§ Order read, for resuming Adjourned Debate on Amendment proposed to Question [10th June], "That the Bill be now read a second time;" and which Amendment was, 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 again proposed, "That the word 'now' stand part of the Question."
§ MR. FORSYTHside, he did not altogether concur in the praise which had been lavished upon the Judicature Act of 1873; but he acknowledged that it would introduce many salutary changes. While he agreed in the main object of the Act, which was confessedly to give to the Common Law Courts of this country enlarged powers and jurisdiction, enabling them to deal with equitable points as they arose, and thus to prevent the scandal of suitors being bandied about from Court to Court because they had mistaken their remedy, he wished the House to take that, perhaps the last, opportunity of rejecting those portions of the Act which he thought were not likely to be useful. The object desired, of settling questions brought before the Courts at once effectually and finally, would still be gained if certain sections were omitted. It was a popular delusion to think the object of the Act of 1873 was to fuse Law and Equity. One might as well talk of fusing Civil and Criminal Law as of fusing Law and Equity, and, indeed, he did not think it was intended by the Bill. The distinction between Law and Equity was radical. Separate subjects required to be dealt with in separate Courts. The distinction between Law and Equity was not artificial—it was in the nature of things, and could not be done away with by Act of Parliament. If anything of the kind were attempted, it would take 20 years to explain the meaning of the Legislature. He had 1816 no objection to the provision of the Act of 1873, which declared that where the principles of Common Law and Equity conflicted, the rules of Equity should prevail. But he did object to those parts of the Act of 1873 by which the new name of Division So-and-so would be given to a Court and the offices of the Chiefs of Common Law might be abolished under an Order in Council, and the number of the Common Law Judges would be reduced from 18 to 15. With regard to the latter, their number had hitherto been found by no means too great, and according to their own testimony the work was at present too excessive. He would remind the right hon. Gentleman at the head of the Government that it was as injurious to disturb the legal as the official hierarchy of an ancient nation. For himself, he held that law reform should be approached in a Conservative spirit, and that they ought to build upon the old lines and construct upon the old foundations. As to the Bill now under consideration, it was, no doubt, necessary for two reasons. First of all, it was necessary as an amending Bill, for it corrected an arithmetical blunder, the number of Judges having been erroneously put down at 22, instead of 21, in the Act of 1873; and, in the second place, it was also necessary in order to do away with the anomalous state of things created by that Act in retaining the House of Lords as the final Court of Appeal in Irish and Scotch causes, while it closed it against the English suitor. That was an arrangement which was generally condemned, and its single and sole apologist was the hon. and learned Gentleman the Member for Oxford. This Bill, for the first time amongst the various measures on the subject which had been before Parliament during the last few years, established an Intermediate Court of Appeal. He had always been in favour of such a Court, for in his judgment it was essential to the due administration of justice; but then came the question how that Court was to be constituted, and with reference to that point he would impress upon the Government to give due weight to the fact that not one lawyer had risen to speak in favour of the Intermediate Court which the Bill would establish. It was not a Court of Appeal which could either give satisfaction to the profession or be re- 1817 garded with confidence by the country. They had only a certain number of Judges to deal with, and the difficulty would be to constitute a Court. It was proposed that the Court should consist of five ex officio and as many ordinary members. The ex officio members were to be the Lord Chancellor, the Master of the Rolls, and the three Chiefs of the Common Law Courts; while the ordinary members were to be the two Lords Justices, two salaried Judges of the Judicial Committee of the Privy Council, and one other Judge to be appointed by the Crown. In theory that seemed to be a very strong Court, but it would not be found to be so in practice; and the great objection to a Court of Appeal so constituted was that all its ex officio members, with the single exception of the Lord Chancellor, would have their time fully occupied in trying cases in Courts of First Instance, while as regarded the ordinary members of the Court, there appeared in it too much of the Equity element. Therefore, it was extremely desirable that the whole question of the Court of Intermediate Appeal should for the present remain in abeyance, for he thought they could not well devise such a Court until they had settled what the Final Court of Appeal was to be. More than once he had been asked to join the committee which had been established with a view of preserving the Appellate Jurisdiction of the House of Lords, but he had uniformly declined to do so—first, because he did not wish to commit himself to any opinion before the subject was discussed in the House of Commons; and, secondly, because he was by no means in favour of retaining that jurisdiction as it now existed. It was true that that jurisdiction was just at present exercised by a strong Court; but this was a mere accident, and age, death, disease, or indolence might soon render that tribunal most inefficient. Those who talked most loudly of the House of Lords seemed to be really thinking of the establishment of a new Court, which they wished to make part and parcel of the House of Lords. Two hundred years ago Sir Matthew Hale denounced, in the strongest terms, the idea that the House of Lords, as a co-ordinate part of the Legislature, ought to be the Court of last resort. That eminent lawyer proposed that a certain number of legal members of the House of 1818 Lords should be selected and associated with a certain number of Judges, so that thus a strong Court might be formed. To such a plan there could be no objection. At present, however, he thought that the wisest course for the Government to adopt would be to postpone altogether the question of Appellate Jurisdiction; to bring into operation only such portions of the Act of 1873 as went admittedly in the direction of real reform; and with regard to the other matters—especially with respect to questions of Intermediate Appeal and Final Appeal—to wait until next Session, when they could have a comprehensive measure which would prove acceptable both to the country and to the profession.
§ MR. LOWEside, his excuse for trespassing on a discussion which had hitherto been entirely forensic was that he did not intend to travel over the ground which had already been so well laboured by those who had gone before him. He desired to deal with the question rather as one having reference to the House of Commons than with reference to any legal distinctions. There was no subject within his memory certainly, and perhaps there had been no subject for many years past, which was at once so momentous and had been so carefully considered as that of the jurisdiction of the House of Lords. The consideration of that subject commenced with the labours of an able and most painstaking Commission. That Commission reported in 1869, and four years were taken to consider its Report. The matter of the Report was referred to a Committee of the House of Lords, which reported against the continuance of the jurisdiction of that House, and a Bill was subsequently introduced in 1873 in the House of Lords itself, which took measures for the abolition of its Appellate Jurisdiction. That Bill was carried. There was some opposition to it. Lord Redesdale divided the House, but had only had very small minorities on his side. When that Bill, having been passed by the Lords, came down to the House of Commons, it was wonderful to see how little difference of opinion there was on a question which might have seemed likely to interest the passions and interests of the House, and the consequence was that it passed with the assent of both Parties. The present and the late Prime Minister, the present and 1819 the late Lord Chancellor, and the great legal authorities of both Houses mostly combined in approving the principles of the measure, and it became law. In 1874 the House of Lords, the parent of of that Bill, produced another measure to extend the abolition of the Appellate Jurisdiction of the Lords to Ireland and Scotland, therefore nothing could be more complete than the approval which the House of Lords gave to the Bill, and it was impossible to exaggerate the degree in which all parties and persons in both Houses were bound and committed to its principles. The subject had undergone a most thorough, solemn, and protracted investigation, and so little was it apprehended that there was any difficulty contained in it that the present Lord Chancellor, on the 9th of February this year, introduced the Bill which had been postponed, on account of pressure of Business, from last Session. He did so apparently without any misgivings or apprehensions on the subject; but on the 8th of March the noble Lord felt it necessary to state that, in consequence of certain