HC Deb 21 March 1879 vol 244 cc1438-81

, in rising to call attention to the deficiencies existing in the arrangements made for the administration of justice in this Country; and to move— That, in the opinion of this House, it is expedient that measures should be adopted to provide a more speedy and efficient and less expensive mode of administering justice than now prevails, said, he had no words of censure or criticism to utter in relation to the conduct of those who bore the principal part in the administration of justice. Those Members of the Government on whom fell the responsibility of making arrangements for the administration of justice—the Lord Chancellor and the Home Secretary—had strenuously endeavoured to carry out the wishes of the Legislature; and nothing could be more unjust, in the absence of the Judges, or more inexpedient, considering the respect they entertained for the law and for those who administered it, than to make their conduct the subject of debate. The limits within which he desired to confine his observations would be in relation to the system which now prevailed in some of the Courts in which justice was administered. It seemed to him that the public might be well satisfied with the system of Appellate Jurisdiction. He thought that practice had shown that the compromise which was made in reference to the continuance of the House of Lords as the Final Court of Appeal, strengthened by the introduction of members sent into it for the purpose of sitting as Judges, had turned out wise and judicious. They might also be satisfied with the Intermediate Courts of Appeal, except that the sittings were not continuous, the result of which was that nearly 300 causes were now waiting to be heard. There was little to be said with regard to the administration of justice in the Courts of Equity. His area of discussion, therefore, was limited to matters connected with the administration of justice in the Civil Courts of Westminster, London, and upon Circuit, and to some matters connected with the administration of the Criminal Law. The main object of the Judicature Act of 1873 was the establishment of one great Court of Justice in which all causes were to be determined upon the same principles, and as nearly as possible by the same mode of procedure. Unfortunately, great latitude was shown in the attainment of this object. The three great divisions of the Common Law Courts were maintained, and the barriers so injurious to their practice still existed, in spite of efforts to remove them, which were defeated by forces summoned by the division bell. In 1876 the present Government attempted to mitigate some of the remaining evils, and passed an Act laying down a principle which he hoped to see carried further. By the Act of 1876 it was intended to abolish the Divisional Courts; and the 17th clause provided that as far as practicable causes were to be heard, determined, and disposed of by a single Judge, and motions relating to them were to be heard by the Judge before whom the trial took place. Under the Act rules had been framed which, to a great extent, rendered this legislation nugatory, and the Divisional Courts existed with all their former virtue taken out of them, and all the evils of the old system remaining. Under the rules a Judge did not hear a case right out, but, as other cases were waiting, he adjourned the arguments on a disputed point, necessitating the attendance of the parties on a future day. But this judgment did not determine the case any more than did the verdict of a jury previously, and there was an appeal to the Divisional Court in the first instance, so that a new and a useless stage had been created, adding delay, expense, and inconvenience without any benefit resulting. They were now simply halting between two systems. They had neither clung to the old system with all its benefits, nor had they the courage really to proceed with the new. They must either recede or go forward, and, following the law of forces, he knew they would have to go forward. Another matter which interfered with the administration of justice, and which was a cause of delay and expense to the suitor, was that in the conduct of every suit there were necessarily many minor or interlocutory motions, which were disposed of at Chambers, where a large crowd of persons might be seen engaged in a struggle or scramble to obtain justice, which was administered by the Masters and their assistants in a desultory and unsatisfactory manner. The matters might be small in themselves, but, unfortunately, the decisions might be appealed against—first, to the Judge sitting in Chambers, and, secondly, to the Divisional Court; and our Courts were constantly occupied by two Judges listening to appeals on these minor matters. Then, in the Divisional Courts, there was always a most unseemly squabble as to what occurred in Chambers, no one being present to clear up the matter. And after the Divisional Courts had been occupied with discussions of these minor matters on appeal No. 2, there was an appeal No. 3 to the Intermediate Court of Appeal, where the Lords' Justices of Appeal were compelled to sit and listen to the same sort of proceedings, which might have no other object than that of running up costs or causing delay. Another of the evils of the present system, which operated disadvantageously on the public as well as on juries, was the want of continuousness in the sittings of the Courts. No one, however diligent in his inquiries, could know what Courts were about to sit and for what purposes they were about to sit. For instance, on looking to the Cause List any morning, one might see about 30 cases set down for trial at six Courts of Nisi Prius. It did not, however, follow that all these cases would be tried on that day, for many of them would have to stand over until the next morning, when probably there would be only one of these Courts sitting; whereas, perhaps, the day after there might be two or three, according to the disposition of the Judges. Sometimes there was a break in the sittings altogether for three weeks, so that suitors, witnesses, and jurors were kept in a state of uncertainty and put to great inconvenience from day to day. The result was that whenever a large number of cases were entered for trial, a considerable proportion of them never came to trial at all; they fell out of the Cause List like dry leaves from a tree, either being postponed for want of time to try, or abandoned by the suitors, who despaired of getting them tried. In 1875 there were set down for trial in Westminster and London 2,564 causes, of which only 861, or 33 per cent, were tried. The rest, in some way or other, took care of themselves—they assumed the character of remanets, or became dead altogether. In 1876 the number set down was 2,771, of which 1,037, or 36 per cent, were tried; in 1877, 3,131 causes were entered, and only 953, or 30 per cent, were tried. Now, the circumstances he had described were most injurious to the public interest and to every person who had to do with the administration of justice in the Courts. If this were only a transient position of affairs, it might be inexpedient to call attention to the matter; but because it was in no way due to transition, and there seemed no proba- bility of its being altered, it was necessary that something should be done. The obvious remedy for this state of things was an increase of judicial strength. Some suggested that this should be accomplished by an addition to the number of Judges; but for his part he would regard an addition to the number of Judges as an evil in itself, which ought, if possible, to be avoided. There was another means of attaining the end in view, which, he believed, the House would find more acceptable— namely, the saving of judicial strength which was now wasted. That there was at present a vast waste of judicial strength no one who was acquainted with the subject could doubt. It was not the fault of the Judges, but of the system; and what he had to suggest was, first, that Parliament should insist that the legislation of 1876 should be carried into effect, and that each Judge in the Common Law Courts should take upon himself the same responsibility as was now individually borne by the Judges in Equity. He was not in anyway attempting to detract from the position of the Common Law Judges. On the contrary, he assumed that they were fit for the discharge of duties from which they now appeared to shrink; and his suggestion was really only a simple acknowledgment of the learning and ability which they undoubtedly possessed. If they were placed on the footing of the Equity Judges, a great saving of judicial time would at once be effected. Secondly, if, in minor affairs, the waste of judicial strength could be stopped, a great saving of time and of money would be effected. For instance, the Divisional Courts were occupied one or two days each week hearing appeals from the inferior Courts; but it was strange that, while in the case of an appeal from a County Court, which in matters of Equity had jurisdiction to the extent of £500, the appeal was to one Equity Judge, in the case of an appeal in a Common Law case, where the County Court had jurisdiction to the extent of £50 only, the appeal must be heard and decided by two Judges. Thirdly, the appeals from the decisions of the Masters in Chambers should be made direct to one Judge sitting in open Court, and should go no further— thus saving the time of the Divisional and Appeal Courts. A still greater opportunity of economizing judicial time he had yet to refer to, and it related to the administration of criminal and civil cases on the Circuits. The error that had too long been committed was that no distinction had been drawn between the exigencies of the administration of justice in criminal and in civil cases. In respect of these a great distinction should be drawn. It was a benefit that criminal justice should be administered within narrow limits—at least, within the county where the crime was committed. It was well that the young and the ignorant should be impressed by witnessing the solemn administration of the law, and that all classes of the community should have the advantage of seeing Judges of a High Court perform their duty. But still they had to face the fact that untried prisoners should not be kept in custody for any long time—certainly not longer than three months. In that respect a great advance had been made of late years, for prisoners might have remained in custody untried only a few years ago for six or even eight months. That great scandal had, however, been removed. He called it a great scandal, because if they had heard that an English subject in some foreign country had been arrested and allowed to remain eight months in prison because there was not a Judge to try him, they could all conceive the outcry that would have been raised. The right hon. Gentleman the Home Secretary had loyally accepted the principle of speedy trial, and they could not go back from it; but must assume that, for the purposes of the administration of justice in criminal cases, there must be Circuits four times a-year. If prisoners were taken to be tried a long way from the place of committal, there was great risk that injustice would be done them. They would be deprived of the opportunity of calling their witnesses, and they would lose the benefit of consulting the professional adviser they had originally engaged; and, indeed, everyone who had had practice in Assize Courts was aware of instances—almost cruel instances—of injustice done by a carrying out to a too great extent the principle of centralization. When, however, they came to deal with the administration of justice in civil causes, a different view presented itself. In that respect they were following, with but little alteration, the system which prevailed in the time of Edward I. They had taken no heed to the greatly increased means of conveyance which existed now, or to the fact that agricultural districts had become great centres of population; and as they acted centuries ago, so they acted now, without relation to the changes that had taken place. There was certainly no necessity for two Judges visiting each county for the purpose of trying civil causes. The Judges had at least a month before the Circuits commenced to fix the time they would remain in each county, and that without any knowledge of the number of causes to be tried in any one of them. They had, in fact, to take the average number, going back for some years; and it frequently happened that very few causes were to be tried in one county, in which case the Judge, greatly against his will, would be compelled to remain idling his time in a country town, while a larger number of causes than usual were awaiting trial in the adjoining county, some of which, perhaps, from want of time to try them, would necessarily be postponed till the next Assizes. Would the House believe that in 20 Assize towns in England and Wales the number of civil causes tried in the year 1877 at the two Circuits was 48; the number in the following year in the same towns being 49, or one cause and one-fifth of a cause in each town at each Assize? In the case of many Assize towns, it sometimes happened that no cause whatever was to be tried. In the great centres of industry the case was very different, for he found that in the year 1877, of 1,413 Assize causes entered for the whole country, 590, or 41 per cent, were for trial in Lancashire and Yorkshire; and that in the following year, of 1,172 causes entered, 431, or 36 per cent, were for trial in those two counties alone. The effect of this state of things was that many cases entered for trial in the centres to which he had drawn attention never obtained a hearing. He found that upon the Northern Circuit, out of 282 causes entered for trial—264 of them being entered at Liverpool and Manchester—only 144, or 50 per cent, were tried; and that on the North-Eastern Circuit, out of 237 causes entered, only 128 were tried. A different state of things, however, existed in the smaller counties; and on the Western Circuit, which was the smallest Circuit in England, out of 114 cases, 96 were tried. When a great number of cases awaited trial, a large percentage always failed to be tried. In North Wales, where only 25 cases were set down for trial, 24 were disposed of, and in the South Wales Circuit the percentage was nearly the same. The reason why in Liverpool and Manchester only 50 per cent of the cases were tried, while 96 per cent obtained a hearing in the two small Circuits to which he had referred, would be found to lie in the great and unequal pressure placed upon the Judges. The effect of the present system was that cases that ought to be tried were not tried, and that there was, at the same time, a waste of judicial strength. He hoped the House would understand to what extent cases were tried on Circuit. In 1876, the number of cases so tried amounted to 903, and only 195 of them were for the recovery of sums above £200, or for the trial of any right, or for the recovery of land. In the next year, 905 cases were tried, only 171 of them involving sums above the figure which he had just mentioned. In such circumstances, was it right they should preserve the present system regulating Circuits, merely because it had existed for centuries? Were they to go on without the institution of constant Assizes and not to make allowance for the increased facilities of conveyance, by which a person could, with the greatest convenience, be brought to any town where a Judge might be? Anyone who objected to centralization on the ground that suitors ought not to be brought into centres should remember that every equity cause, except those tried in the County Palatine, was tried in London, and that no complaints were made against that system. All Probate and Divorce cases were also so tried. Persons also brought their cases to London for trial in the Civil Courts, and no complaint was made. The fact was that the suitor did not object to travelling as long as his case was tried at the appointed time. What he did object to was being kept waiting in an Assize town a certain number of days, and then having his case left untried. The House would see that a great saving of judicial strength would be caused, and that much convenience to suitors would result if the system of centralization were introduced in different parts of the country. He was asking simply that the system which was followed in equity, and which existed to a great extent in London, and which it had been attempted to introduce in a minor degree by the establishment of registries throughout the land, should be extended a little further. If Courts were constantly open in Manchester, Liverpool, Leeds, and some towns of the Midland counties, presided over by Judges of the Superior Courts, the results would be most beneficial. It would be found, taking the legal year of 210 days, that the average number of cases tried per annum—namely, 800—would be tried in half the time they occupied at present. The Judges, having decided these cases, would then have half their time, or some 110 days, at their disposal, in which to try the prisoners in the counties in the neighbourhood of their centres. Whereas now some Judges were absent from London for about four and a-half months, no Judge, if his suggestions were adopted, would be away for so long a time. The Judges would not have to travel about so much, and there would be a total saving of the time that was lost in those places where the Cause List was small. On the one hand, the Judges' time would be economized, and, on the other, the suitor would be given a certain and known day on which his case would be heard. He had now placed before the House the views which he entertained in regard to the waste of judicial strength, and the remedies which he proposed. He hoped the House would pardon him if he explained the reasons which had led him to bring the matter to the notice of hon. Members. The fact was that it was difficult for the question to attract pub-lie notice. If a member of the public endeavoured to bring it forward, unfortunately, or rather, perhaps, fortunately, for him, he possessed but little of the requisite technical knowledge, and, as a matter of fact, very few of the public cared to bestir themselves in the cause of legal reform. As had been said, one might as well expect a man who had had one leg cut off to devote his time to the improvement of the instrument with which the operation had been carried out, as to hope for assistance in the improvement of legal matters from the general public. The Government also, unless they proposed measures for the adoption of Parliament and bore the responsibility of them, could raise no discussion on the subject of legal reforms. It appeared to him that there was only one class who could very well interest themselves in the matter which he had brought to the notice of the House—namely, those independent Members who had given their attention to the administration of the law. It was for the interest of the public, as well as for the interest of the Profession to which they belonged, that those who were versed in the law should deeply consider the proposals which he had made. He was certain that lawyers would best consult their own welfare by adapting themselves to the changes demanded from them by the public. He had constantly to hear complaints from suitors against the existing state of things; and it appeared to him that it was almost a very fault to remain silent and make no attempt to see if some changes, not of a destructive character, could not by common consent be introduced. It was in this spirit, and for the purpose of raising discussion, that he had called attention to the questions which he had placed before the House; and he trusted he should not be considered presumptuous if he moved the Resolution of which he had given Notice.


