§ Order for Second Reading read.
§ MR. DISRAELI,
in moving that the Bill be now read a second time, said:—It may be, Sir, for the convenience of the House that I should state briefly the circumstances which have preceded the introduction of this measure. Some four years have passed since the Government of the day, in the person of Lord Chancellor Hatherley, brought into the other House of Parliament a Bill transferring the Appellate Jurisdiction then in the House of Lords to another tribunal. Upon that occasion my noble and learned Friend (Lord Cairns) felt it to be his duty to oppose that Bill. Lord Cairns, I need not remind the House, at the time had given the best and strongest proofs to the country of his earnestness and sincerity in the cause of Judicature Reform, and he was one of the most eminent Members of the Judicature Commission. He was perfectly sensible of the anomalies and inconveniences which attended the Appellate Jurisdiction of the House of Lords as it existed four years ago; but, although he was prepared to make every sacrifice for the better administration of justice, which must ever be looked upon as one of the principal concerns in political life, he wished to secure that object without losing the traditionary influence which exercises so strong, and, I believe, so salutary, an influence on the conduct and character of the English people. He met Lord Hatherley's measure by moving, as an Amendment, that a Select Committee be appointed, and having succeeded in that Motion, he took the opportunity, before that Committee, of giving an exposition of his views and the means by which the combination 1681 which he desired to see carried out might be attained—namely, the combinations which would secure a satisfactory administration of justice so far as an Ultimate Court of Appeal was concerned, without losing the great weight and authority which the House of Lords possessed. I am bound to say that on that occasion the most candid treatment was experienced by my noble and learned Friend from the late Government. Lord Hatherley and Lord Ripon, who represented that Government on the Committee, finding there was no chance of carrying their original measure, gave to the plan proposed by Lord Cairns their earnest and, I believe, unexceptional support; yet, notwithstanding all that support, the consequence was that in a Committee formed of the most eminent men—men the most distinguished for their knowledge of the subject—there was ultimately great division of opinion. Now, the House must be perfectly aware that under such circumstances there is but little chance for legislation on any subject. It is hardly possible in this country to carry any great change, unless you have the support of powerful public opinion; and when the most eminent authorities seem to differ and be discordant, public opinionis perplexed and becomes inert. The consequence was that in the years from 1870 to 1872 nothing was done on this subject, although there were great complaints in the public mind of the anomalies and deficiencies of the system of Judicature, so far as the question of a Final Court of Appeal was concerned; while, I believe, justice was never done to the great learning, ability, and authority of the House of Lords. In the following year, Lord Selborne succeeded Lord Hatherley as Lord Chancellor, the latter noble and learned Lord retiring on account of his infirmity, the same Government still remaining in office. Lord Selborne had for a long time been one of the most distinguished Members of this House; he and Lord Cairns were both Members of the Judicature Commission, and I think we must say whether we regard their abilities, their great experience, and learning, or the profound sentiment which influences them with respect to the great question of improving our Judicature, they certainly must be regarded as not the least eminent Members of the celebrated 1682 Judicature Commission. Well, Lord Selborne introduced, in 1873, a comprehensive measure, in which he attempted to deal with all the main recommendations of that Commission. He thought it necessary—and so far as his original idea went I believe he was right—to deal at the same time with the question of Final Appeal to the House of Lords, so that his measure, if carried, would have produced a great change and have embodied altogether those views of the famous Judicature Commission on which he had laboured so long, and with whose recommendations the public mind had become, to a great extent, familiar. Lord Cairns was then placed in a very delicate and difficult position. He was as anxious as Lord Selborne that a great reform of our Judicature should be effected; but his opinion on the proposition of that noble and learned Lord for transferring final appeals from the House of Lords to some other tribunal remained the same. He was opposed to that proposal, and there were other points in the measure of Lord Selborne which he did not view with extreme favour. At the time I am speaking of—1873—the most complete apathy prevailed in the House of Lords on a question which was intimately connected with its Privileges; nor was there out-of-doors any particular feeling on the subject. Any opposition at the time to the measure of Lord Selborne, had it been successful, would naturally have inflicted a severe blow upon Judicature reform. His Bill was not a complete measure; it required supplementary legislation, and any display of hostility or Party feeling excited on a subject which of all others demanded the expression of temperate opinions and of convictions swayed by no other considerations than those arising out of the learning and policy and justice of the case, would have created such a feeling that it is very possible that any measures intended to complete the scheme of Lord Selborne would encounter considerable difficulties; and Lord Cairns, perceiving that the cause of Judicature reform generally might be imperilled, and, in fact, at the moment was imperilled, determined to sacrifice the opinions he entertained on particular points, in order to facilitate the carrying of Lord Selborne's Bill. That measure, so far as it dealt with the Appellate Jurisdiction of the House of Lords, was 1683 confined to appeals in this country. Appeals in England were transferred to another tribunal; but the Bill did not touch on that occasion on the case of appeals from Scotland or Ireland. They were left to be dealt with in a Bill which was to be introduced the next year. The Bill of Lord Selborne was passed unanimously by the House of Lords; there was certainly, I believe, no division upon it, and it became the law of the land. It dealt, as I have said, only with appeals from England; it did not include a tribunal for intermediary appeals, which was advocated by Lord Cairns, and it left some points in the recommendations of the Judicature Commission untouched from motives of convenience. It became, as I have said, the law of the land; but, although it passed in 1873, it was not to come practically into operation until November, 1874. Meantime, at the beginning of 1874, a Dissolution of Parliament occurred, which resulted in a change of Ministry, and the first consideration of the new Government was how they were to deal with this great question of Judicature reform, which was not completed by the measure of Lord Selborne, and certainly not in one of its most important parts—that of establishing a tribunal of Ultimate Appeal. The opinions of his Colleagues with respect to the authority of the House of Lords were entirely in accordance with those of Lord Cairns. They believed, as he belived, that if the due administration of justice could be combined with a traditionary influence, such as that exercised by the House of Lords, it would be desirable to secure that object. There was, however, the immense incongruity to be taken into account of having one tribunal of final appeal for England and a different one for Scotland and Ireland. After due consideration, therefore, and with a full sense of the responsibility of their position, they felt it to be their duty to introduce a measure on the same lines so far as related to the Court of Ultimate Appeal as those which had been laid down by Lord Selborne, and consequently Lord Cairns, in 1874, introduced a measure into the other House of Parliament which proposed to transfer the Irish and Scotch appeals from the House of Lords to the new tribunal which had been devised by Lord Selborne, and which was to come into existence in the No- 1684 vember of that year. Lord Cairns, at the same time, introduced provisions for the establishment of a tribunal of intermediary appeal, and dealt with points in the recommendations of the Judicature Commission, which had been purposely omitted for the sake of convenience by Lord Selborne in the previous year. Hon. Gentlemen will remember that the Session of 1874 was curtailed of its fair proportions. A Dissolution of Parliament, a General Election, and the formation of a new Ministry are circumstances which, I think, must diminish the Session by nearly one-third of its duration. In addition to that, one of those questions which are not introduced by a Government, but round which the feeling and passion of a nation occasionally and almost periodically cluster was introduced into the other House by a distinguished Prelate, the Public Worship Regulation Bill, which being sent down to this House was moved by a private Member, so engrossed the attention and time of the House that it would have been impossible to introduce the measure sent down from the House of Lords, which measure, if it had been then passed, would have concluded the question of the whole fabric of our Judicature, and entirely settled the issue of Ultimate Appeal. When Parliament met at the beginning of last year we had to consider what course we should take with regard to this question, which had not been settled owing to the circumstances to which I have referred. We could not help remembering, in coming to a decision, that the Bill introduced by Lord Cairns in 1874 had passed through the House of Lords almost unanimously, and that the Appeal was already taken from the House of Lords as regarded all English cases. We, therefore, felt it was our duty, and at the same time