§ Order read, for resuming Adjourned Debate on Question [4th July], "That Mr. Speaker do now leave the Chair."
§ Question again proposed.
§ Debate resumed.
§ MR. FORSYTHsaid, that he wished to address himself especially to the question of the Intermediate Court of Appeal. It was condemned alike by the Profession and by the public. All admitted that the Court of Appeal ought to be of superior authority as compared with the body from whose decision the appeal was made; and though it might not be composed of better or stronger lawyers, the public ought to think so. For this reason, the Members of the tribunal ought to be permanent, and they ought to have higher salaries. There were now three Lords Justices of Appeal, not one of whom had sat on the Common Law Bench, though Lord Justice Mellish was 1145 a distinguished member of the Common Law Bar. The Times in a leading article had spoken strongly upon this point, and the only statement as to which he differed from that article was that "the evil is not as yet pressing." In his opinion it was most pressing, and the greatest possible inconvenience was felt both by the suitors, who had no confidence in the constitution of the Court, and by the Judges themselves. The present mode of proceeding was haphazard and undignified. They had before them the plans of the hon. and learned Member for Taunton (Sir Henry James) and of the hon. and learned Attorney General; but he thought the best and most proper course would be to appoint two new Judges who should sit in the Court of Appeal, instead of borrowing Judges, it might be for a few hours, from a Court of First Instance, where the number at present was almost too small, so much so that, owing to the press of work, one of the Judges had to apologize for giving an oral instead of a written judgment. Further, he did not think that 20 Judges in the Common Law Division would be too many. The objection to this plan was the money objection, and he feared, if it were proposed, the Government would resist it. Next to the appointment of more Judges, he approved of the suggestion of his hon. and learned Friend (Sir Henry James). This suggestion was that two Judges should be taken from the Common Law Division for the purposes of the Court of Appeal; and he was glad to see, from an Amendment placed upon the Notice Paper by the hon. and learned Attorney General, that the Government practically adopted the plan, proposing to place three Common Law Judges in the Court of Appeal, and enable a single Judge to deal with matters now decided by three sitting in Banco. It might seem inexpedient to trust so much to a single Judge, but in the Court of Chancery questions of equal importance were dealt with by the Vice Chancellors and Master of the Rolls sitting singly. He thought, therefore, that the proposal of the hon. and learned Attorney General was a judicious one, and should be prepared to support it.
§ MR. MORGAN LLOYDsaid, he was of opinion that the Bill contained the best scheme for a Court of Appeal that could, under all the circumstances, be brought forward, and his only object in 1146 putting an Amendment on the Paper had been, not to obstruct the progress of the Bill, but to call attention to the necessity of something being done with regard to the Intermediate Court of Appeal. He was, therefore, glad to find that the hon. and learned Attorney General had placed upon the Paper an Amendment which carried out in effect the suggestion of his hon. and learned Friend (Sir Henry James). No doubt, it was desirable that the number of the Judges should be absolutely increased; but there were difficulties in the way at present, and it might be desirable to try to get rid of the present block of business without putting the country to any additional expense. He feared, however, that another year's experience would show that, without an absolute increase in the number of Judges in the Common Law Division, we should not get rid of the present block of business. In that Division, 303 cases were entered for trial at the beginning of the Easter sittings in Middlesex. During those sittings only 97 causes were disposed of, and more causes being entered meanwhile, at the end of the sittings there were 446 causes for trial. At the present moment there were 457 causes in the Common Law Division remaining undisposed of in Middlesex alone. There would be no sittings until November, and causes would continue to be entered until suitors became disgusted. At Guildhall there were 246 causes, including remanets, entered for trial. Two Judges were sitting there now, and probably there would be three sittings there for the next 10 days or a fortnight; but he should be surprised if, at the end of the sitting, still more causes did not remain to go over until Michael as term. Such a state of things had never existed before, and was absolutely intolerable. To remedy it, there must either be a considerable increase in the number of Judges, or else some provision must be made as regarded the place of trial. The provision for one Judge sitting alone would give some increase of judicial strength, but would not suffice to remove the block. Another remedy might, perhaps, be supplied by preventing so many local causes from being brought to London. Local venues, instead of being abolished, should be extended, and he suggested a rule that causes of action arising in a particular district should be 1147 tried at the Assizes in that district, subject to the Judges' power to change the venue, not as of course, but upon good cause shown. Such a provision would relieve the London Courts to some extent; but even then a block of business would remain, which nothing but the addition to the number of Judges he had referred to or a better arrangement of the cause list could obviate. From inquiries he had made he was inclined to believe that the state of things was worse in the Chancery than in the Common Law Division. The change made by the Judicature Act, which did away with evidence by affidavit and required it to be given orally, was a change for the better; but it had had the effect of lengthening the trial of causes. He had been informed of one case in which witnesses had been kept in town for a month, and the fund in Court having been exhausted by these expenses, the solicitors met and put an end to the cause altogether. In the Chancery Division a radical change was absolutely necessary. Either the number of Courts must be increased, or many cases which now came into them must be tried at the Assizes. The present state of business in the Chancery Courts was a crying evil, and he feared nothing could be done to remedy that growing evil during the present Session, but he hoped some legislation in regard to it would be proposed by the Government next Session.