, in seconding the Motion, said, he might refer to the manner in which business was conducted in the Court of Chancery as illustrating the system which he thought might well be applied, to a great extent, to the other tribunals of this country. He had examined the judicial statistics for the year 1876–7, and, taking it that practically there were only four Judges in the Court of Chancery in that year, he found that those Judges disposed of 2,266 causes, and motions in the nature of causes. In addition to that, they dealt with 1,600 petitions, some of which might, indeed, be of a formal character, yet many of them involved points of considerable importance. In the Registrar's Office of the Court there were over 17,000 orders drawn up. That large amount of business was got through by continuous sittings in one place. The Vice Chancellors sat from day to day, and it was known when they would sit and what business would come before them. The Judges were all members of one tribunal; they were not split up into divisions, and a cause could thus be readily transferred from one Judge to another. If one Judge had exhausted his Cause List, he might take causes from another, so that no Judge should be overburdened with work as regarded the Chamber business. The staff of each Judge consisted of a chief clerk and some assistants; and the number of attendances in Chambers before those gentlemen in the year 1876–8 was 97,000. By this means a large mass of interlocutory and administrative business was disposed of. Each solicitor knew when his case would come on, the day being divided into distinct parts. The case went before the clerk in the first instance, and if the party was not satisfied with the clerk's judgment, he would go before the Judge, who sat two days a-week after his other business had been done in Court to hear applications, and these might be conducted by the solicitors who appeared before the Chief Clerk, or might on their application be adjourned into Court and argued formally by counsel. In all cases the Judge in Chancery sat alone and disposed of the whole matter, being Judge both of the law and the fact. That was a system worthy of imitation as far as it could be carried out in the other tribunals of the country. It was to be regretted that when they were dealing with the Judicature Act, the Common Law Judges were not brought into one great division, as the Vice Chancellors were. If that had been done, much complaint might have been avoided; but they had now the three divisions of the Queen's Bench, the Common Pleas, and the Exchequer, with but little connection between them. He concurred with the hon. and learned Member for Taunton (Sir Henry James) as to the evils of the want of continuity in the sittings of the Common Law-Judges. It was now very difficult for solicitors to know the time and the place at which their causes would be tried. That might be partially corrected when the new and more commodious buildings for the Law Courts were completed; but, in the meantime, the faults of the system ought not to remain unremedied. He was glad that the hon. and learned Member for Taunton did not propose to disturb the arrangement for having four Circuits in the year for criminal business; but in respect to civil business he went very much with the hon. and learned Member. There was no doubt that much of the civil business on the Circuits was of the most trumpery character, and that the time of the Judges was taken up, in many instances, where their presence was not required. He did not say that the commercial centres did not require the presence of the Judges for their civil business, and sittings should be held there from time to time by the Judges of the Superior Courts for the disposal of it; but he thought the way would be considerably cleared in that respect when they had some extension of the jurisdiction of the County Courts. No doubt, the importance of a case did not always depend on the magnitude of the claim on which it was founded, and the parties could not and ought not to be precluded from trying their causes if they chose in the Superior Courts; but there was no reason for putting in motion all the machinery connected with the sending down of the Judges to the extent to which that was now done in places where there was little or no civil business. If the parties in such districts preferred to have their cases dealt with by the Superior Courts, there was no great hardship in bringing them to one of the great commercial centres or to London. In fact, notwithstanding all the facilities afforded for the conduct of business in the country, there was a tendency to bring business to the Metropolis. One reason of this was that all the principal railways had termini in London, and parties engaged in litigation often found it more convenient to come up here than to any of the great provincial towns. In London, too, they could obtain first-rate professional assistance at a less cost than they could procure it in the country. It was a great satisfaction to him that he had been requested to second his hon. and learned Friend's Motion, as he was always glad to advance and facilitate the administration of justice; and he sincerly trusted that before long something would be accomplished in that direction.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is expedient that measures should be adopted to provide a more speedy and efficient and less expensive mode of administering justice than now prevails,"—(Sir Henry James,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