only respectful to the House of Lords, that the same Bill which they had unanimously passed in 1874 should, again be presented for their consideration. But it so happened that in the interval a considerable revolution had occurred in the opinion of the House of Lords itself and of powerful Parties outside that House. The subject had been deeply considered and acutely felt, and instead of that state of perfect apathy which was originally found to prevail by the present Lord Chancellor when he had to deal 1685 with the question, he found the utmost excitement. He found there was great opposition, proceeding not merely from his own Friends, and not confined to his own side of the House, but also including many of his habitual opponents. A feeling was expressed on the part of the House of Lords which made it impossible to doubt that the fate of the Bill would be different from what it was in 1874. Outside the House that sentiment was, I may say, even stronger. Influential classes, supposed to be particularly capable of offering an opinion upon this question, had made themselves heard. Ireland and Scotland had expressed their sentiments in a manner which could not be misunderstood; and in every way in which a Government can learn what opinion is, we found that we were on very dangerous ground if we contemplated settling the question of Judicature Reform, and of carrying this considerable change in a manner which would recommend itself to the unanimous feelings of the country. The result was, that Her Majesty's Government withdrew the Bill which they had brought forward in 1875, and which had passed through the House of Lords in 1874. There certainly did, from that proceeding, at one moment appear to be a disastrous and dismal chance of the great changes which had to be accomplished being postponed for a considerable time; but, as it was, we succeeded in passing a short Bill, which delayed for another year the operation of Lord Selborne's Act. Well, we felt it our duty this year to consider what we ought to recommend to Parliament on this subject, for it appeared to us that it could no longer be neglected. The delay which had occurred in the formation of the High Court of Justice, provided for by the Bill of Lord Selborne, being in itself a grievous calamity. We had to consider, in the first place, what were the principles upon which the High Court of Final Appeal should be established, and we had to reconcile, if possible, the establishment of such a Court with its remaining in the House of Lords. We laid down four considerations—I believe I may call them principles—for our regulation. First of all we were of opinion that the Final Court of Appeal should be similar for the United Kingdom—namely, that it should be the same for England, Ireland, and Scotland. Second- 1686 ly, we felt that we must provide that it should be an adequate Court—adequate in learning and trained intelligence, and in the high authority and character of its members. Thirdly, we felt that the Court ought to be a continuous Court—that its sittings ought to be continuous during the whole period of the legal year; and, fourthly, it was our opinion that we ought to regulate the expenditure of the Court and to obtain as economical an administration of justice as was possible. These were the points which we had before us, and these are the points which we have endeavoured to provide for, among other matters, in this Bill. With regard to the first point, what we propose in this Bill is that the Court of Ultimate Appeal shall remain in the House of Lords. We propose that a certain number of the Members of that House shall be Lords of Appeal. The Lord Chancellor will, of course, be one, and all Members of the House who have filled that exalted position will be Members of the Court, as will all other Peers who have filled judicial posts of a high character. Besides this, we propose that there shall be two Lords of Appeal in Ordinary, chosen from the Bench or from the learned Bar, who shall be summoned to Parliament as Barons, who shall exercise their privileges as Barons while they hold these offices, and who when they have ceased to hold them will still possess the rank. We propose that they shall receive a salary superior to that of a Puisne Judge, but inferior to that received by the Chiefs of the Benches. We believe that in this way we shall certainly secure a tribunal similar for the United Kingdom. We believe, also, that we shall secure an adequate Court—a tribunal which, by its learning, skilled intelligence, and weighty character, will command confidence and respect. We further propose that at no time—although there will doubtless be many instances when the attendance will be greater—shall any cause be heard by fewer than three Lords of Appeal. We believe that these proposals will secure a similar Court and an adequate Court: and now I have to consider the question of the continuity of the sittings. We have provided in this Bill that that continuity shall be secured by enacting that the Lords of Appeal shall sit during the Prorogation of Parlia- 1687 ment, and that they shall hear every issue which has been entered on their record previous to that Prorogation. The fourth point—namely, the attainment, if possible, of a more economical administration of justice—is a subject more difficult to deal with. In the first place, the expenditure on a cause before the House of Lords arises mainly from three causes. First of all, it arises from the fees of the Court; secondly, from the great expenditure incurred by every document being printed which is placed before the Lords of Appeal; and, thirdly, from the cost for professional remuneration. With regard to the fees of the House of Lords, as far as I am informed and can learn, they in no way differ from the fees which are levied in our other important Courts; and certainly no reduction in them would sensibly influence the cost of the suit. With regard to the second point, there is no doubt that the expenditure occasioned by printing all the documents which are placed before the Lords of Appeal is very great. But when we remember how the clearness of a man's judgment is assisted when he reads a printed instead of a manuscript document, and how much the perspicuity of his intellect and his quickness of perception are promoted and assisted by such conditions; and when we remember the great—I might almost say the awful—responsibilities that attends a Judge who is deciding in Ultimate Appeal, I think we should hesitate before we sanction, for the sake of economy, the recourse merely to manuscript documents. Hon. Members can judge from their own experience when they have to read Blue Books and Reports of Evidence before Committees how their studies are facilitated by having printed documents. Therefore, I cannot hold out any expectation that there will be a reduction of expenditure by altering the existing system. I will now say a few words about professional remuneration, although it is a subject beyond legislation. A suitor will obtain, if he can, as his advocate the man most distinguished for eloquence, learning, and acuteness. He will have the best representative and the best adviser, and in order to have them he will take care that the remuneration which he offers is at least not inferior to that which would be offered by another suitor. That will go on, notwithstanding any sumptuary laws re- 1688 specting remuneration which we might pass. We might as well attempt to pass a law that a portrait painter should not receive more than a certain sum for his portrait, and then suppose that Vandyke—I will not mention any living artist—would always receive, in consequence of that law, the same remuneration. This is a subject of expenditure which, of course, we must leave to the House of Parliament in which these proceedings take place; but it is due to the House of Lords and to the Bill which I am now asking the House to read a second time to state that no effort has been omitted to diminish the cost of these proceedings. A Committee of the House of Lords met to consider the question generally, and a permanent Appeal Committee, of which the Lords of Appeal will be Members, has been appointed to, continuously during the Session, review the expense and observe the course and progress of these proceedings. My own opinion, if I may presume to give it, is that after all the best security for cheap justice is prompt justice. It is not the amount of the fees of the Court; it is not the costliness of the proceedings, even if the documents are printed; it is not the professional remuneration that causes the extraordinary expense sometimes incurred by those who are suitors: but it is the delay—it is the fact that arrears are perpetually accumulating. I have now placed before the House the outline of the scheme which they will find in this Bill for the formation of a Court of Final Appeal. It will consist of many ex officio Members, the Lord Chancellor, those who have filled the office of Lord Chancellor, men who have filled high judicial offices, and of two Lords of Appeal in ordinary. A Tribunal adequate in learning will always be secured by making three a quorum. The sittings will be continuous during the whole of the legal year, and every effort will be made to reduce and regulate the expenditure. When we lay it down as of great importance that the Tribunal of Ultimate Appeal should be similar to the whole of the United Kingdom, the House I know will feel the incongruity that, while you are making great efforts and great sacrifices to attain this result, there are still millions, and many millions, of Her Majesty's subjects, in her Indian Empire and in her other numerous Dependencies, who when they appeal to Her 1689 Majesty do not appeal to Her Majesty in either of the Houses of Parliament, but appeal to Her Majesty in Council. And there seems at first some inconsistency in our making sacrifices to obtain a similar tribunal of appeal for the United Kingdom, and leaving the appeals from India and the colonies to be addressed to another tribunal. Therefore, Her Majesty's Government are of opinion that it is a matter of great importance that some connection should be established between the House of Lords as regards the subject of final appeal and the