MR. LOPESsaid, he entirely approved of the Bill so far as it went, but he disapproved entirely of the Amendments of the hon. and learned Attorney General for giving effect to the proposition of the hon. and learned Member for Taunton. It must be admitted that there was at present a great block of business, and in order to lessen it the proposal was that three Judges were to be withdrawn from the Courts of primary jurisdiction, and transferred to the Court of Appeal, and questions of law were to be decided by a Judge at Nisi Prius, and were not to come to the Court in Banco. But the dead-lock was in the Courts of primary jurisdiction; it was in the Courts of Nisi Prius that the stoppage existed. There were 18 Common Law Judges; it was proposed to withdraw three and leave 15; and the hon. and learned Member for Taunton assumed that questions now heard in Banco would be tried 1148 at Nisi Prius, and that in this way additional strength would be gained for the Court of Appeal. But how could it be expected that 15 Judges would be able to deal with business which 18 Judges were now unable to dispose of? What would happen would be that questions of fact would be decided by juries, and questions of law would be reserved for the Judge sitting in London, who would be obliged to have a kind of Court of his own to hear questions of law arising out of the facts of the cases he had already tried on circuit. Now, when questions of law arose at Nisi Prius it often happened that litigants had the advantage of hearing the solemn opinion of the Judge pronounced at the time, and the matter did not go any further; but under the proposed arrangement the Judges would pretty well have their time taken up in hearing points which now never came into Banco. Hence, instead of there being a limited number of appeals involving important points, the number of appeals would be quadrupled. Therefore, no advantage would be gained by the transference of these three Judges. But another consideration showed how absurd this proposition was. These three Judges were to go circuit, and when they returned, instead of being at the Court of Appeal, they would have to hear the questions of law which had arisen on circuit. The Court of Appeal was not so strong as it ought to be, and he thought the best remedy would be to appoint two permanent Judges, leaving the constitution of the Courts of primary jurisdiction alone. The time was not far distant when the Government would be obliged to increase the judicial strength of the country. But apart from considerations as to whether the scheme was good or bad—and bad it was beyond all question—was it not a mistake to introduce it at the fag-end of a Session, as a mere supplement to a Bill intended for an entirely different purpose? It created such an important change as ought to form the subject-matter of an independent Bill. The Profession, the Judges, and the public ought to have a full opportunity of forming an opinion upon it. He ventured to say that not half the Judges at present knew what changes would be effected by the proposals of the hon. and learned Attorney General. He had consulted some of the Judges and could say 1149 that they did not approve of the scheme. He did not blame the hon. and learned Gentleman, who had inherited the scheme from the hon. and learned Member for Taunton, but he must say that these changes, if made, would have a most disastrous effect.
