HL Deb 12 July 1867 vol 188 cc1432-5

Order of the Day for the Second Reading read.


, in moving that the Bill be now read the second time, said, that its object was to facilitate the despatch of business in the Court of Chancery. On the introduction of the measure, he stated that the two Lords Justices of Appeal were compelled to act together, and neither could perform any judicial act separately. In the present state of arrears it was absolutely necessary to get rid of a quantity of business which was overwhelming. It was, therefore, proposed by the Bill that certain duties might be taken separately; but the Lords Justices were not to sit separately on appeal. He had been authorized to say that Lord Cranworth entirely approved of the Bill; the noble Lord the Master of the Rolls sanctioned it; and the Lord Justice Cairns was also in favour of it. As despatch was important, he should propose to read the Bill a second time now, to suspend the Standing Orders, and have the Bill read a third time on Monday.


said, he fully approved of the Bill. He wished, however, to take that opportunity of making a few observations on the general subject of appeal. The present system of appeal in the Court of Chancery was open to grave objection. The principle upon which appeal should be established was well understood—there ought to be but one appeal. But in the Court of Chancery the parties might introduce fresh evidence, and bring forward fresh material. Now, such a course was open to very considerable objection; because, in the first place, it induced persons not to bring forward the whole of their case in the beginning; and, in the next place, it led to a prolongation of litigation. With regard to appeals to their Lordships' House, he would speak with some hesitation. He had already delivered his opinions on that subject before a Committee of their Lordships; and, on that occasion, he had stated that he thought there ought to be an infusion of the lay element into that Court, so as to correct the unavoidable bias of the legal mind. It was only by an infusion of the lay element that that accurate judgment upon ordinary affairs which was usually called "common sense," and which was requisite to a fit decision, could be obtained. In fact, the recommendation which he made was the theory of the Constitution. Their Lordships' House used formerly to decide on questions of appeal, and had the Judges, as their assessors, to assist them with their legal knowledge. Jeremy Bentham, who devoted a great intellect and a long life to the study of jurisprudence, was of opinion that it was not improper that the Judges should be laymen. Certainly he (Lord Romilly) would not go to that length; but, looking at some of the most eminent Judges who had existed in Europe—L'Hôpital and D'Aguesseau among the rest—it was a fact that none of them were advocates. In some instances they bought their places. That, no doubt, would not now be the most convenient mode of qualifying for judicial offices. There was, however, abundant evidence to show that this House contained within itself men qualified to perform judicial functions. A much esteemed Friend of his, and an ornament of this House, Lord Macaulay, in a memorable speech made by him in the other House of Parliament, pointed out the judicial functions now performed by lay persons as chairmen of Quarter Sessions, and in other capacities. If you wanted to make the law good, you must prevent it from running into technicalities. It was of the greatest importance that this tendency should be checked by the ultimate Court of Appeal; and if some of their Lordships who had received a certain amount of legal training in the discharge of judicial duties were selected to sit in appeal cases, he thought that an appellate tribunal would be formed infinitely superior to any that had hitherto existed. He did not mean to say that such duties should be performed gratuitously; but these were details into which he would not now enter. There was a good deal more that he wished to say upon this subject, but he would not say it now. At some future period — possibly next Session—he might call attention in greater detail to the importance of some reform in the constitution of the existing tribunal for hearing appeals in this House. At present he would merely express his entire concurrence in the necessity for passing the Bill now before their Lordships.


said, that the whole subject of the appellate jurisdiction of this country was so important and at the same time so difficult and so large that it would be inconvenient to enter upon any discussion of it while considering a measure of the kind now proposed. He did not, therefore, rise for the purpose of following the observations—entitled, as they were, to the greatest weight and respect—which had fallen from his noble and learned Friend opposite (Lord Romilly). With regard to the Bill, he hoped that there would be no delay in passing it. The state of the appellate business of the Court of Chancery was very serious — it had fallen very greatly into arrear, and the few weeks which remained before the long vacation could at the best but make a small impression upon it. The only possible mode of expediting, to some extent, that business was by enabling the Judges of the Court of Appeal to exercise their functions separately. He was enabled to say that the present Bill had the full sanction and approbation of the very eminent Judge (Lord Justice Turner) whose loss at this moment the public and all his friends so deeply mourned, and in whom we had lost as wise and upright a Judge, as efficient and conscientious a public servant, as ever sat upon the Bench.

Motion agreed to; Bill read 2a accordingly; Committee negatived: and Bill to be read 3a on Monday next.