§ Order for Second Reading read.
THE ATTORNEY GENERAL
, in moving that the Bill be now read a second time, said, he would explain the circumstances which, in the opinion of Her Majesty's Government, rendered it necessary to deal with the Judicature Bill of 1873, in the manner proposed by the present measure. In 1867 a Royal Commission was appointed to inquire into the operation and effect of the Court of Chancery, the Superior Courts of Common Law, the Admiralty Court, and the Probate and Divorce Court, as then constituted, with the view of ascertaining whether any, and what changes, or improvements could be advantageously made so as to provide for the more speedy, economical, and satisfactory despatch of the judicial business transacted by such Courts. That Commission was constituted in a manner which secured the respect and confidence of everyone: after taking much evidence, it made its first Report in the year 1869: the Report contained a variety of recommendations, the chief of which might be classified under four heads. First, the consolidation into one Supreme Court of the various Superior Courts of Law and Equity; secondly, the adoption of a uniform mode of procedure, so far as was consistent with the various classes of cases that came under the cognizance of the Courts; thirdly, the appointment of skilled referees to whom the hearing of certain classes of cases should be handed over; and, fourthly, the creation of one Court of Appeal, which should take the place of the existing Court of Appeal in Chancery and the Exchequer Chamber. There were a variety of other recommendations, of more or less importance, to which it was unnecessary to allude, but he must ask the attention of the House to one passage in the Report; the Commissioners, referring to the question of appeals, said it might hereafter deserve consideration 1632 whether the decisions of the Court of Appeal, mentioned in their fourth recommendation, should not be final, unless under certain exceptional circumstances an appeal to the House of Lords might become necessary. Having thus stated the effects of the recommendations of the Commissioners, he would proceed to consider the Act of 1873. That Act contained provisions for carrying into effect everyone of the four heads of recommendation to which he had just alluded. It provided for the consolidation into one Court, under the name of the Supreme Court, of the various Courts of Equity and Common Law, and for vesting in such Court and its several Divisions all the jurisdiction possessed by the Courts of which it was constituted; it provided for the adoption of an uniform procedure, for the appointment of a system of Referees, and for the formation of a Court of Appeal to take the place of the Court of Appeal in Chancery and the Court of Exchequer Chamber. But the Act of 1873 did more than give effect to these recommendations of the Commissioners; it abolished the Appellate Jurisdiction of the House of Lords as far as regarded English causes; it also provided for the transfer, under certain circumstances, to the Court of Appeal which would be formed under that Act of Parliament of matters hitherto disposed of by the Privy Council. The first thing that struck us when we regarded this Act was that, with the exception of matters hitherto disposed of by the Privy Council, it was confined to English causes. Now, if the Act had been limited to the recommendations of the Royal Commissioners, it did not occur to him that it would have been open to objection on the ground that it was limited to English causes. But when we found that it abolished the Appellate Jurisdiction of the House of Lords with regard to English causes, but left the Appellate Jurisdiction untouched as regarded appeals from Scotland and Ireland, there certainly appeared an anomalous state of circumstances which was open to very considerable objection; and he could not but think that it was generally felt at the time when that Act was passed that it would be necessary, before the lapse of any long period of time, to extend its operation to appeals coming from Ireland and from Scotland. It certainly would appear from observa- 1633 tions made by the noble and learned Lord by whom that Act was introduced into the House of Lords (the Lord Chancellor) that he contemplated the adoption, at no distant period of time, of a measure which would abolish the Appellate Jurisdiction of the House of Lords as regarded Scotch and Irish causes. It might be in the recollection of hon. Members that when that Act was passing through the House of Commons it was generally understood that a measure would be introduced at the earliest possible period for the purpose of remedying that difference. However that might be, Her Majesty's Government were now, and always had been, of opinion that there should be one Final Court of Appeal as far as regarded all the appeals of the Three Kingdoms; that if the Final Court of Appeal for England was to be the House of Lords, the Final Court of Appeal for Scotland and Ireland should be the House of Lords; and that if the Appellate Jurisdiction of the House of Lords was to be abolished as far as regarded England, it should be abolished also as far as regarded Scotland and Ireland, and that, in either event, one Final Court of Appeal should be established. In that view of the case the Bill of 1874 was introduced by the present Lord Chancellor into the House of Lords, and, having passed that House, it was read a second time in the House of Commons without opposition. It contained provisions for putting an end to the Appellate Jurisdiction of the House of Lords in respect of Scotch and Irish causes and for establishing a Supreme Court of Appeal, to be called the Imperial Court of Appeal, which should have power to deal with appeals from all parts of the Empire. As he had already said, the Bill passed its second reading in the House of Commons without opposition; on the Motion for going into Committee, an Amendment, moved by the hon. Member for Wexford (Sir George Bowyer), expressing an opinion that it was inexpedient to abolish the Appellate Jurisdiction of the House of Lords, was negatived without a division, and subsequently Amendments of a similar character were defeated by large majorities. He believed that the votes upon those occasions did not correctly represent the actual proportion of feeling on one side or the other, as many votes were given under the impression that the question 1634 had been finally and conclusively decided respecting England in 1873, and that it was therefore desirable to settle it in regard to Scotland and Ireland. In consequence, however, of the late period of the Session, and of the opposition raised by certain hon. Members, and, amongst others, by the hon. and learned Member for Limerick (Mr. Butt), it became necessary to withdraw that Bill, and a short Bill was passed suspending the operation of the Act of 1873. So matters stood at the close of the last Session of Parliament. In the present year the Lord Chancellor introduced another Bill, which, as far as regarded the particular question now under consideration, was substantially to the same effect as the Bill which had been introduced in the last Session of Parliament. It was, however, very soon apparent that the Bill would be very strongly opposed. Its opponents had two objects in view; the one to prevent the Scotch and Irish Appeals being carried to the Court of Appeal, established by the Act of 1873; the other, to repeal the Act of 1873, so far as regarded the Appellate Jurisdiction in respect of English causes; the former of these objects could be obtained by the action of the House of Lords alone; the latter required the joint action of both Houses. It became necessary to withdraw that Bill, in consequence of the wish of an influential portion of the Members of the House of Lords that the operation of the Act with regard to the hearing of final appeals in English causes should be delayed. Having withdrawn that Bill, the next question was—what would be the best course to take? A variety of courses were suggested, one being that it would be best to repeal the Act of 1873. The hon. and learned Member for Barnstaple (Mr. Waddy) had moved in that direction, for he had given Notice of a Bill to repeal that Act. He ventured to think the House was not prepared to stultify itself by such a proceeding as the repeal of that Act. That Act, whatever might be the views of hon. Members as far as regarded the clauses about Appellate Jurisdiction, would effect a very great reform with regard to judicature generally. Another view was to postpone all dealing with the matter till next year. A large portion, however, of the Members of the House, and 1635 public opinion was substantially in agreement with them, thought the Act should come into operation at the earliest possible period. It would occasion great inconvenience to postpone the operation of the whole of the Act. There remained a third course, which had been adopted by Her Majesty's Government. It was to suspend the operation of so much only of the Act of 1873 as dealt with the disputed question of the Appellate Jurisdiction. In the Act of 1873 only three sections had reference to the ultimate Appellate Jurisdiction, and one of these had reference solely to the Appellate Jurisdiction of the Privy Council. If the operation of these clauses were suspended for a certain time, the whole of the rest of the Bill might be allowed to come into operation on the 1st of November in the present year. It might be asked, however, why the operation of these particular clauses should be suspended. The reason was, that