§ Order for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Attorney General.)
§ SIR HENRY JAMES, while deprecating at that stage any criticism on the mere details of the measure, thought some saving of time might be effected if the attention of the House were now called to some of the leading matters in the legislation proposed by the Bill. On the occasion of its second reading the hon. and learned Gentleman the Attorney General said public opinion was not ripe yet in regard to the question of abolishing the Appellate Jurisdiction of the House of Lords, and he (Sir Henry James) gathered, therefore, that the Government were likely to be guided by, and to attach great weight to, the opinion of members of the legal profession. Consequently, it would be well to give to legal Members of the House an opportunity now of expressing their views to the Government in respect to certain matters proposed to be effected by the Bill. In the first place, he desired to allude to the proposed diminution of the number of Judges now sitting in the Courts of Common Law. If the Bill passed in its present form, the number of those Judges would he reduced from 18 to 15. He was aware that that reduction was also included in the Bill of 1873; but as far as he could throw any obstacles in the way of such a reduction he should do so, believing, as he did, that it would be a most unadvisable piece of economy to allow the administration of justice to be brought to a dead-lock, as it certainly would be, by diminishing the number of Judges. He was quite aware that within the last five years the number of Judges had been in- 954 creased from 15 to 18 on account of the additional duties cast upon them by the trial of Election Petitions, and he was also equally aware that those three extra Judges had not been fully occupied in trying those Petitions; but their services were wanted quite apart from the question of election trials, because the increased wealth of the country, and the consequent increase of litigation and multiplication of tribunals had long since caused the original number of 15 Judges to be insufficient. It had been demonstrated that, without any more continuous proceedings than they had at the present moment, there were not Judges enough to fulfill the duties cast upon them. In proof of that he might mention that the condition of business in the Court in which heavy commercial causes were tried, the Court of Queen's Bench, was at present such as, if known to the country, would be regarded as a great scandal. The Court could only sit three times a-year, and for only 12 days at a time. When they resumed their sittings six or seven days ago, there were 186 causes waiting to be heard, some of them, to his knowledge, having been waiting for two years. In the Court of Exchequer there were also 92 remanets, and in the Common Pleas 37; and to these there were added 108 new causes in the Queen's Bench, 111 in the Common Pleas, and 112 in the Exchequer, and of those numbers there would be a large proportion of special jury cases in each Court. Going on in that way it became apparent something must be done to get rid of the enormous number of remanets, and to provide Courts of Law in which suitors could enter without being liable to such delays. Not only were the lists heavy, but they by no means represented the number of causes suitors were anxious to try, because they were driven from Court, and made money sacrifices in consequence of the difficulty in obtaining justice. It was for that reason, therefore, that the Judicature Act of 1873 provided for continuous sittings, but those continuous sittings would become impossible if the number of Judges was to be reduced from 18 to 15. The Circuits required 14, and one Judge must sit in Chambers, to say nothing of the assistance they had to render at the Central Criminal Court, or of the allowances to be made on account of indisposition, so that there must be long in- 955 tervals, at all events during Circuit time, when they could have no Judge at liberty to sit at Nisi Prius. They could not hope to reduce the time employed on Circuit, because it was already insufficient for the transaction of the business, and the Judges were forced to ask Commissioners to sit for them, and the result was that on the second or third day of the Assizes judicial duties had to be performed by barristers. Such a state of things was injurious to the public service, and reflected discredit upon our administration of justice. He trusted, therefore, that in this matter of the number of Judges the Government would yield to what was the unanimous opinion of the legal profession, of the Judges themselves, and of the public. Then there was another matter. The importance of every Court of Appeal being stronger than the Court over which it had jurisdiction in the way of appeal could not be overrated. The Prime Minister once stated that a Court of Appeal settled the law; and if they now unsettled it by a Court of Appeal too hastily constituted, they would be doing injury for years to come by establishing precedents which ought not to be followed. The Court of Appeal proposed by the Bill, when its constitution was considered, could give satisfaction to nobody, because it would be weaker than the Courts over which it would have to preside and whose decisions it would have to review. The Bill provided practically that the Court, for the purpose of hearing causes, should consist of two Lords Justices, two Members of the Judicial Committee of the Privy Council, and one Judge nominated by the Government. He was speaking rather for the Common Law branch of the profession than the Equity branch, as the latter would have substantially the same appeal as at present—namely, the two Lords Justices; but in regard to the Queen's Bench, the Common Pleas, and the Exchequer, to hear appeals from the Judges of those Courts—Judges of great learning and long training, who had spent years in considering our Common Law—they would have a Court composed of men who had for years been unaccustomed to the Common Law. They would have two Members of the Privy Council, and some other person who, so far as the Bill went, might be an Equity lawyer also, determining whether the decisions 956 of the Common Law Courts had been correct. The two Members of the Privy Council would themselves object to the arrangement as a breach of Parliamentary faith, they having been appointed on the understanding that they might be transferred to a Supreme and Final Court of Appeal, whereas it was now proposed to place them in a Court from which an appeal would lie to the House of Lords. His objection, however, was founded more on a consideration for the interests of the public, and he thought it would be a grievous wrong to our colonial subjects, who were compelled to bring their appeals to London in order to get a stronger Court, to take away from that Court two of its strongest and, in matters of colonial law, most experienced Judges, in order to place them in a Court in which they would have to hear appeals from Judges who, in the matter of Common Law, they would be the first to admit were stronger than themselves. Those were the principal points to which he wished to call the attention of the Government. He hoped they would at least give heed to the Amendment of his hon. Friend the Member for East Sussex (Mr. Gregory), that the fifth Judge of the New Court should be a Judge of Common Law, and he would go further and suggest that, instead of taking from the Judicial Committee of the Privy Council two Members who could ill be spared, they should join to the Lords Justices two Judges who had had seven or ten years experience in the Common Law Courts. They would then have a satisfactory tribunal, whereas such a Court of Appeal as was proposed by the Bill would inspire no confidence, and would be a disgrace to and unworthy of the country.
MR LOPESsaid, that, never having been an admirer of it, he had done what he could in opposition to the Bill of 1873, and his feeling since then had undergone no change. No doubt, that Act did introduce two most valuable changes. In the first place, it enabled a Court to deal with every case which came before it, whether legal or equitable; and, secondly, it provided that for the future there should be continuous sittings in London and Middlesex. These were vast improvements; the second especially, as tending to remove what was at present a positive scandal upon our present system, but they might have been effected by a very small mea- 957 sure. With these two exceptions, the Act of 1873 was a gigantic imposition. He believed that if anybody left this country and returned two years hence to Westminster Hall or Lincoln's Inn, he would fail to see that any change had been effected. It pretended to consolidate into one Court all the Courts of Law and Equity, but it did nothing of the kind. It disestablished the Courts, but then it re-established them under the name of "Divisions." No. 1 was to be the Court of Equity; No. 2, the Court of Queen's Bench; No. 3, the Court of Common Pleas; and No. 4, the Court of Exchequer; and, was it likely, that for Chancery proceedings, suitors would go to Nos. 2, 3, or 4; and would not the several Courts have retained their distinctive kind of business? What it did was nominal, not real. Law and Equity never could be fused. They might be concurrently administered, but one mode of procedure could not properly suit both of them. It was said that lawyers were well satisfied with the existing state of things; but nothing was so remunerative to the legal profession as changes, especially changes in practice; and the effect of the proposed changes in pleading, practice, and procedure would be to put the litigant to endless expense, and be highly remunerative to the profession. The next point to which he must refer was the proposed reduction in the number of the Judges. The Common Law Judges were at present 18, and the effect of the Act of 1873 and of this Bill would be to reduce the number to 15. Why was that reduction to be made? Was it because the Judges had not enough to do At the sittings after Term in Middlesex 15 cases were disposed of, leaving 130 remanets. At the Guildhall sittings there were 138 special jury cases; and he ventured to say, at the end of these sittings next Saturday, at least 120 would be left undisposed of for the next five months. The Circuits required 14 Judges, and one Judge must sit at Chambers for interlocutory matters. The whole number of Judges was thus exhausted. In that case, what was to be done with the proposed continuous sittings in London and Middlesex? What was to be done with the Election Petitions, which it was now proposed should be tried, not by one Judge, but by two Judges? Then, again, the Central Cri- 958 minal Court required a Judge, and a Common Law Judge was to be utilized as Chief Judge in Bankruptcy. Eighteen Judges, at least, according to his calculation, would be necessary to effect all this, without making any allowance for illness; but the Act of 1873 and this Bill, as he had said, provided only 15. The proposed Appeal Court was to do the duty hitherto done by the Lords Justices and the Exchequer Chamber; but they were to do more than that. There would be a vast amount of fresh work. This statement he submitted to the House on the authority of Judges, including Mr. Baron Bramwell, from whom he had received a letter on the subject. There was another matter. Nearly a volume of rules and orders had been attached to this Bill. The hon. and learned Attorney General had suggested, on the second reading, that they should receive them in draft, swallowing them in whole; but he was not prepared to do that. Some of them were highly technical, and could not be discussed in the House; but there were others which introduced great constitutional changes, and it was imperatively necessary that they should be fully understood by the House. It was proposed, for instance, to do away with the great constitutional privilege given to litigants of tendering a bill of exceptions, whatever the feeling of the Judge might be who tried the cause. The power of excepting to the ruling of the Judges was a valuable privilege, and he was so much opposed to any increase of the power of the Judges in this, as indeed in other respects, that when the proper time arrived, he should move an Amendment that the bill of exceptions should be preserved. Again, under the Act of 1873 and this Bill, if a Judge misdirected a jury or improperly received or rejected evidence, a new trial was not to be granted, unless the Court before whom the case came should be of opinion that the miscarriage of justice was caused by the misdirection; unless the jury had been affected by it, Judges were so apt to think they were right when they were wrong, that that would be a very dangerous inroad indeed. Hitherto, save in a few exceptional cases, costs had always followed the event, and in no case was the successful party deprived of his costs; but the Bill proposed to give a Judge absolute discretion, so that a 959 Judge who disapproved a verdict might order a successful defendant to bear the costs of an action. The Bill, in short, proposed such violent changes, that it would not be safe to permit them to pass sub silentio; and it was expedient to call attention to them at this stage to justify and explain the scope of Amendments which had been placed on the Paper.
