HL Deb 16 May 1867 vol 187 cc606-13

Order of the Day for going into Committee read.


said, that on a former occasion when he moved the second reading of the Bill he had given some account of the business transacted in these several Courts, sufficient he thought to show the necessity for some alteration being made in their constitution of these Courts. His noble and learned Friend (Lord Cranworth), however, intimated his opinion that he (the Lord Chancellor) had not made out a sufficient case for the introduction of the measure. At the same time, he (the Lord Chancellor) stated that there was a Bill before the other House which would materially increase the jurisdiction of the Court of Admiralty over maritime contracts and maritime causes generally; and his noble and learned Friend then suggested that possibly that Bill might alter his views on this Bill, and it would therefore be desirable to wait till that Bill came up to their Lordships' House. In deference to his noble and learned Friend's wishes he postponed the Committee on the Bill from the 26th of February, now nearly three months; but there were circumstances which rendered it imperative that he should proceed with the Bill without further delay. He thought the account he gave of the business in these Courts showed that it was absolutely necessary that the measure he proposed should receive their Lordships' sanction; and he had now got some additional statistics on the subject, to which he must call his noble and learned Friend's attention. He would just remind their Lordships of the advance in the business of the Admiralty Court from 1841 to 1866. He found that against 456 causes which were entered in the year 1841, 1,239 were entered in 1866. It was suggested by his noble and learned Friend that, possibly, the increase of causes might arise from there being a number of small causes brought into the Admiralty Court. He (the Lord Chancellor) had before him an account of the different values of causes in 1841 and 1866. The number of salvage causes in 1841 was 66, and the number in 1866 was 139; the total value of the causes in 1841 was £40,400, and in 1866, £221,300. The damage causes were 42 in 1841, and in 1866, 264; the total value involved in the causes of 1841 being £23,900, and in 1866, £613,350. Of other causes, in 1841 there were 66, and in 1866, 254; the value in 1841 being £33,420, and in 1866, £414,110. In 1866 he understood there were no less than 24 causes above the value of £10,000. He had stated on the former occasion the vast increase of business in the Divorce and Probate Courts; but his noble and learned Friend, who was somewhat sceptical throughout his statement, thought he had no ground for saying that the business required an increase of judicial force. Now, it appeared that in the Divorce Court in Hilary Term there were 59 remanets; and there were 61 causes entered in that term. There had been 17 causes entered between Hilary and Easter Term. None of these causes were taken during Easter Term; so that in Trinity Term there would be an arrear of 137 causes besides the addition that would be made by the causes entered in Easter Term. He understood that the course of practice in that Court was to give Probate cases preference over Divorce cases. Some of their Lordships might have observed that there had been a will case which had occupied the attention of the Court for a considerable time; so that, until the end of that cause, the Judge would not be able to touch the Divorce cases. He should have thought that this statement was in itself sufficient to justify him in saying that there really was a necessity for additional judicial strength in these Courts of Admiralty, Probate, and Divorce. But there was an additional reason which seemed to him to render it absolutely essential in the view he had taken that this Bill should be pressed in all its remaining stages through the House. When he introduced the Bill in February last, he was aware that it would be necessary, in consequence of the increase of business, particularly on the circuits, to appoint two additional Judges; and part of his original scheme was to make the two puisne Judges he proposed to constitute this Court available for the circuits. The great pressure arose upon the large circuits, particularly upon the Northern Circuit, where the business had grown to such an extent that it was quite impossible that the Judges going circuit could cope with it. The Northern Circuit included not only the great towns of Manchester and Liverpool, but also Newcastle, Durham, Carlisle, Appleby, and Lancaster. The Judges were obliged to visit all these towns, and they could give to each of them only a very limited portion of time. The consequence was that in Manchester and Liverpool the Judges were unable to try half the causes set down for trial on the circuit, and the causes were either made remanets, or the disappointed suitors were obliged to refer their causes, which occasioned a very considerable increase of expense, without being a very satisfactory mode of disposing of them. Even with the assistance of two or three courts, a barrister presiding over one of them, they could not get through the business. This amounted to a perfect denial of justice. He held in his hand a statement of the business of the Manchester Assizes since the time when they were first held there. The Return was made to the first Minister, and showed a state of things which was a perfect scandal. In the Summer Assizes of 1864 only eight days were allotted to Manchester, there being 53 causes entered, and only 31 tried and disposed of. In the Spring Assizes of 1865 eleven days were allotted, when there were 78 causes entered, and 38 tried. In the Summer Assizes of 1865 twelve days were allotted; 70 causes were entered, and 59 tried. In the Winter Assizes of 1865 seven days were allotted, 47 causes entered, and 37 tried. In the Spring Assizes of 1866 eleven days were allotted, 61 causes entered, and 36 tried. In the Summer Assizes of 1866 65 causes were entered, and 36 tried. Such a state of things ought not to be allowed to continue; and the only remedy for it was to divide the Northern Circuit—for in fact the two towns of Manchester and Liverpool had business enough to constitute them a circuit by themselves. Dividing the Northern Circuit he created an additional circuit, and required two additional Judges, and the question was, how should those Judges be provided. It was part of his original scheme to make the two puisne Judges of this re-constituted Court Judges of Assize, and that they should be on the same footing as the Judges of the Superior Courts. He thought it right before taking any step in that direction to consult the Judges of the Superior Courts, and he was bound to say that the majority of the Judges who saw the necessity of an addition to the number of Judges did not agree in the scheme he had suggested, preferring, naturally enough—he said so with great respect for them—an additional strength to their own Courts. Out of deference to their opinion he had certainly withdrawn this part of the scheme from the Bill. He had since that time consulted various persons of experience, and he confessed he found great diversity of opinion on the subject. He was therefore thrown on his own judgment—he must take on himself the responsibility—he must do what he thought best for the good and for the advancement of public justice—and he confessed he did not think that what was suggested by the Judges would be the right course to pursue. There was no other mode as appeared to him of economically providing for the want which had arisen than by making two Judges for this Court; and he supposed nobody would deny the absolute necessity of creating a new circuit by the division of the Northern Circuit. The necessary consequence would be that they must have two additional Judges. Now he did not think the addition of two Judges to the Superior Courts of Common Law was desirable. It was true he should get the two Judges for the additional circuit, but then he thought there would be a superfluity of Judges for the business in London. He saw no reason why with the present staff of Judges and a little re-arrangement the business in London might not be very satisfactorily disposed of. There was an Act passed at the commencement of the reign of William IV., by which the court in banco was to consist of four Judges. Now, he could not conceive what necessity there was for having four Judges constantly sitting in these Courts. He should have thought three Judges much better. In the Courts of Chancery a single Judge disposed of the causes, two Judges sitting in the Court of Appeal. Why, then, there should be four Judges sitting in banco he could not understand. If the Judges in banco were reduced to three, then there would be two Judges in each Court let loose for the transaction of the Nisi Prius business and for the work in Chambers. Under these circumstances, he did not think it desirable that there should be an addition of two Judges to the staff in the Superior Courts. He could not conceive any other plan more reasonable than the one he proposed for constituting the Divorce, Probate, and Admiralty Courts into one Court, which he hoped would be a Court of a superior character in the estimation of the country, the Judges in it being placed on the same footing as the Judges in the Superior Courts of Common Law by being made of the degree of the coif, and by being put, through a clause he would introduce, in the commission of the peace on the circuits in the same way as the Judges of the Superior Courts. Thus the services of two additional Judges on circuit would be provided by the appointment of only one additional Judge; because there was already a Judge in the Probate and Divorce Court, and there was likewise one in the Court of Admiralty. He had heard a strange objection urged to the scheme which he proposed — namely, that these two Judges of the united Court of Probate and Admiralty, though going circuit, would not be present in the Superior Courts of Common Law when motions for new trials were made. Now, it was at present the fact that in at least one-half of the cases upon motions for new trials the Judges who originally tried the causes were not present. However, it would be provided by a clause that the Judges of the new Court might be summoned to assist the Judges in the Superior Courts of Common Law, as well as the Judges in Equity. He therefore trusted that their Lordships would allow the Bill to pass through Committee. He needed not to add that the only desire he had was to do that which was most for the benefit of the public by providing for the wants that had arisen for additional Judges in the best and most economical manner.