MR. OSBORNE MORGANsaid, that in the Chancery Division, unless some remedy was speedily applied to this boasted Judicature Act, from which such wonders were to be expected, it would end in a complete breakdown of the judicial system. It was strange that in the Common Law Division three Judges were required to decide the question of rating a beer-house, while a single Judge sitting at Lincoln's Inn could satisfactorily determine questions involving hundreds of thousands of pounds, arising under wills or in connection with public companies, besides disentangling the facts out of which the legal questions arose, and at the same time performing the double functions of both Judge and jury. And yet Judges on circuit were giving a week to places where four or five cases were entered for trial. As a temporary expedient there was a good deal to be said for the plan proposed by the hon. and learned Member for Taunton; it was better than that of enabling a Lord Chancellor to take any Judge out of his Court and put him in the Appellate Court, with the result of closing the Rolls' Court for 20 days out of 23. The Judges in the Chancery Division were very hardly worked, the intervals between the sittings barely allowing them time to prepare the judgments they reserved. They were worked as hard as it was possible to work men, and if they had not iron constitutions they could not get through the work they did. Our judicial strength was fixed 35 years ago; there had been an enormous increase of wealth and population since; and the change made by the Judicature Act enormously increased the business in the Chancery Division, to which the taking of vivâ voce evidence had transferred many causes which used formerly to be heard in the Common Law Courts. The other day a witness, who had described the condition of a water-course a month ago, was asked what its present condition was, and he replied that he could not say, because he had been attending the Court for a month, waiting for the case to come on. It would be infinitely 1150 cheaper for litigants to obtain a Judge by subscription than to waste such a length of time for their cases to be heard. The four Chancery Courts began the sittings with 504 cases, and had disposed of less than 100, but meanwhile 237 new causes had been entered on the Paper, and, of course, such a rate of increase could end only in complete dead-lock. The only remedy for this state of things was an increase of the judicial Staff, which it was not popular to advocate. The public were apathetic upon the subject, and when the lawyers proposed an addition to the judical Staff, they were supposed to have some sinister object in view. The right hon. Gentleman the Member for Greenwich (Mr. Gladstone), 12 months ago, with tears in his eyes, implored the Government not to appoint any more Judges. When the hon. and learned Member for Oxford (Sir William Harcourt) had experienced the inconveniences of the present condition of things, his opposition to the increase in the number of Judges would have more weight. It was said that there were not men at the Bar of sufficient standing to supply a larger judicial Staff; but he believed there were as good fish in the sea as had come out of it; and the experiment of appointing Official Referees had not been so satisfactory as to tempt the House to resort to expedients of that character. They had to strengthen the Intermediate Court of Appeal at the expense of the Courts of First Instance, and they would become still weaker unless the Government were strong enough and possessed the courage to grapple with the question, and until they appointed four additional Judges there would be a dead-lock, and the disorganization of our judicial system would be as great as in the worst days and the worst times of Lord Eldon.
§ SIR WILLIAM HARCOURTsaid, they were now dealing with the Courts of Common Law, in reference to which the hon. and learned Member for Denbighshire (Mr. Osborne Morgan)did not profess to speak with authority. It was admitted there was a waste of judicial strength which might be economized through three Judges doing work that one might do, and it was not unreasonable to try the economy which was possible before increasing the number of Judges. He hoped the hon. and Learned Attorney General would adhere 1151 to these Amendments despite what had fallen from the hon. and learned Member for Frome (Mr. Lopes), for there must be a great saving of time if three Judges heard separately cases which they formerly heard together; and, besides, sitting singly, they could not waste time by disputes among themselves. He could not understand why a Common Law Judge should be supposed to be so inferior to an Equity Judge that he could not dispose singly of cases not of a tenth of the importance of those which Equity Judges decided every day. It was certainly not very complimentary to them. What was going on on circuit at the present moment was an absolute scandal. They had sent down four Judges, two to Sussex and two to Surrey, within 50 miles of London, to perform an amount of duty which might be easily disposed of by one Judge in two days, and have prevented the breaking up of the Courts in London. Surely such a state of things called for a radical change. It was, he considered, utterly unreasonable, in the present state of things, to ask for more Judges. The great cause of the waste of judicial power lay in this, that the Judges were being constantly called off from doing one thing before they had finished it to begin doing something else. He would find ample work for the Judges, as he would have them constantly going circuit. There would be no effectual reform until the circuits had been altered by substituting the constant attendance of a Judge at such places as Leeds, Liverpool, and Manchester. The delay in the delivery of our gaols was also a grievance calling for an immediate remedy, as often those awaiting their trial had to remain five or six months in custody. The liberty of the subject was infringed by the lengthened period of incarceration before trial, and an injustice was done from Judges not going constantly into the country and doing the work which the public had a right to expect from them. There was no other part of the world in which such a thing was possible.