§ MR. WATKIN WILLIAMSsaid, they were all anxious to get into Committee, and to pass the Bill without any unnecessary delay, after making certain Amendments; but it would shorten the discussion of details in Committee if attention were now called to certain matters of principle involved in the provisions of the Bill, which he maintained were of such a nature that they must be resisted. In 1873, he had thought that it was prudent to reduce the number of the Judges; but since the second reading of this Bill he had been convinced of his error, and obliged to recant his former opinion. The changes contemplated, particularly continuous sittings at London and Middlesex for the trial of causes, would increase the work of the Judges; and his hon. and learned Friend the Member for Taunton (Sir Henry James) had understated rather than overstated his case as to the amount of arrears. That morning he (Mr. Watkin Williams) had received a letter from the Lord Chief Baron, who said the business of the country and the business of the Courts had been progressively increasing during the last three years, and notwithstanding the efforts made by the Judges, by holding two Courts in Banco and two Nisi Prius Courts, it was impossible to keep down the arrears, which were increasing every Term and every sitting; and therefore to reduce the number of Judges from six to five in each Court would really be to cripple the administration of justice in each Court, and to disable the Judges for adequately performing the duties of each Court. The Lord Chief Baron added that that opinion had been concurred in by all the Judges except one, who had not been consulted from motives of delicacy, because he was Attorney General of the late Government when the Act of 1873 was passed. Owing to the long list of arrears in the Courts, a would-be plaintiff could not hope to have a case heard within 18 months, 960 and, if a question of law were involved, it would be two or three years before he could hope for a judgment. On this account many barristers were making incomes exceeding those of Judges by acting as arbitrators, and this, as well as being a costly process, was absolutely disgraceful, so far as it was due to the difficulty of obtaining redress through the ordinary tribunals of the country. He hoped the Government, therefore, would re-consider this part of the question. With regard to the constitution of the Court of Appeal, all he then deemed it necessary to say was, that if the new system was to work satisfactory, it was absolutely essential that the Court of Appeal should command the respect of the country and of the profession, but it could not be said that the proposed Court of Appeal would do so; and the Government ought to hesitate before it forced on the public a Court so generally denounced. More he did not wish to say. The last point to which he should refer was, perhaps, the most important of all. There ran through the Bill the dangerous sign of a disposition to place in the hands of the Lord Chancellor and the Judges an enormous increase of power which he, for one, was not disposed to give to either in the administration of the law. The last clause of the Bill was of such an astounding nature that it gave the Lord Chancellor power by an Order for the purposes of the Act to repeal any Act of Parliament he pleased, Magna Charta among the rest. It might be said that was not what was meant; but he had learned from experience, for in 1871 an Act was passed which was acted upon in a sense quite different from that in which it was carried; and he would not trust the Lord Chancellor and the Judges with powers so large that, in fact, they would render the Act of 1873 unnecessary. It was impossible to discuss the details of the Rules and Orders except in Committee, but one of them contained a remarkable innovation. Heretofore, from the time of Edward I. down to the Common Law Procedure Act of 1860, the Legislature had always shown great jealousy of the power given to the Lord Chancellor and the Judges to regulate procedure. Parliament had always directed these Rules and Orders to be placed on the Table of both Houses of Parliament, and not to come into operation for three months 961 afterwards. [The ATTORNEY GENERAL dissented.] The hon. and learned Gentleman shook his head; but he (Mr. Watkin Williams) asserted that previous to the Act of 1872 the practice had been to give power to the Legislature to annul these Rules and Orders. This Bill, on the other hand, enabled the Judges to make Rules and Orders of the most sweeping description, and provided that they were to come into operation the instant they were made. No doubt there was a provision that within 40 days after they were placed on the Table either House of Parliament might address the Crown against them, and in that case the Government might by an Order in Council annul them. Now, that was a complete innovation. These Rules and Orders would be made by the Judges and would come into operation, and, then, in the month of March or next Easter the House might interfere. But suppose the Judges abolished meanwhile trial by jury. The Lord Chancellor might order cases to be tried by a Judge instead of before a jury, and when the matter came to be discussed in Parliament all manner of proceedings would be taken under these Rules and Orders, and they would be told that the greatest inconvenience would be caused by the House repealing them. He trusted that the House would never part with this power. It might be said that the Judges would never do these things. Would they not? The first thing done by these Rules and Orders was to abolish the bill of exceptions which had been granted to suitors by Edward I., to prevent caprice and the exercise of what was called "discretion" on the part of the Judges. The bill of exceptions was one of the rights of the suitor. The Judges ought to administer the law, and ought not to have the "discretion" which would enable them to alter it. Another exceptional feature in the Rules and Orders was the power given to the Common Law Judges over costs. The power of giving costs would be in the discretion of the Judges, and it would totally alter the relations between the Judges and the Bar. It was right that in Equity cases the Judge should have the power of deciding as to the payment of costs, because he had the whole case before him. But imagine a case of libel or of interference with personal liberty which would come before a jury. If 962 the Judge took a view opposed to that of the jury, he might revenge himself—and it was necessary to speak out on this subject—by punishing the counsel, the suitor, and the jury because he differed with them in opinion. At present, if a Judge manifested caprice or lost his temper during a trial, the counsel bore it patiently, because they knew that the Judge was subject to the laws. If he was wrong in his ruling, they tendered a bill of exceptions; and if he overrode counsel, they had the jury to appeal to. The Rules and Orders would alter all that and produce changes such as no one at present realized. He trusted that the hon. and learned Attorney General would regard these vital matters as worthy of his attention; but he was so little desirous to throw impediments in the way of the Bill—although he had placed Amendments on the Paper in regard to the subjects he had mentioned—that he trusted it would pass through Committee in the course of the evening.