it would be necessary to consider the general question as to what should be the ultimate Appellate Tribunal in this country, for it did not appear that, at the present moment, public opinion was firmly established in one direction or another. For himself, he held the same views as those which he expressed last year. When the Bill of 1873 was before the House, he objected to those clauses which put an end to the Appellate Jurisdiction of the House of Lords. He did not, indeed, object to them in toto, but he thought that the decision of the question, whether the jurisdiction of the House of Lords should be abolished, should be suspended until we knew that the new Appellate Jurisdiction would work satisfactorily, as was in fact recommended by the Royal Commissioners. Last year, however, the Act of 1873 having been already passed, he considered that the House was not dealing with the question as a new one, inasmuch as it had determined that, as regarded England, at all events, the jurisdiction of the House of Lords should be abolished, and the House of Lords had itself assented to the application of the same principle to Scotland and Ireland. Under these circumstances, he last year moved the second reading of the Government Bill, with the principle of which he thoroughly concurred. It would, however, be idle for him to ignore the fact that he had heard from time to time expres- 1636 sions of opinion by Members in different parts of the House differing from the opinions expressed by them on former occasions with reference to this subject, and there could be no doubt but that, at the present time, there was a feeling entertained by many Members of that House similar to that which had found expression in the other House of Parliament. But assuming, for a moment, that a majority of this House were prepared to maintain the principle of the Act of 1873, and to extend its operation to Scotland and Ireland, he thought he might venture also to assume that that opinion would not be shared by a majority of the other House. Any attempt, therefore, to legislate, at present, in that direction would be futile. The Government had, therefore, determined—wisely, as he thought—to bring into operation those portions of the Judicature Act which carried out the recommendations of the Royal Commission, and as to which there was practically no objection, and to postpone for a twelvemonth the operation of those sections—namely, the 20th, 21st, and 25th—which abolished the jurisdiction of the House of Lords in English cases. Turning next to the other portions of the measure, the hon. and learned Member drew attention to the fact that some of the rules and regulations, which were to govern procedures were embodied in the Schedule of the Act of 1873, while others, which would come into operation at the same time, were to be drawn up by the Judges and confirmed by Order in Council. There was also a provision that, after the passing of the Act, the Supreme Court should have power to make such alterations in the Rules and Regulations as might from time to time be deemed expedient. In the course of last autumn the Judges gave a great deal of time and attention to the subject, and prepared voluminous rules and regulations, supplementary to those contained in the Schedule of the Act. When the first Bill was introduced into the other House in the present Session, a suggestion was made to the effect that it was undesirable to have a portion of the Rules and Regulations in the Act and another portion outside it; and the Government, acting on this suggestion, had determined to include them all in the Schedule. Such of the Rules and Regula- 1637 tions as were contained in the Schedule to the Act of 1873 had already received the approval of Parliament, while the others had been most carefully considered by the Judges. He hoped, therefore, that hon. Members would be willing to accept these Rules and Regulations as a whole. If, after the Act came into operation, any errors were discovered in the Rules, it would be in the power of the Supreme Court to correct them. He would add a few words as regarded the Intermediate Court of Appeal which was proposed to be constituted; it would consist of a smaller number of members than provided by the Act of 1873. So large a number would not be required now that English appeals were alone to be taken to it. It was now proposed that it should consist of nine members. He had heard it asserted that the Chiefs of the different Courts of Law, who were named members of that Appellate Tribunal, would have their time so far occupied with the business of their own several Courts that they would scarcely be able to act on the Court of Appeal. But the result of recent communications with those Judges showed it to be their opinion that the time they would be able to spare collectively for the hearing of appeals would be equivalent to the regular attendance of at least one Judge throughout the year. In addition to this there would be the occasional assistance of the Lord Chancellor; and, upon the whole, he (the Attorney General) was of opinion that, until the ultimate Tribunal should have been established, the Court now proposed would be fully competent to deal with all the cases brought before it. It was proposed that the Court should sit as a body of three for the purpose of deciding all questions of final order, and as a Court of two for the purpose of deciding interlocutory applications. Having regard to the amount and the nature of the business now discharged by the Appellate Court in Chancery and the Court of Exchequer Chamber, he had no doubt the new Tribunal would be amply constituted for the business which would come before it. Adverting to the Amendment which the hon. and learned Member for Barnstaple had placed on the Paper, he said his hon. and learned Friend's proposal to entirely repeal the Act of 1873 would not find much favour in the House, The 1638 Amendment of the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) was simply for the rejection of the present measure; but this proposal also, he thought, would not secure the approbation of many hon. Members, for, if it were carried, the anomaly would remain of having one Appellate Jurisdiction for England with a different one for Scotland and Ireland. Having thus endeavoured to explain the reasons which had led the Government to adopt the course he had just described, he would conclude by moving that the Bill be now read a second time.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Attorney General.)
§ MR. WATKIN WILLIAMS
, in rising to move that the Bill be read a second time that day three months, said, he hoped the House would prevent this measure from drifting into the arena of Party politics, and would deal with it from the point of view of the public interest and the interest of suitors. It was an entire mistake to suppose that he meant to imperil the Act of 1873. On the contrary, he opposed this Bill because of his belief that if it passed without such substantial alterations as would make it a different measure, the success of the Judicature Act of 1873 would be most seriously endangered. He concurred with the Attorney General in the opinion that the Act of 1873 had produced changes of the most extensive and valuable character, and its postponement or repeal would be most disappointing. It was true it had been criticized in a hostile and supercilious way, as though the amalgamation of all the Courts into one supreme Court was a nominal change. But in the opinion of practical men who had the best opportunity of judging this apparently small reform was one of the most important description. In point of number the existing staff of Judges was perfectly sufficient, though, unhappily, there was an enormous waste of judicial power. Having watched the three Superior Courts of Common Law during the last three Terms, when four Judges were sitting in each, he had noticed a vast quantity of important business standing in the cause list, yet the Courts of Queen's Bench, Common Pleas, and Exchequer during three-fourths of the 1639 time had been almost wholly occupied with matters of very secondary importance, such as motions for a decree nisi, while important business was waiting to be disposed of, and waiting in vain. It might be said, why did not the Judges distribute their time more economically and set apart one of their number for hearing those matters? Unfortunately, these were all distinct Courts, which had their own cause list to get through, and thus they did not act together very cordially, or with such sympathy as they would have shown if they only formed one Court. Fusion into one Court was not therefore a small or a nominal change. The Act of 1873 not only made sweeping changes in our jurisprudence and practice, but it left a vast new machinery to be created. The Act of 1873 designed to distribute the Judges. If this were done, care should be taken to prevent there being an absence of concurrent action. As to the Appellate Courts, they were fitful in their sittings. What was desired was to do away with the fitful character of these Courts, and to have an Appellate Court which would sit continuously, and that the Judges composing it should be uniformly there, so as to introduce complete uniformity of decision. By the Act of 1873 there was not to be a second appeal, but there was a provision to meet the objection that important decisions should be re-considered. The House of Lords had decided 60 or 70 cases in a year, and, if they were to have a second Court of Appeal, he had not yet heard any such Court of Appeal proposed which was comparable in any sense