agreed with his hon. and learned Friend the Member for Taunton in the propriety of assimilating the practice of the Common Law Courts with that of the Equity Courts in regard to the hearing of cases by a single Judge. He never could see why, if one Judge could try a mixed question of fact and law at Lincoln's Inn, two or three Judges should be required to try a simple question of law at Westminster. Before hon. Members committed themselves to the new plan shadowed forth by his hon. and learned Friend, they ought to consider the fact that the Judicature Act had never yet had fair play. If they did not take care, it might become a great reform spoilt in its administration; and it would be a national misfortune if so vast a scheme were shipwrecked for want of energy and forethought in carrying it out. Two years ago he called the attention of the House to the circumstance that that Act had much increased the business, of the Chancery Division of the High Court of Justice. In consequence of the discussion which was raised by that Motion, Mr. Justice Fry was appointed a Judge in the Equity Division. Everything was going on very well, when, unfortunately, one day it was thought necessary to send Mr. Justice Fry to try prisoners on the Northern Circuit, and he did not return to Lincoln's Inn till the middle of February. Whether or not it was necessary to have four Circuits a-year for the trial of prisoners, certain it was that the holding of those four Circuits would completely paralyze the Central Administration of Justice in London. When the Judicature Act was in course of discussion, one of the things which everybody insisted upon was that there should always be two Courts of Appeal sitting in London, one at Westminster and the other at Lincoln's Inn, in order to try to get through that most important part of the judicial business of the country. Well, during the whole of January and February last, with the exception of three days in February, no Court of Appeal was sitting at Westminster at all, as the Lords Justices were on Circuit. Although it was, of course, necessary to have regular Assizes for gaol delivery, the House was hound to consider whether they could not be held without the present waste of judicial power. Recently, Lord Justice Thesiger had to go down to Denbighshire to try three or four trumpery cases, which might as well have been heard at Quarter Sessions; and during the learned Judge's absence in Wales, the proceedings of the Court of Appeal in London were stopped for three or four days. He did not say that these persons should not be tried as soon as possible; but was there no other way of doing it? He did not say it was necessary to add to our judicial strength, but something must be done. Even when Judges were not on Circuit, it was by no means easy to find in London a sufficient judicial staff to constitute two Courts of Appeal. Last week the case of "Martin v. Mackonochie" was being tried, involving the somewhat curious question whether a clergyman was entitled to break the law with impunity. The Court of Appeal did not find itself strong enough to deal with that case, so it had to borrow Lord Justice James. The Court of Appeal in Lincoln's Inn was then left incomplete, and it was obliged to borrow a Judge from the Rolls Court. The result was that the Rolls Court could not sit, as the Master of the Rolls had to go away. Then the Court of Appeal caught Lord Justice Baggallay; but as, through an unfortunate accident, Vice Chancellor Malins was obliged to be absent, Lord Justice Baggallay had to go off from the Court of Appeal, and for more than a week the Court of Appeal in Lincoln's Inn could not sit at all. Ought they to localize the administration of justice more than they did at present? The effect of his hon. and learned Friend's proposal in that respect would be absolutely to destroy the Bar; and as Judges were taken from the Bar, if they destroyed the Bar they would destroy the Bench. But the whole matter ought to be discussed and sifted, as the present state of things was most unsatisfactory to the suitors, and was certainly not creditable to those who had the control of the administration of justice. He hoped, therefore, before the debate closed, the House would hear what the hon. Member for Hull (Mr. Norwood), and the hon. Member for Berkshire (Mr. Walter), and others, had to say. Until public opinion outside the Profession could be roused, they should never get the momentum necessary for the judicial reforms which the country required.


said, it was impossible to come to a satisfactory decision upon a Resolution expressed in such vague terms as that proposed by the hon. and learned Gentleman, whom he would have cordially supported if he had brought forward a definite proposal of a character likely to serve as a basis for a substantial improvement in the administration of the law. The Resolution spoke certainly of the need of reform; but it did not shadow forth what kind of reform was likely to be most effectual. For that reason, he hoped the hon. and learned Gentleman would not press it to a Division. But, at the same time, these matters, which affected the practical working of the Courts of Law, deserved the greatest consideration. In his opinion, the Divisional Courts at Westminster ought to be abolished. He would have preferred three Judges, in the first instance, to try actions; but that was not agreed to, and the country was irrevocably committed to the present system of trial in Courts of First Instance before a single Judge. It was a matter beyond dispute that they ought to insist that the Act of 1873 should be fully carried into effect, and that a Judge who tried a case should try it throughout, and give final judgment upon it. With regard to motions for a new trial, in the first instance the proper course would be that the motion should be made before the Judge who tried the case. If he were dissatisfied with the verdict, it would be a proper case for a new trial. But where both the Judge who had tried the case and the jury were satisfied, the proper course would be to apply to a Court of Appeal. He should certainly object to the abolition of appeals upon interlocutory applications. The Courts of Chancery had always allowed those appeals, and to get rid of them would lead to very considerable confusion; besides, the suitors were protected against frivolous appeals by the power of the Courts to award costs. The facility of appeal, moreover, tended very much to create a feeling of satisfaction with the administration of justice by the Judges of First Instance. With regard to the continuity of sittings in London and Middlesex, he did not see why the system adopted in Equity of continuous sittings by the same Judge should not be carried out in London and Middlesex. With regard to Circuits, he would suggest, in order to facilitate the administration of justice, that there should be the clearest separation between civil and criminal business, and the criminal business of the Circuit should be taken by a Judge sitting in connection with the Court of Quarter Sessions, on the principle of the attendance of the Judges at the Central Criminal Court; and the civil business should be taken by a Judge who should sit at each place till he had finished the business there before going to another place; so that, according to the requirements of the business, one Judge should go from place to place, and dispose of the whole of the civil business of the Circuit; and that the absurd practice of fixing the dates and places of the Circuits for Civil business weeks before it could be known what amount of business there would be at each place, should be abolished. The concentration of business might, perhaps, be carried too far. Prisoners from Cambridge were lately tried at Norwich, but they might be tried in London with almost equal, if not greater, convenience; and it was a hardship upon prisoners—especially as regarded the difficulty of obtaining the attendance of their witnesses—that they should be tried at a distance from their own county. On the other hand, local courts and the adoption of centres for civil business would not have a great tendency to withdraw business from London—which experience and the choice of suitors showed to be the most convenient place of trial in the majority of cases—but would, in his opinion, involve an unnecessary interference with the system of Circuits, and a great increase of cost in our judicial establishments without any corresponding advantage.


said, on behalf of the lay element in the community, he must express his thanks to the hon. and learned Member for Taunton (Sir Henry James) for the able and lucid way in which he had brought forward a question of so much interest to the commercial classes. So far as regarded the Common Law Courts, the state of things was most unsatisfactory. Too much had not been said as to the constant loss and vexation caused by the uncertainty which now existed as to when and where a case would be tried, either in the Provinces or the Metropolis. The experience of the Judicature Act had been disappointing. The expectation that there would be a fusion of Law and Equity, continuous sittings, and order and regularity in the conduct of the legal business of the country, had not been realized. Whilst agreeing with many of the suggestions of the hon. and learned Member, he thought sufficient stress had not been laid upon the possible extension of the County Court jurisdiction. He (Mr. Norwood) felt sanguine that, at no distant date, without depriving the Superior Courts of important business, the jurisdiction of the County Courts might be increased, so as to relieve the superior Courts of matters that were scarcely of sufficient importance to engage their attention. He agreed that while there ought to be gaol deliveries in every Assize town, as at present, a well-considered scheme of Centres in the Provinces for the trial of causes might be useful; but, in many instances, it would be more convenient for suitors to go to London than to go to such a local centre. The Bar would not be of the same importance at the local centres as in London, and it would cost more to bring the highest forensic skill to such centres than to secure it in London. If all the suggestions that had been made were acted upon, there would still, in his opinion, be something required to put our legal machinery in order, for a state of chaos and anarchy prevailed in the Common Law Divisions. He would be the last to say a word unfairly criticizing the Judges; but still duty compelled him to state that the operations of the Judicature Act did not appear to have been sufficiently assisted by certain of the Judges, who—whatever their private opinions might have been— ought to have endeavoured to carry out the views of the Legislature as soon as changes had been determined upon. There ought to be some direct responsibility for control over judicial arrangements—someone in the position of a Minister of Justice, who could pre- scribe, within certain limits, the course and order of procedure in our Courts, and the mode in which the Judges were to serve the country. It might be said there was some Constitutional difficulty in placing such a power in the hands of a political officer or a Member of the Government; but, be that as it might, it was a scandal that there appeared to be no regularity, no order, no proper control with reference to the duties of the Judges. Laymen had recently been scandalized by the attacks of one Judge upon another, which had almost become epidemic; and it was a great pity if, as currently reported, there was not the harmony between members of the Judicial Bench—that desire to facilitate business—that there ought to be. He trusted that means might be found of putting an end to all these scandals. Difficulties did not occur in Chancery, where the Judges appeared to work harmoniously together, and to assist each other; but in the Common Law, in spite of the new Act, there were still the three Divisions, and there was not that harmony they had reason to expect. Whether it was possible to invest the Lord Chancellor or the Lord Chief Justice with a regulating power he did not know; but he trusted that means would be devised for putting an end to the difficulties that were now experienced.