communications about difficulties in the way, he despaired of being able to pass the measure. Shortly, after, on the 9th of April, he introduced a Bill of an entirely different character, a Bill which was not a modification, but was exactly the contrary of the one he had introduced on the 9th of February, for extending the abolition of the Appellate Jurisdiction of the House of Lords to Scotland and Ireland. The object of the Bill of the 9th of April was ostensibly to postpone the abolition of the Appellate Jurisdiction of the House of Lords for a year, but really and in truth to prevent the Appellate Jurisdiction of that House ever being abolished at all. The only ground stated for postponing the Bill was the objection of the House of Lords to the abolition of its Appellate Jurisdiction. Though still nominally a Bill only for postponement, he maintained that it must be treated as a Bill to put an end for all time, as far as the Government had any power, to the idea of ever doing away with the jurisdiction of the House of Lords. In introducing and carrying that Bill through the House of Lords the Lord Chancellor never gave it to be understood that he approved of the principle he was going to give effect to. The noble and learned Lord had always 1820 been thoroughly consistent in the matter, and it was only just to say that, though he had been the organ of the Government in carrying out the Bill, there was every reason to know, from all his declarations on the subject, that he entirely and thoroughly disapproved of the step. Then the case came to the House of Commons, where the hon. and learned Gentleman the Attorney General allowed it to be inferred that he disapproved of its principle, offering as he did no argument in its favour, but studiously avoiding doing so, only saying that an influential portion of the House of Lords desired that the clauses abolishing the jurisdiction of the House of Lords as a Court of Final Appeal should be put off, and that accordingly it was proposed that that should be done. The hon. and learned Gentleman did not say one word in favour of the principle of the Bill he was introducing to the notice of the House. Nay, he said something very strongly against it. He said that he did not consider the Bill a new thing; that the subject had already been fully discussed by Parliament in 1873; and that he could not regard it as a question that was really any longer open to discussion. That was, in effect and substance, what the hon. and learned Gentleman side, and it might fairly be concluded that he also was opposed to the principle of the Bill. It was not merely that the Government were dropping a measure which for want of time they found themselves unable to carry. That was a position in which any Government was liable to find itself, and in which it might fairly withdraw a measure, however persuaded of the justice of its principles they might be, rather than waste the time of the House and their own strength in a futile effort to carry it. But what he complained of in this matter was that the main object of this Bill, so far as it related to the Appellate Jurisdiction of the House of Lords, was not merely to forbear from any further action, but, in point of fact, to repeal and rescind the whole operation of the Act of 1873 in that respect. He hoped that would be clearly understood, because everything he had to say hinged upon it. The House was asked not merely to forbear from doing a certain thing, but actually to reverse its steps. His present argument did not require him, and he entirely declined to 1821 enter into the legal merits of the case as regarded the jurisdiction of the House of Lords; but what he wanted to point out to the House was that, if the statement he had made as to the proceedings in the matter was true, there was no Parliamentary case whatever for the House entering on the course that was now suggested. No argument was addressed to the House to induce it to commit itself not to do away with the jurisdiction of the House of Lords. He would use a very simple illustration. Suppose the Lord Chancellor sitting in his Court with a case relating to an estate before him. Suppose the counsel for the claimant should say he believed there was nothing in his client's behalf to be said on the law of the case—that he believed, in fact, that law and precedent were against him, but an influential portion of the House of Lords wished his client to have the estate, and therefore he asked the Lord Chancellor for a verdict in his favour. Suppose, further, that the Lord Chancellor should say he agreed with the counsel as to the law of the case, but, since that influential portion of the House of Lords desired it, he would give the judgment requested. That would be a judicial, theirs was a legislative, proceeding; but, apart from that, he failed to recognize any difference of principle whatever. They were identical. The persons who proposed this Bill were themselves opposed to it, but what was said by the hon. and learned Attorney General, and what was said by the Lord Chancellor was, that it was the will of an influential portion of the House of Lords, and therefore they must pass it. Had the Government come down and told the House that they had changed their opinion, that House was always open to reason and argument, and, if it had been addressed in the tones of reason and argument, would have listened with respect. But in place of that the Government simply came down to the House of Commons and said it was the desire of an influential portion of the House of Lords that this measure should pass. There was no Parliamentary ground whatever for doing what the House was asked to do. It was contrary to all Parliamentary practice for a Government to come down and tell the House that, notwithstanding the labours of the Commission, the Report 1822 of the Committee and the decisions of the Parliament itself, it was to surrender its own opinion and consent to repeal the Act of 1873 merely because a portion of the House of Lords desired that it should be so. So far as he knew English history—and he should be glad to hear of a precedent to the contrary from hon. Gentlemen opposite—such language was never addressed to the House of Commons before. The case came before the House absolutely without any support whatever. The merits of the Bill might be what they pleased. The question was whether the House of Commons ought to be influenced by considerations like these. Was it natural, was it reasonable, that the Government should come down and say that the House of Commons should be forced to do that which they themselves had been forced and coerced to do? Why should the Government assume the nominal Leadership of those who had forced and coerced them in this matter? Principles were the life and soul of a Government, if they meant to exist for any length of time. But how could a Government preserve its vitality, if it were ostentatiously and knowingly not only to abandon the principles which it held, but actually adopt the very contrary course, and place itself at the head of those who had coerced it? It might be said that some risk of collision with the Lords would have to be run if the Government persevered in their original intention. He did not believe it. But even to run some risk would be better than to exhibit such a spectacle as the House had before it. It was quite evident what the Government should have done. They should not have allowed themselves to be coerced. Their character for consistency and honour was at stake in not going back; and if it were intimated that an influential body of their supporters would no longer sustain them they should have met it manfully, and obliged those who, it appeared, were superior to Lords and Commons to declare themselves and show who they were—to deal with this matter not by messages to the Government, but by their votes in Parliament. Who they were would then be known; but because the Government had amalgamated themselves with them, nobody knew now what Party, what clique, what conspiracy was at work. If the Govern- 1823 ment had taken that step they would have received the approbation of all honest men, and would not have injured their own position in any way; the public would have appreciated their conduct, and if the measure had failed, no blame would have been attributed to men who had done their best to vindicate their honour. As it was, the matter was in a situation that no friend to Parliamentary government could look upon without the greatest regret. Because it really came to this—their debates, arguments, reasons were all futile and ridiculous if they could be put aside by an irresponsible body in "another place," who could dictate to the Government what the Government should dictate to the House of Commons. It went to the root of Parliamentary government if they were to be told that it became necessary for the preservation of the Government that certain things should be done, and the Government used its strength to force Parliament to do them rather than face the danger which would be incurred by showing a bold front. It was the duty of the House of Commons to act in such a way that this conduct of Her Majesty's Government should not be drawn into a precedent. His hon. and learned Friend the Member for Oxford had said the other day that they must take what they could find. He would rather say in questions of this kind, relating to the honour of the House of Commons, that they should leave what they found entire. They had received a noble inheritance, and they should take care that they did not encumber it with false precedents, or squander it by base compliances.
