SECOND READING. (Hansard, 26 February 1867)

THE LORD CHANCELLOR

My Lords, in asking your Lordships to read this Bill a second time, I beg to express my opinion that it is one of considerable importance. By its title it is a Bill to provide for the execution of the office of Judge of the Admiralty, Divorce, and Probate Courts; but it is virtually a proposal for a union of the three courts of Admiralty into one, preserving, at the same time, the separate power, jurisdiction, and authority of each. Such a proposal has already been in the contemplation of the Legislature. When the Probate Court was established in 1857 provision was made in the Act that, on a vacancy occurring in the Admiralty Court, the Judge of the Probate Court should become Judge of the Admiralty Court also; and that on a vacancy occurring in the Probate Court, the Judge of the Admiralty Court, with his consent, should become Judge of the Probate Court. In the same Session the Divorce Court was established, and the Judge of Probate was made Judge Ordinary of that Court. Of course, it was supposed that the business of the three courts would not be of such an amount as that it might not be disposed of by a single Judge; but experience has shown the in- 1004 crease of business to be such as renders it impossible that one or even two Judges can do the business of the three courts. I will call attention very briefly to the increase of business that has taken place in all of them. I will take first the Admiralty Court, which is presided over by an eminent person, of whom it is impossible to speak too highly, my right hon. and learned friend, Dr. Lushington. The business of that court has increased to a wonderful extent. In 1841 there were 237 causes tried; in 1866 there were 657. Among those are many collision cases involving a considerable amount of property; in a recent case—that of the Amazon and the Osprey—the damage to the former was estimated at £60,000, and that of the latter at £20,000. It is to be observed, that witnesses are now examined in that court vivâ voce, instead of by au Examiner, and the questions are frequently very complicated and embarrassing. While in 1841 the number of collision cases tried was forty-nine, in 1866 the number was 264. The business of the Admiralty Court is of a most important description; and, though small salvage cases and cases of seamen's wages have been withdrawn from the court, its jurisdiction has been extended to the ownership of vessels, mortgage claims, and damage to cargo; and I anticipate that in a short time the business will be still further increased. There is a Bill which I expect will be very shortly in your Lordships' House, by which it is proposed to extend the ancient jurisdiction of the Court of Admiralty over insurances, freights, charterparties, general and particular average, and other maritime matters. As to maritime contracts, Justice Story, in the case of "De Lovis v. Boit," observed— The next inquiry is, what are properly to be deemed 'maritime contracts?' Happily, in this particular there is little room for controversy. All civilians and jurists agree that in this appellation are included, among other things, charter-parties, affreightments, marine hypothecations, contracts for maritime service in the building, repairing, supplying, and navigating ships, contracts between part owners of ships, contracts and quasi-contracts respecting averages, contributions, and jettisons, and policies of insurance. All this business, which is now in the Superior Courts, will be restored to the Court of Admiralty; and I am quite sure that, although these causes are at present satisfactorily disposed of under the existing system, yet I believe that persons connected with maritime affairs would 1005 prefer to have those important matters determined by a maritime court, rather than before juries consisting of persons who are not ordinarily conversant with such questions. I think I have shown your Lordships that the Judge of the Admiralty Court, from want of time, is not only incapable of undertaking the duties of another court, but that it is extremely probable he will be hardly able to dispose of all the business of his own court, and therefore the notion of making him Judge of the Probate and Divorce Courts also, seems to me quite unreasonable. Turning to the Divorce Court, I may remark that at the time that court was established it was supposed that as regarded the number of cases, the first year or two would be exceptional, as it was probable that persons who could not afford the expenses attendant on an application to your Lordships' House had waited to take their proceedings in the Divorce Court, knowing that its establishment was in contemplation. Unfortunately, it has turned out not to be the case, for since the first year the business has increased very largely. In 1858 the number of petitions for alimony was 40; in 1865 the number was 86. In 1858 there were 376 motions; in 1865 there were 708; in 1858 the summonses were 163; in 1865 they were 726; in 1858 the causes were 58; in 1865 they were 256; in 1858 the judgments were 52; in 1865 they were 260. Of course, most of those cases are of great importance and of great length; and it frequently happens that if exceptional cases, such as declarations of legitimacy which are tried by this Court, arise, the business accumulates, and falls into arrear. Then as to the Probate Court, in 1858 the number of causes was 380; in 1866 it was 538. In the former year the number of trials was 27; in the latter 69. Now, I think I have shown your Lordships sufficient by these statistics to convince you that what was contemplated by the Legislature in proposing that these three Courts should be under one head and one Judge, who would dispose of the business of all, is utterly illusory, if I may use the expression, and that it is absolutely necessary to provide for the discharge, of the business of the three Courts in a more