Committee of Privy Council. The Committee of Privy Council consists of many ex officio Members, of men of very great learning and distinction. It also consists, under a comparatively modern Act, of four salaried Members, who are, of course, Privy Councillors, and who generally decide the appeals in the Privy Council. When a vacancy occurs by death or resignation among these four salaried Privy Councillors no successor can be supplied to them by Her Majesty. It is provided by the Act that we must come again to the Legislature upon the subject; and, therefore, when we are dealing with this question, that is a consideration which the House should bear in mind. What we propose is this—that, whenever there are two vacancies among the four salaried Privy Councillors, a third Lord of Appeal in the House of Lords should be appointed, and that when, either by death or resignation, there are again two vacancies among the salaried Privy Councillors, a fourth Lord of Appeal in the House of Lords should be appointed. And when that is consummated, we propose that the appeals in the House of Lords and in the Privy Council shall be decided by the same individuals, and the duties of the four Lords of Appeal will be in both Courts, if I may use the expression. It will be a Tribunal divided into two Courts. After that statement the House will naturally like to know what chance or rather what certainty there is if such a change is agreed to, that we shall be able to provide sufficiently for the administration of justice, and yet terminate those arrears of which we have heard so much. As far as I can learn, the average of the cases in the House of Lords and in the Committee of the Privy Council together may be taken at 250. Certainly 300 would, I think, be a safe, but at the 1690 same time a somewhat exaggerated calculation. But we will take the number of 300. The legal year consists of 200 days, and the House will, therefore, see that if this arrangement is acceded to the four Lords of Appeal, assisted frequently, of course, by the ex officio Members, will easily, I might say completely, transact the business of appeal of the country in the year, so that we may look forward to a state of affairs which will not admit of arrears. It may be asked, if this will be a desirable arrangement and an effective one, as I believe it will be, why do you not propose that it should at once come into operation? Well, no doubt, logically that ought to be our course, but I believe it is a rule of Parliament never to be logical in legislation. The Committee of Council has a high reputation. It possesses, deservedly, the confidence of the Empire and of the suitors. It transacts at this moment its business with unrivalled efficiency, while in the House of Lords there is no want at the present moment of men of great learning who act as ex officio Lords of Appeal. Probably there never was a time in which the House of Lords has been so distinguished as at present for its legal accomplishments and erudition. And, therefore, we have thought it would be better to leave this great change to the course of time rather than to make a violent alteration which might perplex and alarm those who are accustomed to look with confidence to the Committee of the Privy Council. Besides, there is a great disadvantage in forcing a sudden change upon the Bench or Bar. So far I have confined myself to the main business of this Bill, and have explained to the House its purport, as far as regards the institution of a Final Court of Appeal. If the House will consent to pass this measure, we shall have secured what we always look upon as a great object—namely, similarity of appeal for the whole of the United Kingdom, and ultimately for the whole Empire. We shall have provided a Court adequate for the transaction of the business that will come before it, and inferior, probably, to none that ever existed in learning and character; we shall have terminated one of the just causes of complaint in this country—namely, the sudden termination of otherwise satisfactory labours by a prorogation of Parliament; we shall have pro- 1691 vided for the continuous sittings of the Court of Final Appeal, and shall have done what we could do to set an example of administering justice in an economical manner. There is, however, in this Bill an important provision upon another subject to which I will briefly advert, and that is the Intermediate Court of Appeal. The Intermediate Court of Appeal was carried by a Bill last year. The Intermediate Court of Appeal consists of several ex officio Members—I am not sure whether they are less than eight—and three salaried Judges. It was a proposal that was received by some with great doubts as to its probable success. It was always the opinion of Lord Cairns that a Court of Intermediate Appeal was absolutely necesssary. If the appeals had been transferred to the new tribunal which Lord Selborne devised, it might be a question whether an Intermediate Court of Appeal would be necessary. But it appears to me that if you restore to the House of Lords the functions of a Final Court of Appeal, it is absolutely necessary to allow an intermediate appeal; because it appears, from the number of appeals, that it would be absolutely impossible for the House of Lords, though it might under these regulations sit during the whole legal year, to cope with the business before it. No doubt a suitor who has a great stake of any kind, such as being interested in a large estate, will not be content until he has the decision of the Court of Final Appeal. But there are many suitors who wish for an appeal, but are satisfied with an intermediate appeal, and there is a great deal of business done by the Court of Intermediate Appeal which I will not say would be frivolous and insignificant, but which it would be out of keeping to bring before the House of Lords. It has been said that the Court of Intermediate Appeal proposed in the Act of last year was one in which we should see the weakness of the Exchequer Chamber renewed. But I apprehend that that has not been the case, and that it has transacted its business satisfactorily. I would not presume to say, after the slight experience we have had of judicial reform, that the High Court of Justice has been perfect in all its particulars. It would be rash to draw definite conclusions on the subject. We must wait to see the result of the great experiment before we can arrive at a conviction upon which 1692 we can rest. But still, I think I am not wrong in saying that the public expectation has not been disappointed, and that every one feels that the change is adapted to the spirit of the time and the circumstances of the country, that it will secure the due administration of justice, that all the questions brought forward will be treated with adequate learning and a promptitude of decision which is equally important, and so far as we can see the effect of the whole fabric, the reform of our Judicature is one upon which we can look with satisfaction. But, apart from this, it is of great importance that we should strengthen the Intermediate Court of Appeal, looking to the fact that the business of the Court is constantly increasing, and that business is at present virtually transacted by the three salaried Judges. No doubt, there are occasions when the ex-officio Judges assist, and there are occasions when it is advisable that there should be a stronger Bench numerically than three Members. The House will recollect that I called their attention to the circumstance of vacancies occurring in the salaried Members of the Privy Council. I reminded them that this Bill proposes, in the case of two vacancies, that there should be a third Lord of Appeal, and, in the case of two more vacancies, that there should be a fourth Lord of Appeal appointed. With regard to the other two vacancies, we propose when they occur that there should be two Judges added to the Court of Intermediate Appeal. Then there will be for the Court of Appeal the Lord Chancellor and four salaried Judges in the House of Lords, who will transact the judicial business of the House of Lords and of the Committee of the Privy Council, and five Judges who will transact the business of the Intermediate Court of Appeal. When the measure was brought into the House—I think last year—there was a proposition to reduce the number of existing Judges by two. That proposition was refused, and I am not sure that the decision was not a prudent one, because we have to deal with a great mass of arrears, and we think it highly desirable that this greatest of all grievances should be kept down. But I cannot help believing that when the whole of this machinery—should the House sanction it—is brought into play, it will be in our power, with due regard to the adminis- 1693 tration and the satisfactory discharge of Public Business, to effect that reduction. In that case, with the four Lords of Appeal and five Judges of the Intermediate Court, making nine in all, you will have, though the duties are distributed in a different manner, exactly the same number of Judges as was proposed by Lord Selborne's celebrated Act. I mention that lest you may suppose that in the scheme I have laid before you there is an unnecessary piece of public expenditure. I have now endeavoured to put before the House, without wearying it, the leading features of this scheme. It has been a difficult and anxious duty to bring even to this point the proposition which I have now to make to the House. I have no doubt there has been much sacrifice of feeling on the part of many persons and parties in agreeing to this arrangement. But it is not looked upon by us as a compromise, but as the result of the convictions of men and of Parties that the time had come when our system of Judicature ought to be completed, and that the best and the only mode has been proposed—a mode which would combine a better administration of justice with regard to final appeals with all the traditional influence which has so great an effect upon the character and conduct of the people of this country, and without which it is doubtful whether a High Court of Ultimate Appeal ever would command the unanimous confidence and reverence so desirable. I beg, Sir, to move the second reading of the Bill.