§ MR. CHARLEYsaid, the hon. and learned Member for Oxford (Sir William Harcourt), while ostensibly he asked the country to economize its present judicial power before creating any new Judges, actually proposed to effect that economy by a diminution of the Judges sitting in 1152 Westminster by constantly sending them off to the country on circuit. His opinion, however, was that the work was too heavy for the number of Judges at present on the Bench. This was seen at the Assizes, when the Judges going circuit had to call in the services of one or more of the Queen's counsel mentioned in the Commission to take the criminal business off their hands. That was, he considered, a denial of justice to the prisoners, who had a right to be tried by one of the regular Judges. The present Court of Appeal in Chancery gave general satisfaction, and the only objection to it in the eyes of the Bar was that it had not a local habitation, but shifted its sittings from one building to another; at present it was obliged to take refuge in a Committee-room of the House of Lords, opposite a refreshment bar. Strengthened by such Common Law Judges as Baron Bramwell and Mr. Justice Blackburn, it would form an excellent Appellate Court in general.
MR. H. COLEsaid, the Intermediate Court of Appeal was a most incongruous Court. The attendance of the Master of the Rolls increased the arrears of cases in his own Court, and the same in the Common Law Courts, by taking away the Chief Justices to preside in this new Court. Thus the accumulation of business did not belong to the Court of Appeal, which was well able to get through its work, but to the Courts of First Instance. He had been informed only two or three days ago that there were in Middlesex alone as many as 1,000 remanets at Nisi Prius, and the state of things was, he believed, still worse in the metropolis itself. It appeared, indeed, to such a pass had things come that mercantile men, instead of entering their causes, preferred settling them at any hazard. The only remedy for this was an increase in the number of the Judges, and the more so, inasmuch as the tendency of the Judicature Act had been to bring cases from the country up to London and Middlesex for trial. They all recognized the necessity for a strong Court of Appeal, and that they ought to provide at once. He repeated the arrears of business were not in Banco, but in the Courts of First Instance. The great defect of the present Appeal Court was that it had no chief. There was no head to direct its movements, and no 1153 one could tell where it was sitting, or what cases would be heard at any particular time. For his own part, he should wish to see the Intermediate Court of Appeal made as strong as possible, and he concurred in the proposal that two Judges should be placed permanently in the Court, and that it should be done at once, instead of, as now, taking them away from the Nisi Prius when the business was greatly in arrears. The Intermediate Court of Appeal was becoming a most important one, and it ought not to be obliged to have to borrow Judges to get on with its business, and those not always the best. As matters stood, the judicial Staff was unable to cope with the work which it had to do, although it struggled hard, and it was only in the way which he mentioned that the present dead-lock could be done away with.
THE ATTORNEY GENERALsaid, the Bill had been introduced with two objects—the first to strengthen the House of Lords as a Court of Appeal, and the second to strengthen the Intermediate Court. The provisions of the Bill, so far as it dealt with the first object, had met, he was happy to say, with general approval; but the provisions for strengthening the Intermediate Court of Appeal were somewhat different from those which had been originally proposed. Now, he was not one of those who thought that Court had proved unsatisfactory. On the contrary, he thought it had shown itself to be a good and strong Court; but, still, it was defective, because part of its Members consisted of a shifting body. It would be much better that such a Court should consist of permanent Judges, and that it should sit in two Divisions, which it could not well do now without calling to its aid some of the ex-officio Judges, which would not be convenient. That object might be effected by an extension of the plan suggested by his hon. and learned Friend the Member for Taunton. That was to say, by taking three instead of two Judges from the Common Law Divisions of the High Court and placing them in the Intermediate Court of Appeal. And if, for instance, three of the ablest Judges were transferred from the Queen's Bench, the Common Pleas, and the Exchequer, to sit with Lords Justices James, Mellish, and Baggallay, the result would no doubt be that an ex- 1154 tremely strong Court would be constituted. Then came the question, could that be done without creating additional Judges; and if it could not, the matter was one of such great importance, relating as it did to the proper administration of justice, that, speaking for himself, he should certainly advise that new Judges should be appointed. There were, however, some difficulties connected with such an arrangement. A serious financial difficulty had, for example, to be encountered at the outset, for however little some hon. Members might think of an outlay of £10,000 or £20,000, it might not be very agreeable to the Chancellor of the Exchequer. He did not, he might add, agree with his hon. and learned Friend the Member for Taunton in the opinion that there would be any difficulty, if additional Judges were required in procuring good men from the Bar to fill those appointments. He would undertake to provide 20 of the most able and capable men from the ranks of the Bar