HC Deb 16 July 1875 vol 225 cc1591-605

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Attorney General.)


, who had given Notice of a Motion that the House go into Committee that day three months, said, he had placed the Amendment on the Paper, because he regretted the course which the Government had taken, no doubt, reluctantly, under pressure of Motions from both sides of the House. It might perhaps be necessary for him to seek the protection of the two Bills which had just been dealt with against serious annoyance, because for protesting against an indefinite multiplication of the number of Judges he might be regarded as a "black sheep" by the great profession to which he had the honour to belong. But the hon. and learned Attorney General had given Notice of an Amendment, to be moved on the Report of the Judicature Act Amendment Bill, which in a great degree obviated the objections which had led him (Sir William Harcourt) to give Notice of opposition to the Bill. The number of Judges of the First Instance were by the Bill of 1873 reduced by three, it being understood and expected that the amelioration of the law and the economy of judicial time under the new procedure would enable a smaller number of Judges to do a greater amount of work. It was also proposed that three additional Judges should be made Members of the single Appellate Court which it was the intention to constitute under the Act of 1873. That intention was continued in 1874, and in 1875 the Bill as it came down from the other House maintained that reduction of three in the number of the Judges of First Instance. It was, however, still more beneficial than the Act of 1873, because, instead of adding three new Judges to the Appellate Court, it only created one new Judge and took two Judges from the Judicial Committee for the new Intermediate Court of Appeal. The Government therefore proposed to economize five Judges as compared with the original proposal. But what occurred 10 days ago? The first thing done was to abolish the three Judges of First Instance, as provided in 1873 and subsequently affirmed and re-affirmed. The next, and of this he approved, was to give up the proposal to take two Judges from the Privy Council; and the next was, instead of creating one new Judge, to create three new Judges of the Appellate Court, thus practically adding to the original scheme no fewer than five new Judges. A more inconsiderate proposal, one less capable of being supported by any consideration of public expediency or economy, he could not conceive. He was happy to think that the Government thought so too, as that morning a proposal appeared on the Paper in the name of the hon. and learned Attorney General which, if adopted, would strike off two of the five new Judges. Instead of creating two Judges for the Court of Appeal, two of the Common Law Judges were to be borrowed when their services were required. With respect to the continuance of the present number of Judges, he knew it was hopeless to resist the proposal, but he was no less sorry it had been determined on. It was said that the Judges were overworked. He was not at all certain about that; but if they were, how did it happen that a case of which they had all heard so much—the Tichborne Case—had been sent to be tried before three of the Common Law Judges at Bar, instead of, as it ought to have been, to the Central Criminal Court, where it would have been tried by one Judge? Three Judges were thus occupied for months, and one or two others went abroad—at least four being absent from the ordinary judicial work. The object of the Judicature Act was to economize the time of the Judges, so that a fewer number might get through more work. It was not the smallness of the number of Judges, but the absurd disorder, the ludicrous want of organization which prevailed, which prevented the legal business of the country from being readily got through. It was impossible to tell where the Judges were to be—now they were at Westminster, now at Guildhall, now on Circuit; and that was the state of things the Act ought to remedy. It ought to abolish the Long Vacation, deal with the Circuits, do away with the distinctions between Queen's Bench, Exchequer, Common Pleas, Admiralty, and Equity Courts, so that there might be that interchangeability which would enable the judicial strength to be fully utilized and the time of the Judges economized, and which was essential to anything like effective organization. The assertion that more Judges were required was a most bitter censure upon the Judicature Act. It was an admission that it provided no real legal reform at all—that what it did was to create more Judges. He was himself an advocate of Law Re-form, but he would never advocate Law Reform which resulted in the mere creation of new places for Law Reformers. What was the present position? Under the Act of 1873 there were three Judges of Appeal to be created, but the Government having abandoned the creation of the great Final Court of Appeal—at least, for the present Session—proposed to constitute an Intermediate Court of Appeal. He had always objected to an Intermediate Court of Appeal, because in the legal profession there was not sufficient material out of which two good Appellate Courts could be constituted. If the House, instead of making one strong Appellate Court, established two indifferent and moderate Courts of Appeal it would be doing that which would not strengthen the law, while it would enormously increase the expenses of litigation. The proposal carried two days ago to create two new Judges for the Intermediate Court of Appeal was one of the most unreasonable proposals ever made, because the Court was to be temporary and provisional, and to last no longer than one year. But the Government now made a reasonable proposal, as far as circumstances would admit, for they were going to borrow pro hac vice two Judges from the Courts of First Instance in order to transfer them to the Appellate Court when their services were required there. Under all the circumstances, he would not move the Amendment he had placed on the Paper, in the hope that the Government would not create additional Judges, and that they would so amend the Bill as to render it a good measure.