§ Motion made, and Question proposed,
§ "That the Bill be now read a second time."—(Mr. Disraeli.)
§ SIR HENRY JAMES
said, the House would feel indebted to the right hon. Gentleman for the clear indication he had given of the provisions of the Bill. They must all agree with the right hon. Gentleman that the time had come when the settlement of this question of an Appellate Court became an absolute necessity. There would be a probable agreement of opinion in much that had been stated by the right hon. Gentleman in relation to this matter; but there were, however, some statements in reference to the history of the subject which could not pass without some comment. The right hon. Gentleman had given somewhat of a résumé of the his- 1694 tory of the attempts at legislation with respect to appeals, and had made references to the conduct of persons which were certainly new, and had taken some who heard him by surprise. He appeared to feel it was almost necessary, if not to defend, at least to make an apology for, the course Her Majesty's Government had pursued, and he founded that apology on matters over which the Government had no control, and which arose out of a change in public feeling. The right hon. Gentleman had suggested that when in 1873 Lord Selborne introduced the original Judicature Act in the House of Lords, Lord Cairns entertained the opinion on this subject which he now entertained, and that he was always inclined to support the policy to which effect was given in this Bill. But when the Bill of 1873 was introduced there were two prominent principles contained in it, so far as this Appellate Court was concerned; the first was the removal of the jurisdiction of the Appellate Court from the House of Lords, the second the abolition of an Intermediate Court of Appeal. He understood the right hon. Gentleman to say that at that time Lord Cairns expressed in Committee an opinion in opposition to the principles of that Bill, and that he yielded his opinion either to the necessity of the time, or in deference to the opinion of others. He (Sir Henry James), however, had always understood that at that time Lord Cairns was entirely in accord with the views of Her Majesty's Government; and he expressed himself as agreeing with the leading principles of the Bill—that the House of Lords was no longer to constitute the Court of Appeal, and that there was to be no Intermediate Court of Appeal. It would be found on reference to his speeches, that he had spoken to the effect that he had indicated his views on the subject to his noble and learned Friend Lord Selborne, that he refrained from putting Amendments on the Paper, lest it might be supposed that he desired to delay, much less endanger, the measure; and that he was glad to have an opportunity of stating that in all that concerned its outlines and main provisions, that Bill had his entire approval, and he would be sorry to do anything to endanger its passing that Session. The House now, however, learnt for the first time that the noble and learned Lord had always entertained 1695 the view that the House of Lords should retain its power as an Appellate Court, and that there should be a Court of Intermediate as well as of Final Appeal. When the Measure of 1873 came before the House, the right hon. Gentleman himself had most clearly expressed opinions with reference to it which coincided with those held by Lord Cairns. In fact, the whole responsibility of the measure of 1873 must be shared by Lord Cairns as well as the Government of that day, and by the right hon. Gentleman. If Lord Cairns's views were such as were then described, he had a majority in the House of Lords which could have given effect to them, and there was no reason why he should have yielded his opinion. It was strange, therefore, that the House should be now told that Lord Cairns and the right hon. Gentleman himself had always been opposed to depriving the House of Lords of its Appellate Jurisdiction, and in favour of the establishlishment of an Intermediate Court of Appeal. But not only were the views to which he had referred entertained by the Lord Chancellor and by the right hon. Gentleman in 1873, but they were embodied in the Bills introduced, upon the responsibility of the present Government, with the same majority as they now have, in 1874 and 1875, which provided for the transfer of the Appellate Jurisdiction of the House of Lords to a new Court of Final Appeal, and made no provision for the establishment of an Intermediate Court of Appeal. Now came the influences to which reference had been made. His hon. Friend the Member for Salford (Mr. Charley), having nothing else to do in the Long Vacation, concluded an alliance with the hon. Baronet the Member for Wexford (Sir George Bowyer), and forming a Committee in St. James's Place, they brought into play that amount of public opinion which influenced Her Majesty's Government in coming to a decision. [Sir George Bowyeron: Hear, hear!] Of course, it was satisfactory to the hon. Baronet to find he was able to change the opinions of Lord Cairns and of the Prime Minister, and so to effect a change in the character of their Bill. He (Sir Henry James) was not prepared to criticize what had in this case been called public opinion. It was not the first time the influence of St. James's Place had been felt in this House. 1696 There appeared to be about St. James's Place a sort of stagnant atmosphere, producing on the minds of those who gathered there a feeling unfavourable, at all events, to reforms of a revolutionary character, or to such as were proposed without full consideration. He therefore contended that it was St. James's Place influence, and not that of public opinion, that had brought about this change in the minds of the noble and learned Lord and of the right hon. Gentleman. They had now, however, to deal with that as a practical question, and knowing the power which Her Majesty's Government possessed in that House, of carrying out their views when they had once determined upon them, it would, in his judgment, be well for the House to accept this Bill, and to permit it to be read a second time, subjecting it, of course, to a fair amount of criticism. Assuming, however, that the measure was a good one, he thought that the credit for suggesting it should be given, not to Her Majesty's Government, but to the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams), who, names being changed, had suggested its main provisions in a letter which he had written to The Times on the 25th of March, 1875. That letter was as follows:—That letter was, in fact, the Bill before the House. He now came to consider the question whether, in fact, the great principle of the retention of the Appellate Jurisdiction of the House of Lords, for which the St. James's Place Committee had struggled so manfully, had in reality been maintained. The great evils which Lord Selborne and the Government of 1873 were anxious to remove were these—that, in the first place, the