THE ATTORNEY GENERALsaid, he believed the House was anxious to pass the present Bill this Session, and he should therefore make but a few observations. First of all, he would observe that all the Amendments which had been suggested were such as could be best discussed in Committee, although he by no means complained that attention had been called to these matters before the Speaker left the Chair, as it had enabled him to form some opinion as to the propositions which would be made when they got into Committee. He did not think that the time which had elapsed, since the Bill came down from the other House, had been lost. He had availed himself of the opportunity of consulting with Members of the legal profession on both sides of the House, and also with the Judges, and he had recently had the opportunity of conferring with a very large body of solicitors assembled in London from all parts of the country. The result was that several suggestions, which had been made to him and which went in the direction indicated by the hon. and learned Gentlemen who had addressed the House, appeared to him worthy of consideration, if not adoption. With regard to the question of the reduction of the number of the Judges, he must ask the House to bear in mind that the Act of 1873, which made this change, was not in- 963 troduced and passed by the present, but by the late Government. The present Government, however, desired to give that Act a fair interpretation and an honest support; but he must remind the House that several, if not all, the points to which attention had been directed that evening had been introduced by the Act of 1873, and had been then fully discussed, and if the views recently expressed were carried out, it would amount pro tanto to a practical repeal of the Act of 1873. For instance, the rules as to costs and bills of exceptions were expressly enacted by the Act of 1873. That Act also provided that the number of puisne Judges should be reduced from 15 to 12. Some hon. Members might recollect that, when the Bill was in Committee, he resisted that proposal, and he never entertained any other opinion but that it was not desirable to reduce the number of Judges; but, being honestly desirous to give fair effect to the Act of 1873, the present Bill was brought down from the House of Lords without any alteration in that respect. He found that the opinion of the Common Law Judges, of eminent members of the Common Law Bar, and of persons in all parts of the country who were interested in the question was that the number of the Common Law Judges ought not to be reduced, and that the clause in the Act of 1873 whereby their number would be reduced, when that Act came into operation, ought to be repealed. Only that day he had been favoured with a communication from the Lord Chief Baron, in which he stated that the number of remanets had rapidly increased during the last three years in the Courts of Common Law, and that the number of Judges in those Courts was not sufficient to perform the duties cast upon them. Some persons were of opinion that improvements in the administration of the law diminished legal business; but he believed the result of such improvements was, in the main, to increase legal business. Therefore, on the part of the Government, he had to state that, in their opinion, the clause in the Act of 1873 which referred to the number of the Common Law Judges should be repealed, and that the reduction therein provided should not be carried out. As this, however, was a matter which involved the payment of public money, it would be necessary to pass a Resolu- 964 tion in Committee; when, therefore, they came to Clause 3 he would propose that it should be postponed until such a Resolution had been adopted. As to the constitution of the Court of Appeal, he thought he should be able to show in Committee that the proposals in the Bill with regard to the number and the qualifications of the Judges of that Court were sufficient and satisfactory. He would postpone till the House went into Committee the observations which he had to make upon the question of costs and the power of the Judges to alter the orders of the Courts from time to time. He hoped the House would now go into Committee.
§ MR. NORWOODsaid, the mercantile community was anxious that for the disposal of cases arising in Common Law Courts there should be continuous sittings in London and Middlesex; and therefore he thanked the hon. and learned Attorney General for the concession he had just made with reference to the number of the Common Law Judges. Under present circumstances it was impossible any reduction could be effected without perpetuating the grievance now existing from the large number of causes made "remanets," or ordered for reference contrary to the wishes and interests of suitors.
§ MR. GREGORYparticipated in the satisfaction expressed by the hon. Member opposite (Mr. Norwood) that there would be no reduction in the number of the Judges. The present staff of Judges was not more than sufficient for the work they had to perform, and any decrease in their numbers would be prejudicial to the administration of justice. But he asked for a reform with reference to sittings in Banco. Three or four Judges sat together, and many of the questions which came before them were of the most trivial nature—such, for instance, as the liability for tying-up a dog to a post at a railway station, or whether an attorney's clerk was rightly described as a gentleman in a bill of sale. It was evident that this was a waste of judicial power, particularly when it was seen that cases of the greatest importance, and involving large property and interests, were heard and decided in the Court of Chancery by a single Judge, and the anomaly between the two jurisdictions was very striking. He hoped that among the results of the measure would be a better 965 constitution of the Common Law Courts, a better distribution of the Judges, and an application of their faculties to cases that were more worthy of their attention than the paltry ones to which he had referred. He objected to any interference with the present constitution of the Judicial Committee of the Privy Council, which, since the appointment of the permanent Judges of that Court, had worked satisfactorily. It was only about two years ago that, in consequence of the arrears of business before the Privy Council, the Legislature had passed an Act for the better constitution of the tribunal, and they were now called upon to undo that which had worked so well. He knew of no tribunal more satisfactory in its working and in its decisions than the Judicial Committee of the Privy Council. In addition to this, there was something in its constitution which carried great weight with the suitors to it. Appeals to the Judicial Committee of the Privy Council were appeals not to an ordinary tribunal of the country, but to Her Majesty, and the judgments were in her name, and that fact produced a great impression in the minds of the people of India, and of the inhabitants of our Colonies. He therefore hoped that Court would be kept up in full power and jurisdiction.
§ SIR GEORGE BOWYERsaid, he had heard with satisfaction the announcement that the Government did not intend to insist on the proposed diminution of the number of the Judges. The way in which many cases were now submitted to arbitration was a perfect mockery, and he might mention that many cases were put down for trial by special juries merely for the purpose of delay. That was an abuse which had always existed, and would still continue to exist when the Act came into force. With regard to new trials, the Motion must go before the full Court. He had no hesitation in saying that before the new rules had been settled, and before all the points had been decided with respect to the new system of Judicature, millions of money would be spent by the suitors. All these matters could not be settled without a considerable expenditure of time, and if the Judges at present could not cope with the amount of business which came before them, they would be still more unable to do so when the new system came into operation. He hoped 966 the Government would take these matters into consideration; and, with regard to expense, even if one or two Judges above the number absolutely necessary were appointed, this would be a lesser evil, for justice was never administered well when the Judges were working at high pressure. With respect to the question of the Court of Appeal, it was a great mistake to suppose that a strong Court of Appeal must necessarily be a very numerous one. Supposing the Judges to be of the first class, a Court consisting of three or five would, in most instances, be quite sufficient. He should regret any of the Judges of the Privy Council being taken away to constitute the Court of Appeal, for anything calculated to alter the constitution of that Court would be very undesirable. He thought there ought to be two Courts of Appeal, to one of which should be referred the administration of the law of this country, and the other the administration of the law relating to the Colonies.
§ MR. MORGAN LLOYDwas glad that the Government did not intend to reduce the number of the Judges. With regard to the Act of 1873, he did not maintain that it was a perfect piece of legislation, for while it had the power of doing a great deal of good, it might have done as much in a more simple way. In some things it wont too far, and in others not far enough, and he hoped that the strong opinion which had been expressed would induce the hon. and learned Attorney General to alter the Act so far as regarded the provisions abolishing the right to tender a bill of exceptions and taking away from the suitor the Common Law right, which had for centuries existed, by which litigants had been awarded costs whenever they were successful. As to the Court of Appeal, it would be a weaker tribunal than the Court of Queen's Bench as at present constituted. Such a Court would not satisfy suitors, and, instead of resolving doubts, would tend to create litigation; and he hoped that the hon. and learned Gentleman would yield to what was evidently the feeling of the House on this point. There was one point of considerable importance, which involved a constitutional question. It was the proposal to give to the Queen in Council and to the Lord Chancellor the power at any time by a simple Order of repeal- 967 ing any clause in any Act of Parliament which was inconsistent with the Judicature Acts. That proposal would enable them to repeal any section of any Act now in the Statute Book. Such power was unprecedented, and ought not to be given to the Lord Chancellor—indeed, it ought not to be yielded up by this House to any authority whatever. There was nothing like this power in any Act at present in existence, and even if there were, such a precedent ought not to be followed. It was also a very slovenly mode of legislation, for it was the duty of the framers of the Bill to find out those provisions in former Acts which they wished to repeal and insert them in a Schedule. He did not agree with the hon. and learned Member for Frome (Mr. Lopes) that the Act of 1873 would do no good. The provisions for uniformity of procedure would work well, though it was a pity that the framers of the Bill did not pay greater attention to the system which had existed for a long period in Scotland, where Law and Equity, Admiralty and Divorce, were administered by the same Courts, the same Judges, and the same process. If that example had been followed here, there might have been a more complete fusion of Law and Equity. He suggested that delay and expense might be saved if official shorthand writers were appointed to take down the evidence in each Court, as was now done in Parliamentary Committees and at the Central Criminal Court, instead of requiring the Judges to take it down, by which much useless labour was imposed upon the Judges, and valuable time wasted. An official shorthand writer would assist the Judge during the trial, and be a check upon him in the event of an application being made for a new trial.