said, that he did not think the noble Lord had shown a necessity for the creation of a single new Judge. It appeared to him that his noble and learned Friend (the Lord Chancellor) proposed to add to the judicial strength in that part of the judicial system where the addition was least required. His noble and learned Friend said that there were considerable arrears in the Divorce Court; but that circumstance afforded but a fallacious test of the necessity for the appointment of a new Judge. The question was, what would be the arrears if the present excellent and able Judge of that Court sat the number of days in the year which it was reasonable to expect that he would sit? It would not, he trusted, be supposed that he was wanting in the respect due to the very amiable, learned, and expeditious Judge who had so long presided over the Admiralty Court, for he believed that was the only Court in the kingdom where arrears were not known; but what was the period of time during which the Judge in that Court sat? According to the Returns he sat last year only 120 days, and taking the last five years the average number of days was only 109, or one day more than eighteen weeks. In the Courts at Westminster the Judges of the Courts of Common Law sat thirteen weeks during term and thirteen weeks after term, or twenty-six weeks in the year on the whole. Then the time spent on circuit could not be less than ten weeks, so that those Judges sat thirty-six weeks in the year. He concurred with his noble and learned Friend that a tribunal of three Judges silting in banco would not only be as good, but would be materially better than a tribunal of four, because with a court of three a majority would always be secured; and with the Chief Justice or Chief Baron presiding, and having one Judge on each side of him, nothing would be more easy than for all to communicate with each other. From his own experience, he knew that a fourth Judge was a sort of outsider with whom it was difficult to communicate while the arguments were proceeding in court. Now, if one of these four Judges sitting in banco in each court were taken away from the sittings in banco, what was to prevent the whole three or two of them going during term to Liverpool and Manchester and clearing off the circuit arrears in those places? By such an adjustment of the judical strength, no additional Judges would be needed. He did not think it likely that as good Judges would be obtained from the Probate Court, re-constituted according to the proposed scheme, as from the other Courts, for the transaction of general business. But now there was a tendency to give to the Courts a general jurisdiction in everything, and he was extremely anxious for his noble and learned Friend to make the Admiralty Court, though in name called the Admi- ralty Court, if such a court is to be constituted as proposed by his noble and learned Friend, just the same as all the other courts, and to allow the business now transacted there to be performed in that court or in any other court. As things at present stood, if a ship happened to have run down another ship the owner of the latter could not recover damages in a common law court if the slightest misconduct on his part could be proved. Such, however, would not be the case if the matter were tried in the Admiralty Court; so that the result would entirely depend upon the circumstance of its having been brought before one tribunal instead of another—a state of things which he did not regard as altogether satisfactory. Why should not the Admiralty Court be placed in the same position as the Superior Courts? Then the cases that came before that Court would be decided on the same principle as those in the Superior Courts. That, however, had nothing to do with the present Bill, and he would only add that if his noble and learned Friend were to persevere in the course which he had indicated he would be doing that which he would very much regret.