to the House of Lords. That, however, was a very different thing from saying he had changed the opinion which he expressed in 1873 that it was better to have one Court of Appeal, an opinion to which he still adhered. Some persons had asked him why he approved of the House of Lords. His reply was that there was a degree of solemnity, gravity, patience, and attention displayed there which he had not seen anywhere else. His own experience enabled him to say that he had argued a case in the Exchequer Chamber for two and a-half days, and he sat down feeling that he had not fully presented the case. The case had been carried to the House of Lords, and he felt that in their House it had been satisfactorily presented. The truth was that cases 1640 were heard there with more gravity, attention, and solemnity, than in any other Court. Therefore, he would say that, if they were to have a second appeal, by all means let it be to the House of Lords. But he was not in favour of a second Court of Appeal; he preferred the procedure of the Act of 1873, and regretted that it had been departed from. If a Court of Imperial Appeal really worthy of the name had been established, he believed they never would have heard any suggestion from lawyers for the restoration of the House of Lords as an Appellate Tribunal. But when the Imperial Court of Appeal was proposed almost everybody was dissatisfied with its construction; the details were objectionable in everyway. It might be asked why he did not try to remedy that in Committee; but his experience of that House taught him that any such attempt in Committee would be vain. They must at an earlier stage join their forces with the malcontents of every sort in order to bring about the result they desired. [A laugh] That was the honest truth. There had, no doubt, arisen much misconception in consequence of the combined action of those who objected to that Imperial Appellate Court on account of its bad constitution and those who were sorry they had ever consented to abolish the Appellate Jurisdiction of the House of Lords. The Government had given way to the efforts of those who desired to maintain the appellate functions of the House of Lords, and the universal opinion had been completely revolutionized. Almost everybody was now agreed that the Appellate Jurisdiction of the House of Lords was to be restored." Well, he said "content" to that; but if he was right in believing that the Appellate Tribunal was the very essence of the Act of 1873, they would get into inextricable confusion under that Act if they established the Court of Appeal proposed by the present Bill. He should prefer seeing the Act of 1873 postponed for another year than to see it come into operation with an incomplete and professedly provisional Court of Appeal. What had happened showed how dangerous it was to pass the Act of 1873 without the coping-stone. The 4th section of the present Bill provided that there should be five ex officio Judges of the Appellate Court and also not more than five ordinary 1641 Judges at one time, as Her Majesty might appoint. The five ex officio members were to be the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer. [The ATTORNEY GENERAL dissented.] The ordinary Judges were the two Lords Justices, two Judges to be taken from the Privy Council, and one new Judge. In all final matters they were to sit as a quorum of three, whilst there were to be only two for all interlocutory matters, which latter would constitute in the long run the machinery upon which the sound working of the Act of 1873 would depend almost entirely. Now, what would the appeal be reduced to? The utmost that the Lord Chancellor, the Chief Justices, or the Master of the Polls could do would be to come to the Appellate Court occasionally. It was impossible that they could sit continuously; and, therefore, he protested against their being brought in casually as if to make up a quorum and lend a hand. Besides, it constantly happened that lawyers who had risen to the great office of Chief Justice were not always men who had studied law the most, or were most familiar with the practice of the Courts, and they might therefore not be the best qualified to frame the procedure of this great Court. For these reasons he rejected the Chief Justices altogether as efficient members of the Court. It really came to this with regard to the efficiency of the Court, that the two paid Judges of the Privy Council and one additional Judge, with occasional assistance from the Lords Justices, were to be the Appellate Court. Could it be considered satisfactory that appeals should be determined by Judges whose experience had been more with Indian cases and matters of that kind? He protested against this, and he was sure that the country would not be satisfied with it. These gentlemen themselves were put into the Court that now existed under the Judicial Committee Act of 1871, they being by that Act appointed Judges of a Supreme Court of Appeal, which was to hear appeals from all parts of the world without there being any appeal from their judgment. Now, would it be right to transfer these high judicial officers from the Court to which they had been solemnly appointed and to 1642 put them into another Court, which was to be an Intermediate Court of Appeal? It seemed to him that this would be a violation of good faith, and a breach of the Parliamentary engagement which had been entered into with them. It had been said that there were provisions in the Act of 1871 which would entitle the Government so to treat them; but he contended that there was no justification whatever for that statement. It was distinctly understood that upon any fresh constitution of a "Supreme Appellate Tribunal" they were to be considered to be at the service of the country, but this would not justify the treatment which it was now proposed that they should receive. He wished to point out that it was no part of his intention that this Bill should be rejected and nothing further done. On the contrary, it was clear that the Act of 1873 was passed in an imperfect form. It was contemplated that something more should be done, and something more must be done; and the Government had no right to place before them this dilemma—that they must either take this Bill, or the Judicature Act of 1873 must be left to take its chance. If the Appellate Jurisdiction in the present Bill was not satisfactory, it was their duty to bring in a Bill likely to be satisfactory, and there should be some assurance that a really efficient Court of Appeal would be established. If such an assurance were given he would withdraw his Motion.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Watkin Williams.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ SIR WILLIAM HARCOURT
remarked that the Attorney General, in discussing on the introduction of the Bill the various courses which might be taken, and in speaking of that of pressing forward the Bill of 1873, said that such a course on the part of the House would stultify it, and in that opinion he agreed with him. He also agreed with his hon. and learned Friend (Mr. Watkin Williams), that this should not be converted into a Party question. But the part of his hon. and learned Friend's (the Attorney General's) explanation 1643 which did not commend itself to his mind was the grounds upon which he asked the House partly to stultify itself by rejecting an integral and essential part of the Act of 1873. The Attorney General, referring to the Report of the Judicature Commission, said that it did not recommend the abolition of the jurisdiction of the House of Lords. But they expressly stated that they made no recommendation on the subject, because they did not consider it within the Order of Reference. In 1873, the then Lord Chancellor (Lord Selborne) proposed a measure, the effect of which was to constitute one single Court of Appeal for England, but it did not deal with Ireland or Scotland. On the 3rd of April, that Bill was referred to a Select Committee of the House of Lords, and by that Committee the provisions ultimately passed with regard to the question of Appellate Jurisdiction were approved. On the 8th of July, Lord Cairns said, as to this Bill which abolished the House of Lords as an Appellate Court for England though not for Ireland or Scotland, that he not only approved of this course but insisted upon it. He thought that the Bill should be confined to England, and that Ireland and Scotland should be afterwards dealt with. On the 2nd of May, Lord Redesdale proposed an Amendment in the Bill, the object of which was to retain the jurisdiction of the House of Lords; and upon a division only 13 Members of the House of Lords voted with him. The present Lord Chancellor entirely refused to assent to the proposition that there should be an Appellate Court that should be applicable to the Three Kingdoms, and insisted that the Bill should be confined to the Appellate Jurisdiction from England. When the Bill had reached the House of Commons the hon. and learned Member (Mr. Charley) moved an Amendment to retain the jurisdiction of the House of Lords; but the result was that he got so little support from his Party that he withdrew his Amendment without any division being taken upon it; and the abolition of the jurisdiction of the House of Lords with reference to England was affirmed upon the second reading.
§ MR. CHARLEY
said, that he only brought forward his Amendment in order that so important a constitutional question might be fully discussed and 1644 a division was taken in Committee, on which occasion he was supported by the Party to which he belonged.
