HL Deb 27 May 1867 vol 187 cc1102-14

Order of the Day for the Third Reading read.

Moved, "That the Bill be now read 3a."—(The Lord Chancellor.)


, in rising to move an Amendment that the Bill be read a third time that day six months, said, that the proposal to create two new Judges for these Courts was founded partly upon the ground that the business had of late years greatly increased, and partly on the ground that the duties of the learned Judges presiding over these Courts would become heavier in consequence of certain Bills in course of progress through the other House. At the earlier stages of the Bill he (Lord Cranworth) suggested that the Bill should be postponed until the measures referred to were before their Lordships, so that they might both be considered at the same time; and to this his noble and learned Friend (the Lord Chancellor) consented. About a fortnight since, however, his noble and learned Friend informed him that there were reasons why the Bill should be immediately proceeded with. Those reasons were not to be found on the face of the Bill itself, but arose from the fact that the arrangements on the Northern Circuit were unequal to the business. His noble and learned Friend, taking that circumstance into account, inserted a clause in Committee, providing that the two puisne Judges of this Court should also be two of Her Majesty's Judges of assize; so that the object of the alteration in the present system was not that the two new Judges should act in the Probate and Admiralty Courts, but that they should assist in the administration of the law on circuit. He (Lord Cranworth) now proposed to state to their Lordships his objection to the provisions of the Bill. Its avowed purpose, in the first place, was to increase the strength of the Probate and Admiralty Courts in order to constitute a high Court, whose proceedings were to be governed by the civil law, and where, as his noble and learned Friend believed, important inter national questions might be decided with advantage. He (Lord Cranworth) knew that there were arrears in the business of the Divorce Court; but that was not the case in the Court of Admiralty, which was presided over by a Judge of whom no man could be more inclined than he was to speak with the highest respect. That there were no arrears in that Court, however, was said to arise from the fact that during the last five years the learned Judge who presided over that Court had sat the high average of eighteen or eighteen and a half weeks during each year. But, still, it could not be maintained that eighteen weeks were sufficient to exhaust the judicial mind; and unless it was shown that the arrears were such in the Divorce, Probate, and Admiralty Courts—were such that they could not be kept down by an addition to the sittings of seventeen or eighteen weeks a year, no case could be made out for the appointment of a fresh Judge to these Courts. How was the time of the Judges of the Courts of Queen's Bench, Common Pleas, and Exchequer apportioned? The regular sittings in London and Westminster lasted altogether about twenty-five weeks, and the circuits occupied an additional ten weeks, making altogether thirty-five weeks during which the Judges were engaged either in banco or at Nisi Prius. Was it, then, impossible so to re-distribute the judicial duties as to enable the work now in arrear to be performed with an un-augmented staff of Judges? An increase in the number of Judges would be in itself an evil; for the multiplication of Judges invariably led to a multiplication of appeals and uncertainty of law. He proposed to show that the present staff of Judges might do all that his noble and learned Friend proposed to accomplish. The sittings in banco of the Common Law Courts occupied thirteen weeks, and during this time there were four Judges sitting in each Court. Now, he was perfectly convinced that the fourth Judge did no good; but, on the contrary, produced an evil effect. When there was a Chief with two subordinate Judges sitting one on each side of him, it was very easy to collect the minds of all three; but the fourth Judge necessarily sat outside; it was more difficult to communicate with him, and he became an impediment rather than an assistance. If this were so there were during thirteen weeks of the year one Judge in each of the three Courts at disposal for other work, and what he would propose was that these three Judges should be made the means of clearing up all arrears of business upon the circuits. It had been suggested that such an arrangement as he proposed would be inconvenient for counsel; but the duty of their Lordships was to provide an adequate judicial staff, and not to consider the convenience of counsel. But whatever difficulty there was in existence at present, he thought that the present proposal would create very much greater difficulty. His noble and learned Friend proposed to constitute an important Court which would be governed by the principles of the civil law; but if he should succeed in doing this, in what sort of a predicament would he be in? Inconsequence of his proposal for employing the Judges on circuit, the Admiralty, Divorce, and Probate Courts would be left with only one Judge during ten of the business weeks of the year; and much of the business of the Admiralty Court was of a kind that required to be instantly attended to, and very