for the purpose without the slightest difficulty, while as to the diminution of dignity of which his hon. and learned Friend spoke, he did not attach much importance to that argument either. It was, he thought, as dignified a position to occupy to be one of three out of 20 Judges in a country where there was a great amount of business as one of three out of five in a country where there was much less. Indeed, if he could only secure the service of an able and expeditious Judge, he should forgive him if he was not quite so dignified as he might be. But the question remained, could the plan which he proposed be carried out without duly interfering with the Queen's Bench, Common Pleas, and Exchequer Divisions of the High Court? He thought it could, because since the new Court of Appeal had been constituted the Judges of those Courts had in some respects less to do, inasmuch as they had been relieved of the duty of sitting on Appeals in the Exchequer Chamber. If the present proposal were carried there would be 15 Judges left. He took it that there were 220 working days in the year, and if 100 days were occupied on circuit, there would remain 120 days in which the Judges could sit in Banco. Three Judges of the Intermediate Court of Appeal would go on circuit, and consequently 11 other Judges would be required for the 1155 circuits and one for Chambers. Then we should still have three Judges who could sit during the whole of the 220 days for the purpose of disposing of jury trials or Nisi Prius causes. It had been stated by his hon. and learned Friend the Member for Taunton that something like 3,500 Nisi Prius trials had to be disposed of in the course of the year in London and Middlesex alone. If we had a judicial force of three Judges sitting all the year round during the 220 days, and if they took five cases a-day, which would be nearer the mark than three cases, as the hon. and learned Member for Taunton assumed, 3,300 cases would be disposed of. From his own experience he might say it was not an unfair or improper calculation that five causes could be disposed of in the course of a day. Therefore, with three Judges and a little assistance, all the cases in London and Middlesex might be disposed of. Then 12 Judges would be able to sit for 120 days in Banco. There would be three Judges for each Division and three over. In his opinion, if the Judges properly utilized their strength they could get through a vast deal more business than they did at present. For instance, they might to some extent adopt the course pursued by the Chancery Judges. Again, it was absurd for two or three Judges to sit in order to hear applications for rules Nisi. Such applications might, he thought, be made to a single Judge, and when the rule came to be argued, the contentious proceedings might well be disposed of by two Judges. If that were done the Judges would be quite capable of grappling with the business. It had been said that the Chancery Division of the High Court was undermanned. If that were really the case the deficiency must, of course, be supplied by the appointment of additional Judges. It ought, however, to be borne in mind that cases might be transferred from one Division to another, and that in this way the Chancery Division might be relieved of the burdens imposed on it. After all, this was a matter of experiment, and if it turned out that the Chancery Division of the High Court could not grapple with the business brought before it without additional strength, of course additional strength must be supplied. With regard to the Common Law Divisions, we were also in a transition state, and if it 1156 turned out that the business could not be transacted by the 15 Judges who would be left in those Divisions, the Government must undoubtedly apply the only possible remedy—namely, the appointment of additional Judges. There was originally a provision in the Bill which he should propose to omit, to the effect that when two of the paid Members of the Privy Council should die or resign an additional Judge should be appointed to the Intermediate Court of Appeal. Instead of that, he should propose that when two of the paid Members of the Judicial Committee of the Privy Council resigned or died, if it appeared there was a demand for the appointment of a fresh Judge in the Divisions of the High Court, an additional Judge should be appointed. In like manner, when the two remaining paid Privy Council Judges dropped off, another additional Judge might, if necessary, be appointed to those Divisions. The hon. Gentleman the Member for Kirkcaldy (Sir George Campbell), on the debate on the second reading of the Bill, urged the desirability of having Members of the Judicial Committee who were conversant with the laws administered in India and the Colonies, with the Roman-Dutch law, and so forth. No doubt that was desirable. [Sir George Bowyer: It is necessary.] However desirable, he did not think it was absolutely necessary, as Judges of intelligence could quickly make themselves acquainted with the laws which they had to administer. But though not necessary, it was desirable, and accordingly a provision had been made in one of the Amendments for carrying out the suggestion. With regard to the Judicial Committee of the Privy Council, the Government were by the present law authorized to appoint assessors at £400 a-year. The Government thought that that was not a sufficient remuneration to induce competent men to accept the appointment. They therefore proposed to raise the salaries of the assessors from £400 to £1,000 a-year, and they believed that that would be the means of greatly strengthening the Judicial Committee, and there could be no doubt that men of the highest ability would be ready to act with that remuneration.