House of Lords was a political, and not a judicial body; that it sat for judicial purposes only at those periods of the year when it sat for legislative purposes; that the time it devoted to judicial purposes was inadequate to enable it to discharge its duties properly; and that its judicial strength was insufficient. He maintained that in what was proposed to be done by this Bill, the whole of the substance of what had been contended for by the Committee of St. James's Place had been given up, and that the name, and nothing but the name, of the House of Lords, had been retained—a rather barren victory on their part. Those who had suggested the measure of 1873 ought to be well satisfied with the present measure. True it was that in future the causes would be determined in the chamber in which the House of Lords sat, but the Judges who would determine them would be altogether distinct as a body from that House. Experience taught that where there were paid Judges and Judges who existed only in an ex officio capacity, the whole of the duties would eventually come to be performed by the former alone. In this case as soon as the four paid Judges of Appeal existed in the House of Lords, they would be really the persons performing the duties. They would be Peers—and again they had the name—but they would be Peers because they were Judges, and not Judges because they were Peers. Another object they sought—namely, that there should be a judicial tribunal sitting not only when Parliament was sitting, was given under this Bill. The House of Lords, when Parliament was not sitting, would be sitting as a Court of Appeal by the provisions of this Act. If all that was satisfactory to the Gentlemen who fought for what they called a great principle, they who had obtained the substance of what 1698 they fought for, would not be behaving properly if they offered any unfair opposition to the Bill. On the whole, therefore, those who had struggled for the substantial reform ought to be fully satisfied with the success they had gained, and might leave those who were opposed to the change to console themselves with the triumph they had obtained in retaining the empty name of the House of Lords as the title of the new Final Court of Appeal. With regard to the second portion of the Bill which dealt with the continued existence of the Judicial Committee of the Privy Council, it involved a practical question, and one of serious importance when considered in reference to the subject of the Intermediate Court of Appeal. As regarded the Intermediate Court of Appeal, it was true there was no direct legislation, but indirectly there was much, and if the right hon. Gentleman who had moved the second reading of the Bill assumed that the existing Intermediate Court was to continue because up to the present it had been found satisfactory, he set out with a very erroneous impression. The general public could not know very much on a subject of this kind; but if the right hon. Gentleman would seek the opinions of those connected with the practice of the law, he would, with few exceptions, hear the existing Intermediate Court described in terms of disapproval. The opinion of the Lord Chancellor might be opposed to this view, but the noble and learned Lord was scarcely in a position to take a perfectly accurate view of the subject. He could only speak of the Court as it was when he was sitting as a Member, and on those occasions it was vastly different from others when he was not present. The Court would be satisfactory, no doubt, when made up of the Lord Chancellor, Judges borrowed from the Primary Courts, and further strengthened by the Master of the Rolls, who, when hearing appeals was, from no fault of his own, neglecting the business of his own Court in Lincoln's Inn. But when constituted under other conditions it was not possible to regard the Court as satisfactory, and it should not be formed in such a manner. It was clear from the proposals of the Bill that in the opinion of Her Majesty's Government reforms were necessary, but no prompt remedy was proposed. Surely, in a case of this kind, if it was considered important 1699 to alter the constitution of a Court, that alteration should not be dependent upon the length of time to which the life of a member or members of the present Court might extend, but should be made at once. If satisfactory, the existing Court should remain as at present; if unsatisfactory, it should be remedied without delay. Another objectionable feature of the Bill to which he wished to refer was that, for the first time, it gave to the Minister in power patronage of a combined nature, for it would enable him to appoint as Judges lawyers whose presence would not strengthen the Court, but might either increase the influence of the Government in the House of Lords, or enable it to reward services other than legal which had in times past been rendered to the political Parties with which they were connected. He, however, thought the public would desire to see every safeguard imposed, so that the appointment of these Judges should be for their merits, and not for their Parliamentary support. The only suggestion which he could make would be that the provision of the Bill that allowed the appointment of barristers of 15 years' standing should be struck out, and that the appointment should be confined to those who had for a certain number of years sat in the Primary or Intermediate Court. They would thus be Gentlemen who had been removed from the action of political favour, and would have given some proof of their ability.
- "1. That, in place of Lord Selborne's High Court of Appeal the existing Court of Lords Justices of Appeal, with an increased number of Lords Justices, should be retained, and form a Division of the High Court of Justice of the Supreme Court of Judicature.
- "2. That there should be an appeal from all Divisions of the High Court of Justice to the Lords Justices of Appeal, and from the latter Court to the Imperial Court of Appeal of the House of Lords.
- "3. That the Crown should have power to confer a limited number of judicial Peerages upon Judges during their holding office, either as Chief Justices or Lords Justices of Appeal, or paid Members of the Judicial Committee of the Privy Council, and that these Judicial Peers, together with all other Peers who hold, or have held judicial office, should hear and dispose of all appeals in the Imperial Court of Appeal of the House of Lords, and that Lords Justices thus appointed Judicial Peers should be relieved from attendance in the Intermediate Court of Appeal.
- "4. That, by Order in Council, all appeals to Her Majesty in Council might be referred to the Imperial Court of Appeal of the House of Lords.
- "5. That the appellate business of the House of Lords should be disposed of at such times, and in such places, and in such manner generally as to the number of Judges and other mat-
1697 ters as may from time to time be directed by Standing Orders of the House."