serious consequences would arise from two of the proposed Judges being on circuit. These were his reasons for thinking that there was no necessity for having additional Judges, and that very great evil would arise from adopting the course proposed in the noble and learned Lord's Bill. He further thought that his noble and learned Friend had a great opportunity for taking a step which it was most desirable should be taken; but he was sorry that the step which he proposed to take was in the contrary direction. They had heard much of the great advantage which would arise from a fusion of our systems of law and equity. He himself had always been timid in reference to this question, and thought that the evils of the existing system were exaggerated; but his noble and learned Friend proposed to constitute a Court which should remain apart, and which he thought might well be brought in union with the Common Law Courts. Whatever difficulty there might be in a fusion of the Law and Equity Courts, there could be no difficulty in conferring upon this new Court the same jurisdiction as was possessed by the other Courts in Westminster Hall. His noble and learned Friend talked of the civil law being administered in the Probate, Divorce, and Admiralty Courts; but the truth was that four-fifths of the law now administered there was not the civil law, but was regulated by statute. What question was there brought before these Courts that was not fit to be determined in either of the three other Courts? In cases of divorce the question to be tried was one of fact; questions as to wills were often brought before the Common Law Courts; and with regard to the Admiralty Court, there was a little difference of practice between it and the other Courts which it was expedient should be got rid of. The Admiralty and the Common Law Courts had concurrent jurisdiction in many matters; for instance, in cases of collision at sea; but the result in one Court might be different from what it was in the other. By the common law a person could not recover unless he showed that there had been no contributory negligence on his part; but the law was different in the Admiralty Court; and this, to his mind, was a very scandalous state of things, which he should have been glad to see his noble and learned Friend try to remedy. In these Courts there might be some few rules not derived from the common law; but this could occasion no difficulty. His noble and learned Friend himself had frequently practised as an advocate and had presided as a Judge in the Privy Council, before which causes were brought up from almost every Court practising almost every code of jurisprudence on earth. He had now stated his reasons for objecting to the propositions of his noble and learned Friend's Bill, and trusted he had justified himself before their Lordships in proposing that it be read a second time that day six months.

An Amendment moved to leave out ("now") and insert ("this Day Six Months.")—(The Lord Cranworth.)


said, he had not the slightest intention of making any complaint as to the lateness of the period when his noble and learned Friend offered this active opposition to the Bill. His noble and learned Friend had very fairly and correctly stated the circumstances under which the delay had taken place, and the only question their Lordships had to determine was whether the opposition now offered at this last stage of the Bill was well-founded or not. He must say, with very great respect to his noble and learned Friend, that he thought h*e had taken a much too narrow view of this question, and that if he had extended his consideration to all the objects it was proposed to gain, he was quite sure his candid mind would have come to a different conclusion. He was anxious as shortly and clearly as he could to explain to their Lordships the grounds upon which, after careful and deliberate consideration, he had felt it to be his duty to propose the measure he now offered for the acceptance of Parliament. The question of the union of the three Courts of Admiralty, Probate, and Divorce had been already under the consideration of Parliament. In the year 1857, when the Probate Court was constituted, there was a clause introduced into the Bill that, in the event of a vacancy in the Judgeship of the Court of Admiralty, the Judge of the Court of Probate should become the Judge of that Court. In the next Session the Divorce Court was established, and the Judge of the Probate Court was made the Judge Ordinary of that Court; therefore it was in contemplation of the Legislature that the three Courts of Admiralty, Probate, and Divorce should be united under one head. There had been a very considerable miscalculation as to the amount of business to be disposed of in those three Courts, and he hardly considered that his noble and learned Friend would find it would be possible for one Judge to dispose of it. Soon after he became Chancellor his attention was called to the state of the different Courts, and the necessity of introducing some improvements in the administration of justice. At the beginning of the present year his right hon. and learned Friend Dr. Lushington, who had so long presided, with the greatest ability, in the Court of Admiralty, intimated to him his desire to resign his office; and it was due to his right hon. and learned Friend to say that he only consented