Lords Sitting of 29 April 1870

MINUTES.
PUBLIC BILLS—First Reading—War Office* (74); Evidence Further Amendment Act (1869) Amendment* (75).
Second Reading—Customs (Isle of Man)* (54); Survey of Great Britain, &c.* (71).
Committee—High Court of Justice [72], put off; Appellate Jurisdiction [73], put off.

HIGH COURT OF JUSTICE BILL—(No. 72.) —APPELLATE JURISDICTION BILL.
(The Lord Chancellor.)
(NO. 73.) COMMITTEE.
Order of the Day for the House to be put into Committee (on Recommitment) to consider the High Court of Justice Bill.
THE LORD CHANCELLOR: My Lords, I have now to ask your Lordships to resolve yourselves into Committee on this Bill, which, as you are aware, has already been committed pro formâ, in order that advantage might be taken of the many criticisms, by no means of an unfriendly nature, which were passed on particular portions of it on the second reading. My noble and learned Friend who spoke first in that debate (Lord Westbury) then expressed great regret that no provision had been made in the Bill itself for immediate arrangements which would enable the Court when constituted to assume all the functions and jurisdictions of a High Court of Justice. Now, the object of the Bill being to combine in one course of procedure and under the jurisdiction of one Court all those functions and

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jurisdictions which are now possessed by a great variety of Courts, and to secure as much as possible uniformity of practice; and the Divisions of the Court being made simply for the convenience of business, and not for the purpose of establishing anything like separate jurisdictions, the Bill originally proposed that the duty of framing a code of procedure should be intrusted to the whole body of the Court, which would consist of 23 Judges; and my noble and learned Friend (Lord Westbury) feared that, considering their ordinary duties and the possible discrepancies of opinion which would exist among them, the task of drawing up a code of procedure would be indefinitely postponed. Now, I confess I did not at the time feel that there was so much force in the objection as my noble and learned Friend appeared to conceive; because the Commission on Judicature, on whose recommendations the Bill has been introduced, and most of whose suggestions it embodies, though composed of a larger number of persons than would constitute this Court—of persons, too, all engaged in other duties—were able, within a very reasonable time, to present their Report. At the same time I did feel that there was considerable force in what my noble and learned Friend said in reference to the possible discrepancies of opinion amongst Judges habituated to a mode of action during the greater part of their lives different from that which the new system would introduce. There was also the objection that they could not meet to deliberate until the Act itself came into effect, which it was not intended should peremptorily occur until Michaelmas Term, 1871, though power was given to the Crown by an Order in Council to accelerate its operation. After much consideration it appeared to me that the best method of meeting these objections was this—Instead of intrusting the duty of drawing up the Code to the whole of the Judges, and instead of referring it back to the Commission, as was proposed by my noble and learned Friend, it would be better to place it in the hands of those who, in their place in either House of Parliament, are responsible for the execution of the work: and I think this might be done by having the rules framed through the Committee of the Privy Council, taking care that the Lord Chancellor and the Chancellor of the
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Exchequer for the time being should be on it—the former for the purpose of supervising and considering whatever modifications might be proposed, the other to give his decision as to any additional expense that might be occasioned by such modifications. By further giving the power to the Committee to call to their assistance any Members of the Privy Council they may think proper, it seems to me that we shall have a body fully competent to the duty in question; while many of them are in the enjoyment of more leisure than the Judges to whom it was previously proposed to assign the duty. There will be this further advantage—that as their duties are to commence immediately on the passing of the Act, the rules can be taken into consideration, and can be finally framed against the time when the Act comes fully into operation. I may also observe that I speak with some experience on this subject, because last year Parliament entrusted to the Lord Chancellor the duty of framing the rules and regulations which were to govern the proceedings of the Bankruptcy Act: and though the Act was passed not long before the close of the Session, and was to come into operation on the first day of the present year, these rules, though numerous and intricate, occupying nearly 100 pages of a small volume that has been issued—being fully as numerous as can be required under the present Bill—they were ready at the proper time, and are now in full force. I do not, therefore, anticipate any difficulty in framing the rules under this Act by the system. I now propose; and we may also expect this advantage to follow from entrusting to the Committee of the Privy Council the duty of preparing the Code, that the precedent thus set may be found of great utility on future occasions. Another noble and learned Lord (Lord Penzance) intimated, in the course of the debate on the second reading, that he thought it would be desirable that something definite should be introduced into the Bill, by way of indicating at once the course the Legislature wished to be taken with reference to the code of procedure—something to show that the rules of Common Law, which hitherto have operated in many respects so disadvantageously to the suitor that it has been found necessary to modify them after the pattern of the Equity and Ad-

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miralty Courts, should be regulated in one uniform way, instead of being left in the "hard and fast" condition the inconveniences of which I had described. The object of that suggestion was that there should be no intermixture or clashing, but one common course of procedure. Now, I have endeavoured to provide for that by enacting, in the 13th clause, that the course of procedure in the Admiralty and Equity Courts, where they have exercised jurisdiction, shall be part and parcel of the Common Law course of procedure, and that where any rule of Common Law conflicts with them, the jurisdiction which has hitherto been exercised by the Court of Chancery, or by the Court of Admiralty, shall prevail. Another objection was raised with reference to the Home Circuit. The Bill, as originally drawn, proposed the abolition of the Home Circuit; but that was objected to by my noble and learned Friend on my left (Lord Chelmsford), and also by the noble Duke (the Duke of Richmond), who now leads the Opposition side of the House. The Bill, as it now stands, proposes simply to give jurisdiction to the Courts at Westminster over all matters now triable on the Home Circuit; so that suitors will have their choice whether the proceedings shall be conducted at Westminster or not; and, in respect of criminal matters, the Bill proposes to give to the Central Criminal Court an equal jurisdiction over the whole, such as it already possesses over a large portion of the Home Counties. This, however, is not to interfere with the issuing of such commissions of Assize as may be thought proper in those counties; and it is probable that, as regards Surrey at least, it will be found necessary to issue a commission of gaol delivery from time to time. The matter will thus be practically tested, and I am certainly of opinion that, as to the civil business, at least, there will be a very general desire to transfer it to the metropolis. These are the changes in matters of principle which have been made in the Bill, and the alterations of detail, on which much care has been bestowed, relate to those who now hold offices, and other matters important to the parties concerned. Having said thus much with regard to the first Bill on your Lordships' Table, I have only one word to say with reference to the second—the Appellate Jurisdiction Bill.