§ MR. MARTEN
said, he was clearly of opinion last year that the course then taken by the Government tended strongly in the direction of a satisfactory solution of the great judicial problem before them. In the fusion of procedure in the administration of the two great principles of Law and Equity they had a basis of operation which, in judicious hands, could not fail to result in the satisfactory determination of many questions of judicial re-construction which had long occupied them. Whatever the hon. and learned Member for Taunton (Sir Henry James) might choose to say to the contrary, so far from the Lord Chancellor having changed his mind in reference to the Court of Appeal, as had been supposed, his course had been entirely consistent throughout, and in accordance with the opinions of those with whom he generally acted—that was, a most evident and most earnest desire to 1700 produce a system of Judicature which should have the advantage of the most perfect economy of judicial power. What was mainly desired was that satisfactory Courts of Intermediate and Final Appeal should be constituted, and, as far as he could judge, the measure under consideration would achieve these objects. The House of Lords had always discharged the judicial functions in trusted to it in a manner which commended itself to the approval not only of England, but of Scotland and Ireland also, and he thought it would be unwise rashly to interfere under the circumstances. He, however, believed that our most distinguished Law Reformers, headed by the Lord Chancellor, were desirous of creating and maintaining a Court of Ultimate Appeal, in which the Profession and the public would have the utmost confidence. With reference to what had been said by the hon. and learned Member for Taunton on the subject of the Intermediate Court of Appeal, he must say that, so far as he could learn, the decisions of that Court had given unqualified satisfaction. He was altogether unaware of the existence of any feeling of dissatisfaction as to the constitution of that Court, except as to its fluctuating and casual character, as to which he concurred with the hon. and learned Member that it was desirable the Court should be a permanent one, and that its Members should not be casually selected. Then, as to the appointment of additional Judges, the proposal of the Government that two additional Judges should be appointed for the express purpose of strengthening the Court of Appeal was at first virtually agreed to and adopted by the House, during the discussion on the Judicature Bill last Session, but the proposal was abandoned—as he understood—in consideration of the opposition it met with from a high quarter at the other side of the House. The question was not a new one, and if the hon. and learned Member for Taunton would propose that there should be two additional Judges in the Court of Appeal, it would no doubt receive favourable consideration. The House should remember this fact in reference to the Court of Appeal—that unquestionably its work was accumulating very rapidly, notwithstanding the circumstance that two Courts of Appeal had usually sat. 1701 In January last there were 69 appeal cases; in March, 86; in April, 107; and on the 12th June, 120 cases waiting for hearing. There were 43 Chancery appeals now waiting for hearing, whilst in Easter Term, 1875, there were only 11, and in Trinity Term 13. As to the business of First Instance, his own opinion was that it was impossible that in the Chancery Division the number of Judges could be reduced; for the increase of the arrears of business had been rapid, and he might say alarming; the number of causes awaiting hearing in Easter sittings last year being 288, while in Easter sittings of the present year the number amounted to 412. In the Court of the Master of the Rolls and the three Vice Chancellors' Courts the increase was also great and progressive, there being in Trinity Term, 1875, 328 causes waiting for hearing, whilst now the number was 502; and there was no hope that these four learned Judges could keep down the arrears, more especially as the necessary absence of the Master of the Rolls from his own Court in order that he might sit in the Court of Appeal involved a great diminution of judicial strength, as well as the closing of that noble and learned Lord's Court. In the Easter Sittings, 1876, which comprised 34 working days the Master of the Rolls sat only 14 days in the Rolls Court, and was absent from it and sitting on appeal for 20 days. So far, then, from there being a likelihood of the House being able to reduce the number of the Judges, it appeared to be obvious that the appointment of another Vice Chancellor would be absolutely requisite for the discharge of the business with anything like necessary speed. The examination of witnesses vivâ voce in Chancery under the new practice tended much to prolong the tearing of new causes. With respect to the limitation of the Lords of Appeal to those who for a certain time had discharged judicial functions, he could only say that no doubt it was most important to get men of high eminence for Judges of Appeal, but that was no reason for restricting these appointments to those who were already Judges; for men appeared from time to time who might well be appointed to the Court of Appeal in the first instance; and it would be somewhat strange that a barrister might be called to the highest 1702 legal office—that of Lord Chancellor—and yet not be eligible for the office of Lord of Appeal. Then, with respect to the right of appeal, he would, so far as England was concerned, suggest that that right might be extended by allowing an appeal not only from the Intermediate Court, but from the Divisional Courts direct, without the necessity of appealing to the Intermediate Court. An Intermediate Court of Appeal was often useless, because when it had once decided a point, it was much better to take a similar case straight to the House of Lords to be reviewed, without the expense and delay of an argument before the Intermediate Court. There was nothing novel in the principle of the propositions contained in the Bill, and he hoped the House would give it a second reading.
§ SIR WILLIAM HARCOURT
said, he did not rise for the purpose of prolonging the debate; but he felt bound to say, that if the Government had pursued a consistent course from first to last upon the subject, it was one of a most remarkable character. Let the hon. and learned Gentleman the Member for Cambridge (Mr. Marten) recur to the authentic records of Parliament, and he would find that the real state of the case was very different. It was certain that in 1873 the Members of the present Government supported the proposal to do away with the House of Lords as the final Appellate Tribunal, and the right hon. Gentleman at the head of the present Government entered into an able argument to induce the House to support that proposal. The right hon. Gentleman then stated that the subject had been long considered by the Profession, the suitors, and the Government; that the principle had been perfectly settled, and that there was to be only one Court of Appeal. In 1874 the present Government came into power, and they made the same proposal. They were then masters of the situation. That House was not permitted to refer to the debates of the House of Lords, but they might refer to the Journals, and he found that Lord Redesdale, being extremely anxious to prolong the judicial existence of the House of Lords, moved a Resolution to the effect that it was admitted that the House of Lords was preferred by Scotland and Ireland as a Final Court of 1703 Appeal to any other, and that as a satisfactory Court of Final Appeal had not yet been established for England, it was expedient that time should be allowed for making such improvements as might perfect the constitution of the House as a Final Court of Appeal. That Resolution said, in effect, that the legislation of 1873 was not satisfactory, and that it was not desirable to abolish the judicial authority of the House of Lords. The first name in the division which negatived that Resolution was that of the Lord Chancellor. Lord Derby also voted against it, and how, then, could it be said that the conduct of the Government had been entirely consistent? In 1875 an Intermediate Court of Appeal was certainly constituted, but it was a merely provisional measure in order that the proposal to prolong the judicial existence of the House of Lords might be re-considered, and now in 1876 it was proposed to retain the House of Lords. But apart from the controversy as to consistency there was the graver one as to whether they were to have an adequate tribunal. Of course there was no use arguing against the many legions who supported the right hon. Gentleman at the head of the Government. All he said was that it was deeply to be regretted that the policy those legions now enabled the right hon. Gentleman to maintain was not the policy they enabled him to maintain in 1874, but an exactly opposite policy. He deeply regretted that Her Majesty's Government should have changed their opinions on this matter. He would not attempt to discover the motives which had induced them to support Lord Selborne's Bill in 1873, a similar Bill in 1874, and the same principle, in 1875, and afterwards to change their views. They all remembered the memorable scene in the House of Lords, when the Lord Chancellor of a Government commanding a large majority, to his own great regret, withdrew a Bill approved by the Cabinet, supported by the Prime Minister in the House of Commons, and sanctioned by both sides of that House. It was, however, necessary, as his hon. and learned Friend the Member for Taunton (Sir Henry James) had said, to make the best of a bad bargain. For himself, he admitted, he had always desired that there should be only one Court of Appeal, instead of an Intermediate Court of Appeal, because these 1704 perpetual appeals were a great grievance to the poorer subjects of Her Majesty, and ended in favour of the suitor who had the longest purse. These principles, however, after having been thus accepted for three years, and after being supported, as he had said, by the right hon. Gentleman at the head of the Government, was now thrown over, and an Intermediate Court of Appeal was to be retained. He thought every member of the Profession would agree with the hon. and learned Gentleman the Member for Taunton in his criticism upon the existing Intermediate Court of Appeal. He (Sir William Harcourt) thought what his hon. and learned Friend said was very true, that the last person to form a correct estimate of the Court was the Lord Chancellor, for it was quite a different Court when that noble and learned Lord was present. The Bar were then treated with courtesy, and his presence gave a weight and a dignity to the Court which he was afraid it did not always possess in his absence. He must confess that if anything would reconcile him to the continuance of the House of Lords as a Court of Appeal, it was that that judicial dignity which was so important a partin the administration of justice was always found there, although it was sometimes missed elsewhere. He still, however, regretted that the highest Court of Judicature in the country was to be left a political body, and that had always seemed to him to be the greatest objection to continuing the jurisdiction of the House of Lords. It was all very well to say that that objection had no practical operation, because the Court would not have to deal with Constitutional questions, for it was at the moment it should not operate that the political character of the House of Lords became dangerous. Cases might recur like that of Mr. O'Connell, involving grave political questions which would have to be determined by persons who were actually engaged in the struggles of politics, and the public would think that in the main they were decided upon political considerations, as that of Mr. O'Connell was. [Sir GEORGE BOWYER: No, no!] The hon. and learned Member for Wexford was perhaps the only man who doubted what others believed from the first, that all the Liberals voted on one side and all the Conservatives on the other. Besides political questions, others 1705 that were more or less class questions might arise, as in the Bridgewater case, the decision of which, it had always been considered, was influenced by other considerations than those relating to principles of conveyancing and real property which ought to have guided the decision. These were the main reasons why it must always be objectionable to leave the final Court of Judicature in the hands of a political body, and these objections the Bill would not remove, but, on the contrary, it took Judges and made politicians of them, as it made them Peers because they were Judges. He had always deemed it desirable that in founding a new system it should be kept free from politics; but they had practically no alternative but to accept the Bill as it stood. No doubt it removed many practical objections to the jurisdiction of the House of Lords by constituting a Court to sit when the House itself was not sitting, thus severing the tribunal as a judicial body from the House as a legislative body. The jurisdiction of the House was practically terminated and transferred to a body of gentlemen with judicial authority; but he was anxious to know what would be their social status when they ceased to be Judges?