§ MR. GREGORYsaid, that when the Judicature Amendment Act was first before Parliament, he had proposed an addi- 1157 tion of two Judges to the Intermediate Court of Appeal, which, was carried in that House; but the right ton. Gentleman opposite (Mr. Gladstone) opposed it on the score of economy, and induced the Chancellor of the Exchequer to adopt his views. If that plan had been adopted it would have prevented much of the dead-lock and inconvenience which had since arisen. The salaries of the Judges might be provided by the gradual suppression of a number of small offices, or by the discharge of the duties of certain offices by subordinates. For example, he thought that the duties of associates and clerks of Assize, whatever those duties were, might be performed by Judges' clerks. No doubt, the proposal of the hon. and learned Attorney General would tend to strengthen the Intermediate Court of Appeal. It had always been his opinion that two Divisions of this Court would be necessary, and his prediction had been verified. But the success of the proposal of the hon. and learned. Attorney General depended upon the principle that single Judges should sit in Banco, and the clause carrying out that proposal was so full of qualifications that it would never work in practice, and required further consideration. He approved the principle that sittings in Banco should be assimilated to sittings of the Court of Chancery, and that a single Judge should dispose of such cases; but an increase in the number of Judges was what we must ultimately come to. The Chancery Division required strengthening, not only because evidence was now taken vivâ voce, and much time was thus occupied, but because the Chancery Judges should be enabled to give more time and attention to business in Chambers, which was often very important. The Chief Clerks had made no fewer than 20,000 orders in the course of last year, and the Judges should sit at least one day a-week for Chamber practice.
§ MR. SERJEANT SIMONsaid, he approved up to a certain point of the Amendments which the hon. and learned Attorney General had placed upon the Table; but he wished it to be understood that he supported them only as a temporary means of meeting the difficulty. The true remedy, and the one to which we must in the end come, was an increase in the number of the Judges, a necessity which, from mistaken notions 1158 of economy, the Government had hitherto declined to recognize.
§ MR. CHARLES LEWISalso deprecated the cold-blooded political economy which measured the number of Judges by the purse of the Chancellor of the Exchequer. He could not conceive that anyone who had studied the question could think that the country could have any interest in stinting the number of Judges for the sake of saving £10,000, £15,000, or £20,000 a-year. He rose, however, specially to refer to the trial of Election Petitions. He thought it was very objectionable that the character and fate of Members of Parliament and candidates should depend upon a single Judge. The Committee which investigated the subject last year recommended that all Election Petitions should be tried by at least two Judges. The Government had promised a Bill dealing with the subject, but though they were now within a month of the close of the Session, it had not yet been introduced, and they would probably have another Continuance Bill. The proposal to take three Judges from the Common Law Divisions and add them to the Intermediate Court of Appeal he regarded as utterly inadequate to meet the circumstances of the case.
§ SIR GEORGE BOWYERstrongly deprecated interference with the Judicial Committee of the Privy Council, which had administered peculiar laws to the satisfaction of 200,000,000 of people and of a very large population in the colonies. The Judicial Committee was now composed of men peculiarly conversant with Hindoo and Mahomedan law, and with the Dutch and French Civil Law existing in some of our colonies.
§ SIR ANDREW LUSK,as a mercantile man, complained of the uncertainty, delay, and expense of legal proceedings. Parties could not get a case settled without waiting till they wore sick of waiting. Between delay and expense justice often went to the wall, and a man had much better put up with the first injury than go to law. He hoped this question would be fairly considered, and, if necessary, that additional Judges would be appointed.
§ SIR EDWARD WATKINcomplained that the law was becoming more and more uncertain, more dilatory, more expensive, and more unsatisfactory. Great numbers of cases were waiting for hear- 1159 ing on account of the insufficiency of the number of Judges, and he trusted that the Government would see their way to the increase of the number. He was strongly in favour of the present "wretched system of holidays" being done away with.
§ Question put, and agreed to.
§ Bill considered in Committee.
§ (In the Committee.)
§ Preliminary.
§ Clause 1 (Short title).
MR. LOPESexpressed a hope that the hon. and learned Attorney General would not proceed with the Amendments which he had placed on the Paper that day for the first time. Without some assurance to that effect, he would move that the Chairman report Progress.