MR. GATHORNE HARDYside, he could not help noticing the regret that the right hon. Gentleman must feel for the peculiar kind of conduct of the Government, as it was apparent from his tone and manner throughout his speech. He was not generally without the power of expression for those high constitutional sentiments; but he, on this occasion, adopted such a faltering tone that there was some doubt as to what he was saying, or perhaps he had some suspicion that the House would not altogether agree with him. What was this grievous crime committed by the Government to which the House was called upon to give its condemnation? He did not object to the historical re- 1824 view of past years given by the right hon. Gentleman; but when he came to state what had been done recently—that was, to contemporary history—the right hon. Gentleman seemed not to have made himself acquainted with the facts, or in the most extraordinary manner to have misunderstood them. The right hon. Gentleman said that he should have had no complaint to make against the Government for having dropped the first Bin in the House of Lords, though he afterwards declared that they ought to have taken a vote on it; but towards the end of his speech he blamed them for allowing themselves to be coerced by an influential body in "another place" into bringing in the present Bill. He said that the reason of their doing so was that there was an irresponsible body in the Lords who had controlled them. Now, he would like to know from the right hon. Gentleman in whose speech he found it used as the argument for the passing of the Bill that an influential portion of the House of Lords was in favour of it. [Mr. LOWE: The Attorney General's.] The Attorney General did not say that alone was the reason; what he did say was that there was a great change of feeling on the subject, which was indicated by the change in the House of Lords. Let him for a moment call attention to what passed in the House of Lords. The Government proposed last year that there should be one Final Court of Appeal for the United Kingdom. That was a point to which the Lord Chancellor had always adhered. At present, the object, of course, was that whatever Final Court of Appeal should be adopted should be for the use and advantage of the Three Kingdoms. What had passed? Last year Lord Moncreiff, who might be taken as representing the Bench, if not the Bar of Scotland, spoke reluctantly in favour of doing away with the Appellate Jurisdiction of of the House of Lords. Lord O'Hagan also, speaking for Ireland, with reluctance, accepted with regret the abolition of their Appellate Jurisdiction. But this year both these noble Lords, representing themselves as speaking the sentiments of the Bench and Bar of their respective countries, were entirely opposed to its abolition. Therefore, when the right hon. Gentleman spoke of an influential 1825 party in the House of Lords, he should remember that that party was backed up by a large body of opinion which had accumulated out-of-doors. It would be absurd to suppose that any number of persons in the House of Lords could have exercised this power unless they found a large body out-of-doors to support them. When the hon. and learned Gentleman the Member for the Denbigh Boroughs (Mr. Watkin Williams) introduced his opposition to this Bill, he protested against dealing with it as a Party question; but his hon. and learned Friend had not been so successful in impressing that view on others as might have been hoped. That was not so carefully done by others as it had been by his hon. and learned Friend, who said that, if there was to be a second Court of Appeal, he was prepared to accept the House of Lords as the Final Court. And his hon. and learned Friend gave very good grounds for it. For what did he say? He said that the Appellate Tribunal of the House of Lords was so admirably constituted that an appeal which had taken him three days before the Exchequer Chamber to do unsatisfactorily he had disposed of satisfactorily in three hours before the House of Lords. It should be borne in mind that the Commission that first reported did not report against the Appellate Jurisdiction of the Lords; and therefore the authority of that Commission could not be cited against them. Further on, no doubt, there was a Report which was, to a certain extent, adverse to that Appellate Jurisdiction; but then the question had not been raised as to a double appeal; and it was supposed that the House of Lords could not deal with First Appeals, because they would be so numerous; but when there came to be a second Court of Appeal the House would, it was thought, have abundance of time for such appeals. These were the reasons which had influenced large bodies of people in reference to what should be the new Appellate Court. He begged to remind the right hon. Gentleman that the Government were not asking the House to recind and repeal that which had been already done. All they were asking it to do was to suspend the operation of that portion of the Bill till next year, when the question would still be open for discussion. He might 1826 have his own opinion as to how that discussion would terminate, but the right hon. Gentleman would not be debarred from stating his views at length. It was clear that in all he said that evening he only wanted to throw discredit on the Government; but he did not give the House any information or suggestion as to what was the best course to be taken: all he thought of was to throw discredit upon the Government with that air of pity and sorrow which so well suited the man who was assuming a high constitutional position. To drop the Bill was an abandonment of principle by the Government. If so, why, he might ask, had the right hon. Gentleman himself abandoned his Savings Banks Bill some time ago? Was it not because of the opinion with regard to it which was expressed out-of-doors? [Several hon. MEMBERS: And the Match Tax.] Yes, and the Match Tax; but the right hon. Gentleman's experience was so great in that way that it seemed to him to be the height of audacity at which he could hardly have supposed that even the right hon. Gentleman could have arrived that he should attack the Government as he had done for the course which they had taken, and call upon them to name any case where such a thing had been done before, when he himself had such experience in abandoning Bills and measures, abandoning them in deference to public opinion out-of-doors, sometimes indeed expressed in a more violent manner than upon the present occasion. And what was the real question before the House? They had to secure a Final Court of Appeal which would be likely to be satisfactory to the country, and if they could not find it in the House of Lords they must look for it elsewhere. But seeing that public opinion in Ireland and Scotland was unanimously in favour of retaining the Appellate Jurisdiction of that House, and that an increasing number of persons in England were in favour of it, it was, he thought, probable that when the question came to be decided the Government might, perhaps, in deference to public opinion, and with the assent of the Three Kingdoms, be enabled to constitute such a Final Court of Appeal as would give general satisfaction. In that state of things all the Bill under discussion would do would be to bring into operation as 1827 soon as possible so much as was admitted to be a great reform. The question of the Final Court of Appeal would in the meantime be suspended, and the right hon. Gentleman would next year have ample opportunity of laying before the House his views on the subject. The Government, with that consideration which was due to a matter of such importance as the administration of justice, would not take a step in advance without being sure that they had the feeling of the country with them, and when they had secured that they would submit their proposals to the House without fear of the arguments of the right hon. Gentleman or of those constitutional principles on which he relied.
§ SIR HENRY JAMESside, it would be seen that there were two questions involved—the first, as to the necessity for the Bill, and the second, as to the value of the propositions made in it. Several speeches that had been made referred principally to the necessity for the Bill, and the causes from which it had sprung. First, the hon. and learned Member for East Surrey (Mr. Grantham) charged the Government of 1873 with having dealt with the Act of that year without consideration, and with having promoted it as an ambitious scheme of reform. That was a charge that had not the slightest foundation, and to show that it was so, he would make some brief quotations for the benefit of the hon. and learned Member, and some of them would be from those who were most desirous of retaining the Appellate Jurisdiction of the House of Lords. The first movement that took place in regard to the matter commenced with one whose opinion would be valued by the hon. and learned Gentleman. He referred to the late Lord St. Leonards. So this measure, far from being an ambitious measure of reform, was one suggested by Lord St. Leonards, and in favour of which he spoke and voted. As early as 1841 that noble Lord, in introducing a Bill in the House of Commons, said—
The reason why he went so much into detail upon this branch of the subject was, that he might show to the House what the general feeling of the country was with respect to the system now in force, and which could not continue much longer, but must inevitably be reformed; and so strongly was the necessity for this reform felt that no professional man would conscientiously recommend an appeal to be carried to the House of Lords from the Lord Chancellor's 1828 decision, if it appeared at all probable that the same individual would preside in the House of Lords at the moment when such an appeal should come on for hearing.…. Such a proceeding amounted, in his opinion, to a denial of justice."—[3 Hansard, Ivi. 196, 197.]And he introduced a Bill for the purpose of adding legal strength to the House of Lords. Then the present Chief Baron, giving evidence as to the Appellate Jurisdiction of the House of Lords before the Committee that had been so often referred to, said—"Its days are numbered, unless some great change takes place in its constitution." The Lord Chief Justice, too, said the fault of the scheme for the creation of a new Court of Appellate Jurisdiction was, that it was founded on the basis of retaining the jurisdiction of the House of Lords, and added that surely the time had come for the House of Lords to give up a jurisdiction which it had only in name. He could quote from others not likely to be prompted by an ambitious desire to reform. In 1873 this matter came before the Lords, and there was, with the exception of some opposition from Lord Redesdale, general concurrence in the principles of the Bill. That measure was referred to a Select Committee. It was not considered hastily; it was not made a Party question. The Committee consisted, he thought, of all the Law Lords that sat in the House, as well as Lord Salisbury, the Archbishop of Canterbury, and noble Lords of great weight; and the Report of that Committee came back without questioning the desirability of abolishing the Appellate Jurisdiction. Where was the public opinion then? The Bill, as he had side, passed with the concurrence of the Lords, and when it came down to the House of Commons it received no opposition from those who represented the Leadership of the Conservative Party, with the almost single exception of the present Lord Chancellor of Ireland, and the Bill passed without their hearing a whisper of that public opinion which was said to have existed. He would not weary the House by giving a history of how it was left imperfect as regarded Ireland and Scotland; but 1874 came, and, as they were often told, great events happened in the beginning of that year. The Conservative Government found itself under the responsibility of bringing in a Bill to complete the legislation of the previous 1829 year, and the Bill was brought in in the course of the Session. And what did the Attorney General say then? Why that, whatever might be his own opinion with respect to the abolition of the Appellate Jurisdiction of the House of Lords, he accepted the decision upon it at which Parliament had