said, that as he was to some extent responsible for what had taken place in reference to this matter, he considered he was called on to vindicate the course adopted, and the opinion he still entertained concerning it. The state of things at present in reference to the despatch of legal business was not satisfactory, and it was only necessary to refer to the large number of remanets standing over for trial to show the inability of the Judges, under the existing system, to get through the business of their Courts. He hoped the new system would remedy that unsatisfactory state of things—a state which was attended with heavily increased law expenses and vexatious delay in the administration of justice. There was a further improvement also to which he looked forward. Under the existing system most trivial points were referred to the opinion of the Court above; and he hoped a great part of the judicial strength, now wasted to a certain extent by the sittings of the Judges in Banco, would be more judiciously applied under the Act of 1873 as supplemented by the present Bill. He trusted that there would be continuous sittings in London and Middlesex, and that more time would also be given for the proper trial of civil causes on Circuit. But in his opinion the constitution of the Intermediate Court of Appeal was one of the most importance requisites in reference to the working of the Act of 1873. The presence of the Chiefs of the respective Courts could not be relied on in the Court of Appeal. You could, therefore, only rely on the two Lords Justices and the new Judge to constitute the Court. But the Appeal Court would have to dispose of appeals from the Lords Justices, the Courts of Admiralty, Probate and Divorce, and Exchequer Chamber, probably with many cases which now went to the Courts in Banco. Now, three Judges were quite inadequate to dispose of this business. The Lords Justices at present heard about 200 cases a-year, and their business alone was quite as much as any Court could dispose of properly. For the other appeal business there must be another Court which would find full occupation. It was proposed that this Court should be made up of Judges taken hap-hazard pro hac vice, or the request to the Chiefs of the Courts of First Instance. Now, with great respect for the Bench, it was well known that some Judges were men of greater capacity than others. Well, then, if for the constitution of the Court of Appeal two strong Judges were chosen, the Court of First Instance would be weak; and if two weak Judges were chosen the Appeal Court would be of the same character. He regretted the change which the Government proposed to make, because it was of the greatest importance in bringing a new system into practice that it should be regulated, to a considerable extent, by a Court of Appeal, and it must be anticipated that a greater number of cases would come up on appeal than was the case now. It was derogatory to a Court of Appeal that its Judges should be taken from another Court as it were by the job, and the same respect would not be paid to its decisions. It was of great importance that the Appeal Court should be well constituted at starting, for a weak tribunal might crystallize faulty decisions which it would be very difficult afterwards to get rid of. The money required for the purpose of properly constituting the Court might be saved by a better regulation of offices and a better distribution of the work. The general opinion of both branches of the legal profession was, that the Common Law staff of officers was in excess of what was required. If the Masters were brought together and worked together, instead of having four of them in each Court, one-third of their number might be dispensed with, and the Associates and Clerks of Assize might be utilized and appointed to vacancies as the Masters fell off. Again, many of the clerks attached to the offices might also be saved; and by these economies three Judges might be provided with little additional cost to the country.