§ SIR WILLIAM HARCOURT
observed, that he had not yet got down to the Committee, and as to the second reading, the explanation did not differ from what he had stated. On the 3rd of July, the 6th clause, by which the new Court of Appeal was constituted, came up for consideration, and the right hon. Member (Mr. Spencer Walpole) moved the postponement of the clause. Thereupon the right hon. Gentleman the present First Minister of the Crown made a speech on the subject, and as he was now in a position to give effect to his views, it was important to consider what they were. The effect of the right hon. Gentleman's speech was that we ought to have only two Courts, one of Primary Decision and one of Conclusive Appeal, and that all Courts of Intermediate Appeal ought to be abolished, together with the Appellate Jurisdiction of the House of Lords, which was not fitted to undertake the business of the Intermediate as well as that of the Final Court of Appeal. The right hon. Gentleman having laid down these principles, expressed his approval of the Bill of 1873 because it carried out those principles and abolished the Intermediate Court of Appeal as well as the Appellate Jurisdiction of the House of Lords. The right hon. Gentleman, therefore, was far from saying what the legal Advisers of the Crown now said—that the Bill of 1873 was anomalous in placing England in one condition and Scotland and Ireland in another with regard to their Courts of Appeal; on the contrary, he had declared that the measure of 1873, which gave England and Scotland and Ireland different Courts of Final Appeal, was a prudent and a sagacious one. He had thus established his proposition that up to the end of 1873 the lawyers and the laymen of both parties were agreed that there should be only one single Court of of Appeal, at all events, for England. The present Solicitor General, especially, had contended that the double Courts of Appeal in this country occasioned serious evils, and were a fruitful source of delay and of expense to the suitors, and that it was better to have one good tribunal. On the 8th of July, 1873, the present Lord Chancellor having objected 1645 to the operation of the Bill being extended to Scotland and Ireland, the late Prime Minister yielded the point, and the Bill passed into law as it was originally introduced, and consequently it only applied to England. A last attempt was made by Lord Redesdale and the other noble Lords who opposed the measure to prevent its becoming law, but the Amendment they proposed was negatived on a division by 61 to 34. What had happened since then to cause the Members of the Government to alter their views on the subject of this measure? The Prime Minister having declared that it was the very essence of Judicature reform that they should have only one Pinal Court of Appeal, how was it the Government now came forward and asked the House to accept a Bill which constituted an Intermediate Court of Appeal and did not constitute a Pinal Court of Appeal? That was a matter which required explanation. In 1874, the state of affairs had greatly changed. The Dissolution had occurred and the present Government became masters of the situation. But the result of that change was that the present Lord Chancellor introduced a Bill on this subject which was on exactly the same lines as that of 1873, inasmuch as it proposed to abolish the Scotch and Irish Appellate Jurisdiction of the House of Lords. There was, it was true, a slight change in the Bill, inasmuch as it introduced the principle of re-hearing, and it was argued that, in point of fact, that was a second Appellate Court; but the Lord Chancellor upon that occasion entirely repudiated that view of the matter, stating that a re-hearing was a totally different thing from a second appeal. What happened to that Bill in 1874? Lord Redesdale, who had been a constant opponent of the measure, proposed an Amendment to it on the 11th of June, which was intended to keep alive the jurisdiction of the House of Lords, and not to allow its abolition. The Lord Chancellor at once said that this Motion was one to which the Government were entirely opposed, and because it involved consequences which had not been anticipated it was necessary that this question of appeal should be settled once and for all, and not be left any longer hanging up before the public as a question undetermined. If that was true on the 11th June, 1874, 1646 was it not still more true on the 10th June, 1875? and on a division of 52 to 23 they affirmed the principle of the Bill, The Bill came down to the House of Commons late in the Session, when the hon. and learned Member for Wexford (Sir George Bowyer) moved his Resolution on the subject, and the Attorney General was of opinion that the matter was settled, and could not be re-opened. Why did he think it was settled in July, 1874, and why did he think it was not settled in June, 1876? Did the Government think there was any change in public opinion on this question in the present year? No; they introduced in the third year a Bill founded upon precisely the same principles, and containing practically the same provisions as that of 1873. It was introduced in the House of Lords by the Lord Chancellor, and then occurred the circumstance of which they had had singularly little explanation. Circumstances occurred which were not very familiar to our Western civilization or to our Parliamentary life. So far as he could understand, something took place of the character which devolved upon Eastern potentates and their representatives. There seemed to have been a sort of émeute of the Janizaries, and, so far as he could learn, the expression of it was not very articulate. The mutes of the Seraglio posed round the Lord Chancellor on the Woolsack, and what happened was only known by report and not through the ordinary channels of information. All they knew was that the Lord Chancellor, at the head of a powerful Government, having received the support of both Houses of Parliament for a measure in 1874, produced a measure of a similar character in 1875, but before it could be discussed the noble and learned Lord was obliged to make the humiliating admission that he could not proceed with his Bill, and consequently withdrew it. What was the meaning of such a proceeding? If there were reasons to be given against the Bill and policy of 1873 why were they not given? Was that the way in which Parliamentary Bills were to be dealt with—in which Parliamentary discussion was to be treated? That was a proceeding which was totally unexampled, and which his hon. and learned Friend the Attorney General had totally failed to explain that day. They were now asked to approve 1647 of two Courts of Appeal, and that was contrary to the declarations of the Prime Minister, as one of the first principles which the Press, philosophers, practitioners, and everybody else agreed upon was that there should be only one Court. In the 4th clause of the Bin they were called upon to create a new Intermediate Court of Appeal without any Final Court of Appeal at all. That was contrary to the protest of the Lord Chancellor a year ago that it was mischievous to the public interest that these questions should be kept in suspense. He (Sir William Harcourt) knew that in politics they must take things as they found them. He should have been very glad if he thought there was any possibility of carrying into effect at once the Act of 1873, and of not suspending the Appellate Jurisdiction at all. There was one question which he ventured to submit to the consideration of his hon. and learned Friend on the opposite bench. If they were going to suspend the question of Appellate Jurisdiction, was it not idle to deal with a part of it? He adhered to the principles of the Act of 1873, and was willing to save as much of it as could be beneficially saved. So far as the present Bill had for its object to save a portion of the Act of 1873, so far he agreed with it, and therefore he should support the second reading. That being the object, and the suspensory clauses only being proposed to apply to the Appellate Jurisdiction, what was the purpose of passing half an Appellate Jurisdiction and leaving the other in suspense? He agreed that a multiplicity of appeals were a great evil; but they need not decide that question now. If they were going to hang up the question of the Final Court of Appeal, why was it necessary to produce an Intermediate Appeal at all? Why not suspend the Appeal question altogether? They abolished the House of Lords Jurisdiction in 1873, and in this Bill that was in a sense revived, for it suspended the clauses which abolished it. Why not do the same thing with the Exchequer Chamber and the Lords Justices, and then they would leave the whole question of Appellate Jurisdiction open to be settled at some future time? If they were going to re-consider the whole question of Final Appeal next year, it was not worth while to go and pull about the Courts of Privy Council and appoint 1648 new Judges, and so forth, and so make a mere botch for a single year. They had far better leave things as they were. It was not merely that they were tying their hands in the consideration of the Ultimate Court of Appeal, if they chose to constitute an Intermediate Court without knowing what the Final Court would be, but they were using up some of the materials which they might want for that Final Court. This question could be much better dealt with as a whole than as a part. It was impossible the profession could accept as satisfactory a Court such as that proposed in Clause 4. They were going to take two Judges from the Privy Council. What right, he asked, had they to weaken that important Appellate Court? It was one of the most important Courts of the country, and as India and our Colonies grew in prosperity more and more suits would come before it for decision. Why were they to take away two Judges of the Appellate Court for India and the Colonies and to utilize them for England and Scotland? The proposal was one which he regarded as being wholly untenable. Clause 12 provided that three Judges were to be a quorum, and in some cases it was two; but he thought that the decision of two or three Judges would not be regarded as satisfactory. He should have liked the Bill of 1873 to come into operation, but as they were going to leave over for the present the question of the Final Court of Appeal, involving the jurisdiction of the House of Lords, then they might as well postpone also the other portions of the measure. Why not leave all over? The Lord Chancellor had been careful not to make the statement which the sanguine candour of his hon. and learned Friend (Mr. Watkin Williams) had induced him to offer, and he should follow the example of the Head of the Law rather than that of his hon. and learned Friend. He understood the principle of the present measure was to keep alive the Act of 1873 in respect of everything but the final Appellate Jurisdiction, and in that he acquiesced rather than concurred. He would ask the Government, if they were determined to suspend the Appeal question, not to prejudge any part of it, but to leave it all open, the constitution of the Intermediate Court included. That decision might cause some difficulty of detail; but he hoped the Attorney General would maturely 1649 consider the suggestion. For the reasons the had given he could not vote for the Amendment of his hon. and learned Friend, but must vote for the second reading of the Bill.