said, it was a misapprehension to suppose that his chief object in bringing forward the measure was to provide Judges for the additional circuit. What he had mainly in view, on the contrary, was to create what he thought would be a Court of a high character, by means of which the administration of justice would be advanced, and which he considered to be absolutely necessary, looking at the state of business in our Courts. His noble and learned Friend (Lord Cranworth), in commenting on the business before the Courts, confined his remarks entirely to the Court of Admiralty; but he must know that the Judge of that Court was by Act of Parliament enabled to assist the Judge of the Probate Court, and vice versâ, yet the best proof that could be that they had no relation whatsoever in the conduct of the business of their respective Courts was that they had never rendered that mutual assistance. Now, what was it that his noble and learned Friend proposed to substitute for the plan which he introduced, and by which the services of two Judges for that additional circuit, which were so necessary, would be secured? The noble and learned Lord suggested that it would be sufficient that three Judges should sit in banco in each of the Superior Courts of Common Law, and that the remaining two might go circuit whenever it was required that they should do so. Had he reflected, he would ask, on the difficulty of carrying out that scheme? Summonses must be issued and notices given to the Sheriff, while the convenience of having the circuits held at a fixed time, so that the Bar would be able to attend them, instead of being divided and dispersed, would be obviated. His noble and learned Friend threw out another suggestion upon which it was very difficult to act. He would have the Court of Admiralty and the Court of Probate and Divorce and the Superior Courts of Common Law fused together, so that there should be four Superior Courts sitting, with four Judges in each. Now, it was very easy to make such a proposal; but when a system had been long established to change it in that way was extremely difficult. For his own part, he believed it to be most desirable that the Court of Admiralty and the Court of Probate and Divorce should be kept separate from the Superior Courts, with Judges devoting themselves to the particular description of business which came before their respective Courts. More than that; he could see no scheme which it would be more inexpedient to adopt than that which his noble and learned Friend had darkly shadowed forth.

Bill considered in Committee; Amendments made: The Report thereof to be received on Monday next; and Bill to be printed as amended. (No. 102.)

House adjourned at Six o'clock, till To-morrow, half past Ten o'clock.