already arrived as conclusive. The Lord Chancellor of Ireland, too, who had previously been silent on the subject, while observing that a great opportunity seemed to him to have been lost of surrounding the jurisdiction of the House of Lords with additional authority and power, went on to say that to reverse the decision on the point which had been so solemnly arrived at would be even a greater evil than the abolition of that jurisdiction, inasmuch as uncertainty and confusion would by that means be introduced into the proceedings of Parliament, and that good reason ought to be shown for any such change. Had any such reason been shown either to this House or the other? Public opinion was so silent that at the commencement of this Session the House of Lords again accepted the principle of the abolition of its Appellate Jurisdiction. The Bill was introduced and read a second time on the 23rd of February without opposition. The Government, having gone so far, had thoroughly accepted the responsibility of abolishing the Appellate Jurisdiction of the Lords. What had happened to make them withdraw from their position? The hon. and learned Member for Salford (Mr. Charley) had given the real history of the change of public opinion on this subject. That hon. and learned Member said he had put himself in communication with the hon. Baronet the Member for Wexford (Sir George Bowyer), and they had called on a most estimable gentleman who resided in St. James's Place; an influential committee was formed, including 40 Queen's Counsel, 30 Peers, and 138 Members of Parliament; and so the Appellate Jurisdiction of the House of Lords had been preserved. He gave his hon. and learned Friend all credit for his well-known earnestness, which always displayed itself on behalf of those who were unable to protect themselves—females under the age of 16, newly-born babes, and the House of Lords. That sort of protection, however, might go too far. The power of the hon. and learned Member 1830 for Salford appeared to be very great indeed. The House would remember—he would not say a campaign of rhetoric, but, at all events, a celebrated political campaign—when the First Lord of the Treasury visited the county of Lancashire, which had given him great support, and, in answering one of several deputations which waited on him, he did not exactly ejaculate a prayer, but he said—"Oh that there were more Members for Salford at the present time!" He (Sir Henry James) ventured to think, however, it would be an unfortunate thing for the country to have two junior Members for Salford instead of one if that was to be their power—if that was the way in which the legislation of two Parliaments and the policy of two Governments were to be reversed. The Bill which had now been withdrawn was introduced into the House of Lords after having been mentioned in the Speech from the Throne, and was read a second time on the 23rd of February without substantial opposition; but, notice of opposition having been given on the 1st of March, on the 8th of the same month, the Lord Chancellor announced that the Bill would be abandoned. What had happened in the meantime? If those who had introduced the Bill had changed their opinions, ought they not to have said so—ought not their recantation to have been made in public, and in all the responsibility of their position? There had been no discussion or vote in the House of Lords to account for the changed views of the Government, and they were left to the uncertain sound of the words of the hon. and learned Attorney General the other night, when he said there had been a certain Parliamentary opinion in the House of Lords which had been not expressed but felt. He wanted to know if it was an expression of the opinion of noble Lords in that House who had previously voted for the abolition of their Jurisdiction. He did not blame those noble Lords if, under the direction of his hon. and learned Friend (Mr. Charley), they had changed their opinions; but the House had a right to know who they were, and whether they had been influenced by argument or by personal pressure. He was disposed to believe the change of opinion had not extended to Her Majesty's Government; but, if not, why should they change their 1831 policy? Those who witnessed the gestures and heard the words of the Lord Chancellor when he abandoned his Bill knew well he had not changed his opinion. When he expressed the deep regret with which he withdrew the Bill, everyone who heard him knew that was an honest avowal. Ought not that noble Lord, who possessed the confidence of the public and the esteem of his profession, to be allowed to know in the open field who were his opponents instead of having to yield to unknown enemies? Members of the legal profession had always been proud of the noble and learned Lord as one who, unaided by those influences which sometimes made a man eminent in his sphere, was enabled almost before middle age to win his way to the high position he occupied; they knew that, whether in the contests of the Courts or in the political debates of Parliament, or in the pleasant pastures of the Vale of Aylesbury, he had always one great attribute, that of pluck; they knew that he would not have deserted his opinions, but would have had the courage to express them. Yet he had been compelled to yield. It was the old story over again. The enterprizing general of division had been sacrificed either to the doubts of the Commander-in-Chief, or, what was worse, to the timidity of a council of war. It was no secret that the Lord Chancellor had had to give way not to public opinion, as expressed in the Press, in Parliamentary discussion, or to any open means or statements that could be met and controverted, but to the stealthy policy of St. James's Place and the pressure it had produced. Such a method of Parliamentary proceeding was without precedent, and would not add to the honour of Parliament. It was now said that 40 Queen's Counselout of 200—no great proportion—were in favour of retaining the Appellate Jurisdiction of the House of Lords. Well, after all, he did not know that much reliance was to be placed on the opinion of lawyers in regard to legal reforms. Indeed, they were generally regarded as the very worst judges of the reforms that ought to be introduced. [Mr. M. T. BASS: Hear, hear!] He recollected that during the year 1873, when they were discussing the Judicature Bill, and when numerous divisions occurred, he appealed to the hon. Member for Derby, 1832 hoping that he would vote with the Noes, as every lawyer in the House was going to vote with them. Mr. Bass—he might mention his name, as the incident occurred in a previous Parliament—Mr. Bass asked—"Are you quite sure that every lawyer is going to vote with the Noes?" He replied he was quite sure, upon which Mr. Bass said—"Well, I am quite sure I shall vote with the Ayes," and with a great deal of activity he saw the hon. Member for Derby going to the Lobby on the right hand of the Chair. In that he believed the hon. Member was expressing the general idea of the public as to the value of lawyers' opinions on legal reforms. If their opinions were worth little, their sentiment was worth less, and he maintained that it was sentiment and old associations rather than opinion which led them to favour Appellate Jurisdiction of the House of Lords. Putting aside the opinions of the Queen's Counsel, what other public opinion remained in the matter? He believed there was no public opinion on the question of legal reform. People sometimes complained a little of legal delay and of expense; but, as a rule, a man who got engaged in litigation, and passed through the ordeal of a lawsuit, felt much the same as the man who had submitted to the operation of having a leg cut off—he never expected to have to go through it again, and was perfectly indifferent as to whether the next comer was to be operated upon by a good instrument or a bad one. The right hon. Gentleman opposite had asked them to wait a year till public opinion was clearly expressed; but they would have to wait a very long time before they knew whether public opinion out-of-doors wished the Appellate Jurisdiction of the Lords to be abolished or not. If there had been any strong feeling on the matter in the country, it would have found expression in that House in 1874. The fact was, that legal reform must come from the action of responsible statesmen, such as had borne the responsibility of this measure. Their policy was now to be reversed because his hon. and learned Friend (Mr. Charley) had had too much leisure, and by the merit of his earnestness had been able to bring a number of men together. The Secretary of State for War had argued, to prove that there had been a change in public 1833 opinion—that between 1874 and 1875 Lord O'Hagan and Lord Moncreiff had altered their views on the question; but if his right hon. Friend would refer to the speeches of those noble Lords, he would find that they were equally opposed then to the abolition of the Lords' Jurisdiction. He regretted that the Government had not shown a little courage, and appealed on the question to the votes of the two Houses, on whom the responsibility would then have rested, instead of yielding so submissively to that mysterious influence which the Attorney General said had been felt in the House of Lords. He regarded the present measure not as the Bill of the Government, but as one for which the hon. Members for Salford and Wexford and the committee with whom they acted were responsible. The 4th clause was admittedly bad, and the Attorney General had not found any of the hon. and learned Members behind him to say they could give the slightest adhesion to the principles of this Bill. They were told it was a temporary measure but that was only a stronger reason for not dealing with the matter in such a way. It was not sufficient that, out of circumstances they had themselves created, they should produce a measure evil and inefficient, which they admitted would not be satisfactory, and plead as an excuse that it would only be in existence for a short period until they had ascertained public opinion. It was no pleasing task to contemplate the constitution of the Appellate Tribunal proposed by the Bill. They would be half abolishing the Judicial Committee of the Privy Council, and taking away the strength of the tribunal to which they compelled their colonists to come. Two of the four Judges constituting the Judicial Committee had for years devoted themselves to Indian affairs, and divide that Committee how they might, they must weaken it, and thus do an injustice to our colonists, whilst it was no undue criticism to say that it would hardly be wise to place Members of the Judicial Committee as Appeal Judges over men whose lives had been devoted to studying the Common Law of England, and who, in that law, had had a much larger amount of practice and experience. It could not be right that such things should be done merely to meet the unfortunate state of things which the want 1834 of courage of the Government had brought about. He appealed to the Government, who certainly had not shown too great a desire to destroy our judicial system for the sake of economy, to say whether the tribunal proposed by the Bill was one which could advantageously receive the sanction of the House. He did not think his hon. and learned Friend the Member for the Denbigh Boroughs had laid himself open to the criticism of the hon. and learned Member for Huntingdon (Sir John Karslake); but he would advise his hon. and learned Friend not to press his Amendment to a division. In conclusion, he would remark that he had ventured to criticize, he hoped not too severely, not so much the personal course of the Government as the want of principle and statesmanship which had been shown in the conduct of public men, and, having done that, he would promise the Government, if they persisted in carrying that Bill through the House, he would give them such assistance as he could in putting it into a better and more efficient form.
MR. GATHORNE HARDYside, his reference had been misunderstood by his hon. and learned Friend the Member for Taunton. It was in 1874 that Lords Moncreiff and O'Hagan accepted, with certain reservations, the proposal of the Government, and in 1873 that they spoke in opposition to the measure then brought forward.