§ SIR WILLIAM HARCOURT
said, then what a farce it was, for it seemed that when one of them ceased to be a Judge he would cease to be a Peer in the ordinary sense of the word; and that suggested that in order to improve our Judicature we should be compelled to separate it from the hereditary Peerage. It was understood that this final Court would satisfy Scotland and Ireland because it was to be the House of Lords, which implied a supposition that the law was to be administered by an hereditary Peerage; but that was not so, and therefore there was a severance of the Judicature from the House of Lords in the proper sense of the word. That seemed to be an indirect way of doing that which he desired to do; and he preferred the plan of 1873, because it involved total separation. It was not worth while for the sake of preserving the name of the House of Lords to 1706 create a Court of this hybrid character.
§ MR. CHARLEY
congratulated Her Majesty's Government on their having introduced a statesmanlike measure acceptable to both Houses, and, if proof were wanted of the unanimous opinion of the legal Profession and of the country generally, it was to be found in the fact that no Notice had been given of opposition to this Bill. Last year hon. Members who were favourable to preserving the Appellate Jurisdiction of the House of Lords were denounced as a clique and a coterie meeting in an obscure place, but that could not be said now, in the absence of opposition to the Bill. Neither could it be said that the Government were afraid to depart from the policy of their predecessors; they had done so, and the country had supported them. With regard to the division referred to by the hon. and learned Member for Cambridge (Mr. Marten), he (Mr. Charley) was one of the Tellers, and, as 14 Members of the present Government voted in the minority, it was certainly an emphatic protest against the policy which was then being pursued. The present Government had been quite consistent, because what was said in 1873 by Lord Cairns and the Prime Minister was, that if an Intermediate Court of Appeal were dispensed with it would be necessary to abolish the Appellate Jurisdiction of the House of Lords, as the number of appeals would be too large for it to deal with them. As Lord Selborne's Act had destroyed the Appellate Jurisdiction of the House of Lords for England, the question was whether the same should be done for Scotland and Ireland, the primary object of Lord Cairns being to establish one Court for the Three Kingdoms. A great change of opinion occurred in 1874,and the Government were quite consistent in recurring, not, as had been stated, to the suggestions of the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams), but to the recommendations of the Select Committee of the House of Lords of 1856. The Bill was, in fact, founded on their unanimous recommendation. In their Report they said—Although during certain periods the number of Law Lords in regular attendance on the Appellate Business has been inadequate to meet the requirements of the public and the Profes- 1707 sion, experience has proved that such attendance cannot always be relied upon. Hitherto those by whom this duty has been discharged have been for the most part ex-Chancellors. The Committee are of opinion that the attendance of others equally qualified to sit with those Peers in judgment on the decisions of the inferior Courts would be best secured by the creation of other high legal officers, in connection with the House of Lords, with such salaries as would secure their acceptance by the most eminent Judges. The Committee are therefore of opinion that it is desirable that two offices should be created, to be held by two Law Lords, whose duty it should be to assist the House in the performance of its judicial duties.The Committee further recommended that the office of a paid Deputy Speaker of the House should be held by the same tenure as the office of a Judge, at a salary or income of £6,000, which was the salary now proposed for the Judges who were to belong to the Court. The Committee further said—The attention of the Committee has been drawn to the difficulty which may, in some cases, be felt hereafter, of appointing the most fit persons to judicial offices connected with the House of Lords, if it cannot be done without conferring on them hereditary Peerages; and it appears to the Committee advisable that any person appointed to such an office should be enabled, by authority of Parliament, to sit and vote in the House, and enjoy all the rights and privileges of a Peer of Parliament under a patent conferring a Peerage for life only, if the Crown may have granted, or shall grant, the same to such person in preference to a hereditary Peerage, provided always that not more than four persons shall have seats in the House at one time as Peers for life.This Bill, as he had said, then was founded on the recommendations of that Committee. He altogether denied the statement of the hon. and learned Member for Taunton (Sir Henry James) and the hon. and learned Member for Oxford (Sir William Harcourt), that the Bill did not preserve the Appellate Jurisdiction of the House of Lords. As to the substitution of the form of petitioning, instead of bringing a Writ of Error, it was a recurrence to the old method. The Lords of Appeal were only supplementary, not substitutional, and there were precedents for their appointment. They were to aid the Law Lords in the consideration of matters of appeal. He hoped, however, they would only be brought into existence when necessary. At present there was ample judicial strength in the House of Lords for the discharge of their appellate duties. He also hoped that measures would be taken for calling in the assistance of 1708 the Equity Judges as well as the Common Law Judges to assist their Lordships in particular cases. If that were done, he should think it desirable to adopt the recommendation of Lord St. Leonards that a sort of retiring fee should be given to the Law Lords, in recompense for their services, in addition to their retiring salary. If that course were taken it would hardly be requisite to create the Lords of Appeal. As to the Lords of Appeal sitting during a Dissolution, that could occur only at very rare intervals. The hon. and learned Member for Oxford was certainly not justified in his argument that this involved a substitution of Lords of Appeal for the House of Lords. The hon. and learned Member for Oxford had cited the O'Connell case as a proof that political considerations might influence their judicial functions; but he maintained that case rather proved the reverse. Lord Selborne had himself declared that the decisions of the Lords gave dignity to the law, and also to the House of Lords itself.