THE CHAIRMANintimated that it would not be competent for the hon. and learned Attorney General to proceed with the Amendments referred to, because the Money Vote on which they were founded had not yet been taken.
§ Clause agreed to.
§ Clause 2 (Commencement of Act), agreed to.
§ Appeal.
§ Clause 3 (Cases in which appeal lies to the House of Lords).
§ MR. MARTENmoved, in page 1, line 16, after "England," to insert—
And of Her Majesty's High Court of Justice in England, or of any Judges or Judge thereof; from which an appeal would lie to Her Majesty's Court of Appeal in England, and so that the final appeal may be made immediately, without recourse to the Court of Intermediate Appeal.
§ SIR EARDLEY WILMOTseconded the Amendment.
§ SIR COLMAN O'LOGHLENsaid, he was of opinion that an Intermediate Court of Appeal should be established, but he did not see why people should be forced to go there.
THE ATTORNEY GENERALsaid, he did not see his way to the adoption of the Amendment, the object of which was to avoid the Court of Intermediate Appeal. If the parties agreed to an arrangement to take their case at once 1160 before the House of Lords, they would have the power of doing so; but in important cases he thought it most desirable that the House of Lords should have the benefit of the opinion of the primary Court of Appeal. The effect of the Amendment would be to set up a competition between the two Courts of Appeal.
§ SIR HENRY JACKSONsaid, that in practice the power of carrying the appeal directly to the House of Lords had been found most convenient, and had tended to the diminution of expense, and he knew of no case of hardship having arisen.
§ SIR FRANCIS GOLDSMIDsaid, he could not see the advantage of compelling parties to go through the Intermediate Court, and thereby incurring an additional expense.
MR. H. COLEalso could not see any objection to parties skipping the Court of Intermediate Appeal and going direct to the House of Lords, but he regarded the Amendment as an attempt to get rid of the Court of Intermediate Appeal, in which matters were thoroughly sifted.
§ MR. WATKIN WILLIAMSbelieved that no difficulty existed with regard to cases in Chancery, but thought some difficulty might arise in respect to cases in the Common Law Courts.
§ MR. GREGORYsaid, he was not prepared to admit that no difficulties had arisen with regard to cases in Chancery under the old system.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 4 (Form of appeal to House of Lords), agreed to.
§ Clause 5 (Attendance of certain number of Lords of Appeal required at hearing and determination of appeals).
§ On the Motion of Sir COLMAN O'LOGHLEN, Amendment made in page 2, line 5, by inserting after "Chancellor," the words "of Great Britain."
§ Clause, as amended, agreed to.
§ Clause 6 (Appointment of Lords of Appeal in Ordinary by Her Majesty).
§ MR. CHARLEYmoved, as an Amendment, in page 2, line 15, at end, add—
and shall then only take effect, in case the number of Peers of Parliament for the time being holding, or who shall have held, any of 1161 the offices in this Act described as high judicial offices, shall not exceed five.
§ SIR HENRY JAMESopposed the Amendment.
§ Amendment, by leave, withdrawn.
§ SIR EARDLEY WILMOTsaid, he was of opinion that only persons of judicial experience should sit in the Supreme Court of Appeal, and would therefore move in page 2, line 20, to leave out all after "offices," to the end of line 22.
MR. OSBORNE MORGANhoped the Amendment would not be accepted, as it would limit the area of selection.
THE ATTORNEY GENERALsaid, he could not see his way to accept the Amendment, which would limit the choice of the Lord Chancellor to the Puisne Judges.
§ SIR HENRY JAMESsupported the Amendment. He thought the Minister of the day should have no inducement to appoint a Judge from political motives. They were asked to confer a political vote as well as a judicial appointment.
§ Amendment negatived.
§
Amendment, in page 2, line 27, after "every," insert—
Peer of Parliament for the time being holding, or who shall have held, any of the offices in this Act described as high judicial offices, who shall he present at and take part in the hearing and determination of appeals to the House of Lords, the sum of one thousand pounds a year, such sum to be additional to any sum to which he may be entitled under any Act or Acts by way of pension. There shall be paid to ever,"—(Mr. Charley),
§ by leave, withdrawn.