THE SOLICITOR GENERALside, he quite agreed with his hon. and learned Friend the Member for Taunton (Sir Henry James) that the consideration of that great question turned upon the Act of 1873. During the discussion the House had had its attention turned in a particular manner to that Bill and the Bill of 1874 had also been much adverted to. The question before the House was whether there was a necessity for any alteration of the measure of 1873, and if so, whether the provisions of the present Bill would meet that necessity? With regard to the Act of 1873, in his opinion and also in that of the hon. and learned Members, with very few exceptions, who had spoken, that Act did accomplish a most desirable measure of reform. He thought the demand for that legal reform came not from the lawyers, who were benefited by the existing state of things, but from those who experienced the defects of the law—the outside public—and 1835 who had clamoured for the removal of these defects prior to 1873, and the Act of that year was the result of this outside clamour. It seemed to him that the Act of 1873 was a most beneficial measure, for it did away with that disgraceful anomaly by which what was law in one Court was not law in another, and conduced to the more speedy administration of justice. It created a system which was at once consistent, harmonious, and simple; but although it deserved all the credit which he thus attached to it, all who looked back on the measure of 1873 must confess that it was marred by one conspicuous blot. That blot was the Appellate Jurisdiction created by the Bill. That Act proposed a Court of Appeal, and abolished the Appeal to the House of Lords. Now that was found to be a great defect in the Act and very objectionable. The hon. and learned Gentleman the Member for Taunton said that almostevery one agreed with the abolition of the Appellate Jurisdiction of the House of Lords.
§ SIR HENRY JAMESside, the hon. and learned Gentleman misunderstood him. The question was thus regarded by the House of Lords.
THE SOLICITOR GENERALThe question was not one for the House of Lords; it was a question for the public. and if the removal of the jurisdiction of the House of Lords were to meet with general acceptance, it would little matter to him whether they were relieved of it or not. It would, however, be recollected that during the debate which had taken place several eminent Members from the Conservative side of the House had spoken strongly in favour of the retention of the Appellate Jurisdiction of the House of Lords not, indeed, for all cases but for such as would necessarily flow to the House of Lords in case two Courts of Appeal were retained. The hon. and learned Attorney General, the hon. and learned Gentleman now Member for Frome (Mr. Lopes) the hon. Member for King's Lynn (Mr. Bourke), the hon. and learned Member for Salford (Mr. Charley), and the then Attorney General for Ireland had all spoken to the same effect. For himself he concurred with them; but he distinctly expressed his opinion that there must of necessity be several classes of cases in which a double appeal would be essentially necessary. He quite agreed with the hon. and learned 1836 Member for Oxford that in that portion of his (the Solicitor General's) speech which he had read he said he was averse to a double Court of Appeal; but if the hon. and learned Gentleman had read further—and probably it would have done him some good—he would have found that he had said that in certain cases it was most essential that there should be another Court of Appeal, and he had made bold to suggest to them, as he did now, that the very best Court of Appeal was that tribunal which had given so much satisfaction—the House of Lords. The Tribunal of Appeal formed by the Act of 1873 was for England alone, and it was clear to his mind that in 1873, there existed a distinct necessity for altering in the way of amendment certain provisions of the Act of 1873, in order to provide one and the same Appellate Court for England, Scotland, and Ireland, with, in addition, a second appeal in certain cases. It was not necessary that he should give the reasons for this necessity, for it was only necessary in order to discover them to listen to the speech of his hon. and learned Friend the Member for Taunton. The hon. and learned Member for Oxford had stated that the second appeal would, in fact, be a simple rehearing. If a decision in one Court was to be reviewed in another there must of necessity be a re-hearing of the facts, but it was an appeal notwithstanding. In 1873 the Government carried the Bill which became an Act, although it had its admitted defects. The Bill of 1874 was founded on the principle that there should be the same Appellate Tribunal for England, Scotland, and Ireland, but that in certain cases there should be a second Court of Appeal. But owing to unavoidable circumstances the Bill of 1874 had not passed into an Act, and in 1875 another Bill was introduced to the same effect; but between the years 1873 and 1875 an opinion arose in the country—an opinion which appeared to be growing day by day—that it was not desirable to abolish the jurisdiction of that ancient, noble, dignified tribunal, the House of Lords. The hon. and learned Member for Taunton had referred to the part which he supposed the Amendment of the hon. and learned Member for Salford had played in the matter. What the hon. and learned Member for Salford did was to press his proposal with 1837 his usual energy; but did he convince, against their will, lawyers in Lincoln's Inn and Westminster Hall, and hon. Members who had expressed their opinions on the subject? At any rate he would not convince the hon. and learned Member for Wexford against his will. The opinion of the vast majority of the lawyers of Lincoln's Inn and Westminster Hall was in favour of retaining the Appellate Jurisdiction of the House of Lords, and it must be admitted that lawyers knew something about it, although they might not be "strenuous advocates of law reform." That opinion was shared by commercial men, who had to pay for litigation, and by Members of Parliament, who represented constituents. There was also a strong feeling through out the country that the House of Lords was an excellent tribunal, and that better could not be found. If that opinion had been really formed, and had been brought to the attention of the Government, were the Government to be charged with desertion of their principles, because they did something to give effect to that opinion? He should think that the Government would be open to the charge of not acting up to their principles, if they chose to disregard an opinion of this kind. The Government, therefore, had thought that, as this opinion had been formed by the country, it would be well to let a little time go by, and see whether some more positive and certain opinions were not formed in the interval. If at the end of a year it was thought that the jurisdiction of the House of Lords as an Appellate Tribunal should be retained, then it would be competent to do so. His hon. and learned Friend the Member for Oxford had said—"Do not touch the appeal clauses of the Act; let the Bill of 1873 remain, but keep the Exchequer Chamber as that Court of Appeal for Common Law, and the Lords Justices for Chancery." But if that were carried into effect they would have the dissatisfaction or the gratification, whichever it might be, of having no Appeal Court at all. He thought, therefore, it was essential that there should be a Court of Intermediate Appeal of a fresh character, in lieu of the Court of Exchequer Chamber and the Lords Justices. He would now come to the objections of his hon. Friend the Member for the Denbigh Boroughs (Mr. Watkin 1838 Williams). His hon. and learned Friend said he had a great opinion of the Act of 1873; that it was one of the greatest measures of reform ever introduced. He also said he would rather have a final tribunal such as that created by the Act of 1873 than have an Intermediate Court of Appeal. "But," said the hon. and learned Member, "if we are to have a second tribunal, I object to such a second tribunal as is proposed by the Bill, because it is not a good one; because the Judges will not be composed of the ablest men that could be selected; among them will be the Lord Chancellor, the Master of the Rolls, and the three Chiefs of the Common Law Courts, and each of these may have attained his position, not so much because of his eminence as a lawyer as for some other reason." He (the Solicitor General) confessed he was surprised at that objection. Both the hon. and learned Member himself and the hon. and learned Member for Taunton in 1873 spoke in favour of a tribunal the elements of which would not differ much from that which was proposed by the Bill. This Bill proposed that exactly the same class of Judges should form a Court of Appeal as was provided by the Act of 1873, but it proposed that not so many Judges should sit in that tribunal. In a Court of Appeal there must be men of the soundest intellect; and who, being untrammelled by an excess of business, would be able to deal with the cases that came before them as the House of Lords did. In conclusion, he considered that the suggestions which had been made by his hon. and learned Friend the Member for Oxford were not feasible, and he hoped that very few of the malcontent party would think it right to follow him and his hon. and learned Friend the Member for the Denbigh Boroughs into the Lobby, should the Amendment be pressed to a division.