§ SIR JOHN KARSLAKE
said, he did not propose to follow his hon. and learned Friend who had just sat down into the history of the Commission of 1867, or that which gave rise to the Act of 1873. But, having been a Member of the Judicature Commission, and having to a very great extent approved the Act of 1873, he did not wish now to see it repealed. He thought that Act was, in many respects, most beneficial. That Act was passed through the House of Commons after previous attempts had been made to legislate according to the views expressed by the Judicature Commission. The first attempt at legislation failed; but ultimately, in 1873, the Act was passed, for which so much credit was claimed by its authors. He was, however, bound to say that from the first, in the legal profession throughout the country, he had heard great dissatisfaction expressed as to some of the provisions of that Act. But for what had subsequently occurred that Act would have come into operation last year, and he, for one, should have been glad if that portion of the Act which it was now proposed to bring into operation had come into operation a year ago. It would have been a very great advantage to the country if last November a High Court of Law had been established, because they would have been making at the present time some of those alterations which the Judicature Commission of 1869 pointed out as desirable, and which had been enacted by the Act of 1873. It was hardly right for the hon. and learned Gentleman to say that the object of the present Bill was to keep alive the Act of 1873. It was rather, for the first time, an Act for giving it life; and although it gave life only to some of its provisions, and not to all, he was glad his hon. and learned Friend (Sir William Harcourt) was going to vote for the second reading, in order to enable the Courts next November to establish a system which he, for one, hoped would be of the greatest possible benefit to this country. He had for many years felt the scandal of having different Courts—Courts of Law and Equity—in which partial justice only could be administered; and it was found to be essential 1650 that every Court in which a cause commenced should have the power so to deal with it as to do full and final justice, whether on legal or equitable principles. That was by no means the sole object of the Act of 1873, independently of any question of Appeal. There were other matters which required amendment. There was the great scandal prevailing that, in consequence of the intermittent sittings of the Courts—especially in London and Middlesex—the cause lists were crowded, suits were delayed, and the suitors were disappointed; whereas, if the sittings could be prolonged and made continuous, the cause list would be exhausted, and the suitors would go away satisfied, instead of being disappointed, as at present. A very large number of causes were waiting for trial which were not reached under the present system. A great number of these cases, however, remained in the lists because the defendants made special jury cases of them; but if the sittings of the Court were continuous, perhaps 20 of these cases would be arranged and would be gone through in a single day. An act of justice would therefore be done to suitors which had been long wanted. He did not propose to enlarge upon the merits of the Act of 1873; but in that year it was thought right by Parliament to alter the state of things which had existed in this country for many years, and to create a new Court of Appeal. That Court was created, not in consequence of any advice given by the Judicature Commission, but in consequence of some other counsels which prevailed at that time. Unless, however, he could find some very superior Court of Appeal, he should say it was better to continue an Intermediate Court of Appeal, because he was convinced that an Intermediate Court of Appeal did decide many cases, ultimately and finally, between parties, and thereby relieved a Superior Court of Appeal of a great deal of business which would otherwise devolve upon it. The hon. and learned Member (Mr. Watkin Williams) appeared at first to have some vacillating feelings as to the merits of the House of Lords as a Court of Appeal; but at last he blessed them altogether, and seemed inclined to exclaim—"Thank God, there is a House of Lords!" One great merit, at any rate, in that tribunal was, not only that cases were heard by men of great patience, learning, and dignity, but because they had the oppor- 1651 tunity of hearing cases which had passed through the ordeal of a Primary Court, and which had afterwards been thoroughly sifted by a First Court of Appeal. Every case that came before the Final Court had been thoroughly discussed, and the judgments printed; and it was because the best possible consideration had been given to each case and every argument on both sides had been brought forward, that judgments given by the House of Lords had been so satisfactory to the public. With regard to the question, whether the House of Lords should remain the ultimate Court of Appeal, he suspended his judgment entirely. A vast deal of consideration ought to be given to the matter, and many lawyers had been canvassed to give their adhesion to the principle of retaining the final appeal in the House of Lords. No doubt a strong feeling had arisen that the state of things provided by the Act of 1873 was not satisfactory, and that upon two principal grounds. First, there was to be a Final Court of Appeal. The Act began by saying that three Judges would be sufficient to constitute a Final Court of Appeal, unless those Judges allowed their judgments to go before a larger number of Judges, who were only in that event to have the opportunity of overruling the three Judges. The state of things might still exist that the Court of First Instance might be composed of two or three Judges, and that the Court of Appeal might consist of three Judges not more learned than the Court of First Instance; and unless a re-hearing was allowed that Court of three Judges was to give final judgment in that case. The possible result he wished to point out was, that a point involved in the construction of an Act of Parliament or of a will might be decided in a particular way by the three Judges, and, in another case, the same point might be decided by a Court of First Instance, and then the Court of Appeal, consisting of the larger number of Judges, might overrule the Court of Appeal consisting of three, although its decision, as far as the parties were concerned, was final. He did not think this would be satisfactory. Therefore, he thought it was expedient to see whether that public opinion which had expressed itself pretty strongly in reference to the matter ought 1652 not to be considered before the Act of 1873, so far as Appeal was concerned, was made the ultimate legislation upon the subject. In 1874, a Bill was introduced to establish an Intermediate Court of Appeal, and also to constitute a Court which it was hoped would ultimately be a Court of Final Appeal for England, Scotland, and Ireland; and no one could doubt that the best Court of Ultimate Appeal would be one which could entertain appeals from England, Scotland, and Ireland. It might be right to say that, on hearing an appeal from either Kingdom the House of Lords sat as a Court of Appeal for that Kingdom; but the practical effect of the Act of 1873 was in operation that the Court for each Kingdom would be different from the Court for either of the other two, and there would be in England an Appeal Court by whose decisions the House of Lords would not be bound. Irish appeals would come from the Irish Court of Exchequer Chamber, and in such cases the House of Lords might give decisions at variance with those of the Court of Appeal for England, which might differ on the same question from the Irish Court. He was anxious that this Bill should be read a second time in order that so much of the Act of 1873 as was unobjectionable might be brought into operation as soon as possible. Something had been said as to the impropriety of taking two learned Judges from the Judicial Committee of the Privy Council and importing them into a Court of Appeal, which did not deal with Indian and Colonial appeals and other matters which the Ultimate Court of the Privy Council did deal with. There would, no doubt, be some objections to the removal of those Judges from that tribunal; but he was astonished that the hon. and learned Member (Mr. Watkin Williams) should make the objection he had made, that the learned Judges of the Judicial Committee were hardly fit to assume the functions of Judges of Appeal in the Court proposed by this Bill. In the Act of 1873—which the hon. and learned Member was, as he understood, instrumental in passing—some of those learned Gentlemen were made Judges of the Supreme Court of Appeal established by that Act; and yet the hon. and learned Member now said they were not fit, or might not be fit, to be Judges of the Intermediate 1653 Court of Appeal proposed by the present Bill. He doubted very much whether it was sound advice that things should remain as they were until the question of Ultimate Appeal was finally settled. He should be sorry if, except as a matter of necessity, there should be anything like a permanent and continued absence from the Privy Council of any of those learned Judges who sat there habitually now, and who had raised that tribunal to its present high character. If it came to be shown that there would be sufficient judicial strength to constitute a strong and continuous Intermediate Court of Appeal during next year, it would be convenient to allow it to continue even when the new Supreme Court was established, so that the Legislature might not be trammelled next Session by the new Court proposed by this Bill. He would pass no opinion now as to continuing or strengthening the House of Lords as an Appeal Court. It was not what it used to be when a Lord Chancellor sat alone and confirmed his own judgment; and, although it would not be stronger than at present, the time might come when it would be weakened, unless some provision were made for continually strengthening it and making it sit continuously to hear appeals. On these matters he reserved his opinion; but meanwhile he was clearly of opinion there was much advantage in bringing into operation that part of the Act of 1873 which had been well considered and had met with public approval; and that it would be well to pass the suspensory clauses of the Bill, because the public were not now satisfied with the appeal clauses of the Act of 1873, and it would be wise to take further time to consider a step which would have a bearing on the Judicature of the country for a long time to come.