said, it did not seem likely that the House would go to a division, or in that ease he should have been content to give his vote without occupying the time of the House. The hon. Member opposite (Mr. Gregory) insisted upon a large increase of the public charge in the appointment of Judges whose offices had been prospectively abolished, while at the same time he pointed out countervailing economies by the reduction of certain officers of the Courts. That was an exceedingly pleasant and satisfactory prospect, the only drawback being that the increase of charge was about to take effect while the economies were in the air and dwelt in the region of possibilities. The public would have to endure a certain outlay, while the compensations were purely visionary, and he, therefore, wished those who had shown such zeal in recommending an augmentation in the number of Judges would equally apply their abilities and experience in the work described, and introduce a clause in the Bill for the purpose of giving effect to the economies held out as compensation for the additional charge. He (Mr. Gladstone) was almost a solitary representative of opinions respecting public economy which, 30 years ago, were the opinions of all men of any note in both political Parties alike. Since that time a great fundamental change had occurred; and although, of course, any objection taken by him must, in the first instance, be taken to the conduct of the Government, who were immediately and primarily responsible, yet he must frankly admit that the course they took was one which appeared to be urged upon them by the profession, which did not seem to be disapproved by the House, and as to which he could see no decided symptoms of disapproval by the country. It now seemed to be the desire of the country, in entire reversal of the principles and ideas which prevailed 20, 30, or 40 years ago, that our establish- ments should be enlarged and the expenses of the Government increased from year to year; and, as long as public opinion had this tendency the country would never find any difficulty in discovering political Parties—he knew not whether on both sides of the House, but, at all events, on one side—who would readily undertake to conduct the work of the Government upon these principles. As to the work of the Judges, it was impossible for outsiders to contend with the Members of the profession who had led on the assault upon the public purse in this matter with respect to the details of the work of the Judges. He could only point to the solemn and deliberate judgment of Parliament in 1873, and consider that which they were now doing in comparison or contrast with that judgment. He was never very proud of the achievements of the late Government in the matter of public economy. They had to contend with difficulties which were no doubt felt by the present Government who, perhaps, might otherwise be inclined to respect the lingering traditions of other times, when it was thought one of the great duties of Parliament to restrict and restrain the public expenditure. At the same time something was done in the Act of 1873. He gave the utmost credit to his hon. and learned Friend the Member for the City of Oxford (Sir William Harcourt) for the stand he had made on this occasion, because, as a distinguished member of a great, learned, and distinguished profession, invaluable to the country in their sphere, it could not be agreeable to him to oppose himself to the general sentiment of his profession. In one respect his statement admitted of being enlarged. It was perfectly true that, in the Act of 1873, while Parliament provided for the extinction of three Judges of First Instance, it provided for the creation of three new Judgeships with a view to man the Court of Appeal as then contemplated. But that was not the whole case. The three new Judgeships were not to be created for the purpose of trying English cases. All these Judgeships were expressly created with a view to fill them by persons who might represent the profession of Scotland and the profession of Ireland in the Court of Appeal. Consequently, as far as England was concerned, these were reductions of Judgeships; and, on the other hand, one new Judge was appointed who was to form part of the Appellate Tribunal. The Bill embodying this proposal was always recommended to the public upon the ground that our judicial establishments were enormously wasteful, and that the loss of judicial time and power was such that establishments were created for which there was no necessity; because, by better arrangement of these establishments, the same work could be done with a much smaller expenditure of power. It was on that basis that Parliament was induced to address itself to the formidable and serious task of interfering so much with the ancient traditions of British Judicature, and of re-casting the Court in which the higher causes of the country were to be tried. What was the result? That the flowery promises of great economy and the prevention of the waste of judicial power had vanished into thin air, and an absolute addition was to be made to the number of Judges for the purpose of carrying on the judicial business of the country. He hoped he had not done injustice to the Government in the matter. Those who were in his position—those who drew their recollections and traditions from other days, must be thankful for the smallest mercies, and therefore he made his bow to the hon. and learned Attorney General for the merciful manner in which he had dealt with the country, for he frankly admitted that if the hon. and learned Gentleman had adhered to the whole of the propositions which had been put before him on a former occasion, or even had he wished to go beyond them, he (Mr. Gladstone) was afraid there would be in the House no power of offering any effectual resistance. The limited concessions they had were due to the merciful and generous feelings of the hon. and learned Gentleman, and he (Mr. Gladstone) was truly thankful to him. Viewing the question by the light of a long experience, he was very sorry to be compelled to say that these Law reforms turned upon establishments, and turning upon establishments, he would not say what they generally contemplated; but what they generally involved was the creation of new establishments, the continued existence of the old establishments, the pensioning and providing for the old class of officers, and the appointment of a new class of officers in their place, who would probably be pensioned, too, by some fresh Law reform after a reasonable lapse of years. The name of reform as regarded administrative changes in this country was a name justly claiming regard and awakening grateful recollections; but with respect to Law reform the recollections were not so sacred nor so satisfactory as under the circumstances could have been wished. It was certainly a very melancholy reflection to himself and to such Members of the House of Commons as might share in his sentiments, that here once more there was an entire breakdown of the promises which had been held out to the country with respect to the great economy of judicial time and power and the consequent contraction of establishments which those important changes were to produce, for the old friends had come before them with a new face, and extension of establishments and increase of charge were to be the immediate result of the reforms in which they were now engaged. He declined the controversy with professional gentlemen who told him how many cases had been brought forward and how many decided in the course of a year, how rich this country was growing, and that we should not take niggardly notice of the proportion between establishments and the cost at which they were maintained. In this matter he took his stand upon the judgment of Parliament in 1873, and, without claiming any particular credit for the part he had in bringing about that judgment, he wished to point out, with sorrow, the contrast between the state of things then and the present state of things. He did not attempt to lay any undue share of blame upon the Government, though they were undoubtedly responsible; but it was with the Parliament and above all with the public of this country, to determine upon what principle, whether on that of economy or on that of waste, the public service should be conducted. He could not honestly say that he thought public opinion on this subject went in the same direction as his own. Therefore he bowed to the judgment of those who ought to know better than he did how all these matters were conducted, and would content himself with a silent protest against the course of things which the Government intended to pursue.