§ SIR JOHN KARSLAKEsaid, he was very much gratified at the announcement of the hon. and learned Attorney General that the number of Judges would be retained. He would not discuss the question whether there should be a greater number of Judges; but he was one of those who thought that it would be most inexpedient that suitors should not have tribunals provided in which their causes could be tried, but should be handed over to private referees. It had been truly said that at present we were not quite certain as to how Election Petitions should be tried. 968 If they were to be tried by the Judges, Judges should be named by the Crown for the purpose. But the proposal to reduce the number of Judges was connected with a proposal in the Act of 1873 for a material alteration of the Circuits. It was said—and he would admit there was some ground for the statement—that at one time there was too great an amount of judicial power, and that at another there was not enough to carry on the business of the country. However that might be, he could not help thinking that at the present moment and until it had been ascertained how the Act of 1873, as modified by the Bill now before the House, would work, it would be extremely inexpedient to cripple our judicial resources, and prevent the full powers of the measure from being carried out efficiently. It would be far better to wait until we should see how the Act would work, and if it should be found that 15 Judges could carry on the judicial business of the country, then would be the time to reduce the number. He fully believed that when we should have continuous sittings in Middlesex and London, many of the special-jury cases which now disfigured the list would disappear. At the same time, it was very important that there should be a sufficient amount of judicial strength to clear the list, and to secure to the suitors that their cases should be properly, speedily, and efficiently decided. But in the event of the Circuits being altered, and the Home Circuit done away with, he would reserve to himself the liberty of giving an opinion when we should have had some experience on the subject. He was one of those who by no means wished to see the Judicial Committee of the Privy Council weakened, if it could be avoided. But he could not agree with the hon. and learned Member for Taunton, having regard to all the circumstances of the case, that anyone of the Judges of the Judicial Committee would suffer any derogation in his position or character in being associated with those Judges from whom the Court of Appeal would be selected. With regard to the objection about giving the Judge entire discretion as to costs, his hon. and learned Friend the Member for Frome (Mr. Lopes) would do well to consider the altered state of things which would arise when every Court had power to 969 deal with all questions from both a legal and an equitable point of view. It was all very well that the costs should follow the event as long as a single issue only was raised; but when a cross claim might be raised the question would arise whether one party had not partially succeeded as well as the other. In that case there was a great deal in the rule of the Court of Equity that the Judge should decide by whom the costs should be paid. That was now the case in the Probate and Divorce Court and should be general. He hoped the Bill would now be allowed to go into Committee.
§ Question put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Short title and construction with 36 & 37 Vict. c. 66), agreed to.
§ Clause 2 (Commencement of Act).
§ MR. WATKIN WILLIAMSproposed an Amendment to the effect that the Act should come into operation on the 23rd of October, 1875, instead of the 1st of November, as proposed in the Bill.
THE ATTORNEY GENERALsaid, it was extremely desirable that this Act should come into operation at the same time as that of 1873, the time fixed for the commencement of which was the 1st of November next. He would, however, consider the whole question before the Report; and, if it were found to be more convenient to adopt the date proposed by the hon. and learned Member, he would bring forward an Amendment for that purpose.
§ Amendment, by leave, withdrawn.
§ MR. HOPWOODproposed, as an Amendment, in page 1, line 16, to omit "sections" and insert "section." The suggestion he ventured to make was this—that as the Act of 1873 had provided a Court of Appeal satisfactory to the profession, to suitors, and the colonies, that Court should be brought into existence as it was, the appeal to the House of Lords being preserved until next year. Instead of repealing, as this Bill proposed, the 20th, 21st, and 55th sections of the Supreme Court of Judicature Act, he proposed to repeal, or rather to suspend, only one of these—namely, the 20th. Why should they wait till next year, with a temporary Court, having a perfect Court made to 970 hand in the Act of 1873? He moved that the word "sections" should be altered to "section."
§ Amendment, by leave, withdrawn.
§ MR. WATKIN WILLIAMSmoved an Amendment with the object of removing some obscurity in the wording of the clause, and providing that an appeal might be brought to Her Majesty in Council from all judgments, decrees, or orders of the Court of Appeal, upon any appeal from any judgment, decree, or order of any Court or Judge whose jurisdiction was by the principal Act transferred either to the High Court of Justice or the Court of Appeal, and from which Court or Judge before the passing of that Act an appeal was allowed to Her Majesty in Council; and that in all other cases the appeal should be to the House of Lords. Its effect would be to make the clause more clear and exhaustive as to what appeals should go to the House of Lords and what to the Privy Council. He had also a second Amendment in reference to the same point. From the view he took of the clause it was a matter of indifference which of the two Amendments should be adopted.
THE ATTORNEY GENERALsaid, he could not assent to the first Amendment, which would have the effect of creating two tribunals of Ultimate Appeal from the decisions of the Court of Intermediate Appeal. This would entirely defeat one of the chief objects of the Bill. He was, however, disposed to think that the second Amendment of the hon. and learned Member, which, as he understood it, was intended to give the right of appeal to the House of Lords in respect of all decisions of the Intermediate Tribunal, might be adopted, for, as the 2nd clause of the Bill was at present framed, it appeared to him (the Attorney General) to restrict the right of appeal to too great an extent.
§ SIR GEORGE BOWYERsaid, the clause furnished an instance of the abominable way in which Bills were drawn. He had read it with several hon. Members of the House, and all who had been consulted had expressed their inability to comprehend it. He would like to know how the House of 971 Lords could hear appeals from India and the colonies? The Privy Council was peculiarly constructed for that purpose, and yet, according to this Act, appeals could go from the Privy Council to th House of Lords.
THE ATTORNEY GENERALsaid, the hon. Baronet had formed an entirely incorrect opinion as to the purport and effect of the Bill. It would give an appeal from the decisions of the Intermediate Court to the House of Lords in certain cases; but it contained no provision for carrying an appeal from the Privy Council to the House of Lords.
§ SIR JOHN KARSLAKE, observing that he should not pretend to criticize the language of the clause, inasmuch as he could not carry it in his head, said, the hon. and learned Attorney General ought to be very careful as to what he did in regard to this matter. The case of the Court of Admiralty had been adverted to. In that Court the cases were very often tried with the assistance of two Trinity Masters, and the appeal was to the Privy Council who were assisted by sailing masters. Surely there ought to be some provision made that the Court of Appeal and the Ultimate Court of Appeal should have the same assistance as the Judicial Committee of the Privy Council, as the questions were not so much questions of law as of nautical skill turning upon the facts.
MR. LOPESsuggested a further difficulty. If they gave an appeal to the House of Lords in every case in which an appeal lay to the Intermediate Court, they would give an appeal to the House of Lords in interlocutory matters, which would be undesirable.
THE ATTORNEY GENERALthanked his hon. and learned Friends for their suggestions, which showed him that he had been, perhaps, too hasty in intimating an assent to the second Amendment of the hon. and learned Member for the Denbigh Boroughs. It did not occur to him, as an Equity lawyer, to think of the interlocutory matters, which had been referred to by the hon. and learned Member for Frome, and as to which it might not be desirable to give a right of second appeal. As regarded the suggestion of the hon. and learned Member for Huntingdon, he did not anticipate the difficulty occurring which had been suggested, as he believed that the House of Lords could, by its own action, 972 secure the assistance of Trinity Masters, when necessary. The matter should, however, be inquired into, and, if necessary, dealt with. He must withdraw the qualified assent which he had given to the second Amendment.
§ MR. WATKIN WILLIAMSsaid, the hon. and learned Gentleman had practically assented to the substance of the first Amendment, the object of which was to preserve the present distinctions, and to give appeal to the House of Lords only in those matters which now came to the House of Lords. If the Bill remained as it was the matter would be involved in confusion. He would suggest that in this transition period appeals which had hitherto gone to the House of Lords and to the Judicial Committee respectively should still continue to go there. It was proposed to do away with the bill of exceptions, on which, as the Bill stood, there would be no appeal to the House of Lords; and they were hardly prepared to do this. He was willing to withdraw the Amendment with the intention of moving the second.
§ Amendment, by leave, withdrawn.
§ MR. WATKIN WILLIAMSmoved the other Amendment, the effect of which was, by omitting a part, to make the clause provide, without any qualification, that there should be an appeal to the House of Lords from every decision of the new Court of Appeal.