to delay his resignation that he might not by his retirement interfere with any arrangements it might be thought necessary to make. The occasion therefore was about to arise which had been contemplated by the Legislature, and when he had to consider whether it would not be possible to carry out their intention by the union of the three Courts of Admiralty, Probate, and Divorce under one head, he was perfectly satisfied, from the information he had collected, as to the rapidly increasing business of all these Courts, that it would be quite impossible satisfactorily to administer justice in them unless a very different provision was made for its administration than that which the Legislature had contemplated. In glancing over the whole subject, which was a very large one, and considering what was the best way of providing for the administration of justice, he had, in the first place, to provide for the rapidly increasing business in the Admiralty, the Probate, and the Divorce Courts; he had to meet a demand, under circumstances he would explain presently, for additional Judges, and also to provide some assistance to the Judicial Committee of the Privy Council. This latter matter, which appeared now to be entirely overlooked by his noble and learned Friend, although at an earlier period it had not escaped his attention, he considered to be of the most vital importance. Their Lordships were aware that that tribunal had for a long time been held in very high repute, and he believed that this great reputation had been owing in a very great degree to the constant, unremitting attendance and ability of his noble and learned Friend Lord Kingsdown. His noble and learned Friend had for many years constantly attended that Court, and he had certainly raised it in the estimation of the country. In earlier times the Judge of the Prerogative Court and the Judge of the Admiralty Court were constant attendants at the Privy Council; and it was very important that Judges of that description should be members of the Privy Council, because from the peculiar nature of the business brought before that tribunal it was essential they should be conversant with maritime, testamentary, and matrimonial causes. When Dr. Lushington was appointed in 1838 to the office of Judge of the Court of Admiralty it was upon the express condition, or at least upon the understanding, that he should constantly attend the Judicial Committee of the Council. For twenty-five years that learned Judge scrupulously and punctually did his duty in that respect; but for the last two or three years, his attendance had only been occasional and rare. With respect to the Judge of the Prerogative Court, his place might be considered to have been supplied by the Judge of the Probate and Divorce Court; but there was so much business to transact in this latter Court, that the present Judge of the Court had never been able to attend the Judicial Committee of the Privy Council. Consequently, the state of business in the Privy Council was such as to occasion uneasiness as to its proper discharge. The Lords Justices, who were important members of the Judicial Committee, were so overwhelmed with the business in their own Court that they were unable to give much attendance at the Privy Council, and the consequence was that there existed an absolute necessity to provide a permanent member—a high judicial functionary of that particular description he had pointed out—to attend at all the meetings of the Judicial Committee. That he considered to be the most important object of the present Bill. In this state of things the problem he had to solve was how to meet, in the best manner, all the demands for the improvement of the administration of justice; and he confessed that he desired to take advantage of the opportunity afforded of constituting a Court of high character and dignity, which, deciding on the principles of civil and International Law, should attract to it a bar trained to the study of that department of jurisprudence. He was of opinion that the public and the profession had not profited by the absorption of the Advocates of Doctors' Commons into the general body of the profession. The training of the Common Lawyers and of the Advocates was of a totally different character. The training of the Advocates of Doctors' Commons was mainly founded on the principle of civil and International Law; and when their Lordships reflected that out of that body had always been selected the Queen's Advocate, whose responsible office it was to advise the Foreign Office on business in which important principles of International Law were frequently involved, he confessed he felt some apprehension when he attempted to devise how that office was to be filled hereafter—he feared that in consequence of the change which had been made, in future years there would rarely be found a lawyer duly qualified for that responsible duty. Moreover, he thought that by constituting a Court of this description, those questions of International Law which arose from time to time and were of extreme difficulty, would be decided by a tribunal which would obtain the respect and confidence of foreign countries. In the Admiralty and Divorce Courts it constantly happened that there was occasion for the assistance of an additional Judge. In the Admiralty Court the witnesses were seafaring men, who, being of migratory