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With regard to that Bill, very general dissatisfaction was expressed on the second reading with the part of it dealing with the appellate jurisdiction of this House. I did not altogether share in those objections; but I have thought it right to omit that portion of it altogether, seeing that it had not the authority of the Commission, who were not authorized to deal with that question, and therefore passed it by. With regard to the objection that, by the operation of the two Bills, three or four appeals would be allowed where at present there are only two, there was a slip in the framing of the Bill which made that criticism just. I may explain that the intention was that there should be an expeditious appeal from the decision of one Judge to three or more Judges on interlocutory matters—injunctions being often of importance to the parties, although not affecting the final settlement of the cause. The object was that this appeal should be confined to interlocutory matters; while appeals deciding the merits of the cause will be carried only to the High Court of Appeal, just as they are now carried to the Court of Appeal in Chancery and the Court of Exchequer Chamber. No further interlocutory appeal will be allowed, so that appeals will not be multiplied, but will in several respects be diminished. I have now to ask your Lordships to go into Committee on the first of these Bills.
Moved, "That the House do now resolve itself in Committee."—(The Lord Chancellor.)
LORD ROMILLY: I think my noble and learned Friend should have allowed us a little longer time before asking us to go into Committee on these Bills. The objections which I made to the original Bill have been almost all met; but I only obtained a copy of the amended Bill two days ago, and I have only today forwarded to my noble and learned Friend a good many suggestions, which, though not of the same importance, it was impossible for me to give notice of. If it is desirable that those Amendments should be reserved till the Report, I must be content; but that is not the most usual or the most convenient course. The framing of rules of procedure to fuse Law and Equity will require much time and care. Let me give a simple illustration arising from the

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peculiar difference between the legal estate and the equitable estate. Your Lordships are well acquainted with an "estate for life without impeachment of waste"—a term which means that a man during his life may act exactly as if he were the owner of the estate in fee simple, and may cut down timber, open mines, &c., without being liable for any consequences. It not unfrequently happens that such a man, having no children and not friendly to his successor, cuts down all the ornamental timber, destroys the hot-houses, and tears away the lead from the house. An action is brought against him in one of the Common Law Courts; but the Court holds—as has been done from the time of Lord Coke—that he can do what he pleases, and cannot be made liable for waste. The suitor is told that he has made a mistake and must go to the Court of Chancery, where he immediately obtains an injunction, on the principle that the man is making an inequitable use of a legal right. Now, in laying down one uniform course you must alter the law with respect to impeachment of waste, and must define it in such a manner as to provide that, whether an action is brought or a Bill, is filed, it shall be dealt with in the same manner? It will clearly be necessary to define exactly what "an estate for life without impeachment of waste" consists in—for at present, by Common Law, a man may do any kind of destruction, while Equity holds that he cannot make use of a legal right to do an injustice to his successors. You will never get a perfect union of Law and Equity unless you make a code of laws which will, to a considerable extent, alter the character of the laws that now exist. You are now making a prodigious alteration in English law, with which many persons will be shocked. The fusion of Law and Equity will require great care and time—it is a matter not to be done speedily, it cannot be done by altering the procedure merely, and I hope some delay will be given that the subject may be duly and more fully considered.