§ MR. CHARLEYhoped the hon. and learned Attorney General would see his way to adopt some such Amendment as this.
§ SIR GEORGE BOWYERsuggested that the clause should be postponed and that some carefully-considered Amendment should be proposed on the Report. He confessed he did not understand it as it stood, and he doubted if the hon. and learned Attorney General himself did.
THE ATTORNEY GENERALacknowledged that if the clause remained as it was it would exclude the right of appeal in cases where it ought to exist; but he pointed out, on the other hand, that if amended in the manner proposed, it would extend the right of appeal to cases to which a right of appeal ought not to be extended. If the hon. and learned Member, however, would point out any class of cases, in respect of which there 973 ought to be such a right of appeal, he would add them to the clause.
MR. LOPESthought it would be a very objectionable thing to give an appeal to the House of Lords in regard to matters of practice.
§ MR. GREGORYthought the Amendment ought not to be accepted.
§ SIR JOHN KARSLAKEobserved, that it ought to be clearly understood whether cases which at present went to the Judicial Committee as the final Court of Appeal were still to go there.
MR. STAVELEY HILLwas of opinion that if appeals were to go to the House of Lords and the Judicial Committee respectively in the same classes of cases as at present, some such Amendment as that proposed by the hon. and learned Member for the Denbigh Boroughs was needed to meet the case.
THE ATTORNEY GENERALsuggested that the clause should be allowed to pass, and he would undertake to have the matter thoroughly considered before the Report was brought up.
§ SIR GEORGE BOWYERthought the appeal from the Court of Admiralty should remain as it was at present to the Judicial Committee of the Privy Council.
THE SOLICITOR GENERALsaid, that the only difficulty seemed to have reference to the Court of Admiralty, and that the machinery which might be necessary to meet the case could be proposed on Report.
§ MR. SERJEANT SIMONasked whether there was to be a right of appeal in all cases to the House of Lords until the Government were in a position to deal with the whole question of Final Appeal?
§ MR. WATKIN WILLIAMSsaid, he should take the sense of the Committee upon his Amendment, because it was one which would have the effect of making the clause, which was somewhat obscure, perfectly clear.
§ MR. FORSYTHthought the proposition made by his hon. and learned Friend the Attorney General a very fair one, and he hoped the hon. and learned Gentleman opposite (Mr. Watkin Williams) would consent to it. His hon. and learned Friend said—"Let the clause stand as it is, and on bringing up the Report I shall take care to have it amended."
THE ATTORNEY GENERALreminded the hon. and learned Gentleman 974 that by the Bill as it now stood there was an appeal in the first instance to a Court of Intermediate Jurisdiction, and afterwards to the House of Lords.
§ MR. WATKIN WILLIAMSsaid, that under the circumstances, and after the explanation given, he should withdraw his Amendment.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 3 (Explanation of 36 & 37 Vict. c. 66, s. 5, as to number of Judges) postponed.
§ Clause 4 (Constitution of Court of Appeal).
§ MR. WATKIN WILLIAMSmoved, as an Amendment, in page 2, line 29, to leave out after "Chancery" to end of line 36, and insert—
And such three other persons to he selected from the Vice Chancellors, Justices, or Barons of the Superior Courts of Law and Equity at Westminster, or of the corresponding divisions of the High Court of Justice, of not less than five years' standing as Judges, as Her Majesty may under the Royal Sign Manual appoint.The plan proposed would, in the first place, weaken the efficiency of the Judicial Committee of the Privy Council by taking away two of the Judges to sit in the Intermediate Court; and, in the next place, it amounted to a distinct breach of faith and violation of the understanding on which those learned Judges were appointed to their present offices in 1871. They were appointed to a Final Appellate Court, subject to being available hereafter for a Supreme Appellate Jurisdiction. They were now to be transferred to a Court of Intermediate Appeal, which was not a Court of such high dignity as that from which they were to be removed. The third Judge of this Court, moreover, was to be appointed by patent, which looked as if it were intended to appoint some gentleman now at the Bar. Now, it was highly undesirable to appoint anyone straight from the Bar to sit in a High Court of Appeal. There had been frequent instances in which lawyers of great eminence at the Bar had disappointed public expectation when they came to sit on the Bench; and his Amendment, therefore, provided that the Government should, on their own responsibility, choose one of the existing Judges who had had five years' experience, and in whose judicial qualifications 975 the public would therefore have confidence
§ MR. FORSYTHsaid, he would remind the Government that not a single lawyer in the House had expressed himself satisfied with the Court of Appeal provided by the Bill. He therefore trusted that his hon. and learned Friend the Attorney General would remain open to conviction, and would see whether some better tribunal could not be proposed. In the first place, as had been pointed out, the Judicial Committee of the Privy Council would be greatly weakened by withdrawing half their number; next, the Intermediate Court would hear appeals from all the Judges of Common Law and Equity. In overruling judgments from the Common Law Courts it ought to have a strong Common Law element; but as the Bill stood there might be five Equity Judges sitting to decide questions of purely common. law. Some security ought to be taken that two out of the three "other persons" should be Common Law lawyers. There would then be two Lords Justices, one Member of the Judicial Committee who might or might not be an Equity lawyer, and two Judges taken from the Common Law Courts to form the Court of Intermediate Appeal. He himself had an Amendment on the Paper in reference to this subject—the effect of which would be to have two Common Law Judges, two Equity Judges, and a Privy Council Judge selected for the Court of Appeal—and if it was not adopted he should prefer the proposal of the hon. and learned Member for the Denbigh Boroughs to the clause as it stood, for the reason that it would provide a proper selection from the Common Law Judges in the composition of the Intermediate Court of Appeal.
MR. OSBORNE MORGANsaid, he could not vote for the Amendment, as he thought it would be unwise to restrict the choice of Judges for the Intermediate Court to any particular branch either of the legal profession or of the judicial Bench. They should remember that the Lord Chancellors came, as a rule, direct from the Bar.
§ SIR HENRY JAMEShoped the decision of the Committee would be taken upon the simple question of whether two Members of the Judicial Committee of the Privy Council should or should not be chosen as members of the Interme- 976 diate Court. All the hon. and learned Members of the House, with the exception of the Attorney General and Solicitor General, were opposed to the adoption of such a course.
§ MR. GREGORYsaid, he would move, in page 2, lines 29 and 30, to leave out—
Such two of the salaried Judges of the Judicial Committee of Her Majesty's Privy Council appointed under the Judicial Committee Act, 1871, as Her Majesty may, under the Royal Sign Manual, appoint.
§ SIR HENRY HOLLANDsaid, it was very desirable, in the interests of our colonies, to keep up a strong Court of Appeal for colonial cases.
§ MR. WATKIN WILLIAMSsaid, he would withdraw his Amendment in favour of that of the hon. Member for East Sussex, which raised the real issue in a more clear and simple manner than did his own proposal.
§ Amendment, by leave, withdrawn.
§ MR. GREGORYthen moved the omission of that part of the clause which provided that two salaried Judges of the Judicial Committee of the Privy Council should be removed to the Supreme Court of Appeal. The Judicial Committee had proved to be a tribunal highly satisfactory to the suitors and the Bar, and its judgments were much respected and looked up to. If that tribunal were weakened considerable arrears of business would probably accrue. Appeals would be hung up, and consequently their number would increase, because many appeals were made merely for purposes of delay. He hoped no consideration of economy would be allowed to stand in the way of constituting a really efficient Court of Appeal.
§ SIR EARDLEY WILMOTsupported the Amendment, believing that it was undesirable to weaken the Judicial Committee of the Privy Council as proposed by the Bill.
§ MR. FARLEY LEITHthought it was almost universally admitted by the Committee that these two Judges should not be removed from the Privy Council. His experience of the Judicial Committee went back a considerable number of years, and it appeared to him that this clause, if carried, 977 would have the effect of bringing back the same unfortunate condition of the Privy Council which existed previously to the passing of the Judicial Committee Act of 1871. They would materially weaken the judicial power of the Privy Council by the removal of these two Members, and diminish the confidence which had been placed in it by the colonies and India; and they would also be guilty of a violation of good faith towards the Judges themselves, by removing them from a higher to a lower Court. He could testify to the fact that the Court was overwhelmed with arrears until the Act of 1871 was passed, by which a Court of four permanent Judges was appointed. During the four years that had elapsed arrears had been cleared off, and the business of the Court had been conducted to the satisfaction of the people of India, the people in the colonies, and the people of this country, and also to the satisfaction of the members of the profession who practised in the Court. He deprecated any change which would undermine their sincere feeling of confidence in the Court. The Privy Council was doing its work well now, and he asked the Committee whether it was worth while to destroy the constitution of the Privy Council in order to save the salaries of two Judges of the Court of Appeal?