efficient manner. One proof of the inability of each of the Judges of those Courts to do more than the duty of one of them, is, that though the Judge of the Probate Court and the Judge of the Admiralty 1006 Court may sit for each other, on no occasion that I am aware of has either of them done so, not being able from want of time. Another most important circumstance is this:—Formerly the Judge of the Admiralty Court and the Judge of the Prerogative Court—which may be said to correspond to the Court of Probate—used to attend the sittings of the Privy Council, and it is very desirable that these civilians should be members of that tribunal, in which questions of maritime and civil law continually arise. During my time the occasions on which the Judges of the Admiralty, Probate, or Divorce Courts have been able to attend the Judicial Committee have been so rare as scarcely to be worth mentioning. I think, therefore, I have laid the foundation for the proposition that it is necessary that provision should be made for the execution of a portion of the duties devolving upon these Judges in their several Courts. What I propose is that a Court should be established consisting of a Chief Judge and two other Judges, each of whom shall have the same power in any of the three Courts as the Judges of these Courts now possess. By the Bill it is provided that in each of the Courts they shall be able to exercise all the powers and authorities belonging to the Judge of each; but the jurisdiction, authorities, and powers of the Courts are to be kept separate and distinct. In this way I propose to obtain a judicial power which can he concentrated and turned in any direction in which it is required. It frequently happens in the Admiralty Court, for instance, that there is a necessity for the despatch of causes; the witnesses, being generally seamen, are of a migratory description; and it is frequently of the greatest possible importance to be able to examine them at once. Owing, however, to the state of the other business of the Court, the Judge is constantly prevented from entering upon these causes, and the evidence is obliged to be taken before the Examiner. This is a most un satisfactory way of proceeding; because, upon paper, which is all that the Judge, has before him, one witness looks as well as another. Under this Bill it is proposed that there may be two Courts of Admiralty, two Courts of Probate, or two Divorce Courts sitting at the same time, and thus the business of all these Courts will be disposed of with much greater despatch. The three Judges will 1007 also constitute a Full Court of Divorce. Your Lordships are perhaps aware that in order to constitute a Full Court of Divorce at present it is necessary to borrow from the Common Law Courts two Judges, who, being called upon only occasionally to administer a kind of law to which they are unaccustomed, are perhaps led to yield their own opinion too much to that of the Judge Ordinary; and may not exercise their independent judgment to the extent it is desirable they should do:—so that, practically, it is an appeal from the Judge Ordinary to the Judge Ordinary himself. There will also be a Full Court for granting new trials. I have now explained to your Lordships, sufficiently I think, the general objects of the Bill; it is probably unnecessary to enter into minute details, which can be better considered in Committee. I know that my noble and learned Friend (Lord Cranworth) has turned his attention particularly to this subject, and I hope with some confidence that we may have his assistance and support. There is a further advantage which I propose to gain by the constitution of this new Court in the way that I have described, and that is, that the Chief Judge will be released from time to time, and so enabled to attend the Judicial Committee, and thus add to the strength of that tribunal. My noble and learned Friend evidently considers this a point of some importance; because last Session he laid a Bill before the House for the object of adding strength to the Judicial Committee. If the Bill should receive your Lordships' sanction, I expect that I shall have the satisfaction of establishing a most high and important Court, governed by the principles of civil law, in which Court will be collected a body of advocates learned in that law. I need hardly say that if war should unhappily occur, the prize causes will be tried in the most solemn, and decided in the most satisfactory manner; and even if questions of International Law should arise, provision may be made for having them determined in that Court. I perhaps may add a word regarding one of the clauses of the Bill relating to the Court of Arches. The Dean of Arches is a Judge of high authority and dignity, appointed by my most rev. Friend the Archbishop of Canterbury. Now, the Dean of Arches is in this extraordinary position: he is a Judge, as I have already said, of high dignity and great authority, but I believe his salary 1008 hardly amounts to £40 a year. [The Archbishop of CANTERBURY: Not £4.] Well, I will strike off the 0, and leave the salary at £4 a year. Of course, the most rev. Prelate finds it extremely difficult to appoint a Judge who has not some other means of supporting the dignity of his high office. Formerly, the course was to appoint the Judge of the Prerogative Court. Latterly, the office has been held by my right hon. Friend, Dr. Lushington. Of course, one must make some provision for vacancies occurring in the office of Dean of Arches, and what I propose is that the most rev. Prelate should have the power of appointing one or more of the new Judges to this Court. I am certainly anxious for the success of this Bill. I believe it will be one of great utility, and that it will provide a well constituted tribunal for the administration of justice in the Courts of Admiralty, Probate, and Divorce, and I trust your Lordships will grant the measure a favourable consideration.