§ SIR GEORGE BOWYER
said, that the hon. and learned Member for Oxford (Sir William Harcourt), in order to justify the measure of the late Government which abolished the jurisdiction of the House of Lords, had thought fit to attack that House, and described it as a "political body." He most emphatically denied that assertion. It was contrary to history, and he could not have chosen a more unfortunate case to prove his allegation than the O'Connell decision. If it had been a political tribunal, the Tory Lords would have overwhelmed the Judges altogether, but the Lay Lords retired and the question was decided by the Law Lords. It was decided on principle, and no one had impugned the judgment. The decision in the Bridgewater case was also held to be good law. It proceeded on grounds of policy and sound principles of conveyancing. It was perfectly unnecessary to inquire whether the Lord Chancellor and other Members of the Government had been consistent in the course they had taken on this subject since 1873. In that year a Bill had been passed—he (Sir George Bowyer) thought without sufficient consideration—which made a great alteration in the Constitution of the country, taking from the other House a most important part of its authority 1709 and dignity. But a change of opinion had taken place out-of-doors and in both Houses of Parliament. Many Members of the Government he knew had reluctantly given way to the proposal of Lord Selborne, and afterwards were extremely glad to find that public opinion warranted them in recurring to their original views. He would not dwell on any of the historical or Party questions which had been mooted by the hon. and learned Members for Taunton and Oxford; but he did contend that the Appellate Jurisdiction of the House of Lords was maintained by the Bill, and he hoped it would be upheld in its dignity and constitutional right, a right which had come down from antiquity, as the highest Court of Appeal. The objection that because certain Lords of Appeal were to assist the House of Lords in the performance of their judicial duties, the House of Lords was superseded, had no foundation whatever. That was no innovation or derogation from the constitutional character of the House of Lords. It was rather a recurrence to the ancient Constitution, described by Lord Hale in his famous treatise on the Jurisdiction of the House of Lords. When the Bill got into Committee it would require mature and profound consideration. The 6th clause gave the key-note to the whole Bill. The first words were these—"For the purpose of aiding the House of Lords in the hearing and determination of appeals, "&c. He thought care ought to be taken that they did not go beyond "aiding the House of Lords, "&c. It might happen that there would not be with the Lord Chancellor a sufficient number of ex-Chancellors or ex-Judges in the House of Lords to discharge the judicial functions of that House, and therefore the addition of two learned persons to aid the House of Lords in the hearing and determining of appeals would be of advantage. But care ought to be taken not to go beyond an addition of two such persons, for that number, he was convinced, would be amply sufficient. As he understood the Bill, whenever two vacancies occurred in the Judicial Committee of the Privy Council two Lords Ordinary of Appeal might be appointed. That would make four Lords Ordinary in Appeal, and with regard to the point there was a proposal in Clause 6 which he thought would deserve consideration in Committee. He 1710 wanted the clause to make it quite clear that Her Majesty might appoint as a Lord of Appeal in Ordinary any Peer who had held a judicial office, and who had a seat in the House of Lords as a Peer. Why should they consent to vote £6,000 a-year to a person to be appointed as a Lord of Appeal in the House of Lords, if there were Peers who had held high office and who enjoyed pensions who would be quite competent to perform that duty? The two persons who might be appointed as Lords Justices to assist the House of Lords would not be Peers, although they might be Lords of Parliament. They would be in a position analogous to that of the Bishops, who were not hereditary Peers. Again, he objected to mixing up the House of Lords with the Judicial Committee of the Privy Council. The Judicial Committee was a most satisfactory tribunal, having the confidence both of India and the Colonies. It had very seldom to administer the English law, but it administered the Mahomedan and the Hindoo law, together with the peculiar statutes which prevailed in India; it also administered the French and Dutch Civil Law, which prevailed in the Colonies. It was peculiarly fitted for those functions, as it had among its Members Indian and Colonial ex-Judges who were versed in those peculiar branches of law. Those learned persons were required for the Judicial Committee to perform their duties to the Colonies and to India, which had not been consulted in that matter; while, on the other hand, the men who were experienced in Mahomedan and Hindoo law and in French and Dutch Civil Law would be perfectly useless in the House of Lords, which had never to decide any of those questions that belonged peculiarly to the Judicial Committee. The Judicial Committee of Privy Council was now admirably adapted for its work, and if they touched it they would injure it. It was, moreover, a matter of high policy to maintain that Court, which had the confidence of the people of our Dependencies. He therefore hoped the part of the Bill which appertained to the Privy Council would be struck out, which might be done without seriously impairing the measure. As the Bill now stood, as he had said, he could not deny that he saw a certain danger of their, perhaps, hereafter having, in- 1711 stead of the House of Lords, a Court of four salaried Judges as Lords of Appeal in Parliament, sitting alternately in the House of Lords and in the Privy Council. In conclusion, he regretted the necessity of making these criticisms on the Bill, for it was a measure which, taken on the whole, showed the constitutional wisdom of the Government; and he, for one, wished to bear testimony to the admirable manner in which they had stemmed the torrent of prejudice which had been awakened by a certain portion of the Press against the House of Lords, and to congratulate them on having preserved an important part of the Constitution. The opinion of the Bar was strongly in favour of maintaining the jurisdiction of the House of Lords, and the Bill carried out that principle.
said, had the Court proposed to be established been purely English, he should not have troubled the House. The Committee of Privy Council, however, was becoming more and more an Indian Court, and as he had some knowledge of Indian affairs, and this was a subject on which he had great experience, he ventured an opinion. In the main, both from a Scotch and an Indian point of view he was favourable to the Bill of the Government. His only complaint was, that the Government had not followed out what the head of the Government described as a logical sequence of his statement, that the Bill would not take immediate effect, would not come into operation during the lives of the four Judges recently appointed. He reminded the House that last year he had suggested that they should not borrow Judges only from the regular Courts as proposed by the temporary Bill, but from the Privy Council also. The suggestion, however, was not listened to, and the result was that the regular Courts were still accumulating arrears, while the Judicial Committee of the Privy Council was quite under-worked. In his opinion, the public interests were being sacrificed to an excessive punctilio for personal consideration. Good as the present Judicial Committee of the Privy Council was, it did not command the respect that had been commanded by the old Committee of Privy Council which was constituted somewhat as the present Bill proposed. If some of the Judges of the 1712 Judicial Committee of Privy Council could be transferred to other Courts, immediate effect might be given to the Bill, and they might have that form of Judicial Committee which would be preferable to the present, while the other Courts would be rendered efficient. But, as the hon. and learned Member for Taunton (Sir Henry James) had shown, the Bill could not take effect until four of the present Judges who were not all old men, and who they hoped might live many years, should have disappeared in the course of nature. The present Judicial Committee of Privy Council comprised two paid Judges on full salaries, and two Indian Judges not receiving full salaries, but only the difference between liberal pensions and the salaries of Judges of Appeal. He suggested that the fully paid should be transferred to one of the other Courts, but he was told that this was impossible, from personal considerations. He thought these ought not to prevail as against public interests. He was afraid the result of maintaining the present system in the Judicial Committee would be that, having the present large Court, they would think it necessary to find work for it. In his opinion, appeals from India were already too numerous. These appeals came from 10 or 12 different tribunals, and though, no doubt, that was favourable to English lawyers, the expense and loss of time were very prejudicial to the interests of the Native as well as to public justice. Appeals from India to the Privy Council should be confined to cases of importance involving important points of law, and should not be permitted in petty cases or those involving mere facts. Therefore, he appealed to the Government to say whether they would not enable their Bill to be immediately carried out by the transferring of two of the Judges of the Privy Council.
§ Question put, and agreed to.
§ Bill read a second time, and committed for Monday next.