THE ATTORNEY GENERALsaid, he was bound to admit that the expression of opinion given by hon. Gentlemen who had spoken on this question had been very much in one direction. It had been suggested that there would be a breach of faith, as regarded the two Privy Council Judges, if they were removed to this Intermediate Court of Appeal. If the Government thought there was the slightest breach of faith in their proposal, certainly it would never have been made; but, according to his recollection of the debates on the Bill of 1871, it was distinctly understood, and was so stated in Parliament, that those learned Gentlemen would be available for any Court of Appeal that might be established. In 1871 there was an enormous arrear of the business of the Judicial Committee; in August of that year, there were no less than 58 cases set down for hearing, and 350 other appeals had arrived in this country, which had not then been set down for hearing. These represented 978 an arrear of over 400 appeals. It was felt necessary to make a temporary arrangement to meet this temporary difficulty, and the result, after four years, was that, on the 1st of the present month, there were eight cases only set down for hearing, and 80 others, which had arrived in this country, but were not ready for hearing; so that there was no accumulation of business at the Privy Council. Under these circumstances, if the House were in favour of the Privy Council Judges being appointed to the Court of Appeal there would be no difficulty on the score of there being an arrear of business before that Tribunal. It must be remembered, also, that the Appeal Court would probably receive additional assistance from the Chiefs of the Common Law Divisions, in consequence of the determination already come to not to reduce the number of Common Law Judges. At the same time, this was a question which ought to be solved in a manner to give general confidence, and there could be no doubt that an opinion had been expressed very decidedly by the legal Members on both sides of the House that it was not desirable, at the present time, to in part constitute the Court of Appeal by the removal to it of two Members of the Judicial Committee. It had appeared to him (the Attorney General) that they might have been placed in the Court of Appeal with advantage and economy. He was not one of those who would allow considerations of economy to prevail where they stood in the way of efficiency; but, believing that the Judges of the Judicial Committee would still be able to discharge the duties imposed upon them in an efficient manner, he thought it would have been desirable that the economical arrangement which had been proposed should have been adopted. Yet he did not think he ought to stand out against the view which had been almost universally expressed by the Committee that evening, and he was disposed therefore to accede to the proposal of the hon. Member for East Sussex (Mr. Gregory), and to omit the names of the two Privy Council Judges from the clause. Although any suggestion that the clause as it stood would have involved the breach of an honourable understanding was, he believed, entirely unfounded, it would be disadvantageous to the public service 979 that the least suspicion of anything of that kind should exist.
§ Amendment agreed to.
§ On the Motion of Mr. WATKIN WILLIAMS, Amendment made, in page 2, lines 32 and 33, by leaving out "such other person," and inserting "such three other persons."
§ SIR HENRY JAMESmoved to add thereafter the words—
Of whom two shall have been Justices or Barons of the Superior Courts of Law at Westminster, or of the corresponding Divisions of the High Court of Justice.He did not mean that the restriction should he permanent. If it was agreed to, he would propose by a further Amendment to fix a limited period within which it should be applicable. In order to secure a strong Common Law Court the restriction appeared to him to be at the outset necessary.
THE ATTORNEY GENERALopposed the Amendment. The qualification of the persons to be appointed as Judges of the Court of Appeal, when it was intended to be the Court of Final Appeal, had been fixed by the Act of 1873, and he thought it unreasonable to further limit the choice of the Crown. He took exception also to the reason urged in support of the Amendment, and to the two Lords Justices at the present time being treated merely as Equity barristers, one of them—Lord Justice Mellish—having been not only an admirable Equity Judge, but also a distinguished Common Law barrister.
§ MR. JACKSONalso objected to restricting the choice of the Executive Government, and observed that recent experience had not been in favour of such a limitation. He would remind his hon. Friend below him (Sir Henry James) that last year, in discussing a similar proposal in reference to the Imperial Court of Appeal, he had said that it would be unconstitutional to place such a fetter on the Crown. No training for the Appellate Court could be so good as practice at the Bar of the Privy Council and the House of Lords, and the eminent and experienced men who commanded the business in those Tribunals would not accept puisne Judgeships, though they were willing to become members of the Court of Appeal. If his hon. Friend's restriction had been in operation, Lord Brougham, Lord Westbury, 980 Lord Chelmsford, Lord St. Leonard's, the present Lord Chancellor, Lord Sel-borne, and the Lords Justices (Rolt, Selwyn, and Mellish) would have been excluded from the offices which they adorned.
§ MR. FORSYTHthought that the Amendment was a very reasonable one. It was very similar to one that he had himself placed on the Paper, which was to select from the puisne Justices and junior Barons, or either of them. He thought it would be an unwise thing to allow all the Judges to be appointed from the Bar.
§ SIR GEORGE BOWYERagreed with the view that had been expressed by the Attorney General, that the fewer restrictions that were placed upon the Crown in the appointment of Judges the better. He objected, on Constitutional grounds, to the system of promoting Judges, and he thought that it was immaterial whether the Judges of the Court of Appeal were taken from the Common Law or the Equity Bar so long as they were qualified to properly discharge their duties. One Constitutional point he wished to lay stress upon, and that was that when a Judge was appointed to an office he ought to remain in it, and ought not to be entitled to promotion.
§ MR. GRANTHAMreminded the Committee that the Amendment applied only to the Appellate Tribunal constituted under the Bill, but not to the Appellate Jurisdiction to be appointed hereafter. He was of opinion that the country would be more satisfied if the Judges of the Court of Appeal were selected from those whose qualifications for their offices had been tested by their having been for some years on the Bench in the lower Courts.
MR. OSBORNE MORGANopposed the Amendment. He contended that if they tied up the hands of the Executive as the Amendment proposed to do, Parliament would in the long run actually assume the functions of the Government. The matter had been entrusted to the Government, and he had no doubt that the Government would do their duty by appointing competent men.
§ MR. WATKIN WILLIAMS, on the other hand, supported the proposition. There was no qualification for the Judges of the Court of Appeal provided by the Bill as it stood. The Queen could 981 appoint a Bishop, for instance, and as that would not be a desirable state of things, he should certainly support the Amendment.
§ MR. MORGAN LLOYDsaid, there was evidently a tendency to favour the Court of Chancery and give to it a preference over the Courts of Common Law, and, in fact, to substitute Equity for Common Law; but, in his opinion, there was often more real equity in the administration of the Common Law Courts than in the Equity Courts. He maintained that care should be taken to preserve the Common Law element in the Bill. Had the Amendment applied to the appointment of Judges in future, he should have voted against it; but, as it simply related to the appointment of the first Judges of the Court of Appeal, he should support it, as a necessary security against the predominance of the Chancery over the Common Law system in the establishment of the new practice.
§ MR. HERSCHELLheld it to be of very great importance, considering what they proposed to take away in respect of appeals from the Common Law Courts, that there should be a satisfactory Court of Appeal established in its place. Care, therefore, should be taken that a preponderance in the constitution of the Court was not given to the Equity Judges. He should object to any such constitution of the Court.
§ MR. SERJEANT SIMONregretted that this discussion should degenerate into a conflict between the Common Law and the Equity Bar. He did not agree with those who thought Equity men did not make good Common Law Judges. He might mention an instance of an Equity barrister, who, although he had never practised in a Common Law Court, became, on his appointment to the Common Law Bench, a most distinguished Common Law Judge. He referred to Mr. Baron Rolfe, afterwards Lord Cranworth. He was one of the ablest Nisi Prim Judges that ever sat on the Bench. He (Mr. Serjeant Simon) thought, however, that the appointments ought not to be restricted to the Bench. There were quite as able men at the Bar as ever sat on the Bench. He could not agree with the hon. and learned Member for Taunton, because he thought they ought not to restrict the area of selection.
MR. LOPESsaid, if the hon. and learned Member for Taunton pressed his Amendment to a division he should certainly vote with him, because he believed the Common Law element was not sufficiently strong in this Court of Appeal.