denied that there was any want of harmony amongst the Judges in carrying out their duties, or reluctance on their part to facilitate business, and he regretted that any reference had been made to personal controversies that were irrelevant to this Motion. The Motion had one inconvenience, that it raised no definite issue; but the subject was introduced with ability and moderation. As to the Act of 1873 introducing uniformity of principle and practice, he always thought it was too grand a scheme, and that it was destined to end in comparative failure. The evils which at that time required a remedy could have been cured by an Act of Parliament of half-a-dozen sections. The idea was very good in theory; but they could not abolish the distinction between Law and Equity except by establishing a Code. Division of labour was always the result of advancing civilization; and so long as the distinction between Law and Equity existed, it was desirable to have persons eminent in both branches to administer the law. It was not desirable that our Judges should be like Maitre Jacques in Molière's L' Avare, who performed the duties of both cook and coachman, and when called for desired to know in which capacity he was required and in which dress he was to appear. It was not to be expected that the Judicature Act would be a great success, and it was only astonishing that they had succeeded as well as they had. It was an ambitious scheme, but the reforms that were really required might have been effected by an extension of the Common Law Procedure Acts of 1852 and 1854. It was not desirable that the system of appeals in interlocutory applications from Masters in Chambers should be encouraged; but it was absolutely essential that certain questions which, though of detail, were of great importance, arising under the new law, should be settled, and even now the appeals were diminishing from day to day. It had been asked by the hon. and learned Member for Denbighshire (Mr. Osborne Morgan), why, if the single Judge system worked well in the Chancery Division, it should not work equally well in the Common Law Divisions. In the first place, the business in the Court of Chancery differed so materially from the business in the Courts of Common Law, that a system which worked well in the one case could by no means be assumed to work well in the other. In the second place, it did not follow, because one Court of Appeal could successfully dispose of cases coming from only six Courts as in Chancery, that another similarly constituted could, with equal success, dispose of cases coming from 15; and it would follow still less if appeals were allowed, as they must be, from the decisions of single Judges in those cases which were now decided by Divisional Courts consisting of two or more Judges. If the 15 Common Law Judges were sitting in as many different Courts, the present Court of Appeal would be utterly unable to cope with the business; and, as the hon. and learned Member for Taunton (Sir Henry James) and others objected to increasing the number of Judges, how would the Court of Appeal be reinforced except by promoting some of the Judges from the three Divisions, and thus reducing the number of Courts of First Instance? As to criminal trials, there was nothing to be said now. It had been decided that there should be four Assizes in the year, though, for his own part, he had not been greatly impressed with the plea put in favour of the so-called innocent prisoners, inasmuch as of the numbers he had seen acquitted in his time 99 per cent in his humble judgment ought to have been convicted. The proposal of the hon. and learned Member for Cambridge (Mr. Marten) that one List of Causes should be made for the whole Circuit was, if he might be allowed to say so, altogether crude. ! With regard to the suggestion that there should be Courts sitting continuously at some of the great centres, though not necessarily with the same Judge, the proposition had come upon him somewhat by surprise, and he was not exactly prepared to express a definite opinion upon the subject; but he was afraid it would have one evil effect which the hon. and learned Member for Taunton had perhaps not sufficiently considered. It would tend to localize the Bar, and this, he could not help thinking, would be a great misfortune not only to the Profession itself, but to the public. The spirit of discipline now animating the Bar would be impaired; and suitors in one part of the country would have additional difficulty in obtaining the services of particular counsel whom they might wish to engage and who were employed elsewhere.


said, he was strongly opposed to the Divisional Court being abolished, for if that Court in its present form were done away with, it would be necessary to go to the Court of Appeal for new trials, and the Court of Appeal would consequently be overwhelmed with work. He thought, however, it would be a great advantage if the distribution of the business of the Courts were placed in the hands of a competent manager, who would make arrangements by which the Judges would know in the morning what Court they were going to sit in, and what business they were to be engaged on. He also thought that when once the List of Causes to be taken by each Judge was arranged, it should be kept separate and never be tampered with. No cause should be removed out of its List and taken in another Court without the consent of the parties on both sides. With respect to appeals from the inferior Courts, a considerable economy of judicial strength might be secured. He could not see why such appeals could not be heard and disposed of by one Judge, as one Judge now heard and determined complicated questions of law arising on the argument of demurrers. He could not agree with his hon. and learned Friend the Member for Taunton (Sir Henry James) that there were at present a sufficient number of Judges. In his opinion, the Judicial Bench was considerably undermanned. There was a certain amount of work to be done; that amount could be approximately ascertained; and he had no doubt in his mind that there was not at present a sufficient number of Judges to cope with it in the manner the suitors had a right to expect their causes should be dealt with. They might take a lesson from the Courts of Chancery in making provision for a List of short causes in the Courts of Common Law. Many short causes were indefinitely postponed by long causes, some of which lasted several days in hearing, standing before them in the List. It had been said that the number of Circuits should be increased to four instead of two; but in that proposal he could not concur. The necessity of such a step had not been shown. He also thought that judicial strength on Circuits might be much economised. He could state from his own knowledge that at the last Assizes two Judges went to Bodmin. They found that there were but three prisoners to try and no cause, and yet no fewer than 105 jurors had been summoned to attend. Of the three prisoners, one pleaded guilty, another, being insane, could not plead, and the trial of the third lasted just half an hour. It would, therefore, he believed, be a great convenience if counties were grouped on Circuits, not only for criminal cases as was now sometimes the case, but also for the trial of civil causes. He considered that in the case of grouped counties, as now arranged for the trial of prisoners, it was very unfair that the jurymen and grand jurymen should be taken as at present from one county, and it was also unjust that the Sheriff of the county in which the Assizes were held should be put to the extra expense. If local centres were established as suggested, and Judges were to remain in them all the legal year, the Judges being changed every three months as suggested, what would they do in all the spare time that they would have? In the more important centres, such as Liverpool and Manchester, the plan of periodical sittings might be adopted; but that would entail a local Bar, a result which would be far from desirable for reasons which had already been pointed out. If the jurisdiction of the County Courts were extended, it would be necessary to increase the fees of the Judges, as recommended by the Committee, as a better class of Judges would be required than existed at the present time. He was, however, quite willing to admit that some of the Judges were most able men, as good, indeed, as could be found even in Westminster, but others were quite the reverse; and some appointments had been recently made from barristers who never even had a brief. The extension of the jurisdiction of the County Courts would very soon lead to a block of business in those Courts, and then the help of the Registrars would be resorted to, a course which the public might not completely approve. He thought, therefore, it would be a very great mistake to increase the jurisdiction of the County Courts. They were excellent Courts for the recovery of small debts, and that was their proper sphere. He was very glad that the whole subject had been brought before the House by the hon. and learned Member for Taunton (Sir Henry James), and hoped that some scheme might be devised which would cause the business to be carried on in a regular manner in our Courts of Law. If some governing head were appointed to arrange the work in the Courts, such as one of the chiefs of the Courts, a great deal of valuable time might be saved by attorneys, counsel, and others engaged in legal business.