habits, could not be detained in this country until a case came on for hearing. Therefore, the cases in which they were witnesses must be delayed for their attendance, or the examination of the witnesses must be taken before an Examiner, which was a most inconvenient mode of taking evidence. It was most desirable, therefore, to devise means by which this inconvenience would be removed. According to the present Bill two Judges would be able to sit in Admiralty cases, and thus all the delay and inconvenience would be avoided. So also with reference to the Divorce Court. It constantly happened that days were appointed for taking special jury cases, and the common jury cases had to stand over until these had been disposed of; but it could not be known when these would be called on, and a memorial had been presented to the Judge of the Court, from solicitors in the country, pointing out the expense incurred in being obliged to bring up their witnesses under the expectation that their causes might come on, and then being obliged, in consequence of the special jury cause lasting longer than they had anticipated, to return again to the country with them; and this would sometimes occur two or three times over. That was an occasion when an additional Judge would be of the greatest service—one Judge trying special jury causes, while another was engaged in trying common jury causes. Then, with regard to the Judicial Committee of the Privy Council, that tribunal might be assisted by the Chief Judge of the united Court of Admiralty, Probate, and Divorce, while the two other Judges were sitting for the despatch of Admiralty, Probate, and Divorce causes; and he meant to require that the learned Chief Judge should be a constant member of the Judicial Committee. His noble and learned Friend adverted to the business in the Court of Admiralty; but he never seemed to take into account the business in the Probate and Divorce Court, for which the present Bill provided. He would not trouble their Lordships with statistics, but would content himself with saying that in the Probate and Divorce Court there was an arrear of 195 causes—namely, thirty causes in probate and 165 divorce causes. He wished to point out to his noble and learned Friend, who said that there was no need for two additional Judges, that he only proposed to make one. There would be the Judge of the Admiralty Court and the present Judge of the Probate Court, together with a third Judge additional, but not two Judges additional. His noble and learned Friend was not always of opinion that no additional assistance was ne- cessary in the Probate and Divorce Court. At the end of last Session his noble and learned Friend laid on their Lordships' table a Bill intituled "An Act for facilitating the proceedings of the Judicial Committee of the Privy Council and of the Court of Probate and Divorce." He (the Lord Chancellor) took it for granted that that Bill was presented after due and careful deliberation, and it declared that whereas the business of the Judicial Committee had greatly increased since its first institution, it was expedient to make better provision: for the due discharge of that business, and also to make provision for the more speedy discharge of the business in the Probate and Divorce Court. His noble and learned Friend proposed by that Bill to take a Judge from one of the Superior Courts of Common Law who had served for ten years, allowing him to retire on the pension to which he might be entitled after fifteen years' service, and to add to that income a salary of £1,500 a year. This Judge was to be constituted Vice President of the Judicial Committee of the Privy Council, and, as far as consistent with the discharge of his duties connected with the Judicial Committee, he was to assist the Judge of the Probate and Divorce Court. He (the Lord Chancellor), under those circumstances, was, he thought, justified in saying that his noble and learned Friend had proposed to create an additional Judge, and that he held the opinion that it was absolutely necessary to provide further assistance for the due disposal of the business in the Court of Probate and Divorce. He must, however, observe that he did not very much approve the ambulatory Judge suggested by his noble and learned Friend; but he had referred to his proposal on the subject simply to show that he had not always maintained that the Probate and Divorce Court stood in need of no assistance, or that the services of an additional Judge might not with advantage be secured. Passing from the Bill of the noble and learned Lord—who was, of course, perfectly entitled to change his views upon the matter—he would point out to the House how important it was that a full Court of Divorce should be obtained by means such as those which he had submitted to its consideration. When questions of law had to be decided in that Court the Judge Ordinary was, under the existing system, in order to constitute a full Court, obliged to borrow two Judges from the Courts of Common Law. Now, those Judges had already quite enough to do, and it was very inconvenient to them to attend in the Divorce Court on such occasions, while they laboured under the disadvantage of not being intimately acquainted with its decisions and practice. If, then, he could secure, by means of three Judges, as he proposed, a full Court of Probate and Divorce, the