§ SIR ANDREW LUSKappealed to the Government to stand by their Bill, and not to give way so much as they were doing. They had given up one part of it after another, but they were really not so weak as they seemed to think they were. As a layman he could not very well understand what was being said by his hon. and learned Friends about him; all he knew was that they had gone on contradicting one another as fast as possible. What he wanted was that the Government would be true to their Bill as it had come down from the Lords. He and other laymen had confidence in the Lord Chancellor and the House of Lords in a Bill of this kind, while they did not feel quite the same confidence in Gentlemen in this House.
§ SIR HENRY JAMESquite agreed with the hon. Baronet that he did not understand the question. He explained to him, therefore, that what he (Sir Henry James) meant was that he wished to avoid too great a preponderance of Equity Judges in the Court of Appeal. The hon. Member for Coventry (Mr. Jackson) had reminded him that on a former occasion he had objected to fetter the discretion of the Crown in regard to these appointments; but that was when they were discussing the constitution of a Final and Supreme Court, and when they were asked to declare that for all future time one of the Judges should have belonged to the Scotch Courts and another to the Irish; but in the temporary Court which they were now establishing, and in which there seemed to be great danger of the Equity element overriding the Common Law, he did appeal to them to limit the appointments to the extent implied by his Amendment. They were going to transfer appeals hitherto heard by the Court of Exchequer Chamber, consisting of Common Law Judges, to a Supreme Court of Appeal, which would probably be composed mainly of Equity men. This would be a temporary Court, it was true; but while it lasted it would be settling the Common Law practice under 983 a new Act, and would thus bind the future Court of Appeal upon points of Common Law. It was most important, therefore, that during this period there should be a proper proportion of Common Law Judges upon the Court of Appeal, and that provision should be made against a preponderance of Equity men. His object was to protect the interests of Common Law suitors in the Court of Appeal. Knowing what the reserve forces of the Government were, and that he should be defeated on a division, he would not divide, but he trusted that the discussion would not be without avail in its influence on the Government.
§ Amendment negatived.
§ Clause, as amended, agreed to.
§ Clause 5 (Tenure of office of Judges, and oaths of office. Judges not to sit in the House of Commons).
§ SIR GEORGE BOWYERmoved an Amendment, in page 3, line 17, after "Parliament," insert—
And no Judge shall be transferred from one division of the High Court or to or from the Court of Appeal without his consent in writing.He said the clause, as it stood, infringed the principle of the immovability of Judges and would render it possible for a Government to pack a Court or remove an obnoxious Judge.
§ SIR HENRY JAMESsaid, he did not know whether the Amendment was serious or not. He objected to it for two reasons—first, because it would fetter the power of the Crown; and next—and principally—because it was unnecessary. If a Judge said he would not be a Judge of the Appellate Court, he presumed there would be no power to compel him.
§ SIR GEORGE BOWYERsaid, the Act of 1873 gave the Crown power to transfer a Judge without his consent.
THE ATTORNEY GENERALsaid, he could not accept the Amendment, and principally for the second reason given by the hon. and learned Gentleman opposite.
§ Amendment negatived.
§ SIR GEORGE BOWYERmoved an Amendment, the effect of which would have been to continue the eligibility of the Master of the Rolls to sit in the House of Commons. He referred to the 984 speech of Lord Macaulay in 1853 and the arguments he used so successfully. They embraced these—that the Lord Chancellor was not disqualified for the Bench by being a party man, and that political matters did not come before the Master of the Rolls as they did before the Lord Chancellor and the other Judges.
§ SIR EARDLEY WILMOThoped the Government would accept the Amendment.
THE ATTORNEY GENERALsaid, that when the Act of 1873 was under discussion, it was not thought desirable that the Master of the Rolls should have a seat in the House of Commons.
§ Amendment negatived.
§ Clause agreed to.
§ Clause 6 (Precedence of Judges), agreed to.
§ Clause 7 (Jurisdiction of Lords Justices in respect of lunatics).
MR. OSBORNE MORGANmoved, as an Amendment, in page 4, line 9, at end, add—
Provided also, That nothing herein contained shall affect the jurisdiction usually vested in the Lord Chancellor in relation to the persons and estates of idiots, lunatics, or persons of unsound mind.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 8 (Admiralty Judges and registrar), agreed to.
§ Clause 9 (London Court of Bankruptcy not to be transferred to the High Court of Justice).
§ MR. HERSCHELLmoved, page 5, line 38, to leave out the words, "from time to time." Under the Act of 1873 Court of Bankruptcy was amalgamated with the High Court, but the business of the Court of Bankruptcy was to be performed by the Court of Exchequer. As the clause stood, the office of Chief Judge would be from time to time filled by such Judge of the Exchequer division as might be required by the Lord Chancellor to perform the duties of the office. The clause gave the Lord Chancellor the power from time to time to appoint this Judge or to depose him from his post. He considered that proposal was contrary to every principle 985 which had hitherto been thought desirable with regard to the Judges of the land. The Chief Judge in Bankruptcy should be a distinct appointment, the same as all the other Judges.
§ SIR GEORGE BOWYERagreed with the hon. and learned Member that this was a very objectionable power to give to the Lord Chancellor. It ran through the Act of 1873 and was a perceptible feature in this Bill, that enormous powers should be given to the Lord Chancellor.
§ MR. HOPWOODsaid, the Chief Judge in Bankruptcy should be appointed direct by the Crown. All the Judges appointed prior to 1869 were to be saved from the indignity of being deposed by the Lord Chancellor.
§ MR. JACKSONcalled attention to the change that was proposed by the Bill from that of the Bill of 1873, and asked why Bankruptcy should be separated from the Court of Judicature?
§ MR. GREGORYventured to hope that the Government would say they were prepared to abandon the clause and save discussion. The principles on which assets were to be administered had been assimilated in Chancery and Bankruptcy, and there was, in fact, no special law now to be administered requiring a separate Judge and staff of officials.
MR. OSBORNE MORGANhoped the Government would adhere to the clause. The only way of working Bankruptcy properly was by giving separate jurisdiction to a Chief Judge. At present he was only able to sit one day in each week, and the duties had to be entrusted to registrars.
§ Amendment agreed to; words struck out accordingly.
§ On the Motion of Mr. OSBORNE MORGAN, Amendment made in page 5, line 39, by leaving out after "judges," the words "of the Exchequer division."
§ On the Motion of Mr. HERSCHELL, Amendment made in page 6, line 1, by inserting the words "or with his consent of such one of the Judges appointed prior to the passing of the last-mentioned Act."
§ On Question, "That the Clause, as amended, be agreed to,"
986§ MR GREGORYsaid, the clause had been improved; but his objections to its principle had not been removed, and he therefore moved its omission. He did not see any necessity for a separate jurisdiction for the Court of Bankruptcy as proposed by the Bill. Its retention was altogether foreign to the principle upon which the Committee was legislating, was unnecessary, and would be injurious in its effect.
§ MR. JACKSONsupported the Amendment. There was no reason for confining the choice to the Exchequer Division.
MR. OSBORNE MORGANthought it essential that the Court of Bankruptcy should have a separate jurisdiction. He would go further, and would propose that an extra Judge should be appointed as Chief Judge in Bankruptcy.
THE ATTORNEY GENERALtrusted that his hon. and learned Friend would not, after the discussion that had taken place, press his Amendment.
§ SIR HENRY JAMESagreed in thinking that if the clause were struck out at that time, the House would be placed in an objectionable position. At the same time, he felt that the question stood in an anomalous position, for every other department of law was provided with a permanent head Judge, while in Bankruptcy most important onerous duties were discharged by the registrars. The matter might be left at present as it stood under the Act of 1873.
§ Question put, and agreed to.
§ Clause 10 (Amendment of 36 & 37 Vict. c. 66, s. 25, as to rules of law upon certain points).
§ MR. JACKSONproposed the following Amendment in page 6, line 13:—
Sub-section 1 of Clause 25 of the principal Act is hereby repealed, and instead there of the following enactment shall take effect (that is to say),—In the administration by the Court of the assets of any person who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the winding up of any Company under the Companies Acts, 1862 and 1867, where assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities proveable, and as to the valuation of annuities and future and contingent liabilities respectively as may be in force for the time being under the Law of Bankruptcy with respect to persons adjudged bankrupt; and all persons who in any such case 987 would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such Company, may come in under the decree or order for the administration of such estate, or under the winding up of such Company, and make such claims against the same as they may respectively be entitled to by virtue of this Act.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clauses 11 to 15, inclusive, agreed to.