LORD CAIRNS: My Lords, as I had the honour of being Chairman of the Commission to which my noble and learned Friend on the Woolsack has referred, and have had no opportunity of submitting to your Lordships any observations on these Bills, your Lord-
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ships may not think it out of place if, even at the present stage, I trouble you with a few remarks. The noble and learned Lord who has just addressed your Lordships (Lord Romilly) was guilty of no exaggeration when he spoke of the prodigious change in the law which they propose to effect. Indeed, there has never before been any legislation on the judicature of this country of so large a scope. Year after year during the greater part of the present century we have made various attempts at improving our system of law and judicature; but almost all of them were small, imperfect, and fragmentary; and, although I am not prepared to deny that great improvements have been made, even in that manner, the reason, I think, why our law is open to the reproaches cast upon it is that no one of those measures was conceived in a large and generous spirit, or went to the root of the real evils in our system of judicature. It was, therefore, with great anxiety that I examined these Bills; and, concurring as I do in all that my noble and learned Friend proposes to himself as their object, I hope my noble and learned Friend will pardon me if I venture to point out some defects which will require careful consideration. If by these Bills we only add others to the many fragmentary measures that have been passed, we shall but bring disgrace on the Legislature; while, on the other hand, if we accomplish the aim of the Commission, and once for all settle our system of judicature on a broad, intelligible, and practicable basis, we shall obtain a degree of credit as great as ever attended on any measure passed by Parliament. The main object of the measures, like that of the Commission, is to put an end to the inconvenient and irrational distinction between Law and Equity which has crept into our system; but I am unable to discover in the Bills any machinery by which this is accomplished. Beyond the definition of the offices of the Judges and their officers and salaries, everything, with perhaps the exception of two or three general sentences introduced into the amended Bill, is relegated to a body outside Parliament—originally to the Judges and now to a Committee of the Privy Council. Now, we should be making a great mistake if we thought that the distinction between Law and Equity is so much

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a matter of principle as it is one of form and procedure. Why is it that a barrister or a solicitor accustomed to the Courts of Equity, if he passes to the other side of Westminster Hall into one of the Common Law Courts, is as ignorant of its forms and procedure as if he were in the court of a foreign country? It is not that Law and Equity are, with rare exceptions, acting on different principles. The principles are the same—the laws of evidence are the same; so, too, are the laws of the construction of written instruments and the modes of dealing with Acts of Parliament; but from the beginning to the end the forms and technical details are essentially different. It was to this subject that we, in the first instance, directed our attention. In the Court of Chancery, the throe Common Law Courts, the Courts of Probate, Divorce, and Admiralty, the proceedings all begin by a different writ, issued from a different office; so that, before any person who has a complaint can make it the subject of a civil proceeding, he must be advised, and pay for that advice, as to what Court to apply to for a writ. It appeared to us to be the right of every subject to say that there should be one writ applicable to every kind of civil inquiry issuing from one office, so that, without any technical advice as to where the action should be brought, he may get a writ without any fear of mistake. Now, I see no provision in the Bill on this subject, and I doubt whether by means of rules you can deal with the whole complicated system of writs and offices, and substitute one writ applicable to all civil cases. We next found that every Court had an entirely different form of procedure as regards the mode of putting the complaint on the record and the manner of answering it; and we recommended that there should be one uniform system of pleading, prescribing the form which it should take. Here, again, the Bill is silent, leaving it to some other body, which may or may not do it, and transferring to other shoulders the responsibility of Parliament. This is a course altogether novel, and one which ought not to be encouraged. Even in the case of bankruptcy, where there was no necessity of reconciling the conflicting procedures of various Courts, and where the general principles of the law were tolerably well ascertained, so that only de-
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tails had to be arranged, I objected that a great deal was left to rules to be framed by the Lord Chancellor and the Chief Judge; but that case affords no precedent for a measure which proposes to alter the whole system of judicature which has prevailed for centuries, and which demands, if ever a measure did, the attention of the Legislature. When the Common Law Procedure Act was passed, it was not left to the Judges or to a Committee of Council to modify the procedure; but the measure was prepared on the responsibility of the Government, in pursuance of the Report of a Commission. All its provisions appeared on the face of the Bill, and if any rules had to be made subsequently, they were merely as to forms of writ, and mere matters of detail. Again, in 1852, when great changes were made in the procedure of the Court of Chancery, in pursuance of the recommendations of a Commission, those changes were discussed and settled by Parliament. The original proposal of my noble and learned Friend was, that the larger changes, recommended by the Commissioners, should be left to be worked out by means of rules to be framed by the Judges—and I admit that no body of men could be found better qualified in point of knowledge; but there are reasons which will prevent them from preparing them. The first objection is, that they are fully occupied, and could only devote their time to the work when exhausted by their ordinary duties; and the second is, that it would be impossible to secure in a fluctuating body of 20 or 30 men the requisite harmony and accord upon comprehensive changes in the law to produce a body of rules bearing the impress of the general ideas which we wish to see prevail. The rules should be prepared by competent persons, and inserted as clauses in the Act of Parliament. My noble and learned Friend now proposes that the rules, or rather the clauses of this Act, should be prepared by a Committee of Council, including the Lord Chancellor and the Chancellor of the Exchequer for the time being. Now, if my noble and learned Friend would undertake, on his own responsibility, to frame the clauses necessary to give effect to our Report, I should feel perfect confidence as to the manner of its performance, and should be glad to accept them at his hands;