§ LORD CRANWORTH

said, that he gave his cordial assent to the principle laid down by the noble and learned Lord, that the judicial power of the country should, if necessary, be strengthened; and their Lordships, he thought, would be very reluctant at any time to be niggardly in affording sufficient judicial strength to all the important Courts of the country. During the short time last year that he had the honour of holding the Great Seal he looked into the question, and found that if the time had not actually arrived, it was fast arriving, when some addition of strength must be made to almost all the Courts. But he was bound to say that the two Courts which seemed to him least to require such an addition were these very Courts of Probate and Divorce and of the Admiralty, and nothing which he had heard from his noble and learned Friend had convinced him that his opinions on the subject were erroneous. His noble and learned Friend had referred to the figures supplied by the gentleman who held the office of Registrar of the Admiralty Court—and of his fitness in every way to discharge the duties of that office no one could entertain a doubt—and those figures certainly showed a great increase of business. Returns, however, merely stating the number of causes heard 1009 constituted a most fallacious test, unless they knew what the nature of those causes was—and no difference was shown between those which were important and those which were unimportant. The number of days during which the Court was occupied formed a more reliable indication of the business done; and from this point of view also a great increase had taken place; for whereas in 1841 the sittings of the Court of Admiralty had been held only on thirty-eight days, in 1866 they covered 147 days, which, at the rate of six days in the week, would be between twenty-four and twenty-five weeks. In the previous year, however, the sittings had only been ninety-nine; and one great cause of the increase in the year 1866 was the Banda and Kirwee Booty case, which by itself occupied the time of the learned Judge for above a month. Deducting those sittings from 147, the number would be reduced to about 125; and taking an average of five years, as it was right to do, the sittings of the Court would be only 111 days, or about eighteen weeks and a half during the year. He did not think those figures represented such an amount of labour as to call for the assistance of a second Judge. The Returns with regard to the other Courts did not afford the means of calculating the number of days which they had sat, but only the number of causes heard. He admitted that it would be of great advantage if some high judicial functionary were appointed, whose duty it would be to attend the sittings of the Judicial Committee of the Privy Council; but he confessed he did not sec any great reason for the appointment of additional Judges to the Courts referred to; and he did not think his noble and learned Friend had made out a case for any increase of the judicial staff in the direction referred to. He was not one of those who thought the House of Commons wanting in liberality in providing salaries for new Judges when a good case for appointing them was made out; but he calculated that the Bill under consideration would involve an expenditure of £17,500 a year, and that, he thought, the House of Commons should not be asked to provide, unless it could be well assured that the business of the Court would increase to an extent justifying such an expenditure. It was true that his noble and learned Friend had spoken of a Bill now pending in the House of Commons which proposed largely to extend the juris- 1010 diction of the Admiralty Court; and if that Bill passed a good case might be made out for the appointment of the new Judges. If, indeed, that Bill had passed the House of Commons and was before their Lordships, it might be that no objection could be raised to the noble and learned Lord's Bill. He would therefore recommend their Lordships to give the Bill a second reading, and postpone its further; consideration until the Bill now in the House of Commons, referring to the Admiralty Court, had been disposed of by that House, and that then the two measures should proceed together. He did not object to the appointment of now Judges, if a necessity for them should be shown, and concurred in the proposal to put them on the same footing as other Judges as regards salary; but he contended that it was contrary to every principle of legistion to recommend a great increase of salary, and the constitution of a great Court before they were sure the business of the Court would increase to an extent justifying such a course. A precedent for carrying out his proposal for postponement was to be found, in the conduct of their Lordships with reference to the Bankruptcy Bill introduced by Lord Westbury; they declined to create one of the Judgeships he recommended, on the ground that it was not clear he would have sufficient work to occupy his time. As to the introduction of a body of advocates learned in the civil law, he thought his noble and I learned Friend rather sanguine, because the greater part of the business of the Court would be ordinary common and: statute law. He quite approved, however, of the principle contained in the Bill, which proposed to bring into one Court the consideration of various descriptions of law; for he believed with Jeremy Bentham that every Court ought to administer all law.