observed, that the public, the patient who was supposed to be suffering, did not, from the scanty attendance in the House that night, appear to feel acutely this grievance which was said to be so great; and if they did feel it, it was but a poor consolation to them to find that no two doctors agreed as to what the remedy ought to be. He ventured to say that there was a great misapprehension in the minds of hon. Members and the public generally in the idea that there was such a great block in the judicial system at the present time, or that there was an undue delay in the trial of causes. If they looked back during the past two years, they would no doubt find that there had been a great block, which was caused by the attempted fusion of Law and Equity, but that had been to a great extent removed, and there was at present very little cause for complaint; still he believed that there must always be a certain amount of difficulty and uncertainty in reference to the trial of Common Law causes. He thought they had derived many advantages from, the new system, and there had been a considerable dispatch of business; and, in his opinion, whatever delay existed now arose not from the Judges not doing their work, but in consequence of the alteration in the system of pleading, which gave more opportunities for fighting out small cases at Chambers, and more opportunities for multiplying interlocutory proceedings at Chambers, thereby enormously increasing the expense of litigation, and postponing the period by several weeks when the cause would be ready for trial. A remedy, therefore, should be found in an alteration of that system. Causes when ripe for trial were tried as rapidly again in the Common Law Courts as in the Courts of Chancery. In the latter, the Judges got rid of their long causes by remitting them to Chambers. It was in the offices of the chief clerks that delay arose, and this was owing to the system adopted, and not to any remissness on the part of these gentlemen. There was, moreover, no parallel between Chancery and Common Law cases. Matters that could be tried by affidavit, as most Chancery causes were, might be tried equally well in London or elsewhere; but with the Common Law system, where evidence was always taken orally in Court, the great desideratum was to bring justice home to the doors of the suitors. It was desirable, therefore, to keep up the Circuits. The suitors were the persons whom the law was designed to benefit, and it was their convenience which had to be consulted. His own experience of the last South Eastern Circuit was that on an average the causes tried there were fully as important as those tried in town, and that the expenses, as a rule, were much less than they would have been if the cases had been removed from the Assizes. It was clear that the expense and inconvenience caused by the removal of a trial, and the consequent necessity of bringing witnesses from a distance, were very considerable. An- other great difference between Common Law and Chancery was the far greater variety of the work done by the former than the latter, and which would, to a certain extent, always prevent that complete fusion which some so desired to see carried out. As a matter of fact, all the confusion that had lately been noticeable was due to the abandonment of the old system in one particular, and that was in having order and regularity in the work done by the respective Judges; and until there was a return to the old idea in that respect of having three Courts, there would always be confusion. They had now 16 Common Law Judges of one Court—as the old Divisions were supposed to be abolished—to four Chancery Judges, each having his own Court; yet there was no directing head over them to plot out their work. There was no confusion when they had the Chief Judge of each Court who was responsible for the work of that Court, and who could with the four or five Judges under him plot out for a month in advance all the work to be done during that period. Now they went about from day to day in different Courts, and neither counsel nor attorneys could arrange their work beforehand. The Judges themselves were anxious to have some plan by which they might know their own Courts and arrange their plans previous to coming into Court, instead of being kept in ignorance as to which Court they were to be attached. What was wanted was a controlling power—not a Minister of Justice, but a Judge on whom should rest the responsibility for the work of his Court. It would be better to go back to the old system, and let the Chiefs have the regulating of the business in their respective Divisions. By doing so, an immense amount of trouble and inconvenience would be saved the Bench and the Bar, and it would be more economical and convenient for suitors, while all the other advantages of the present system might be retained. It was a matter of great annoyance to the Judges, not knowing the work they had to do, and how they could conduct it. He ventured to say again, however, there was no real block in the trial of causes, and that when the Long Vacation arrived very few cases would be left to be tried.


expressed his regret that when a question so directly affecting the commercial interests of the country was before the House, there was not a single Member of the mercantile class present to assist them by their countenance and support, except his hon. Friend the Member for Hull (Mr. Norwood). At the time the Judicature Act of 1872 was under discussion, there was a great deal said about the fusion of Law and Equity. Everyone acquainted with the subject knew that the so-called fusion was impossible. They were not only different in form and procedure, but were founded upon principles wholly distinct from one another, and often opposed to one another; and so they had now those same two different systems of jurisprudence in force the same as before, whilst in the Common Law Divisions they had the same three distinctive jurisdictions of the Queen's Bench, Common Pleas, and Exchequer, perpetuated under a mere change of names. That there should be confusion and waste of judicial strength was not astonishing, since the Judges had to do the work of Divisional Courts, and were, at the same time, bandied about from Court to Court to sit separately, no Judge knowing, from day to day, where he was to sit, or what duties he might be called upon to perform. This, of course, was a serious evil for the suitors. His hon. and learned Friend (Sir Henry James) had done good service in bringing the subject before the House; but he (Mr. Serjeant Simon) could not altogether concur in the remedy he proposed. He thought that time should be given to see how the changes in the Circuits would work. The object of the Circuits, as was the object of Justices in Eyre in the olden time, was to bring justice home, as it were, to every man's door. In this object he concurred; but he was opposed to what was commonly called localizing justice. If the present system of Circuits did not meet the requirements of modern times, he would say, reconstruct them. He approved of the system of grouping, which had been commenced for the purposes of the Criminal Assizes, and sending Judges alternately into one county and another in the group; but he was wholly opposed to any plan which would have the tendency, as he thought the plan of his hon. and learned Friend (Sir Henry James) would, of localizing Judges—that was, of placing Judges permanently in any one place. He objected to it in the interest of the suitors and of the public generally. The effect of localizing Judges, he thought, would be to lower the tone and the dignity of both the Bench and the Bar; for in this country they could not touch the one without affecting the other, and the result would be disastrous. Englishmen were justly proud of their Judges, and no foreigner ever entered our Courts without being impressed with the ability, the dignity, and, above all, the impartiality, of our Judges. These qualities were the necessary result of long training and experience at the Bar, at which they had made their way, and of the independence of their position. In Continental countries, the Judges were educated as a caste, as mere State officials, having no community of feeling or of interest with the Bar, or the public. They were essentially, and above all, servants of the State. With us, our Judges were a part of the people, and they belonged to the people no less than to the State which appointed them. In their professional career they had been in close contact with the people, counselling them as to their rights and liberties, and pleading for those rights and those liberties. Our administration of justice, moreover, was essentially popular. All classes of the community, from the squire, the merchant, and the banker, down to the petty tradesman, all were called to take part in it. The people watched it with interest, and popular opinion was brought to bear upon it. The criticism of the Bar was also a powerful influence. Every Judge on the Bench felt the force of that criticism, for every Judge had in his time, when at the Bar, been a critic of the conduct, the learning, and the ability of the Judges. To place a Judge in a provincial town and create a local Bar there, as a necessary consequence, would be to strike at the foundation of those qualities which had given to both the high place they enjoyed in public esteem and confidence. A local Judge, whatever his ability or his learning, would in time degenerate. He would either hold himself superior to a public opinion which he regarded as inferior or unimportant, and which he would not respect, or he would become its creature. He would be indifferent to the criticism of a Bar among whom, however able some might be, he would not recognize equals in abilities and learning. Local influences, moreover, social connections, which were inevitable in provincial communities, would have a lowering and a narrowing effect. He (Mr. Serjeant Simon) remembered an instance of an able and accomplished man, who, after filling for many years the office of a local Judge, came to regard himself not so much as Judge between party and party, but as one whose special function it was to watch over the interests of the town in which he was called upon to administer the law. Whenever there was a case before him touching a local interest, he was sure conscientiously to consider himself bound to keep the local interest in view. In the interests of the public, then, he said, let them not transform the Judges of our High Court into local Judges, as he feared would be the case if the proposal of his hon. and learned Friend were carried into effect. With respect to the proposed increase of the jurisdiction of the County Courts, he did not say that some increase might not be desirable; but he protested against such an increase as would change their character from the poor man's courts in order to furnish cheap law for rich suitors. His hon. Friend the Member for Hull (Mr. Norwood) had said that there ought to be a Minister of Justice. He (Mr. Serjeant Simon) thought so too. In every country in Europe, he believed, there was a Minister of Justice. In England the duties of that Minister were a sort of semi-official work unattached, and it was divided between the Lord Chancellor and his right hon. Friend the Home Secretary. He thought that a Minister responsible to Parliament—especially for all judicial and magisterial appointments — would strengthen our judicial system, and help the administration of the law.


observed, that in former times the Court of Queen's Bench, the Court of Common Pleas, and the Court of Exchequer were not only Courts of the First Instance, but also Courts of Appeal. An improvement was made, by which the Court of Appeal was substituted for the Exchequer Chamber, and made separate from the Court of First Instance. But it should be remembered that that improvement relieved the Superior Court, which was now called the High Court of Justice, from a good part of its work; and he thought that pro- perly to carry out the system now in force, and which, he hoped would continue to be in force, the High Court of Appeal ought to be strengthened, even though the Court of First Instance were to lose some of its strength. It seemed unnecessary to have two Chief Justices and one Chief Baron belonging to the High Court of Justice, while in the High Court of Appeal they had not got any Lord Chief Justice at all. He thought the Lord Chief Justice of England ought to be made President of the High Court of Appeal. He thought he was right in saying that, suppose they established in England a local centre where civil business would be administered by a stationary Judge, and provided at the same time a travelling Court for the trial of criminal cases, they would be doing exactly that which was done in France now. It must be remembered that the present system in France dated no further back than the time of the Great Revolution; but in our case we had to deal with a system which had been in operation for very many centuries. If the proposal to make local centres were adopted, it would of necessity tend to localize the Bar; and he could not help thinking that such a course would cause the Bar to deteriorate, mainly because it would put members of the Bar in too close a connection with the other branches of the Profession. He thought the difficulty which frequently arose from the Judges going Circuit not knowing the dates at which to fix the commission days in particular towns, by reason of the fact that beforehand they had no adequate idea as to the business to be done, would be removed to a great extent by allowing provincial solicitors to enter their causes at the Associates' offices in London before the commencement of the Circuits.