result would be, he thought, the constitution of a far more satisfactory tribunal. He need not, perhaps, go further for the purpose of making it clear to their Lordships that he had upon the whole adopted the course which was most convenient and advantageous, with the view to providing for the various demands which were made for the due administration of justice. There was, however, another point which deserved to be taken into account in dealing with the question. He had on a former occasion pointed out that the business on the Northern Circuit had increased to such an extent that it far exceeded the powers of the Judges of Assize to dispose of it. He had stated that at every circuit cases were left untried, and that many had to be submitted to a reference, which was, as a general rule, a very unsatisfactory mode of decision. That being so, he found it was essential that the Northern Circuit should be divided. As a consequence of that division it became necessary that the services of two additional Judges should be secured, and he entertained the idea that he might make the Judges of the Court which he proposed to establish available in that respect. His noble and learned Friend seemed to think that would not be the best plan for providing for the wants of the new Circuit, and that it was not desirable that Judges who must be held as being conversant rather with international and civil than common law should be in-trusted with the administration of the latter. He must, however, for his own part, confess that he thought considerable advantage would accrue from the fact that those Judges would be afforded an opportunity of keeping themselves on a footing with the common law, and that their minds should not be allowed to run, as it were, in one groove. They would, under the operation of his scheme, be able to mix on circuit with common law lawyers, and would bring back to their Court a knowledge of a branch of their profession different from that whose principles they were generally engaged in expounding. The point was one, he might add, on which he had deemed it right to take the opinions of the Judges of the Superior Courts of Common Law, and they had suggested that the difficulties of the case might be obviated by the addition of two Judges to those Courts. When, however, he came to deal with the necessity of supplying the want created by the division of the Northern Circuit, he felt it would be a mode of proceeding which it would be very inexpedient to adopt to add two Judges to the Superior Courts of Common Law; because, although they might very well do the work of the circuit, they would be a superfluous increase of the strength of those Courts in London. He might further remark that he entirely concurred with his noble and learned Friend in the opinion that three Judges were a better number to sit in banco than four. A curious mistake, indeed, very generally prevailed as to the number of which, when sitting in banco, the Court should be constituted. In the marginal abstract of the Act on the subject, it was set forth that the Judges should sit in rotation, and not less than three when the Court sat in banco; but in the body of the clause it was provided that no greater number than three puisne Judges should sit in banco unless in the absence of the Chief Justice or the Chief Baron, in which case four puisne Judges might sit—the object being to prevent five Judges sitting at the same time—the Judges themselves, in fact, had power to reduce the number ordinarily sitting in banco; and it seemed to him, after having duly weighed the matter, that to give two additional Judges to the Superior Courts was a proceeding which was wholly unnecessary. His noble and learned Friend, having objected to his scheme, had very naturally felt himself called upon to substitute for it some other plan; but the plan which he proposed was, if he understood it correctly—merely a repetition of that which he had already suggested, which was the creation of occasional circuits to which the Judges might go whenever their services were required, to be followed by the bar, who would thus be very inconveniently withdrawn from other business. Now, that was a plan which he did not think would find much favour with their Lordships, or with the profession at large. But, then, his noble and learned Friend argued that the Court of Admiralty and the Court of Probate and Divorce might be fused with the Superior Courts of Common Law, and a grand scheme thus carried into effect. It was, however, all very well to suggest such a scheme, but then it was one which was surrounded with great difficulties, and to the accomplishment of which he did not clearly see his way. If his noble and learned Friend would tell him how it was to be accomplished he should be glad to give his proposals due consideration, and, if possible, to carry them out with his assistance. Entertaining, however, as he did, no hope whatsoever at the present moment of the feasibility of such a plan, and holding also the opinion that it was desirable to keep separate the peculiar business of the Admiralty, the Probate and Divorce Courts, and the Superior Courts of Common Law, he had come to the conclusion that he could submit to the notice of the House no better scheme than that which was embodied in the Bill under discussion, which he trusted would obtain their Lordships' sanction.