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but if he is prepared to undertake that responsibility, he might as well introduce the clauses into the Bill itself. If, on the other hand, the responsibility is to be shared by some unknown members of the Privy Council, selected we do not know how, what guarantee have we that a work of such magnitude will be properly performed? The only consolation is that one of them is to be the Chancellor of the Exchequer. Now, I have great respect for the holders of that office, and the present Chancellor of the Exchequer has peculiar qualifications for any kind of amendment of the law; but, without confining my observations to any individual, I do not think that, looking back 20 or 30 years, Chancellors of the Exchequer have had either leisure or qualifications to devote to the re-construction of our judicature. Turning to another point, I think there is a great deal in a name, and the attention of the Commission was largely occupied, not merely with the question of one uniform civil Court, but with the various names assumed by the present Courts. Now, nobody in framing a general system of judicature would think of establishing separate Courts with separate names, implying different jurisdictions and procedures; and had we been able to make a tabula rasa we should have recommended one supreme Court to transact as a whole, or in Divisions, the whole business of the country. There being, however, from 20 to 30 Judges of the Superior Courts, all of them appointed by letters patent Judges of specific Courts, and entitled to salaries amounting to £100,000 or £150,000 a year, we thought that were these Courts annihilated they might naturally urge that their offices were gone, and that they had not been consulted as to accepting positions as Judges of a Court altogether different. Although, therefore, our desire was that as the consummation of the measure there should be but one Court and one name, we thought that, by way of transition, the present names might be preserved as names for the divisions of the one Court. Rely upon it, that as long as you preserve the names of Chancery, Queen's Bench, Common Pleas, Exchequer, Probate, and Divorce, the measure will be imperfect, for there will linger about the Courts traditions of the old system which will not disappear until the time arrives
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for giving up the names. I find, however, in the Bill no trace of the Legislature setting its mark on those names as destined to come to an end. The Supreme Court should have its own proper title, and there should be no recurrence to the old names associated with a system that will have passed away. I agree that they should be preserved until the present Judges pass away, or until you get their assent, as you probably may in particular cases, to the change of title; but there should be a distinct statement that they are to cease, and as soon as possible the Court should, by an Order in Council, assume its definitive title. The Commissioners recommended—and none of their recommendations has met with more general assent—that there should be a great central Nisi Prius Court in London, in which not only London cases, but those which, though tried at Hertford or Guildford, are really London cases, should also be tried. We therefore proposed that the Home Circuit should be abolished, and that there should be two or three branches of a Nisi Prius Court constantly sitting in London. We accompanied that, however, by a series of proposals necessary to give effect to the principal proposal; and inasmuch as the suppression of the Home Circuit and the creation of this Nisi Prius Court would involve the trial at the Central Criminal Court of an increased number of prisoners, we proposed there should be a classification of criminal offences, magistrates being empowered to commit to quarter sessions to a greater extent than at present, unless they were able to state special reasons why cases should be sent to the Assizes. A great number of charges in the Home as in other counties might be disposed of at quarter sessions, and it would be a useless expense to bring them to the Central Criminal Court. As moreover it might be deemed a hardship to bring up jurors from the Home Counties to try cases in London which might be tried in the locality, we recommended a large and general system of easing the responsibility of jurors, altering their qualification, extending the area from which they are selected, and improving their position. We also contemplated changes in the other circuits. Now, it is clearly premature to carry out the abolition of the Home Circuit and to create this Nisi Prius