said, he was sorry to differ from his right hon. Friend who had just spoken, and from his hon. and learned Friend the Member for the City of Oxford (Sir William Harcourt), but he should be wanting in moral courage if he did not take upon himself the responsibility of the course which he had urged upon Her Majesty's Government. Of course, they would all agree with a great deal which his right hon. Friend had said as to the objection to the creation of new offices without disbanding the old and to the giving of pensions. But with great submission to his right hon. Friend that was not the question they were discussing that evening. They were dealing with two matters which he thought should be dealt with separately. They were, first of all, dealing with the question whether it was advisable to diminish the number of our Common Law Judges as effected by the Judicature Act of 1873; and, secondly, they were discussing the form of the Intermediate Court of Appeal. On the latter point, he agreed with much that had fallen from the hon. and learned Member for Oxford. He did think that the creation of three new Judges for a temporary Court was a thing to be avoided, and he had endeavoured to move an Amendment embodying that view, but the Chairman ruled that the Question could not be put at that time. But with respect to whether our judicial staff should be diminished or not, he adhered firmly to the views he had before expressed on the subject. It had been placed before the House by his right hen. Friend that if they wished to see the present number of Judges maintained they would be adding to the charges of the country. They would be doing no such thing; they would be simply maintaining the charges as they existed at present and had for years existed, and the question was whether they were to effect an economy of £15,000 a-year at the risk of the administration of justice? He admitted there were grounds on which he should wish to see the number of Judges diminished if it could be safely done. It added to the dignity of the office to have few Judges instead of many, and to the probability of obtaining men highly capable of performing the duties. But when he was asked to diminish the number of Judges because on an expenditure of £73,000,000 or £74,000,000 we might save £15,000 a-year, the reason seemed insufficient. He would not deal a blow at the proper administration of justice in order to effect that economy. In 1830 we had 16 Judges. In the 45 years which had since elapsed there had been a great increase in the demand made upon the performance of judicial duties. The number of causes had increased. In the Court of Chancery it had been found absolutely necessary to add two Vice Chancellors since 1830. In our Common Law Courts the necessity was made apparent; and, notwithstanding the addition to the number of the Judges, many of the suitors could not obtain justice. When, in 1873, it was proposed that the number should be diminished, he protested against it until it could be proved by the alteration in the law that it could be safely done. It had been said that the Judicature Act would be no reform at all unless we obtained a better administration of justice with greater economy. But that was not the object of Legal Reform. The object was to correct certain evils which existed in our Courts—evils which drove suitors away, and obliged them to make a sacrifice of their rights because they could not obtain the determination of them. The scandal involved in the denial of justice by the postponement of trials was greater than any scandal which could arise from keeping a charge of £15,000 on the Estimates. His right hon. Friend the Member for Greenwich declined to discuss the number of causes that were awaiting trial or of suitors who were failing to obtain justice; he declined to look at what was going on within the Courts of Law, and he would consider nothing but the charge on the Estimates. But the whole question turned upon what was going on in our Courts of Law, and not upon broad and theoretic views such as might be expounded in a paper read at the Social Science Congress at Leeds; it depended entirely on the result of experience as to whether there were or were not sufficient Judges to perform properly the judicial work of the country, as to whether gaols could be delivered and causes tried. The hon. and learned Member for the City of Oxford said there ought to be continuous sittings and nobody ought to have a holiday, and he recollected the thrill of horror with which he heard his hon. and learned Friend make the suggestion, and, like a willing martyr, offer to give up the Long Vacation in order to secure the administration of justice in our Courts. How would his hon. and learned Friend secure continuous sittings and save £15,000 a-year? He would not have Circuits; but we must accept the fact that at present we had Circuits, and that if there were a further division of the Northern Circuit we should require 14 Judges to travel, one must remain to dispose of business in Chambers, and in that way the whole number of 15 Judges would be disposed of. In the absence of any legislation dealing with the Circuits their existence and requirements must be recognized. It was of no use talking about promises made on Law Reforms being effected; we must consider with what safety we could proceed to diminish the judicial strength. Therefore, while he accepted in good humour the pleasant references that had been made to the legal profession, he maintained that the interests of the public as well as of the Judges required that the present number of Judges should be maintained. It might be that actual experience of the working of the Judicature Act would show that the number of Judges could be safely reduced; but the number ought not to be diminished on speculation, and certainly not until the arrears of the present system had been worked off, and until we had framed, tried, and tested the forms of procedure under the new system, the introduction of which was in itself a special reason for maintaining such a judicial strength as would secure the new system a fair trial. Reference had been made to the recently-closed sittings in London of the only Courts available for the trial of causes in which foreigners were concerned. They sat three times a-year, and 12 days at each sitting. The last sittings began with 94 cases for trial, of which 86 were remanets; of these 20 had been tried, 2 had been partly heard, and 50 withdrawn, because suitors would not wait for trial any longer; and the remaining cases were put off to be tried under the new system. It would, perhaps, be two years hence before some of them were reached. One action was a claim by a merchant resident in Russia against an insurance company, and, after the case had occupied four days, it was found impossible to finish it, and the merchant and the captain of a trading vessel who was a witness were told that it would probably come on again in December. That was a sample of what was going on because there were not Judges enough to do the work. Under these circumstances, it was false economy to diminish the number of Judges, and there was very good reason for the conclusion which was come to last Monday week, with the unanimous concurrence of both commercial and legal Members, that the number of Judges could not be safely reduced.