§ Clause 16 (Rules in Schedule in substitution for 36 & 37 Vict. c. 66, s. 69, and Schedule).
§ MR. WATKIN WILLIAMSproposed to qualify the provision giving operative force to the rules contained in the 1st Schedule for the regulation of the proceedings of the High Court of Justice and Court of Appeal, by inserting the words—
So far as the same regulate the pleading, practice, and procedure only of the Courts, and do not otherwise than in so regulating pleading, practice, and procedure, take away or infringe any existing right founded upon any Act of Parliament or upon the Common Law, and so far as the same do not conflict with the provisions of this or the principal Act.The hon. and learned Attorney General, on the second reading of the Bill, had asked the House to accept the rules in question en bloc, and not to discuss them. That was a reasonable proposal, as it would be impossible to discuss them in a Committee of the Whole House, because they were so technical and voluminous. But this Amendment seemed necessary, as a safeguard, in order to prevent the Lord Chancellor and the Judges exercising any power that would take away the existing rights of suitors.
§
Amendment proposed,
In page 8, line 29, after the word "shall," to insert the words "so far as the same regulate the pleading, practice, and procedure only of the Courts, and do not otherwise than in so regulating pleading, practice, and procedure, take away or infringe any existing right founded upon any Act of Parliament or upon the Common Law, and so far as the same do not conflict with the provisions of this or the principal Act."—(Mr. Watkin Williams.)
THE ATTORNEY GENERALsaid, he could not assent to the introduction of the words. The rules were compounded partly of those which were contained in the Schedule of the Act of 1873, and partly of those which had been framed by the Judges appointed for that purpose under the provisions 988 of the Act. There was, therefore, some guarantee that substantially they were all that could be desired. The Rules drawn up by the Judges had been before the public and open to the fullest discussion and criticism for a year, so that it could not be said there had not been ample time for consideration. While he thought it unnecessary for the Committee to discuss in detail the voluminous mass of rules contained in the Schedule, he did not mean to suggest that no Amendment whatever should be proposed; questions of principle might fairly be raised and discussed; and any hon. Member was, of course, at liberty to move whatever Amendment he thought fit.
§ SIR HENRY JAMESexpressed a hope that his hon. and learned Friend would not persist in the Amendment. The House would have an opportunity of discussing all these rules if it chose to avail itself of it.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayes 54; Noes 201: Majority 147.
§ MR. HERSCHELLmoved the omission of the concluding part of the clause, giving the Judges the power of annulling or altering the new rules so made. The words he proposed to omit were these—
But such Rules of Court and also all such other Rules of Court (if any) as may be made after the passing and before the commencement of this Act under the authority of the next section may be annulled or altered by the authority by which new Rules of Court may be made after the commencement of this Act.Why he did so was because he could not help thinking that they should have some assurance from the hon. and learned Attorney General that all the labour of the Legislature should not be rendered nugatory by the enactment of new rules, overruling what they had done, by another authority without the knowledge or sanction of the House.
THE ATTORNEY GENERALthought the Bill contained all the limitation that could be fairly required. The clause merely provided that, after the passing of the Act, there should be some authority entrusted with the power of passing 989 new rules and order of procedure, not in contravention of, but for the purpose of carrying out, the intentions of the Legislature; and while that duty was thrown upon the Judges or the Lord Chancellor, it was so strictly limited and defined that he thought there was no ground for the apprehension of his hon. and learned Friend. The rules which they made would have to be laid on the Table of both Houses of Parliament, which might reject them.
§ SIR HENRY JAMESasked why Parliament should take the trouble of passing new rules, and giving effect to them by legislative authority, if the Judges were to be allowed, without some restriction, to alter or annul those rules? Were the Judges to be empowered to make any rules they pleased for the better administration of justice in England? If the hon. and learned Attorney General would consent to an Amendment, that the Judges should not have power to make rules that would alter the law, that would possibly meet the case and prevent further opposition.
THE SOLICITOR GENERALsaid, the hon. and learned Member had recently given an excellent reason why such an Amendment should not be inserted. It would raise the question in every case whether a rule had to do with procedure and practice. It was essential that the power to make rules should be vested in somebody or other; and if it was found after the rules had been investigated by Parliament that some of those inserted in the Schedule did not work, it would be absurd to let the object of the Court remain without being carried into effect, simply because the Judges had not power to alter the rules. It was not likely the Judges would alter a rule that had been carefully considered by Parliament. Of course, if they did, the alteration would be abrogated when the new rules were laid before Parliament.
§ MR. R. W. DUFFmoved that the Chairman report Progress.
§ MR. DISRAELIsaid, the Committee had been paying great attention to the matter, and expressed a hope that the hon. Gentleman would not press his Motion, as he thought the Committee were desirous of proceeding. The hon. Member was interested in another Bill, which could not come on after half-past 12, as there was Notice of opposition; but, as far as he was concerned, no ob- 990 jection should be made to its being taken at a late hour.
§ Motion negatived.
§ MR. WATKIN WILLIAMSsaid, the object of the Amendment would be secured by an Amendment to the 17th clause, of which he had given Notice.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 17 (Provision as to making of rules of court before or after the commencement of the Act,—in substitution for 36 & 37 Vict. c. 66, ss. 68, 69, 74, and Schedule).
§ MR. BUTTmoved to leave out all the words in the second sub-section from the word "appeal" down to the end. He considered it would be most dangerous to give to the Judges a power to make supplementary rules, which would enable them to totally alter the rules governing the law of evidence, and that would place a most unconstitutional power in their hands. They could, by such a power, pass rules that would enable them to try causes themselves without the assistance of a jury. He hoped the Committee would not consent to invest the Judges with any such power as that.
THE ATTORNEY GENERALsaid, that at first sight the Amendment did not appear to be objectionable; but it was difficult to say what the effect of the proposed omission would be in connection with the other Amendments made or proposed in the Bill. Even if the words were omitted, it was doubtful whether the Judges under the other portions of the Bill would not have the power which those words proposed to take away from them.
MR. STAVELEY HILLhoped the Committee would not sanction a power which might at any time prove most dangerous. If there was any one thing which more than another that House was most opposed to, it was against any attempt to alter the rules governing the law of evidence. He therefore trusted the Committee would not place such a power in the hands of the Judges.
§ MR. LAWsupported the Amendment. The words objected to by his hon. and learned Friend the Member for Limerick would clearly enable the Judges to rule whether a trial should be by a 991 Judge or jury. It was no answer to this to say the Judges might be trusted not so far to misuse their powers. If, as seemed to be admitted, they were not meant to have such a power, the proper course was to amend the clause as proposed.
§ MR. GOLDNEYcould not concur with hon. and learned Members in the views they had expressed as to the powers proposed to be placed in the hands of the Judges. He regretted to see such a disposition as had been manifested to restrict the Judges in every way. With regard to the objection to the Judges making regulations as to the mode of procedure, it should be recollected that the Act of 1873 gave the Judges very large powers of remitting cases to referees.
§ MR. WADDYconcurred in the opinion that the clause as it stood would give the Judges powers of making any alterations they pleased with respect to procedure. He would, therefore, suggest that sub-section 2 be struck out.
THE ATTORNEY GENERALsaid, no Notice had been given of the Amendment, and hon. Members had had no opportunity of comparing it with the remainder of the Bill. If they had referred to Clause 20 of the Bill, they would have found they had no reason for their fears, as its provisions sufficiently protected the ordinary rules of evidence. He, however, would not object to the Amendment.
MR. FORTESCUE HARRISONmoved that the Chairman should report Progress. ["Oh, oh!"] His reason for taking that course did not arise from opposition to the Bill; but Scottish Members were interested in the next Bill, which was a Government measure. It was now 20 minutes past 12, and no opposed measure could be brought on after half-past. They had sat six hours over the present Bill, very patiently waiting their turn, and he hoped the right hon. Gentleman would not object now to report Progress.
§ MR. DISRAELIsaid, he was not disposed to oppose the Motion, especially as it was to forward a Government Bill.
§ MR. BUTTprotested against the course taken by the Scotch Members. It was most unreasonable to interpose just as an Amendment which had been fully debated had been agreed to by 992 the Government, and was about to be put.
§ Motion negatived.
§ Amendment agreed to.
§ Motion agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.