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Court in London until you are in a position to effect what is necessary as to the whole jury system and the alterations in the other circuits. With regard to the second Bill, I do not know why my noble and learned Friend proposes to separate the Appellate Court from the Supreme or High Court, for this is quite at variance with our recommendations. We wished to put an end to the multiplicity of Courts, and to create one Supreme Court—which, I think, is a better name than the High Court of Justice—the Appellate Division being part of it, and having relegated to it the duty of rehearing cases. That would surely be better than a separate Court, for I know from experience that when you separate Courts there ensues a kind of estrangement between the primary and Appellate Court—the latter feeling itself more fettered, and the former feeling itself more independent, than would otherwise be the case. The Bill provides also that the Appellate Court shall have no original jurisdiction, and shall not hear or rehear any evidence. This, again, runs contrary to our recommendation; and if you constitute the Court on that principle, you may shut up all the appeals in Chancery. I appeal to the noble and learned Lord opposite (Lord Romilly), who has had as much experience as most men, whether, during the last 20 years, it has not been necessary in one-half the eases of injunctions, owing, perhaps, to the haste with which the original proceedings were conducted, to have some new evidence to supply something that was lacking. All I have said as to the rules of procedure applies equally to the second Bill, for it contains no provisions on that subject, and of many of our recommendations no notice is taken. It is thought, I presume, that they can be effected by appointing a body to frame rules; but so great and important a work ought to be accomplished by the Legislature. The question then arises, what course your Lordships will think it right to take? I do not know whether the noble and learned Lord opposite (Lord Westbury) intends to proceed with his Motion to refer back the question of form and procedure to the Commission, or to refer it to some other body, with the view of framing rules and clauses for an Act of Parliament on the subject; but I venture to urge an objection to that course. I think
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the Legislature would thus be delegating to others its proper work. In this case a Commission has already reported. If their Report is satisfactory, we have a right to expect from the Government a measure giving full effect to it. If, on the other hand, the Report of the Commission is not satisfactory, then that is a reason for the appointment of another Commission, which shall make changes not in form but in substance. I venture to press upon the Government another course. The work undertaken by the Government is so great an one that it is of much more importance it should be done well than that it should be done either this year or next year; and, in my opinion, a Bill complete in all its parts should be laid before Parliament. I agree that form and procedure are things of such a character, that even if you put them on the face of an Act of Parliament you will probably still want a power in the Judges of the Court to supplement or modify, in those petty points of detail which occur in daily practice, some of the provisions contained in the Act. But I think you should have those provisions in the Act in the first instance. I believe it is wholly impossible to pass these Bills, with any kind of satisfaction to ourselves, through the Committee or through this House; and if they pass this House, it is idle to suppose that they would be accepted "elsewhere." I am quite sure that no one can be more anxious than my noble and learned Friend to have regard to the general principles I have mentioned; and I therefore trust that he will consider the propriety of withdrawing these Bills, and of re - introducing them in this or a subsequent Session, with a complete code of procedure upon the face of the Bills themselves, so as to carry into effect the main object which was contemplated in the Report of the Commission.
LORD WESTBURY: My Lords, these Bills contain one of the most magnificent schemes of law reform which has been proposed in my time; but in proportion to its grandeur is its difficulty. It obviously requires much time and care to carry into effect, or else it will be abortive altogether, and we shall only have another added to the list of ineffectual attempts at law reform. I object to this Bill, in the first instance, upon principle. My noble and learned Friend on the

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Woolsack lays before the House a mere sketch of what may be a grand picture, and says—"I desire you to accept this outline, which will hereafter be filled up. At present you have a mere skeleton; but when nerves, sinews, and muscles are put upon these dry bones, it will become a magnificent structure." Now, my Lords, I submit that it is not your province to act as delegators of the duty you have to perform. Let me give you a practical instance to show how imperfect the present Bill is, and how incapable anyone reading it will be of knowing what the institution now designed will hereafter be made. The Bill proposes to create a great institution called the High Court of Justice, and then makes it comprehend five minor Courts or Divisions. But what relation the High Court of Justice will bear to the Divisions, or what will be the functions of the High Court, it is utterly impossible to gather from this Bill. In some minor clauses you are told that there shall be a power of appealing to the High Court of Justice from some orders of a particular description made by the Divisional Courts. But that is a trifling point. When we desire a more accurate knowledge of the functions of the High Court we are obliged to go to Clause 16, which enables Her Majesty from time to time—
"By Order in Council made by and with the advice of a Committee of Council, to make, and when made, repeal, alter, or add to any rules," including "the selection of the business to be heard before the High Court itself, and the time of the sitting thereof."
Whether this Court is to be wholly a Court of First Instance, disposing of original business merely, or simply a Court of Re-hearing, and in that capacity to control the Divisional Courts, is a thing of which no man can have any knowledge until these rules and orders are drawn up. Is it possible for us to legislate in that state of ignorance? We are asked to establish a great Court of Appeal. How do we know that this High Court, the functions of which are thus kept under a cloud, may not be so constituted as to supersede the necessity of constituting the Court of Appeal? If the High Court is to be both a Court of original jurisdiction and a Court of Appeal, where is the necessity of interposing that tribunal, when you are about to establish a distinct Court of Appeal?