§ MR. HERSCHELLside, Her Majesty's Government seemed to admit that the House was in some embarrassment with regard to the matter, because it was dealing with a proposition for the creation of a Court of Appeal without knowing whether that Court of Appeal was to be permanent or merely temporary, and also without the knowing whether it was to be a final Court of Appeal or an Intermediate Court of Appeal, for both of those questions, he 1839 understood, were to be left open. He thought, therefore, that what the House had to consider was how to get out of that embarrassment. The opinion of the public and of the legal profession after the passing of the Judicature Act, began to form itself on two questions in no doubtful manner, the prevalent belief being—first, that all cases ought not to be sent to a Court of last resort without passing through an Intermediate Court of Appeal; and secondly, that in abolishing the Appellate Jurisdiction of the Lords, they were running the risk of abolishing a very efficient and excellent Court of Appeal on the chance of forming a Court its equal, or possibly only its inferior. It was a significant circumstance that these opinions were expressed after the passing of the Act of 1873, and that the more people talked about the proposals it embodied with reference to those two subjects, the less they seemed to like them. For himself, he confessed he shared the opinions of those who desired the retention of the Appellate Jurisdiction of the House of Lords, not because he was actuated by any feeling of sentiment, or by the idea that the Appellate Jurisdiction could prop up the House of Lords as a Legislative Body, but because he did not like to part with a tribunal until a better one was substituted for it. Consequently he could not regret that the subject had been re-considered, but at the same time he agreed with much that had been said by the hon. and learned Member for Taunton. As both Houses so plainly expressed their opinion in 1873 that the Appellate Jurisdiction of the House of Lords ought to be abolished, it was unwise for the Government to withdraw the first Bill. They introduced this discussion without having the matter fully discussed in the Upper House. The Government need not have forced that Bill to a division, but they ought to have had it publicly discussed, for next year they would not be in half so good a position to pass the Bill as they would have been if they had allowed that course to have been taken. That course, however, not having been pursued, it was now proposed only to deal with the question temporarily. It was impossible to suggest any course which would not carry with it certain evils, and all we could do, therefore, was to choose the least. He 1840 was desirous that the Act of 1873 should come into operation as speedily as possible, seeing the manner in which law reform was hung up by the delay which had already occurred, and so far as this measure was directed to that—so far as it expressed the desire of the Government that the Act should come into operation without further delay—he was heartily and thoroughly with them. That Act, although delusive as to some of the advantages expected of it, had many practical and useful provisions; for example, those which improved the present absurd mode of taking evidence in the Court of Chancery, and others that relieved Courts which were clogged with business, by sending cases to other Courts which were not so pressed. It not only amended the law now, but it provided the machinery for future Amendments. Objecting to the statement that the Appellate portion of the Act was its backbone, he thought the other beneficial changes contained in it might be adopted at once, the Appellate Court remaining substantially as at present. As to the Appellate Tribunal constituted by the Bill, no lawyer in the House of Commons excepting the Attorney and Solicitor Generals had approved it. That Appellate Tribunal might consist of three members—two transferred from the Judicial Committee, which heard few English cases, and one new Member; but imagine such a Court overruling the decisions of one of the primary Courts, consisting of three Judges of the highest weight and authority! Surely, it would be better to leave things as they were until you knew what you were going to do; but if this course were impossible, the Bill would be a very unsatisfactory one, unless it were altered materially. He feared that the secret unavowed cause of such a Court being proposed was the desire for an unwise economy in the administration of justice. In his opinion, counting the circuits and the Judges required for town business, the number of Judges proposed under the Judicature Act would be found lamentably insufficient. No doubt, judicial time might be economized, but the proposed reduction would cripple the operation of the Act in the most serious way, and the Act itself would not have that fair chance which every law reform should have. He could not agree with the Solicitor General that the number of 1841 heads in an Appellate Court made no matter. No doubt the quality of the heads was of more importance; but it would not be well to have judgments of a Court in which there were three heads of good quality overruled by a Court of inferior numbers. He would urge on Her Majesty's Government to do one of two things, either to let this Appellate question stand over until next year, when it could be satisfactorily dealt with, or if they were to constitute a Court of Appeal under this Bill let it be one which would be acceptable to the profession and the public. If they took either of these courses, he could assure them that all on that (the Opposition) side would assist in making the measure as perfect as possible.
§ LORD ELCHOside, with the exception of the right hon. Gentleman (Mr. Lowe) that debate had hitherto been carried on by the lawyers, and he should not have ventured to intrude himself on the notice of the House, if it had not been for the fact that the Appellate Jurisdiction of the House of Lords was, as it had been justly described, a momentous question, and that a Committee which sat on this subject, and on which he served, had been spoken of in not very complimentary terms. In the outset he could not help asking himself this (question—how the taking away of the Appellate Jurisdiction from the House of Lords would affect their position as a branch of the Legislature? It appeared to him that if the House of Lords were no longer looked to as the Supreme Court of Appeal, their position would be lowered and their prestige seriously impaired. No doubt, if the House of Lords was inefficient as a Court of Appeal, and there were no means of improving it, no one for the sake of its legislative position alone would insist on retaining its Appellate Jurisdiction. But everyone in the course of the debate who spoke of its efficiency as a Court of Appeal was cheered. The hon. and learned Member for the Denbigh Boroughs, in moving the rejection of the Bill, stated that for weight, patience, and attention there was no Court of Appeal equal to the House of Lords, and the hon. and learned Member for Wexford said that their decisions formed a body of law unsurpassed in any country in the world. Looking to the expression of opinions from Liberal and hon. and 1842 learned Members, and out-of doors, his hon. and learned Friend was justified in saying that opinion had been revolutionized on this subject. Speaking as a Scotch Member, he would point out that the feeling of that country was almost unanimously in favour of its retention, while in Ireland such men as Sir Joseph Napier, Lord O'Hagan, Lord Chief Justice Whiteside, and Lord Justice Christian, and in England, Lord Penzance and others were in favour of its retention. They had thus a general consensus of opinion in favour of retaining that Appellate Jurisdiction. Do not let them, therefore, sweep away an old institution which had done good service in the past. Further, when Lord Cairns brought in this Bill, he stated that they had worked off most of the cases before them, and that at the end of the Session there would be no arrears. By appointing Committees of the House of Lords to sit during the Recess a great deal of difficulty that was now felt would be removed. All great reforms went on this basis—they took what they found and improved on the old ground. We all knew that the eloquence of lawyers occasionally succeeded in getting wrong verdicts, and so the eloquence of Lord Selborne and Lord Cairns obtained a wrong verdict from the House of Lords in 1873. There was then a mania for change. Nothing was settled in Church, in land, in Army, or in law. Their Lordships, like every one else, were carried away, for it was impossible at the time to resist the force of the Government. It was the custom to praise that Parliament, but it was the worst Parliament he had ever seen. It was not so much a Legislative Assembly as a Parliament to register the decrees of an imperious Minister. An hon. and learned Gentleman opposite (Sergeant Simon) had admitted that the Bill of 1873 came down to the House of Commons with orders that it should be passed én bloc. There had now, however, been a reaction, not only in the House of Lords, but in the country itself; the feeling had changed, and it was felt that a great mistake had been committed, which must be rectified. How the House of Lords came to surrender its Appellate Jurisdiction, which was not a privilege, but a part of its constitution, he did not know; but if it found it made a mistake in doing so, he could not see 1843 why it should not endeavour to retrace that mistake now. It would, it seemed to him, be cowardly if, perceiving it had committed an error, it should be ashamed to say 80, and refuse to take back that which the public wished it to retain. The hon. and learned Gentleman the Member for Oxford talked of janissaries and of mutes passing round the Woolsack with the view of causing the Government to change their views on the subject. There was, however, in the matter nothing to conceal. It was the Duke of Buccleuch, representing Scotland, who had placed a Notice on the Books of the House of Lords, and it was the right hon. Gentleman the Member for the University of Cambridge—a very safe Constitutional Member of the House of Commons—who gave Notice of an Amendment in respect to the Bill as it then stood. In the whole proceedings, therefore, there was nothing of conspiracy or anything which could fairly be described as "hole and corner." And if a committee did meet which was interested in the question, he should like to ask whether there were no meetings ever held at Lord Granville's? Was there never any such thing as the Lichfield House compact; and had not meetings taken place in the Tea-room of that house, and also at Carlton House Terrace? It was idle, he contended, to speak of the committee which met in St. James's Place as unconstitutional, or as composed of persons having no legal or official position, or as being a coalition, or confederation, or cabal. In abusing the committee, however, those who used such language were only following the example of Lord Selborne himself, who, in addressing a number of his friends at Fishmonger's Hall in the course of the spring, said it seemed to him unendurable that measures of great importance to the community, introduced by the Government, should be frustrated, not by mature public opinion, but by the action of cliques and intrigues. Now, when he read that language he, as a member of the committee, could not help feeling that it was to be regretted that Lord Selborne had infused all his Christianity into his Psalmody, and had not reserved a little for his prose. Mr. J. Stuart Wortley, than whom no one was more respected when he was in the House, or would probably have attained a higher position in his 1844 profession had it not been for the state of his health, wrote a letter in reply to these remarks of Lord Selborne, in which he pointed out that the committee numbered among its members Peers, eminent Noblemen professing various political opinions, Members of the House of Commons, and men of high position both on the Bench and at the Bar, and that their proceedings had nothing in common with those of a coterie or a cabal. Mr. Wortley, in his letter, further showed that Lord Selborne was not always favourable to the views on the question which he now advocated, for he well remembered that when sitting with him on the Conservative benches as a supporter of Sir Robert Peel, he had vindicated the Appellate Jurisdiction of the House of Lords, and had expressed a doubt whether any substitute for it which might be created would be so satisfactory to the country. When, therefore. Lord Selborne used such hard words in reference to the committee which met in St. James's Place, he would remind him that it was a spot remarkable for caves. A cave had once assembled on the other side of the street from that on which the committee held its meetings, whose members Lord Russell had politely called brigands, and who succeeded in throwing out a Bill which had been brought in by the Government of the day. Now, he did not pretend to say that the committee to which he belonged had the slightest influence on the House of Lords or the Government; but if it had, those who endeavoured to show that it was composed of very mean materials cut the ground from under themselves, for it must be apparent that they were powerfully backed by public opinion. It was somewhat extraordinary, he might add, that those who used such language should have forgotten that there were such associations as the Birmingham Reform League, the Anti-Corn Law League, the modern Electoral Reform Association, and such institutions as the Reform and Devonshire Clubs. It was quite true, indeed, that when he walked down St. James's Street he never saw more than one member in the last-named club, and some persons went even so far as to say that he was stuffed; but it was, nevertheless, intended to exercise a powerful influence by uniting under the wing of the House of Devonshire all 1845 the scattered elements of the Liberal Party. Then there was the Law Amendment Society, the Church Liberation Society, the Education League, and the Contagious Diseases Acts Repeal Association, to which a late Cabinet Minister had given up his life, and the action of which seemed to be to deluge the houses of respectable people with filthy literature. Let them have no more abuse of the St. James's Place committee when they remembered such institutions as those to which he had referred, and which, as long as they were a free country, must exist. With reference to the general principle of the Bill, that, he felt, was a question to be dealt with by gentlemen of the legal profession: and, for his part, he would only say that he had the utmost confidence in the Government as to their dealing with the matter. The action of the Government had at least given time for the consideration of the question of the Appellate Jurisdiction of the House of Lords; and he believed that, so far as they had gone, they had acted carefully, cautiously, and wisely.