MR. OSBORNE MORGAN
, after congratulating the House and his hon. and learned Friend (Sir John Karslake) upon his re-appearance in that House, said that, although the debate had only lasted two hours and a-half, they had at least ascertained two things—namely, that they were in a great mess, and that the Amendment of the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) would not get them out of it. As the Attorney General had pointed out, they must suspend the Act of 1873 for another year, or as the hon. and learned 1654 Member (Mr. Waddy) wished, they must repeal the Act altogether. For his part, he contended that they ought not to suspend that Act, or they might be suspending it year after year. Instead of standing shivering on the bank, they had better at once take the cold plunge, or put on their clothes and go home. Repealing the Act of 1873 was a serious matter, for the Act was not passed in a hurry; this House devoted 10 nights to it, and had 23 divisions upon it; the Judges had spent 18 months in maturing a body of rules, and yet it was proposed to undo all that had been been done. He did not deny the competency of one Parliament to reverse the decisions of another; but it would be a very strong measure so to deal with the Act of 1873, particularly as it had never yet had a single day of trial. Nobody wished to return to the old state of things—to set up, as Lord Westbury used to say, one Court to do injustice and another to remedy it—nobody wanted to revive the old distinction between Courts of Law and Equity, to have one system prevail in Lincoln's Inn and another in Westminster Hall. In 1874 a Motion was made by the hon. and learned Member for Limerick (Mr. Butt) that the House of Lords should be retained as a Pinal Court of Appeal; but it was rejected by 191 to 29, and in the list of the majority he found the name of his hon. and learned Friend the Member for the Denbigh Boroughs. How had the sudden collapse occurred? Who was responsible for this change of front? Not Parliament, for Parliament was committed to the abolition of the House of Lords as a Final Court of Appeal, but some assembly sitting in St. James's Place. At the first blast of the trumpet of that self-constituted caucus, which had no official, recognized, or Parliamentary existence, the strongest Conservative Government since the days of Sir Robert Peel ran away, like the French Army at the battle of Fishguard, from a few old women in red cloaks. He wished to point out that they were committing one great and fatal mistake by passing this Bill in its present shape. They settled the constitution of the Intermediate Court of Appeal, without attempting to deal with the far more important question of the Final Court of Appeal. The House of Lords as a Court of Appeal was to be placed 1655 in a state of suspended animation for another year, and subjected to a process of vivisection. If this subject was to be dealt with at all, it ought to be dealt with as a whole. His advice to the Government would be to re-cast this measure, and legislate on the question in a comprehensive form, dealing not only with the Intermediate Court of Appeal, but also with the Final Court of Appeal. If the House of Lords was to be continued as a Final Court of Appeal, let it be under improved arrangements with respect to the duration of its sittings and the mode of selection, and let it be made a first-rate tribunal; and if that was to be done, let it be done at the same time that they were dealing with the Intermediate Court of Appeal. There was no reason why that should not be accomplished in the present Session; but if that could not be done, and if any part of the scheme was to be suspended, let it comprehend all the clauses which related to the subject of Appeal; for if they dealt with it in this piecemeal fashion the result could only be that their last state would be worse than their first, and that in attempting to avoid one difficulty they would fall into another and a greater one.
§ MR. BULWER
said, he thought it would relieve the House from a great difficulty to re-cast the Act of 1873 with this Bill, and make out of the two one measure. The Act of 1873 had never yet been fully considered either by Parliament or in the country, and he believed it would be the best course if the Government, instead of proceeding with the present Bill, which was to amend an Act which had not as yet, and would not for some time, come into operation, could see their way to amalgamating the two. In his opinion, neither the profession nor the public were in any very great hurry for the Act of 1873. He did not quite agree with his hon. and learned Friend (Sir John Karslake) in his anticipation of the great advantages to be derived from the operation of this Act. There were anomalies in our judicial system before 1873; but it was a complete mistake to suppose that they were then put an end to. All the advantages which the public would derive from the Act of 1873 might have been secured by the enactment of half-a-dozen clauses. The boasted fusion between Law and Equity 1656 was a mockery. It was absurd to suppose that the fusion of Law and Equity could be secured by simply enacting that the same Judge should administer both, but even that was not secured. Suppose a man whose wife had run away from him went to the First Division of the Court. He would be referred to Sir James Hannen. Suppose another applicant were a man whose ship had been run down in the Thames. He would be referred to the Admiralty Court; and a horse case would be sent to the Queen's Bench, the Common Pleas, or Exchequer just as it was now. As to the Appellate Court, the Act of 1873 either did too much or too little. The present was not the proper occasion for discussing the question whether the House of Lords should be retained as the Supreme Court of Appeal or not. He would content himself with asking, If the House of Lords were a good thing, why should Ireland and Scotland alone get the benefit of it, and why should England and Wales be excluded? If, on the other hand, the House of Lords were a bad thing, why impose on Ireland and Scotland a tribunal not thought good enough for England? He would urge on the Attorney General to take the course of dealing with the subject of this Bill and the Act of 1873 in one measure.
§ MR. SERJEANT SIMON
unfortunately did not altogether agree with some of his learned Friends. He could not join the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) in his eulogies on the Act of 1873. He had always felt that that Act was a very pretentious one, that, if ever it came into operation, it would be found to fall far short of what it purported to effect. It proposed to bring Lawland Equity together in one Supreme Tribunal, while it split up that Tribunal into divisions, stereotyping and perpetuating the present distinctive character of the present Superior Courts and of the Courts of Equity under other names. Such a mode of dealing with the question could only be justified on the ground that the measure was a transitional one. Nor was he satisfied with the Appellate part of the measure, one great defect in which was that it separated the Appellate Court into three divisions which might each arrive at a different 1657 decision on the self-same questions. The Bill, however, apparently came down to this House with orders that it was to be passed en bloc, and no suggestion was listened to. What greater condemnation could there be of such a Bill than that it left open the question of an Appeal Court for Ireland and Scotland? He did not blame the present Government for not completing a measure which should have been completed by the Government in 1873. But he held them responsible for an attempt to repeal, by a side-wind, an Act of Parliament solemnly passed, and he asked what unseen influence, what hidden power, had been used to bring about a change which no influence in Parliament had succeeded in effecting? As he (Mr. Serjeant Simon) understood his hon. and learned Friend the Attorney General, he was going, with the permission of the House, to appoint a temporary Court of Appeal, and to shift Judges from one Court to another. If that was so, it seemed to him that they were going to do a most unwise thing, and that instead of reforming the law, they would unsettle and confuse it. He was not speaking in a spirit of opposition to the Bill of his hon. and learned Friend, nor did he contemplate going into the Lobby in a division against it; but he hoped his hon. and learned Friend would consider whether the question of the Appellate Jurisdiction should not be postponed until the Government were in a position to take the question up as a whole, and in the meantime to leave the existing Intermediate Courts to remain as they were until the question of the Final Court of Appeal had been settled. As he (Mr. Serjeant Simon) understood it, the Attorney General himself did not expect that the proposed Court of Appeal would be a permanent one; but he (Mr. Serjeant Simon) considered that if they were to have a temporary Court of Appeal that would be a most unsatisfactory state of things. He asked the hon. and learned Gentleman the Attorney General whether it was wise to establish a temporary Court of Appeal, when it was understood that they were at a future time to consider the whole question of an Appellate Court.