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Your Lordships, therefore, will see at once that, instead of making the institution known, and framing it by the help of your legislative wisdom, you are asked merely to give it a name, and then intrust to others the duty of assigning to it the whole of the business it is to transact, and the whole extent of its jurisdiction. Surely that is not the mode in which this House ought to deal with the vested rights of suitors? The people of England have a right to the present mode of administering justice, be it good or bad, and to the forms, pleadings, procedure and practice of the existing Courts; and you are not to take away this right until you can substitute for it something which appears to you more effectual for the administration of justice than the present system. I speak thus as a sincere friend of the Bill, and with sincere admiration of the manner in which the Lord Chancellor has set himself to accomplish this great work. But this is not the mode of doing it; this bare outline cannot be accepted by the public or by the other House of Parliament. What the Bill may become we know not. In what way it may be moulded we know not. What new rules there may be for the administration of justice we know not. Yet we are asked to delegate that which it is our duty to know and decide to another body whose determination upon the matters referred to them can never be effectually revised or controlled by us. It is true that the rules of the Court may be laid before Parliament; but it is utterly impossible then to discuss or enter into the consideration of them. You may move an Address to the Crown for the rejection of these rules; but you cannot exercise any power of control or of personal supervision in respect of them. I beg every noble Lord to pass his eye down Section 16, and see the extraordinary duties you take from your own House and commit to another body. The selection of the business to be heard before the High Court, the transfer of business from one Divisional Court to another, the constitution of Courts consisting of a less number of Judges than is required for a Divisional Court, and the appropriation of the business to be transacted by such Courts—all this is to be done by the Committee of Council. Now, here are great and sweeping changes in existing institutions. Are you to pull these down,

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not for the purpose of re-building, but for the purpose of committing to some other architect or builder the task of raising a new edifice in place of them? The Committee of Council is to decide on
"The number of Judges required to concur in a judgment of the High Court, or of a Divisional or other Court, and the mode in which such judgments are lo be given, whether as the judgment of the Court, or, if there be a difference of opinion, as the judgment of individual Judges;',
and, after detailing the duties which the Committee is to perform, the enumeration is wound up by these most sweeping words—that the Committee of Privy Council shall determine "all matters incidental to or connected with the administration of justice." Now, if a matter of this importance is to be handed over to a small Committee of the Privy Council, and is not to be submitted to Parliament, why should not any other question be committed to the same tribunal, to be moulded according to their pleasure? I am quite sure that my noble and learned Friend will do better service to this measure, to himself, and to the great object he has in view, if he will allow himself sufficient time to prepare and submit to the House not a mere outline, but a complete picture, filled up with all the details of pleading, procedure, and general administration which he intends to substitute for those now existing. The present practice has come down to us from the very earliest times; the Courts have gone on administering justice in a manner with which the people are familiar; and now you are asked to alter this system in some unknown way, which will not be submitted to the judgment of Parliament. The object is to pull down what I have before ventured to term the wall of partition which now exists between the Courts of Law and Equity; but all that my noble and learned Friend proposes to do by this Bill is to declare that the jurisdiction exercised by the Court of Chancery shall be modified by the Common Law to the extent to which it differs from it. Now, there are numbers of relations known to the Equity which are ignored by the Common Law Courts. The relations, for instance, of trustee and cestui que trust are unknown to the Common Law. The same remark applies to the power of husband and wife of dealing with each other as if they were separate persons. Much more
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effectual legislation, therefore, than this will be required to accomplish the object which we have in view—that a suitor shall not be driven from one Court to another. I hope my noble and learned Friend will perceive that I have not spoken in any other sense than to promote that object, which I fear cannot be effectually done until the Bill comes before us clothed with all those forms which are necessary for the purpose. I have no doubt, I may add, that we shall see the time when such a measure will be passed, to the great credit of my noble and learned Friend, and of the legislation of the House of which he is a Member.
LORD PENZANCE: I am glad that my noble and learned Friend, who has just sat down (Lord Westbury), recognizes the great value and scope of the change which it is proposed to effect in our system of judicature by the Bill under our consideration. To carry out a change of this character, dealing with all the Superior Courts of the kingdom, and their various modes of procedure down to the most minute details, cannot be otherwise than a most gigantic task; and in listening to my noble and learned Friend—who, I believe, entertains the most sincere desire that a measure of this kind should pass—I was struck with the circumstance that substantially the whole of his objections to it resolve themselves into this—that the Bill ought, before being laid before Parliament, to contain not merely what may be called the skeleton or main features of the scheme proposed, but ought to convey, on the face of it, the entire details of the new system which is to be substituted for the old. Now, I am not one of those who think that that would be desirable. I believe that if you were to attempt to place on the face of the Bill not only the proposals for the new structure of the Court and the new arrangement of its jurisdiction, but all the details with respect to the procedure by which each Division of this great Court should work out the ends of justice, that task would be found too cumbrous to be effectually carried out within a reasonable time; but that when it had been so worked out it would be found to have all the evils of the old system, which consist in the strictness and binding nature of the mode in which details in our Courts have hitherto been stereotyped. No doubt he who supports a change of this