Sir, I did not intend to take any part in this discussion; but the speech of the hon. and learned Member for Taunton (Sir Henry James), to which I listened with pain, with shame—not with surprise, but certainly with contempt—has been followed up by such a general chorus from the Common Law side, more especially from the hon. and learned Member for Dewsbury (Mr. Serjeant Simon), who never addresses the House on a legal question without holding up the Judges as being the perfection of human nature, and without running down everybody else—these effusions have been such, that I really cannot resist giving expression to my opinion upon this utterly degraded episode in our debates. When I read the hon. and learned Member's Resolution, I hoped we should have a discussion in which a large-minded view of the law and its defects might be presented. But in place of that, we have had only small suggestions; and these have been rendered still more trifling by the fulsome, loathsome sycophancy with which the hon. and learned Member adulated the Judges, as if they were infallible men—when we know that there is no public body less worthy of the name. All these praises come, no doubt, from very "disinterested" sources; and, strange to say, they come only from the Common Law Members, as not a word of this crawling nature has been uttered by any of the Equity Lawyers, who seem to have too much self-respect to abase themselves before the Bench. This thing seems to have grown of late into a sort of system; and it is upheld by those who are assuredly not the most independent members of the Bar—although, if we credit them, the Bar contains nothing but independence. I, for one, protest against this style. But there are others who dislike it, though they may remain silent. I do not wonder that they are mute; for anyone who has the courage to express an honest and an independent opinion is saluted with an outcry, no matter how truthfully he speaks. This slavishness is derogatory to the character of the House, whose functions embrace the right as well as the duty of criticizing every person, from the highest to the lowest, who is in the Public Service of the country; and to say that anyone shall be exempt from remark in his public character is not only cowardice, but is a sort of treason to the rights and privileges of those who send us here. I, Sir, do not deny that there are some honourable men on the Bench—I should be sorry to think there were not, though I wish there were more—but I entirely secede from the hallelujahs of the hon. and learned Member for Taunton, who prostrates himself before all the Judges with a species of Oriental adulation which I hope will meet with its reward. But how severe was the censure which he really passed upon them, without seeing it, by some of his statements! He speaks of the business done at Chambers by the Masters; and of the scenes where two attorneys' clerks fight and wrangle about little or nothing. And he says that this is followed up almost invariably by an appeal to a Judge; and that there is again an appeal from him to the Appellate Tribunal. All this is true; and it is a great evil. But why are the rulings of the Masters always appealed from? Because in any matter of the least difficulty they are hardly ever right. These gentlemen are appointed by the Chief Judge in each Court—not for merit, that is a thing that no one ever heard of—but under the influence of a nepotism the most scandalous. They are nearly all connections, or henchmen, or flatterers of the Judges—this is their sole recommendation; not learning or ability. Hence their decisions at Chambers are distrusted and despised; hence there are appeals which cost suitors heavily; hence the innumerable instances where their decisions are reversed, but which are carefully kept from public view. Is there one hon. Gentleman here who can contradict these facts? No. The whole Bar with one voice denounces the fashion of their nomination. The hon. and learned Member for Taunton knows it as well as anybody. But in his suggestions of law reform does he offer any cure of this sore? Does he propose to take away the nomination of those Masters from the Judges, who so abuse their patronage? If he had done that, he would have cleared our Courts of officers who bring scandal and disrepute upon them. But he makes no such proposition. He cannot embrace that measure of reform, because it would not suit the Judges, of whom he is so passionate an admirer. His regard for the public interest is great, if we believe himself; but he has no desire to see a real measure of reform. These appointments ought to be in the hands of some Public Minister, directly responsible to Parliament for his nominations. At present no one is responsible; and such abuses prevail as I have named. The hon. and learned Member has drawn a pathetic picture of a Judge in the Assize town, who discovers to his grief that he has only a cause or two to try, who rises at mid-day, and almost weeps in his lodgings because he has no work to do; who thinks with sympathy and sadness of the many suitors who are waiting for him elsewhere. If we are to believe the hon. and learned Member for Taunton, the tears almost run down the Judge's cheeks as he contemplates this state of things. Nothing can be more absurd or farcical than this. It is almost to mock the House to present it. All around us are hon. Gentlemen who know how the Judge chuckles and rubs his hands with pleasure when he finds he has nothing to do. Instead of pining and weeping alone, as is suggested, he is off to some pleasant county family, with whom he stays until he has to go to the next town. Instead of being reduced to despair, as is pretended, he is uplifted to rapture. And this is the sort of delusion that is practised upon those who are outside, and who have no real experience of what goes on. None but very ardent supporters of the Judges would resort to it. The hon. and learned Member for Taunton professed a wish in his Resolution to make law less expensive; but he has pointed out no practical road to economy. But economy in law is become an absolute necessity. Before the passing of the Judicature Acts we heard that they were the great means by which law would be made cheap and almost perfect. Unfortunately for these predictions, law has become doubly, trebly, quadruply more expensive than it was before; and there is more doubt now about the law than ever. There is a larger number of new trials, and there is a great increase in the reversal of decisions. This, of course, suits the lawyers and barristers whose fees are quadrupled under the present system; and if the hon. and learned Member were in earnest he would endeavour at reform. But I have heard nothing but peddling proposals. We are asked to send a Judge to the country for three months, to sit and try causes every day during that period. How absurd the idea! Perhaps in Liverpool or Manchester, or a united Bradford and Leeds, business might be found to occupy the Judge, though of that I am by no means sure; but of this I am certain—that it would be impossible to group any other three or four, or even ten, Assize towns in England which would give employment to any Judge for anything like three months. This proposition, therefore, I regard as absurdity itself. We have then a criticism on County Courts; and we have oblique and covert hints as to the Lord Chancellor—whom they do not openly name—glances, as it were, at him, as the man above all others who has lately filled the Bench with an inferior class of Judges of those Courts, and who is responsible for much of the dissatisfaction which prevails in the public mind. I am no advocate for the Lord Chancellor; I have no reason to be, but rather the reverse. But right is right, and truth is truth; and there are plenty of men in this House who know that the present Chancellor is not the first who set the evil example of appointing inferior men as County Court Judges. Ever since these Courts were established by those who call themselves "Liberals," it is notorious that they have been made pleasant nests and holes and corners for jobbing politicians. The Liberals are always boasting about their purity—about their extraordinary virtues; they are perpetually crowing and flapping their wings, and making loud noises in this direction; and the poor Tories get frightened and sit silent, and invariably allow themselves to be put down when these amazing claims to political perfection are put forward. I am no Tory, but I am for truth; and I hope I may be allowed to give them a word of advice; and that is, for the future not to give in, as they are generally accustomed to do, but to meet their assailants with weapons like their own. One of the main sources of expense in our present system is the constant granting of new trials. This is a practice of comparatively recent growth. It was not until the middle of the last century that Lord Mansfield almost began the practice. Since then it has grown into a common nuisance. In nearly half the cases tried there are motions and rules for new trials. Sometimes there are as many as three, and there have been known to be even four, trials of the same case. This, of course, enriches counsel and attorney, and reduces to ruin the wretched suitors; but as it puts money in their purse, none of these law reformers, like the hon. and learned Members for Taunton and Dewsbury, have a word to say for its abolition. For my own part, I am entirely opposed to them. Hardly one case in 50 requires a new trial. There is no intricacy or perplexity in the majority of cases tried. There is nothing to puzzle 12 men of common sense and honesty. Exceptions there are, doubtless; but, as a rule, the cases tried are simple enough, and easy of comprehension—generally of contract, with few facts. I would like to see new trials in such simple cases absolutely forbidden by law. But how is it now? Cases involving few facts are tried at the Assizes, and decided by 12 plain men in the neighbourhood, who probably know a good deal themselves about the parties to the suit, and even some of the real circumstances connected with it. A new trial is applied for, and three or four Judges, sitting in London, who can have no real insight into the case, and have not watched the witnesses, led away by affidavits that are false, and speeches of counsel that are not always correct—I do not like to characterize them, as I might, in plainer and stronger language —take upon themselves to upset what has already been decided. This is a crying evil. But not a word is breathed against it. It tends to swell the emoluments of these honourable gentlemen, whose praises have been loudly sung to-night; but, while it is sport to them, it is death to the suitors. Surely any honest and sensible Judge can, if he likes, keep his jury right; can prevent them from being led astray; can keep them in the true groove, and help them to find a verdict that is just! And, if he is incompetent to do this, he is unfit for his office. If the right hon. Gentleman the Home Secretary means to introduce any measure which shall remove the great and acknowledged abuses that exist in and under the present Judicature Acts, he will be a public benefactor; and I hope he will bear in mind the words I have uttered on the evils of new trials. There ought to be no new trials, because there ought to be no wrong trials. A Judge, if he is worthy of his place, ought to prevent a jury from ever coming to a wrong conclusion. As a rule, cases are of a very simple kind; and, on the whole, no real doubts ought to exist. If the Judges are the superior class of beings that they are represented to be, justice would be done in all cases; and there would be no need for the present abomination of putting suitors to double and treble expense, as is now done by these new trials. Another great evil has not been alluded to by these great and disinterested Law Reformers—and that is the costs and charges to which unfortunate suitors are now put under the Acts which exist, with reference to bills of costs. I am almost inclined to think that barristers, notwithstanding their "independence"—of which I have heard so much to-night that I am sick—have almost as much worship for attorneys as they have for Judges. I am a living proof of their independence and public spirit; and when I bring my own case before the House, as I hope to have an opportunity of doing, a good deal of what we have heard to-night in adulation of Judges and the Bar will melt away. I should like, if I could, to learn from the right hon. Gentleman the Home Secretary, whether he has ever had the pleasure of being served with a bill of costs? [Mr. ASSHETON CROSS: No.] Then I can tell him what a bill of costs is—it is neither more nor less than highway robbery by Act of Parliament. The old Dick Turpin put his pistol to your head and cried, "Your money or your life." The lawyer is now authorized by law to make the same demand; but, instead of a pistol, he has his bill of costs. He could not do it effectually if he were not backed up by Statutes, and these Statutes should be altered. The costs and charges to which unfortunate suitors are now liable are mere extortion under the colour of law. We have fine theories about cheap justice; but justice is found to be the most expensive thing we have. A friend of mine, some time ago, had four interviews with a country lawyer, and he sent him in a bill for the small sum of £30. What was my friend to do? I advised him not to tax, for the Master would probably not tax off one-sixth—as I have always found the Masters to favour the lawyers—and then he would have to pay the costs of the taxation also. I told him that the first loss was the best, and to yield to the demand, however exhorbitant, unjust, and even wicked. This is an example of what goes on—under the sanction of the law. It causes the greatest dissatisfaction in the public mind; it disgusts people with the general administration of justice, when, even in the attempt to get justice, they are robbed. ["Hear, hear!"] I am glad of that approving cheer from these hon. Members, as it shows me that the hon. Member for Hull (Mr. Norwood) is not the only person here who chafes at the present state of things; although that hon. Member, for giving expression to feelings which I believe pervade the mercantile community generally, as to the unsatisfactory state of the law, and the more unsatisfactory condition of the Bench, has had remarks made upon him far from agreeable by the Judge-worshippers who followed him. But the feelings of the country are with him, and are certainly not with those who fatten upon abuses. The hon. Member for Hull has devoted much time and thought to a remedy for our legal misfortunes, and can find none, but in an extension of the County Courts. I wish I could agree with him; but, seeing how they are confessedly constituted of inferior and incompetent men, of whom we have heard enough to-night, I am afraid the cure would be worse than the disease. I cannot consent to give increased jurisdiction to men who are unfit to deal with the matters already before them—men in whom, with an exception or two, no one has any confidence. But I suppose that the hon. Gentleman is driven to this, not because he loves County Courts, but because he detests the Superior Courts, as being, in his judgment, even far worse. I do not know which is the worse. Both are admitted by all the outside world to be bad. There are few Judges whom any sane man would like to go before, and there are fewer County Judges at whose tribunal it is not almost a misfortune to to appear. But no real remedy, as far as I see, has yet been suggested by any of those barristers whose virtue is approved when they buy other men's wives in public market.