On Question, That ("now") stand Part of the Motion? their Lordships divided:—Contents 86; Not-Contents 40: Majority 46:—Resolved in the Affirmative.

Chelmsford, L. (L. Chancellor). Leven and Melville, E.
Lucan, E.
Malmesbury, E.
Beaufort, D. Manvers, E.
Buckingham and Chandos, D. Nelson, E.
Rosse, E.
Marlborough, D. Shrewsbury, E.
Richmond, D. Stanhope, E.
Rutland, D. Tankerville, E.
Verulam, E.
Ailsa, M. Wilton, E.
Bath, M.
Bristol, M. Hawarden, V. [Teller.]
Hill, V.
Bandon, E. Templetown, V.
Bantry, E.
Bathurst, E. Gloucester and Bristol, Bp.
Beauchamp, E.
Belmore, E. Llandaff, Bp.
Bradford, E. St. Asaph, Bp.
Brownlow, E.
Cawdor, E. Bagot, L.
Dartmouth, E. Blayney, L.
Denbigh, E. Bolton, L.
Derby, E. Brancepeth, L. (V. Boyne.)
Devon, E.
Doncaster, E. (D. Buccleuch and Queensberry.) Cairns, L.
Castlemaine, L.
Churston, L.
Eldon, E. Clinton, L.
Ellenborough, E. Colonsay, L.
Erne, E. Colville of Culross, L. [Teller.]
Graham, E. (D. Montrose.)
Delamere, L.
Home, E. Denman, L.
Lauderdale, E. De Ros, L.
De Saumarez, L. Rivers, L.
Digby, L. Rollo, L.
Egerton, L. Saltersford, L. (E. Courtown.)
Feversham, L.
Foxford, L. (E. Limerick.) Sherborne, L.
Silchester, L. (E. Longford.)
Hartismere, L. (L. Henniker.)
Skelmersdale, L.
Heytesbury, L. Sondes, L.
Hylton, L. Southampton, L.
Inchiquin, L. Stewart of Garlies, L. (E. Galloway.)
Lytton, L.
Moore, L. (M. Drogheda.) Strathspey, L. (E. Seafield.)
Penhryn, L. Walsingham, L.
Raglan, L. Wentworth, L.
Rayleigh, L. Wynford, L.
Redesdale, L.
Cleveland, D. Halifax, V.
Devonshire, D. Stratford de Redcliffe, V.
Saint Albans, D. Sydney, V.
Somerset, D. St. David's, Bp.
Normanby, M. Belper, L.
Camoys, L.
Albemarle, E. Cranworth, L. [Teller.]
Camperdown, E. Dacre, L.
Clarendon, E. Foley, L. [Teller.]
Cowper, E. Houghton, L.
Dartrey, E. Keane, L.
Effingham, E. Leigh, L.
Fitzwilliam, E. Lyveden, L.
Granville, E. Ponsonby, L. (E. Bessborough.)
Grey, E.
Kimberley, E. Romilly, L.
Morley, E. Stanley of Alderley, L.
Powis, E. Stratheden, L.
Russell, E. Talbot de Malahide, L.
Sommers, E. Taunton, L.
Spencer, E. Vernon, L.

Bill read 3a accordingly; Amendments made; Bill passed, and sent to the Commons.