§ MR. LAWside, he must express his regret that the noble Lord who had just spoken should have used language towards Lord Selborne which was hardly called for in the present discussion. Lord Selborne's character, however, required no vindication, and the injudicious sneer which the House had just heard might, therefore, pass without further notice. Much had been said of a change of public opinion having taken place as to retaining the Appellate Jurisdiction of the House of Lords; but he might perhaps be permitted to say that he failed to recognize any such change. Although Conservative principles had triumphed at the General Election, the present Government deliberately introduced a Bill last Session to substitute an Imperial Court of Appeal for the House of Lords. That measure received the assent of both Houses, and when had public opinion been expressed since? Indeed, there was very little doubt that if it had not been for the attention of the House being somewhat suddenly directed to the Public Worship Bill, the Judicature Bill abolishing the Appellate Jurisdiction of the House of Lords would have passed into law last year. He could not help feeling that the Government was responsible for the present difficulty. 1846 When the Judicature Bill of 1873 was being passed, it was felt by many hon. Members on both sides of the House that it was not desirable that there should be a separate Appellate Tribunal for England, while the House of Lords should remain as a separate Appellate Court for Ireland and Scotland. The right hon. Gentleman the Member for Greenwich and his Colleagues proposed to modify their Bill so as to carry out this view—providing at the same time that there should always be some Scotch and Irish Judges members of the new Imperial Court. That proposal, however, was defeated in "another place." A question of privilege as between the two Houses of Parliament was very needlessly raised, and the result was the confusion in which the subject still remained. Had the clauses proposed by the late Government been accepted, there would never have arisen any of the difficulty they had since had to deplore. For it must be remembered that the present Government fully approved of the withdrawal of their Appellate Jurisdiction from the House of Lords. To effect this they brought in their Bill at the commencement of last, and again at the commencement of the present, Session. But to make some change in the proposals of their Predecessors, they refused to provide that there should be a Scotch or an Irish Judge in the new Court. This must in any case have excited suspicions and jealousies; but the reason given for it was particularly unfortunate—namely, that it might not be possible to get an Irish lawyer or a Scotch lawyer fit for the office. It only needed this to raise a feeling against the whole scheme amongst the members of the Bar in Scotland and Ireland, and thus to mar what it was hoped would be a great legal reform. It was, however, a mistake to suppose that the members of the Irish Bar were all in favour of retaining the Appellate Jurisdiction of the House of Lords. A considerable number of them, of whom he (Mr. Law) was one, believed that the House of Lords could not be regarded as a satisfactory Appellate Tribunal. It might be so at the present moment, because it contained some very eminent and able Law Lords; but several of those eminent men had already passed the average number of years allotted to man, and whatever the ability and the despatch 1847 with which business was now conducted there, it was not probable that it would long continue to be so. Indeed, he might say that when hon. Members spoke of the judicial ability now displayed by the Lords, they were thinking of the present Lord Chancellor and his two Predecessors, Lord Selborne and Lord Hatherley, all of whom had alike pronounced against the continuance of the House as the Final Court of Appeal. A very serious objection to the House of Lords as an Appellate Tribunal was the great cost at which business was transacted there; and, again, it was impossible they could be sure of having the best men to sit on that tribunal, for it was well known there had been lawyers of the greatest eminence in their profession, who from family or other reasons would not accept Peerages. The Lords, in short, at least with existing arrangements, could not fulfil the requirements of a permanently satisfactory Court of Appeal. It was desirable, however, that they should hear from the Government what they proposed doing as to the Final Court of Appeal. It might be that they intended to create life peerages, but if this was so, why could not the fact be stated? It might be that the Government intended to use up in the creation of the Intermediate Court all the available legal material, and then to come down next year and tell the House that all the other material having been exhausted, it must, as a matter of necessity, accept the House of Lords as the Pinal Court. The Government ought to make some clear and explicit statement on this important subject. He was anxious that the Bill of 1873, which was undoubtedly a great advance in legal reform, should be brought into operation at once. He would with that object recommend that the rest of the present Bill be passed reserving the portions which related to the Final and Intermediate Courts of Appeal, and following it up as speedily as practicable with the necessary supplemental measures for Ireland and Scotland.
§ MR. ALFRED MARTENside, the whole object of the Bill was to bring into operation all matters in relation to the Supreme Court of Judicature, on which their was no disagreement, and to allow that part to stand over to which objection had been taken, and the whole tone 1848 of the debate was a justification of the course taken by the Government. Every hon. Member had addressed his remarks more or less to an Ultimate Court of Appeal, showing that there still existed a great question that should be the subject of further consideration. The right hon. Member for the London University (Mr. Lowe) had treated the question as a Party one, and had made several caustic remarks on the conduct of Her Majesty's Government in introducing this measure; but he had refrained from stating his views as to the preservation of the House of Lords as a Court of Ultimate Appeal. It had been urged against the Government that, having such a large majority at their backs, they ought to adopt a strong policy, and force the House to yield to their views in this matter; but it was because the late Government had adopted that course that they had offended their supporters. The speech of the hon. and learned Member for Taunton was rather of an oratorial than an argumentative character, and he had endeavoured to insist upon the finality of the Act of 1873, which, he side, was passed without any resistance. The hon. and learned Member, however, appeared to have forgotten that on the 3rd of July, 1873, a division was taken on the question whether the clause which abolished the Appellate Jurisdiction of the House of Lords should stand part of the Bill, and that the clause was only carried by 154 to 93, no fewer than 13 Members of the present Government voting in the minority. Under these circumstances, it must not be assumed that the Bill of 1873 passed without opposition and with the general consent of both Houses. The present Bill proceeded upon a very plain principle of allowing that part of the measure of 1873 which gave general satisfaction to come into operation, and postponed the consideration of that part of it with regard to which it was desirable that public opinion should be allowed to ripen. In ameliorating our Judicature it was of the first importance that we should proceed step by step, and avail ourselves of changes made from time to time in the administration of the law, and which were found to work satisfactorily. In that way it would be found that the more slowly we introduced changes into it the more surely we should be advancing towards perfec- 1849 tion. The Bill dealt with two most important branches—first, the clause which referred to the constitution of a Supreme Court which should come into operation at once; and the second, to create a Court of Appeal, either Final or Intermediate, as Parliament should ultimately determine. It would proceed upon the principle of reforms which had been for many years in force in Chancery, with the beneficial result that the time of the Court of Chancery was now largely occupied in disposing of questions which involved both Law and Equity. The legislation of a long series of years fully suppported his contention that so much of the Acts of Parliament as related to the constitution of the Supreme Court of Appeal should be kept in active operation, thereby welding together the Courts of Law and Equity into one great Court. The House was invited to postpone the consideration of the constitution of an Intermediate Court of Appeal for another year. In his opinion, no sufficient reason had been given for the taking of such a step, and the Government had exercised a wide discretion in adopting an opposite conclusion. In Equity many important questions were decided by a single Judge, and the working of an Intermediate Court of Appeal, consisting of the Lord Chancellor and two Lords Justices, had proved eminently satisfactory. That Court of Appeal was the model of the Court for Intermediate Appeal proposed to be constituted under the Bill by Her Majesty's Government, and 20 years' experience had proved its excellence; while, on the other hand, they had the opinion expressed by the Common Law Bar, that the Court of Exchequer Chamber was not a satisfactory Intermediate Court of Appeal. Then, as to the ultimate appeal to the House of Lords, all that was asked by the Government was, that that question should be allowed to remain over unprejudiced for further consideration, and that course would be in accordance with the recommendation of the Commissioners in their first Re-port in 1869. The general opinion of the House was in favour of the second reading of the Bill, and it would be well to defer the consideration of details to the Committee.