§ SIR GEORGE BOWYER
said, he thought when some future historian would come to write the history of the change in the laws of this country 1658 which they were now considering he would have some difficulty. The Parliament had been now three years occupied in considering and legislating on this subject, and there had been three Bills in reference to it brought in; but he ventured to say that no person was yet satisfied with the position of the question or knew in what direction it was tending. The intention of the Judicature Commission and of the framers of the Act of 1873 was, in the first place, to obtain a fusion of Law Equity, and, in the second, to secure such a division of the judicial work of the country among the Courts as would utilize the judicial power to the fullest extent; but, in his opinion the Bill of his hon. and learned Friend would create a great deal of confusion. It was said that it was a scandal to their legal system that there were two sets of Law and two sets of Courts; and when the question was asked what was the use of Law, the answer was go to Equity. Lord Erskine, asked a learned Judge in a case, what course he was to take, and was told he must go to Equity, when he replied—"Surely, my Lord, you would not send a fellow-creature to such a place as that." The system in the Courts of London and Westminster was said to be a scandal. With regard to the Act of 1873, it disturbed the Judicature system of this country. It spoiled and confused everything. The Judges were all mixed up together, and for equitable causes it was said there should be Common Law Judges, and in certain Common Law cases it was said there should be Equity Judges to whom a preference was given over the Judges of the other Courts. Thus it was indicated there would be a conflict of law, and that in the conflict one Court should have the preference over another. Well, if that were so, it could all be done without this sort of proceeding. Under the Act of 1873 a Judge might be transferred by Royal Sign Manual from one Division of the Supreme Court to another. Such a removal might be made in order to accomplish a dishonest and unconstitutional purpose of an evil Government. These removals would be most unconstitutional because they were contrary to the principle of the Constitution as to the irremovability of Judges. Unless the Judges were fixed so that they could not be removed without 1659 their own consent their independence and dignity would be gone. The style of the Judges would be altered under the Act of 1873; instead of being styled Puisne Judges or Barons of the Exchequer, they were to be called Judges of Her Majesty's High Court of Justice. That, he thought, was a great innovation upon the historical existence of the Courts of Law. The names of the Judges were not so unimportant as some people thought. There was another thing which he had not heard mentioned in the debate. Under the Act of 1873 the Crown in Council might on the report of the Judges—which might be the report of a majority of one—change the number of the Divisions, or make any number of Divisions, and abolish the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, and the Master of the Polls. Those were most ancient offices in the Constitution of England. How the Act of 1873 was passed through Parliament no one could tell. He did not sit in that Parliament and therefore was not responsible. At the time there was a Government which prided itself very much on what was called progress. They did not, he thought, draw a distinction between progress and change. They did not see that though progress was good when you were going in a good direction, it was bad when you were going in a bad direction; or that a man going over a precipice might reasonably be glad of what had been stigmatized as a retrograde movement. The Act of 1873 was brought in as a measure of progress. A great portion of the other side of the House thought it necessary to follow suit. He would venture to say there was scarcely a member of the legal profession of any position or experience who did not regret that the Act of 1873 was passed. The late Government went out of office and they bequeathed to their successors a damnosa hœreditas, the completion of the work which they had begun. People said—"The Act is passed and Parliament cannot stultify itself by undoing what is done." He thought a man very often stultified himself by sticking to a thing which he knew to be wrong. He was glad to say he had the opportunity of stopping the Bill of 1874. He took advantage of the late period of 1660 the Session. He did so deliberately; because he thought Parliament should have a chance of re-considering these matters, especially the great question of the Appellate Jurisdiction of the House of Lords which had been immaturely decided under the influence, he thought, of a peculiar Party combination. He did not agree with some of his hon. and learned Friends who thought the Government had done wrong in providing an Intermediate Court of Appeal. If there was only one Court of Appeal it would be completely blocked with business. The effect of having an Intermediate Court of Appeal was that the Appellate business was percolated through it, so that nothing went to the Ultimate Court of Appeal but what was of great importance and difficulty. The Ultimate Court of Appeal ought to establish a set of principles on which to decide difficult cases. The French did this by the jurisprudence of the Cour de Cassation; but the decisions of the House of Lords formed a body of law unsurpassed in any country in the world. The reporter in the House of Lords, Mr. Charles Clark, told him only the other day that during the present Session five decisions had been delivered which had fixed the law on most important questions. He ventured to say that no tribunal had yet been suggested which could be at all compared with the House of Lords as a Final Court of Appeal, The Irish Bar, practitioners and people, would not be satisfied without an appeal to the House of Lords; opinion in Scotland was the same; and the people and legal profession of England were content with the Appellate Jurisdiction of the Lords. He admitted the existence of sentiment upon this subject; but sentiment must not be despised. What was patriotism? Sentiment. What was loyalty? Sentiment. What were love of honour and desire of fame—which had been the main springs of great and heroic actions—but sentiment? Therefore the sentiment which was in favour of retaining the Appellate Jurisdiction of the House of Lords ought not to be despised. The House of Lords was a great tribunal, which had not its equal in Europe for dignity and historical antecedents. Its dignity and independence rendered it precious to the people of this country, and he ventured to assert that its actual working was not at all below 1661 its actual pretensions. It was said that a Court composed of the Law Lords only was a fiction. He did not think it was; but even supposing it to be so, he would ask, how much of the British Constitution would be left, if all the fictions in it were abolished? Besides, there was nothing extraordinary after all in a body delegating peculiar functions to those members of the body who were best qualified to perform them. Many things might be done to strengthen the judicial force of the House of Lords whenever it might require strengthening, and he felt sure there would be no difficulty in maintaining the Appellate Jurisdiction of that House in its pristine vigour. He did not agree with those who held that a Court of Appeal should consist of numerous members. On the contrary, he thought three persons might constitute a good Court of Appeal. Those who had acted with him in preserving the Appellate Jurisdiction of the House of Lords did not wish to embarrass the Government, who had, in his opinion, acted very fairly and properly. It was the fashion to blame them for weakness in giving way as they had done; but he thought they would have done quite wrong, had they obstinately set themselves against the opinions of Members of both Houses, the Bar in England, and the wishes of the Bench and the Bar in Ireland and Scotland. They had done quite right in leaving the question to be re-considered before it was too late. If the Government were to declare their intention not to suspend the clauses in the Act of 1873, but to repeal them, he believed that such a course of proceeding would be most satisfactory, for it would leave the matter to be settled during the next Session. He thought the Government were bound to preserve the ancient jurisdiction of the House of Lords, as a most important part of the Constitution, and an essential part of the judicial system which had so long been the pride and ornament of the nation.
§ MR. GRANTHAM
regretted that the Act of 1873 had been drawn in the lines in which they found it, but believing that both branches of the profession were desirous that that Act should become law, he trusted that no factious Amendments would be proposed to delay its progress through the House. At the present time the question was continually 1662 put—"When are you going to settle the present unsettled state of things?" In reply to the question put by an hon. Member opposite as to why and how the Act of 1873 was passed, he would state that it was because the then Lord Chancellor and the Government of the day were not content to be the authors of a simple amending Act, such as the various Equity and Common Law Procedure Acts had been, but were desirous of bolstering up a failing Government and a waning popularity by introducing a sweeping measure which would have the credit of re-organizing the whole of the judicial system of the country. If the noble Lord had followed the directions and recommendations given by the Commissioners the country would not have been in the mess in which it was now placed. The main principles of the Judicature Act of 1873 were desirable, and if the Government had carried out the Amendments which had been proposed by an amending Act there would have been no alteration in the Judicature of the country. But instead of being content with that they desired to alter the whole judicial system of England, and the then Lord Chancellor introduced matters which had not been properly considered by the Judicature Commission. He believed the country regretted that the Government were so ambitious as to try to re-organize the whole system of our law. He did not intend to discuss the question of an Intermediate Appeal, because the country had pronounced itself unmistakably in favour of a second Court of Appeal, and the great body of practitioners in the country were in favour of such a Court. The real question now before the House was whether the temporary Court of Appeal proposed by the Government was as desirable as the existing Court of Exchequer Chamber. In his opinion it was impossible that the present Court of Exchequer Chamber could exist under the Act of 1873, and the Government, therefore, could not allow that Act to come into operation without at the same time creating some new Court of Appeal, even if it were only of a temporary character. The Government had determined that the number of Common Law Judges should be reduced to 12. Now, if the present Act should pass he believed there would be a greater amount of litigation than before, and he did not see 1663 how with that reduced number of Judges an Appellate Court could be formed. The great objection to the Court of Exchequer Chamber was the uncertainty of its sittings. But there was another objection, and that was that under the Act of 1873 it was intended that there should be a greater power of interchanging Judges from one Court to another, and thus it might happen that some of the Judges sitting in appeal might be the Judges who had determined the original trial of a case, and that had actually happened more than once during the past month. By the Common Law Procedure Act of 1852 many of the technicalities which previously existed were simplified, and the result of that Act had been that in almost every case equity had been done where it was desirable that equity should be done. The questions now to be determined were whether the House of Commons should pass this Bill or not; and, as another Court of Appeal must be established, whether a better Court could not be created than was proposed by Her Majesty's Government. He agreed with the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) that the Court proposed to be constituted was not the best. But that could be remedied in Committee, as Her Majesty's Government were not afraid to say to the country that they had spent some money for the country's benefit. He hoped they would not grudge £5,000 or £10,000 for the purpose of making the Court effective, especially when they considered the amount involved in the cases pending before the Court. He appealed to the Government to re-consider this portion of their measure; but, at the same time, he had great satisfaction in giving his vote for the second reading.