§ Amendment, in page 2, line 28, leave out "six," and insert "eight,"—(Sir Eardley Wilmot)—negatived,
§ MR. Serjeant SIMONsaid, he should move that the Chairman report Progress. The next Amendment, which stood in his name, involved a question of great Constitutional importance, and in the short interval of 40 minutes which remained before the House must adjourn, it would be impossible properly to discuss so interesting a question. The clause proposed that every Lord of Appeal in Ordinary, not a Peer, should rank as a Baron, and it was provided that he—
shall during the time that he continues in his office as a Lord of Appeal in Ordinary, and no longer, be entitled to a writ of summons to 1162 attend, and to sit and vote in the House of Lords.His proposal was to omit the words, "during the time that he continues in in his office as a Lord of Appeal in Ordinary, and no longer." But the question, could not be properly raised at such a time.
§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Serjeant Simon.)
The ATTORNEY GENERALopposed the Motion, observing that the Committee could very well deal with the hon. and learned Gentleman's Amendment.
MR. OSBORNE MORGANsupported the Motion to report Progress. The Amendment, he observed, was of a very important nature, one touching the very essence of the Bill, and involving the honour and dignity of Parliament. It would, moreover, be followed by other Amendments of almost equal importance.
§ MR. MORGAN LLOYDsuggested that it would be a better course to proceed with the Bill, and to postpone the hon. and learned Gentleman's Amendment.
§ SIR HENRY JAMESadvised the Committee to report Progress, as they had only another half-hour to devote to the Bill at that sitting, and he thought it would be advantageous to the further discussion of the measure, if they did not proceed with it further at that time.
§ Question put.
§ The Committee divided:—Ayes 29; Noes 156: Majority 127.
§ MR. SERJEANT SIMONmoved, as an Amendment, in page 2, line 33, after the word "shall," to leave out the words to "longer" in the following line. The effect of the Amendment would be to omit the words which declare a Peer entitled to a Writ of Summons "during the time that he continues in his office as a Lord of Appeal in Ordinary and no longer." The object of certain Members of that and the other House had, he said, been to retain that ancient jurisdiction which the House of Lords, to their credit and in the interests of the public, had themselves relinquished. He would admit that when Parliament came to establish a Final Court of Appeal for 1163 Great Britain and Ireland it stumbled upon a difficulty as to Ireland and Scotland. It was not satisfactory to those countries to bring their appeals to London to be settled by a purely English Court of Law. He did not, therefore, complain that the Final Court should be so constituted as to meet all the requirements of the case; but if the Government had framed a scheme for retaining the jurisdiction of the House of Lords, he should have expected that the scheme would have been compatible with the dignity of the House of Lords itself, and with the objects for which this new Court of Appeal was about to be established. Instead, however, of creating Peers for life, as the Government ought to have done, if they desired to give proper status and dignity to the post, and to attract men of the same high class as had hitherto occupied the position of Law Lords, what had the Government done? They had created for the first time in our history statutory Peers. He was not aware of a single instance in our legal and political history in which such a thing had been done. It had always been held that the Crown was the source of honour and dignities. He did not, however, complain that the House of Lords had asserted the power of creating a new dignity, but the form in which it had been done was a novelty that had been reserved for a Conservative Government. They had created a class of Peers who were not to be Peers for life, but Peers at will—Peers at the pleasure of the holder—and Peers during good behaviour. These Lords of Appeal in Ordinary would hold the rank of Baron for life; they were to receive a Writ of Summons to the House of Lords as long as they discharged appellate duties, and they would be removable, like other Judges, for misconduct. Would such a proposal be likely to attract the proper class of men, or was it consistent with the dignity of the Peerage? It had been said that these Lords of Appeal would be Lords of Parliament only and not Peers; but such high authorities as the Lord Chancellor, Lord Selborne, and Lord Hatherley had spoken of them as Peers. They had also been compared to the Scotch and Irish Peers, and even to the Bishops; but he contended that there was no analogy whatever between them. Were this proposal carried out, 1164 a weak and ambitious man might cling to office when he was no longer fit for his duties, and a subservient man might truckle to the Government in order to have an hereditary Peerage, while a man of independent spirit who had excited party animosities might be passed over or prematurely relegated to obscurity.
And it being now ten minutes to Seven of the clock, Debate adjourned.
§ House resumed.
§ Committee report Progress, to sit again this day.
§ And it being now five minutes to Seven of the clock, the House suspended its sitting.
§ The House resumed its sitting at Nine of the clock.