said, it was unnecessary, after the speech they had just heard, to devote any time to proving that the mere fact of being educated in a liberal Profession, and of associating for a great number of years with some of the worthiest of one's fellow-countrymen, might fail to endue a person who had those advantages with that set of feelings and that state of thought which would qualify him to exercise an impartial judgment on a question like that now under discussion. But the last speaker had devoted a considerable portion of his remarks to the eulogy of his hon. Friend the Member for Hull (Mr. Norwood), not so much out of love for the hon. Member as out of detestation for other persons whom he wished to bring in comparison with him. The whole of the representation made by the hon. Member for Stoke-upon-Trent, as to the tenour of the remarks of the hon. Member for Hull, was an entire mistake from beginning to end. In the hearing of the hon. Member for Hull, he now stated that that hon. Gentleman did not say this evening the things which had been imputed to him—to his credit—by the hon. Member who had just sat down; and he stated this at the desire, and with the authority of, his hon. Friend the Member for Hull. Groundless as was the eulogy bestowed upon one person, equally groundless was the blame so freely bestowed upon others. "While he would not stop to follow to its ultimate end the series of vituperations about the loathsome sycophancy of gentlemen with whom he had the honour to associate, and while he felt that such men as Master Dodson and Master Francis would be rather astonished to hear that they knew nothing about law, and that they had been appointed to their posts through pure and outrageous nepotism, yet he must assert that no hon. Member of the House, and, least of all, the hon. Member who had just sat down, was entitled to speak on behalf of the Profession, and to state that he represented the opinions of every member of the Bar. The right hon. Gentleman opposite would rejoice to hear that a verdict once given should be understood to remain; that there ought to be no new trials; and that anything in the shape of a new trial was a detestable abomination. The hon. Member for Stoke maintained that the verdict of a jury once pronounced ought to be held good; and certainly, therefore, the verdict of two juries, one after the other, must be exceedingly good.


said, he specially guarded himself by referring to new trials in small cases tried in the country.


could not see what was the principle involved in this distinction. A Metropolitan special or common jury was at least as competent as the juries in small cases tried in the country. It seemed generally admitted that there was a great want of power in the judicial body to grapple with the work that was to be done even in the present state of things. He believed, after all, the one thing they would have to come to, unsatisfactory as it was to the minds of some people, was that they must have more Judges. If they wanted more work to be done, they must have more men to do it. At present, an enormous amount of work which ought to be done by the Judges was taken from them because they had not time to do it. He could name a Queen's Counsel who, as arbitrator, disposed of larger amounts during the year, if all were put together, than were disposed of by the highest Judge in the land. For his own part, he would like to see more trials without juries. If every case was tried by a Judge without a jury, unless a jury were asked for, a far greater number of cases might be decided in a satisfactory way than could be otherwise done, the Judge, in such cases, acting rather in the capacity of arbitrator.