§ MR. MORGAN LLOYD
said, that as he had placed a Notice on the Paper, he did not feel inclined to give a silent vote. It was agreed on all hands that there should be a Court of Intermediate Appeal and a strong Court of Final Appeal. Although there was some difference of opinion on the point, it might also be taken as generally agreed upon that they could not have a thoroughly efficient Final Court of Appeal without an intermediate Court to sift the causes and prevent the Supreme Court from being overburdened. He regretted that 1664 the Attorney General had not spoken out freely. His complaint against the Government was not that they had altered their policy, but that they had not placed before Parliament a clear statement of their views with a determination to abide by it. The Government had proposed by this Bill the formation of an Intermediate Court of Appeal, which must, by its very nature, be an imperfect Court for the purpose. Perhaps, under the circumstances, they could not have done more; but they might, at all events, have given Parliament some indication of their own views as to what the Final Court of Appeal should be. Without some such indication, he felt that they were talking, so to speak, in the dark; and he regretted the Government had not made up their own minds on the subject, so as to enable Members on his side of the House to make up theirs as to the course they would take with reference to this Bill. Although he did not, like some hon. Members, think it the perfection of legislation, he was in favour of the measure of 1873, and thought that, having gone so far, they were bound to carry it into operation. He thought the best course would be to leave out the question of the Final Court of Appeal altogether for future consideration, and to confine themselves simply to the Intermediate Court. Next Session they would be able to deal with the question of a Final Court on its own merits, unfettered by other considerations. He believed that the House of Lords would satisfy public opinion as the best, because it was an Imperial Court capable of dealing not only with home appeals, but also those from India and the colonies. There were two provisions of the Act to which he thought fit at this stage to call the attention of the House. Under one section it would be competent for the Queen in Council, without consulting Parliament, to abolish any or even all of the circuits, and by another section an unusual power was given to the Lord Chancellor, whereby he might alter at his own discretion certain enactments of the Legislature.
§ MR. CHARLEY
said, that the historical accuracy of the hon. and learned Member for Oxford (Sir William Harcourt) might be judged from the fact that he stated that no division took place with regard to the question of Appellate Jurisdiction in 1873. The question now 1665 was whether they should have a second appeal, and if they decided that point in the affirmative it revived the question whether the Court of Pinal Appeal should be the House of Lords. When the Bill of 1873 was in this House he moved a Resolution in favour of retaining the Appellate Jurisdiction of the House of Lords, and he was supported by every Conservative lawyer then in the House, with one exception. He desired to withdraw his Amendment, but the then Attorney General (Lord Coleridge) was so irritated by an eloquent speech delivered by the present Lord Chancellor of Ireland (Dr. Ball), that he insisted on the Amendment being withdrawn—a wanton and very unnecessary proceeding. A large number of very practical and utilitarian persons were in favour of retaining the jurisdiction of the House of Lords, because it merited the confidence of suitors on account of the admirable manner in which it administered justice. It rose above the petty jealousies of "Westminster Hall; it was entirely free from the iron fetters of case law, and the active members of it approached the consideration of the questions submitted to them from a point of view which was not found in the other Courts. The House of Lords was essentially an Imperial tribunal, uniting England, Scotland, and Ireland; and many people thought that its association with the Judicature was an old landmark of the Constitution which should not be removed, especially by a Conservative Government. Last year he set himself to form a Committee for maintaining the Jurisdiction of the House of Lords, and that Committee now consisted of 40 Queen's Counsel, 35 Peers, and 138 Members of Parliament. It represented every phase of political opinion and every part of the Kingdom, and it had no intention of dissolving until it had secured the object it had in view. By the course which they had taken in introducing this Bill, the Government had rooted themselves more deeply than ever in the affections of their followers, and if the Government next year preserved the Appellate Jurisdiction of the House of Lords they would earn the lasting gratitude of their supporters.
§ MR. JACKSON
supported the second reading of the Bill, and thought that the Government deserved great credit 1666 for the firm and honourable manner in which they had stood by a measure introduced by their opponents. There could be no doubt that the constitution of the Appeal Courts was a question on which there was great diversity of opinion, and upon which public opinion was evidently in a state of flux. Even his hon. and learned Friend (Mr. Watkin Williams) was halting between two opinions, and it was not easy to determine either from his Motion or his speech what was his feeling in reference to the Act of 1873? His own opinion was that that Act was a very valuable measure of Law Reform, and one which promised great good to the public. No doubt it was looked upon with some apprehension by those whose professional position would be affected by it, and, like all other changes, it would possibly at first occasion some inconvenience, but in the long run it would, he hoped, justify the promises of its authors. Speaking with reference to his own experience, he could welcome the Act for its abolition of the present mode of taking evidence in Chancery upon affidavits made out of Court, and substituting for it the examination of witnesses in open Court—a change which, of itself, would be a very' great improvement, and, upon this ground, he was very anxious to see the Act of 1873 come into immediate operation. No doubt there were many imperfections in the Act—to say that, was only to say that it was an Act of Parliament dealing with a complex and difficult subject. But its affect should be tried, and its defects could then be remedied. For his own part, he had no hesitation in saying that when evidence was taken in open Court the existing staff of Chancery Judges would be found to be altogether inadequate to the work to be done, but nothing but actual experience would satisfy the House of this. Now as to the present Bill. Upon all sides it seemed to be conceded that, until the Ultimate Court of Appeal was determined upon, an interim period must be provided for, and of the three propositions that had been made in reference to this he must say that it seemed to him that the proposal of the Government was the best entitled to their support as involving the least expense, and as most completely recognizing a transition state of things, and he trusted they would be able to carry it substantially 1667 in the form in which it now stood. He concurred in the necessity for having an Ultimate Court of Appeal, because experience had shown that there were cases affecting civil and political rights as well as mere pecuniary interests of such importance as to justify, and even to require, a second consideration even upon appeal. The Court of Appeal now proposed must necessarily, in order to get through its work, sit in Divisions, and having regard to the different training which the members of those Divisional Courts had received, it was possible, and, in matter of procedure and practice it was almost certain, that those Divisions would give conflicting opinions, which could only be reduced into harmony by being brought before an Ultimate Court of Appeal. Whether this Court should be the House of Lords or a Supreme Court to hear appeals from all parts of the Empire, was a different and far more serious question. For his own part, he adhered to the principle of the Act of 1873, which provided a Supreme Court apart from the House of Lords. The value of the House of Lords, and of every other Court of Appeal simply depended, not upon the room they sat in, or the name by which they were called, but upon the men who sat there. Now, no doubt, they would have the same men in whatever Court of Ultimate Appeal they might establish; but in a new Court there would be this advantage—that the Members of it would be paid officers of the State, bound to attend whenever there were appeals ready for hearing, instead of sitting, as the House of Lords now did, at uncertain intervals. There never was a time when the judicial strength of the House of Lords was greater than now, and he would hesitate long before he sacrificed such power; but there was, in his opinion, no danger of that being required, and other talent would be available for a Supreme Court, of which the burden of the Peerage now deprived the country. The constitution of the Ultimate Court of Appeal could be very well discussed next year, and there was nothing in the present Bill which would interfere with their decision upon that matter.
§ SIR HENRY JAMES
said, he hoped that proper provision would be made for the resumption of the debate, and 1668 that it would be put the First Order of the Day, so that there might be opportunity for having a substantial debate upon the question.
§ MR. GREGORY
urged that a proper opportunity should be given on a future day for discussing the Land Titles and Transfer Bill, which had been adjourned from time to time.
wished to know, if the debate was to be adjourned, when it would be brought on again? It was most desirable that this should be as early as possible, so that legal Members might have an opportunity before they went on Circuit not only of joining in the debate upon the second reading, but also of discussing the Bill in Committee.
§ MR. DISRAELI
said, he would make an arrangement that this debate should be proceeded with as soon as possible consistently with other business before the House. He hoped the House would not press him to name a day for the resumption of this debate, which he thought should be concluded as soon as possible consistently with the absolute requirements of Public Business.
§ SIR HENRY JAMES
said, he hoped when the debate was resumed that it would be the First Order of the Day.
§ Motion agreed to.
§ Debate adjourned till Monday next.