion in the profession as to whether the Rules that were framed should be incorporated in an Act of Parliament. For himself, he thought that by taking that course a rigidity that was undesirable would be given to Rules which would require to be modified from time to time as experience and the necessities of mankind required. The noble and learned Lord on the Woolsack said that he specially aimed at obtaining a Court of Appeal composed of the utmost judicial experience obtainable; but the proposal of his noble and learned Friend would hardly secure that object, because it would take the three Chiefs of the Common Law Courts, who in almost every instance where chosen from the Law Officers of the Crown, and who were therefore of limited judicial experience. He differed entirely, however from the noble and learned Lord as to the necessity of previous judicial experience. Experience gained by practice before the Judges was very valuable in all cases. The late Lord Kingsdown had no judicial experience before he sat in that Appellate Court which his judgments had made famous; and his noble and learned Friend the late Lord Chancellor (Lord Selborne) had no judicial experience before he occupied the Woolsack with so much distinction.
THE LORD CHANCELLOR
said, he wished to say a few words to prevent misunderstanding. With regard to the Chiefs of the Superior Courts of Common Law not having had any judicial experience, he should have thought that the Lord Chief Justice of the Court of Queen's Bench had had about as long 600 judicial experience as any person in this Kingdom; and that, also, the judicial experience of the Lord Chief Baron of the Exchequer had not been inconsiderable. The noble and learned Lord who spoke last (Lord Hatherley) however, had entirely misunderstood him. When he referred to the necessity of judicial experience, he was speaking of a Court not yet constituted—a Court of Final Appeal—and the manner in which its members ought to be selected. The Court of which the Chiefs of Common Law were members was the Court of Intermediate Appeal, and that he had said nothing about. The noble and learned Lord was also under a misapprehension as to the Rules. The noble and learned Lord did not seem to be aware that the Act of 1873, which was the law of the land at present, had 60 odd Rules in a Schedule, and those Rules did not form clauses of the Act, but were called Rules of Court, which, after the passing of the Act, the Judges would have power to alter. All that was now proposed was to add to those Rules certain other Rules, which it was necessary to make, and to put them all into shape in a consolidated form. In other words, the Schedule of the Act of 1873 would be repealed, and be replaced by another Schedule, containing the same Rules with additional ones. In regard to another matter, he wished to point out that 33 weeks were by those Rules to constitute the judicial year; and although he did not expect that every member of the Court of Appeal would sit on all the 198 days, yet he thought that such a Court ought to be constituted in a way which would allow to individual members the amount of relaxation they required without interfering with the regular course of the sittings. As to the general question of the jurisdiction of this House, views had been attributed to him to which he had never given utterance. His opinion as to that jurisdiction was expressed in the Report of the Committee which sat in 1873, and by the expressions in that Report he fully abided. They were expressions favourable to the manner in which the House had exercised its jurisdiction, and his noble and learned Friend had voted with him in favour of that Report.
THE LORD CHANCELLOR
replied that that separate Report had been withdrawn, and that the noble and learned Lord then voted with him. Allusion had been made to what he said in 1873 about the course taken by Lord Selborne in not including Scotland and Ireland in the Bill of that year. He would be the first man in the world to admit that he saw reason to change an opinion which he might have on a former occasion expressed. In the present instance, however, he saw no such reason. He said in 1873 that he thought his noble and learned Friend took a very wise course in confining the Bill to England. He was aware that further legislation would be necessary before the measure came into operation, and it was in his belief that in 1874, Scotland and Ireland would be found willing to come in. This would, in all probability, have been the result, but for the sudden and somewhat unhappy change of opinion which had taken place. The remarks he made in 1873 were not really inconsistent with what he maintained to be the principle on which any new Court of Appeal should be constituted—namely, that it should embrace the Three Kingdoms.
§ Bill read 1a; to be printed; and to be read 2a on Friday next. (No. 48.)