said, that in the course of this very interesting discussion some feeling of disappointment had been expressed by more than one speaker at the working of the Judicature Acts. Perhaps hon. Members who were too sanguine might feel disappointment; but it was well not to hope for too much, and those who did not hope for too much in this matter had no reason to be disappointed. The Judicature Acts, upon the whole, seemed to him to have worked as well as had been expected, and to have effected very considerable improvements in our judicial system. They had been in operation practically only since the end of 1875 or the beginning of 1876, and he could not help thinking that they had conferred a great benefit upon the community. They were very much indebted to them, in the first place, for having put an end to the scandal, which arose in consequence of the doctrine of the Courts at Lincoln's Inn being altogether contradictory to that of the Courts sitting at Westminster when applied to the same state of facts. They were also indebted to them for giving to the suitors a full measure of relief in the Courts in which they might sue or be sued, and saving them from being bandied about from pillar to post. We were indebted to them, too, for having introduced a uniform, reasonable, and simple procedure; for having done away with a highly technical and hardly intelligible system of pleading, and substituted a system founded upon plain, reasonable, and clear principles. And, again, the Courts of Chancery were indebted to them for having induced those Courts to adopt a reasonable means of arriving at the truth, instead of the ridiculous means formerly pursued. Lastly, they were indebted to those Acts for a most excellent High Court of Appeal and not less excellent Intermediate Courts of Appeal. But, though improvements had been effected in our Judicature, nevertheless it must be admitted the system was not altogether satisfactory. He thought the House was very much indebted to his hon. and learned Friend (Sir Henry James) for having moved this Resolution, and introduced the subject in so able and temperate a way. His hon. and learned Friend had endeavoured to point out certain matters in which our system was defective and might possibly be amended, and certain cases in which there was a waste of judicial power. Upon the question whether the number of Judges should be increased, he had listened with attention to the remarks of the hon. and learned Member for Barnstaple (Mr. Waddy), who was of opinion that a large increase was needed. He had not come to the same conclusion. Hon. Gentlemen who had either heard or read the explanation given by the Lord Chancellor when he introduced the Bill for the extension of the jurisdiction of the County Courts and the statistics which he laid before the other House of Parliament, must have come to the conclusion that the arrears were rapidly lessening, and that the Judges now on the Bench were, or very shortly would be, able to cope with the business they would have to dispose of. The noble and learned Lord explained very clearly that the arrears were diminishing in almost all the Courts, and that though for some time two of the Judges had been taken from the service of the Courts; the remaining Judges had been able to grapple with the business. There was no occasion, therefore, for the alarm felt by some. Nevertheless, he could not say that the course of business had been altogether satisfactory. He quite agreed with his hon. and learned Friend that there was room for considerable improvement, and there might be cause for considerable complaint. He would now go through some of the complaints, and some of the remedies for the evils complained of. In the first place, his hon. and learned Friend said that the Common Law Divisions formed barriers injurious to the administration of justice. He did not quite gather from his hon. and learned Friend whether he desired that the Divisions of Queen's Bench, Exchequer, and Common Pleas should be done away with. If his hon. and learned Friend's observations were directed to that end, it did not seem to him that there would be any advantage in extinguishing those ancient Courts, because the Judges of one Court could assist those of another, and no delay seemed to be occasioned by the existence of those ancient Courts. If it was desirable that there should be some Chiefs over the Judges, it was also desirable to retain those three Chiefs—the Chief Justice of the Queen's Bench, Chief Baron of the Exchequer, and Chief Justice of the Common Pleas. These Chiefs could regulate the business of their Courts and make arrangements necessary for its conduct. The Judges sat two or three at a time, and sat also in a Divisional Court. This, the hon. and learned Member said, was a waste of judicial power. It was said each Judge should dispose wholly of the case which came before him. He should try it with a jury; decide all the points that arose in it; and, in short, dispose of it. But the hon. and learned Member for Penryn (Mr. Cole) most conclusively pointed out that such was, in fact, the practice of the present day. The only case in which there was a resort to what was called the Divisional Court was where there was an application for a new trial. It might be said, and it was a point open for consideration, that instead of being made to the Divisional Court, the application should be made immediately to the Court of Appeal. But what was the nature of the cases which the Divisional Court sat to decide? They were Crown cases reserved, cases of appeals from magistrates, from County Courts, and from inferior Courts generally. It might be said one Judge would be enough to hear those appeals; but very frequently there was no appeal from the decision of the Divisional Court. The decision was final; and if they made one Judge capable of deciding the questions that arose in these cases, they would almost be obliged to give an appeal. Besides these, there were special cases—applications for criminal informa- tions, writs of mandamus, and prohibitions; in the Exchequer, there were Revenue and Customs cases; and in the Common Pleas there were cases relating to elections and the franchise. All these cases involved questions of the greatest possible importance. They might be disposed of by a single Judge; but if tried before a tribunal consisting of one Judge, it must necessarily follow that there should be an appeal to the Appellate Court, and if they had an appeal in all these proceedings to the Appellate Court, the result would be, perhaps, to overwhelm that Court with business. He would say they should utilize their judicial strength by having those cases tried before a single Judge, if they could with convenience; but they could not do so in all cases without increasing appeals to an almost indefinite extent, which might overwhelm the Appellate Court. It could not be denied that the new system of pleading, which flowed from the Judicature Act, had given rise to a great number of interlocutory applications. It was quite appalling, some times, to consider the number of these interlocutory applications that might be made in the simplest case—for particulars, further particulars, interrogatories, leave to examine witnesses; all of which were entirely unnecessary. But it was the interest of those concerned in these proceedings to multiply these applications. If a stop could be put to them, great good would be done; but it was very difficult to know how to put a stop to them. The hon. and learned Member deplored the existence of all these interlocutory applications; but he did not succeed in pointing out a remedy. It was certainly a matter for serious consideration, and if the Government could invent the means of putting an end to the evil, they would be very glad to do so. Another matter was alluded to by the hon. and learned Member, for which he did suggest a remedy. He said there were appeals on interlocutory matters from Masters to Judges, and from Divisional Judges to the Appeal Court; and he was to a great extent right in his observations on that matter. But these questions sometimes involved a great deal. The titles to estates were often decided on such applications, and it certainly would be very detrimental to deprive parties to a suit of the right to appeal. But he did think the right to appeal might be somewhat limited. In practice, the necessity of appeal might be considerably lessened. The hon. and learned Member referred to the want of continuousness in the sittings for the trial of Nisi Prius cases. This was one of the greatest evils. As to how long the sittings would continue, and where and when the cases would be tried, they were left in a state of uncertainty; and great annoyance, inconvenience, and loss was the result. The inconvenience and loss that were now suffered could be prevented by reasonable arrangements, and this could be accomplished without resort to legislation. The Judges, and those who had the control of business, might, without difficulty, make such arrangements as would enable parties to ascertain when and where causes would come on for trial. He did not know how it was these difficulties had arisen, unless it were that the Courts had been working under exceptional circumstances, and that the new Judicature system was not in complete working order. If the Judges, when they determined to alter their arrangements, would make rules under which certain causes should be taken in certain Courts, the annoyance to which litigants were exposed would be removed. He agreed with his hon. and learned Friend the Member for Taunton, that there was a loss of judicial power on the Circuits from the Judges visiting towns where there was little business; but he did not approve the remedy suggested. Few would advocate any considerable change in the holding of Assizes for the trial of prisoners. Unless they were absolutely obliged, it would not be wise to group counties for criminal trials, because it was very desirable that popular respect for the administration of justice should be fostered by bringing it under the observation of the people, and allowing them to realize the impartiality and certainty with which it was administered. It would be a misfortune to prevent trials being held in the counties in which offences were committed. The same reasons did not apply to the same extent with the trial of civil causes; and now that communication was easy and cheap there was the less justification for requiring that the trial should be in the county in which the cause of action had arisen, or in which one of the parties resided. If a Judge were to be told off to sit continuously at commercial centres like Leeds, Manchester, Birmingham, &c., he must live for the time in the town at which the Court was held, for he could not keep travelling to and from London. Continuous residence would involve mixing in society and becoming more or less intimate with the inhabitants of the town; and there would arise, quite wrongly, in the minds of the humbler portion of the community a distrust of the Judge, and an idea that he could not be thoroughly impartial. There was another objection to his hon. and learned Friend's proposal. If the Judges were sent down to Manchester or Liverpool, or some other great centre for three months, they would, long before the expiry of that period, have exhausted their Cause List, and nothing would remain for them to do. His hon. and learned Friend seemed to have an exaggerated notion of the amount of judicial business arising in the great centres. It was large, no doubt, but not so large as to require the continuous presence of a Judge; and he could not help thinking that if the inhabitants of the great centres had three or four Assizes in the year they had no great reason to complain. One change, however, might be adopted with advantage. For the purpose of facilitating the trial of civil cases and husbanding the judicial strength, it might be well to group—say, two counties together, and hold the Assizes alternately in one and the other. The scheme would be easy to carry out, and it would save a great deal of delay and expense. The localizing of the Bar, to which the hon. and learned Member for Dewsbury (Mr. Serjeant Simon) had referred in his eloquent speech, was a consideration of the utmost importance. Nothing could well be more disastrous to the country than a judicial system which would tend to lower the dignity of the Bar and do away with its fearless independence. With the excellent remarks of the hon. and learned Member on the judicial systems of other countries where the Judges formed a distinct class from the Bar he could also agree; but the hon. and learned Member seemed to forget himself towards the end of his speech, when he proposed the appointment of a Minister of Justice in this country responsible to Parliament for all the Judges said and did and thought.


said, he did not propose that the Minister of Justice should have the Judges under his control, but that he should deal with the whole question of judicial appointments.


accepted his hon. and learned Friend's correction; but, at the same time, he did not see how the Judges could remain absolutely free and independent when there was a Minister charged with their appointment, and also, he supposed, with their dismissal. It was one of the great glories of our system that our Judges were thoroughly independent and fearless, and for some time, at all events, they might, he thought, get on without a Minister of Justice. His hon. and learned Friend opposite would, he thought, see that he thoroughly appreciated his Motion, and the very able manner in which he had laid his proposals before the House, although he could not altogether acquiesce in all he proposed to do. Some, however, were worthy of acceptance, and all would be considered; and he trusted that, after the useful discussion that had taken place, his hon. and learned Friend would consent to withdraw his Amendment.


said, his object had been accomplished by the discussion which had taken place, and after the manner in which he had been met by his hon. and learned Friend the Attorney General, he would ask leave to withdraw his Amendment.


said, the hon. and learned Gentleman opposite deserved their thanks for the very interesting debate which his Amendment had elicited, and he had no doubt good results would follow. In supporting the proposal for its withdrawal, he desired to say that the discussion had confirmed his conviction that the holding of four Assizes each year for the administration of criminal justice could not be departed from. He was strongly of opinion that when a man was convicted and sent to gaol he ought to work out his term of imprisonment; but he did not want anyone to go to gaol except he was convicted of a crime. It had unfortunately happened that people had been committed and had, as was stated by the hon. and learned Gentleman opposite, to remain in gaol awaiting their trial six, seven, and even eight and nine months, although some of them had on their trial been acquitted. The days for hardships of that sort being inflicted were, he hoped, gone by; and he trusted that magistrates would, in as many cases as possible, find themselves able to admit prisoners to bail. With respect to grouping, it would not be urged that they should have Assizes in every county in Wales for instance, as, in the majority of cases, there would be no prisoners to try. He would place in the hands of hon. Members a table, showing the system of grouping that was now adopted; and they would find that it was, in fact, a question of Bradshaw, and that no group was larger than a single county.

Amendment, by leave, withdrawn.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.