§ MR. EARLEY LEITHside, it was not his intention to occupy the time of the House by going into the details of the Act 1850 of 1873. He had voted for that Bill, and should deeply regret if, even though somewhat defaced, it should not come into operation as early as possible. Neither did he intend to discuss the propriety or otherwise of postponing the question of what should be the Supreme Court of Ultimate Appeal. He meant to confine his few observations to the proposals in the Bill which affected the constitution of the Court of Privy Council; and he thought one of these would have a most injurious effect by withdrawing from that tribunal into the new Intermediate Appellate Court two of its salaried Members, which must have the effect of weakening a Supreme Appellate Court with a wide and varied jurisdiction, and lowering the dignity of that tribunal. At present the Privy Council was a Supreme Court of Appeal in all cases brought before it from the Supreme Courts in India, the Colonies, the Ecclelesiastical Court, and the Court of Admiralty in this country. It was therefore placed, as respected these appeals, in the same high position as the House of Lords with regard to appeals from the Courts in the United Kingdom. In, and previous to, 1851 the Court consisted of two ordinary unsalaried Members, with a large number of ex officio Members, including the Lord Chancellor, ex-Chancellors, the Master of the Rolls, the Chiefs of the other Courts—10 in all. In the last-mentioned year the difficulty was so great to obtain the requisite number of ex officio Members, that Act 14 & 15 Vict. c. 83, was passed to reduce the quorum of Members from four to three. This even proved ineffectual to obtain a quorum, and, in 1871, the whole system completely broke down; business came to a dead lock. The ex officio Members had the work of their Courts to attend to, and could evade the summons of the Registrar of the Privy Council to attend. The result was, that remedy was applied by the Legislature in passing Act 34 & 35 Vict. c. 91, which had completely answered its purpose. Four salaried Members were appointed who were able to carry on the business of the Court independently of ex officio Members, and ever since the business of the Court had been despatched without delay, alike to the satisfaction of the suitors from all parts of the Empire and to the members of the legal Profession who practised in that Court. It was now 1851 proposed to weaken the Court by taking away from it two of these salaried Members—a course which was condemned by their past experience, and would shake the confidence of Her Majesty's Indian and Colonial subjects in this their Ultimate Court of Appeal; and he earnestly hoped the proposal would not be persisted in. If that measure were carried into law, the suitors would have great cause to regret it. He appealed most earnestly to the Attorney General not to reduce the Judges of the Judicial Committee. With regard to the Intermediate Court of Appeal, there would be a great increase of business in that Court beyond what was now transacted in the Court of the Exchequer Chamber, from the increased powers of appeals and the new procedures and practice introduced by the Judicature Bill; and nothing could compensate for the injury that would be inflicted upon the Court of the Judicial Committee if two of the Judges of that Court were withdrawn. It was perfectly clear that the Judges of the Judicial Committee of the Privy Council, under the former Judicature Bill, were only liable to be transferred into the Supreme Court of Apellate Jurisdiction, to be constituted on the abolition of the House of Lords as a Court of Ultimate Appeal; but this Bill would lower the two Judges of the Judicial Committee, and in doing so would inflict great injury on the suitors in that Court, and would bring back the miserable state of things previous to passing the Act of 1871. That injury was, so far, admitted, as appeared by an Amendment introduced into the Bill by the Lord Chancellor with the object of meeting it, and which provided that any two of the Lords Justices, so far as necessary and so far as the state of business might admit, should sit upon the Judicial Committee. The necessity would be clearer than the possibility; but, were it otherwise, the arrangement was contrary to the intention of the Judicature Act which contemplated these Judges sitting, not in a subordinate Court, but in the Superior Court of Appeal which was now suspended. The only practicable remedy was the appointment of two additional Judges at a cost of £ 10,000, which was a small amount compared with the advantage to be derived by the public, or the injury they would suffer if the present proposal was persisted in. He en- 1852 treated the Attorney General to pause before he took such a step as that proposed in the Bill.
THE ATTORNEY GENERALhoped he should be excused if he did not reply to all the adverse criticisms upon the Bill, because the arguments of some answered the arguments of others, while many criticisms referred to matters of detail which had better be discussed in Committee. He did not complain of, or object to, the many suggestions which had been offered, for which he had to express his thanks, and all of which should have full consideration. He wished, however, to recall the attention of the House to the purport and object of the Bill. It would call into operation those portions of the Act of 1873 which were based upon the recommendations of the Judicial Commission, and it would suspend the operation of those portions of the Act which were not recommended by the Commission, but which were in excess of what was recommended by the Commission, and which almost ran counter to the views of the Commission, for the passage of their Report which had just been referred to seemed to indicate that, in their opinion, it was desirable to retain the jurisdiction of the House of Lords until such time as it could be ascertained what would be the working of the Court of Appeal which they recommended. With respect to the remarks made by the hon. Member who had just addressed the House (Mr. J. F. Leith), in disapproval of the provision in the Bill to take two of the Judges from the number constituting the Judicial Committee of the Privy Council, he might state that the power of that Court would not be impaired by the arrangement; but this would be fully discussed in Committee; he might here remark, that the Bill, if passed, would not come into operation until November next, and by that time a large number of the Indian and Colonial Appeals would have been disposed of. As to what had been said about general concurrence in the Act of 1873, no doubt there was general concurrence of opinion as far as regarded the principles of those portions of the measure which were based upon the recommendations of the Commissioners, and the discussion upon those portions of the Act related mainly to matters of detail; but there was not the same amount of con- 1853 currence in respect of the principles of those portions of the measure which were not based upon those recommendations of the Commissioners. He was not open to the charge advanced by the right hon. Member for London University, that he had offered no justification for the Bill, for, in moving its second reading, he stated distinctly that one of its principles was that there should be one Final Court of Appeal for all parts of the Empire; he had also strongly urged that there should be an Intermediate Court of Appeal. He believed that the Court which was proposed by the Bill would be the best for the purpose; but that was a matter for the consideration of the Committee. The main principles of the Bill were admitted to be right by those Members who had criticized it, and its provisions would carry into effect the recommendations of the Judicature Commissioners. In these circumstances he appealed to the hon. and learned Member for the Denbigh Boroughs not to ask for a division on his Amendment.
§ MR. WATKIN WILLIAMS, in asking the leave of the House to withdraw the Amendment, side, the general opinion of the House seemed to be that the Bill should be read a second time; and, therefore, no useful object would be attained by dividing. Moreover, his real object, as hon. Members were aware, in putting his Amendment on the Paper, was to elicit the opinions of hon. Members upon this subject, and that object had been fully accomplished by a long and exhaustive debate. Those opinions would be very valuable in Committee.
§ Amendment, by leave, wihdrawn.
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for Monday next.