said, he desired to recall the attention of the House to the question on which it had to express an opinion, and it was a very simple one; he had moved that Mr. Speaker do now leave the Chair, in order that, when the House was in Committee, he might move a Resolution sanctioning the payment, out of the Consolidated Fund, of any additional expense that might be occasioned by continuing the number of Common Law Judges at 18 instead of reducing them 15, as had been provided by the Judicature Act of 1873. As the House was aware, the necessary Amendment in Clause 3 of the Bill could not be made, nor indeed, in strict propriety, discussed, until such a Resolution had been passed. His hen. and learned Friend, the Member for the City of Oxford, had complained that he did not know what Resolution it was proposed to pass when the House got into Committee; but he must remind his hon. and learned Friend that the terms of the Resolution, which he (the Attorney General) was about to move, had been placed on the Notice Paper and delivered to hen. Members with the other Parliamentary Papers, four or five days ago, and they simply authorized the expenditure which might follow from the repeal of that part of the Act of 1873, which limited the number of Puisne Judges to 12. He regretted that the right hon. Gentleman the Member for Greenwich and the hon. and learned Member for the City of Oxford were not present on a recent occasion when the subject of such repeal was fully discussed, and when, in deference to the unanimous opinion of commercial and legal Members on both sides, it was agreed that the present number of Judges should be maintained. I would be in the recollection of many hon. Members that, when the Bill of 1873 was in Committee, he (the Attorney General) with others, resisted the proposal to reduce the number of Pusine Judges from 15 to 12; and last year, when the question was raised, the hon. and learned Member for Taunton (Sir Henry James) spoke to the same effect as he spoke last week and on this occasion, and the clause was passed over in Committee that another might be brought up on the Report. Therefore, it was incorrect to say that the proceedings of Parliament last year confirmed the legislation of 1873; what was done last year was in the direction of what was now proposed. Not a single fact had been mentioned, in the course of the present discussion, which contravened the facts on which the House founded its decision last week, and it was therefore unnecessary to re-enter upon the consideration of those facts; but he could not understand how the right hon. Gentleman the Member for Greenwich could affect to ignore the facts and to look upon the question as one of expenditure only; it appeared to him (the Attorney General) that the facts, which were so slightingly treated by the right hon. Gentleman, were deserving of the most careful consideration, for that, which it was, above all things, important to secure, was the efficient conduct of the judicial business of the country, and any saving, which would endanger such efficiency, would be a false economy. In the course of the present year he had received communications from all parts of the country—from Judges, barristers, legal societies in London and the Provinces, large commercial constituencies, and Chambers of Commerce, all urging upon him to maintain the full number of Judges, on the ground that the judicial business of the country required their services. Under these circumstances, he appealed, with some confidence, to hon. Members to allow the House to go into Committee, that it might pass the necessary Resolution for authorizing the expenditure that would be incurred by maintaining the full number of Judges.