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character ought to go as far as, having removed the existing jurisdiction, to indicate plainly the Courts which were to take up the work; and the scheme of this Bill is of that character. It proposes to establish one Supreme Court, with the whole of the jurisdiction exercised by the existing Courts; it defines the number of Judges and the number of Divisions, and then it deals as a matter of detail, which is to be worked out by some external body, with the making of rules, which will settle all the details under which the measure is to be worked. That is an alternative plan, in my opinion, not by any means inferior to the plan which has been sketched out by my noble and learned Friend opposite. I doubt very much whether, if all the details referred to were mentioned on the face of the Bill, it would be capable of being passed into an Act of Parliament. My noble and learned Friend lays great stress on the argument, that it would be desirable that he who has a wrong to redress should be able to go into one Court and receive a remedy for that wrong. Now, as matters at present stand, every man who has a wrong to be redressed before a Court of Common Law is obliged to go to an attorney, and that attorney, except in some delicate eases, has to decide in what Court he should proceed. My noble and learned Friend opposite drew, I think, a true picture when he said a barrister who is in the habit of practising in the Court of Chancery finds himself, when he enters a Common Law Court, in a strange atmosphere. That my noble and learned Friend attributes to the procedure being different in the two sets of Courts. I maintain, however, that there is at the bottom of the course of procedure in the Courts of Equity and the Common Law Courts an essential difference which no form can alter. Those who are engaged in the Equity Courts are employed in arguing before a Judge; those who are engaged in the Courts of Law for the most part have to plead before a jury, and to examine and cross-examine witnesses. Now, we all know that there are some gentlemen in the profession who have great aptitude for the one and not for the other of these functions. The result is that, so long as witnesses continue to be examined in open Court, there will be a class of advocates who will devote themselves to a
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class of business in which experience has made them expert. Whatever alteration, therefore, may be made in the course of procedure, the result will remain that these two classes of advocates will always be required, and will always be forthcoming. In Section 22 the Bill provides that all the offices connected with the issue of writs should be handed over to the High Court, while it was provided by another section that all proceedings should be instituted in that Court. All, therefore, that my noble and learned Friend desires is, in reality, done by the Bill—his objection, in truth, being that it is not done on the face of it, but is left to be done by means of rules and orders. Now, I think there is no greater error than to suppose the public would greatly benefit by that on which my noble and learned Friend insists. So long as the substance and subject-matter of cases remain different, so long will one form of procedure be proper for one form of case, and a different form for another. It is, in my opinion, by no means desirable to have one uniform procedure which may be fit or unfit for particular cases. Then, my Lords, it is said that the Judges will not have time to make these rules, and that, therefore, the proposition that the rules shall be made by the Judges of the High Court ought not to be accepted. I will take leave to remark, however, that this very recommendation was made in the Report of the Commission. The matter was very much discussed by the Commissioners, who recommended that the Judges of the High Court should make the necessary rules in order to regulate the procedure of the newly-established Courts. How have all the rules which govern the Court of Chancery been made except by orders of the Lord Chancellor? Again, the rules of the Common Law Courts, with the exception of those embodied in the Common Law Procedure Act, were all made by the Judges. I may refer to the Court over which I have the honour to preside, and which was established some 10 or 12 years ago. When Parliament founded that Court on the ruins of the Ecclesiastical Courts it left the procedure to be arranged by Sir Cresswell Cresswell, the first Judge, and the result was that a body of regulations was produced, which answered their purpose perfectly. I feel satisfied there will be no difficulty in arranging

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the details of the measure; and that, with regard to the framing of the rules, the Judges of the present Courts will be able to frame all the rules they require without inconvenience to themselves or to the public. Considering the want of elasticity in an Act of Parliament, and the way in which it would fetter the new Courts, I think my noble and learned Friend on the Woolsack has done right in leaving the details of the arrangement of business to be worked out by some external body, whether that body be the Judges or the Committee of Council.
THE LORD CHANCELLOR: My Lords, I certainly have great reason to regret that I was compelled to move the second reading of the Bill in the absence of my noble and learned Friend (Lord Cairns), who has addressed you so powerfully to-night with reference to the Bill in its present shape. I should o have been glad to have had some of my noble and learned Friend's suggestions at an earlier stage of the measure. But I must say, in reference to the main point of difference between us, that I Believe it would be futile to attempt to introduce into the Bill all the rules and regulations by which the High Court of Justice is to be conducted. It would be vain for me to make a promise to introduce those rules into the Bill, for I do not think we should improve the existing state of things by enacting a "hard and fast" system, regulating the whole course of our judicial procedure. My noble and learned Friend said he was somewhat surprised and disappointed to find that, although it had been the object of all who concurred in or recommended this great and important change to bring it about conclusively and at once, yet no provision is made in the Bill for altering the names of the several Courts which at present exist. Now, I entirety agree with him that it is desirable to do away, as soon as possible, with the prejudices which may cling to those names and tend to mislead the public and those who practise in the Courts. If, however, I do not greatly deceive myself, my noble and learned Friend is himself desirous of retaining those names for a time; and he will find a clause in the Bill to the effect that the new Divisions shall be designated by their present names or by such others as Her Majesty in Coun-