said, he would not have interposed had it not been for some remarks of the right hen. Gentleman the Member for Greenwich objecting to the maintenance of the present number of Common Law Judges. He should be failing in his duty if he did not, on behalf of the commercial community, express his approval of the decision of the Government, and vindicate the course pursued in this matter by those Members of the Bar who, he believed, were actuated solely by public considerations. The right hon. Member for Greenwich did not make sufficient allowance for the increase of the population and commerce of the country, which necessitated an increase of judicial power, just as the expansion of the London and North Western Railway system involved the increase of its staff. The mercantile community were dissatisfied with the injustice to which they were exposed from causes being frequently postponed or referred on account of the impossibility of getting them tried. The present condition of things was a perfect disgrace. It would be true economy to afford the means of obtaining justice promptly, instead of exposing the community to the annoyance and loss now suffered, and he was quite prepared to accept his share of the responsibility if the number of Judges were increased as proposed in order to ensure continuous sittings for the trial of the important mercantile causes constantly arising in the metropolis.

Resolution considered in Committee.

(In the Committee.) Resolved, That it is expedient to authorise the payment, out of the Consolidated Fund, of any charge for Salaries, Allowances, and Pensions which may arise in consequence of the repeal, by any Act of the present Session, of such part of section five of "The Supreme Court of Judicature Act, 1873," as limits to twelve the number of Puisne Justices and Junior Barons to be appointed Judges of Her Majesty's High Court of Justice.

House resumed.

Resolution to be reported upon Monday next.