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cil may hereafter appoint. I did not think it necessary or decorous to say that Her Majesty should make the change; but I did deem it desirable to intimate an expectation on the part of Parliament that these designations will be altered as soon as may be convenient. As far as that matter is concerned, I think I need say no more. It is intended that this large and beneficial reform should be a reform in outward form no less than in inward substances; but, of course, the substance is of the greatest importance. I conscientiously believe that this reform may be effected without difficulty in the course of the present Session; and I should greatly regret its being postponed for another year in consequence of a question being raised as to whether the code of procedure should be introduced in the Bill itself. On a former occasion, when my noble and learned Friend was not present, I mentioned that great anxiety had been evinced on the part of a large body of the profession—particularly the attorneys and solicitors—that the Bill should be passed during the present Session. A deputation from Manchester, Leeds, Birmingham, Sheffield, and Newcastle urged the pressing forward the measure by all moans in my power; and newspapers—especially those connected with the legal profession—also wished it to be passed without delay. All that is of substance in the change of the j law—all that can affect the substantial rights of parties—should be defined I clearly and distinctly in the Bill; but all that concerns mere procedure is a proper subject for rules and regulations, which ought not to be stereotyped by Parliament, but rendered capable of elastic expansion. It is of no interest at all to the public, except with regard to the saving of time and expense, in what form their rights are administered. All they care for is, that their rights shall not be endangered without full and distinct notice being given on the lace of an Act of Parliament. Therefore, large powers have been, from time to time, conferred on the Judges for framing codes of procedure. It is quite true that rules were embodied in the Common Law Procedure Act; but the result is that the Judges have often lost much valuable time in discussing the real meaning of those rules—time which might have been saved if they had them-

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selves had the power of framing the rules. My noble and learned Friend on my right said that a mere skeleton Bill was produced, and asked what the Court was to do? Now, I must say this is not a correct representation of the case. Everything the Court has to do is defined in the Bill; it has to exercise all the jurisdiction formerly exercised by any one of the Judges, its powers are all clearly defined; but the mode in which the Judges will best perform the high duties intrusted to them must be decided hereafter in the light of experience. Therefore we have left to the Judges themselves the discretion of providing for the general rules of procedure; they will be completely free and unshackled in regard to framing the regulations for the disposal of the business of their Courts and carrying their decisions into execution; but we have taken care distinctly to enunciate the principles upon which this mode of procedure is to be framed. My noble and learned Friend very truly said that one great grievance that suitors suffer from is that when people have been brought up to a particular system of procedure, they are unable to emancipate themselves from its cramped rules. Now we are anxious that, as far as possible, all forms of procedure should be similar; but we have provided against the inconvenience of their becoming stereotyped. The same authority which frames the rules in the first instance may from time to time alter them as the exigency of the moment shall require, laying them before Parliament in each case, so that the Legislature may step in and arrest the course of anything which may tend rather to produce mischief than benefit. In this way we hope to secure a perfect code which cannot be departed from except through the medium of the like machinery. All that it is proposed to insert now is permissive power to suitors to get their cases tried in London instead of on the Home Circuit. An enormous amount of business is now thrown on the last town of the Home Circuit through London suitors resorting to it in the hope of obtaining a more speedy trial than could be obtained in London through faults which this Bill proposes to cure. It has been remarked that the line of procedure is not sufficiently indicated to those who have the framing of the rules. That is a very proper point for those who have charge
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of the Bill, of whom I am one, to re-consider; but I cannot hold out any hope of introducing the alterations required in the Bill. What I propose to-night is, that we should go on to the 6th clause of the Bill, which constitutes the new Courts, and then to report Progress.
LORD ROMILLYsaid, he had an objection to make to Clause 3; and, under those circumstances, he hoped his noble and learned Friend would not insist on proceeding with the Bill that night.
LORD CAIRNSsaid, he considered that the objection which he had made to the measure was one of a vital character, and he hoped the noble and learned Lord would consent to postpone the Committee for a few days, in order to afford the learned Judges generally an opportunity of re-considering the whole subject. He thought it only right that he should inform their Lordships that he had received a communication from the Lord Chief Justice of the Common Pleas stating that the learned Judges with whom he had spoken were desirous of having an opportunity of considering the alterations proposed to be made in the Bill by the noble and learned Lord on the Woolsack before the measure was further proceeded with, they having received copies of the proposed Amendments only three days ago. Under these circumstances, he trusted that the measure would not be proceeded with that night.
THE LORD CHANCELLORobserved, that the main object of the measure had been long under consideration. It had been thoroughly considered in the Report of the Judicial Commission laid before Parliament in October last; and the intention of the Government to bring forward a Bill founded on the recommendations of the Commission had been distinctly announced in the Speech from the Throne. The Bill had not only been printed, but had been circulated among the learned Judges more than six weeks ago, and he had hoped that during the period that had since intervened he should have been communicated with by them with reference to the subject. With the exception, however, of the Chief Justice of the Common Pleas, the Lord Chief Baron, and Mr. Baron Bramwell, not a single learned Judge had communicated with him upon the matter—greatly to his regret. Not having received any expression of opinion on the

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part of the learned Judges adverse to the measure, and believing that nothing would be gained by delay, he thought that the House might well have proceeded with those clauses of the Bill in which no alterations were proposed to be made. In deference, however, to the wishes which had been expressed by the noble and learned Lords, he would consent to a further postponement of the Committee upon the Bill for a reasonable time. In the meanwhile, although he could not compel the learned Judges to communicate with him unless they were disposed to do so, he trusted that he should be put in possession of their views upon the measure. Under these circumstances, he begged leave to withdraw the Motion for going into Committee upon the Bill.
Motion (by leave of the House) withdrawn; and Committee (on Re-commitment) put off sine die.
APPELLATE JURISDICTION BILL. Committee (on Re-commitment) which stands appointed for this day, put of sine die.
House adjourned at half past Seven o'clock, to Monday next, Eleven o'clock.