Lords Sitting of 18 February 1870

MINUTES.
PUBLIC BILLS—First Reading—Judges Jurisdiction (10).
INDIA—THE 21ST FUSILIERS—INDIAN RELIEFS.—OBSERVATIONS.

  QUESTION.
  EARL DE LA WARRrose to call the attention of Her Majesty's Government to the great outbreak of sickness which
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  occurred in Her Majesty's Royal North British Fusiliers soon after their arrival at Kurrachee in March last; and to ask, whether arrangements might not be made for so carrying out the reliefs in India as would enable the troops to arrive in that country between the 1st of November and the following February? He was aware that it was not customary to introduce in this House matters relating to military administration in its ordinary and usual course, because those questions were in general so mixed up with financial details that they were more usually and constitutionally discussed in "another place." But he had not brought forward this question unduly or inappropriately, because, though it had its financial side, it had for its central and prominent element a due and proper care for the lives and health of Her Majesty's troops. He had also a personal reason to justify the course he had taken. He felt a deep and abiding interest in the regiment which was the subject of his question, for he had served in it for many years, and commanded it during the most trying period of the siege of Sebastopol. He would confine himself as closely as possible to the facts of the case, without hazarding any positive assertion that these facts were the cause of the calamitous results which had ensued; but if they established a reasonable presumption that the efficiency of a gallant regiment had been impaired and the health of the men broken down by their arrival in India at an unpropitious and unfavourable season of the year, he hoped the Under Secretary for War would give him an assurance that measures should be taken to accomplish the relief service for India within such a period as a due regard for the health and lives of the troops would seem to prescribe. He had ascertained from the noble Lord the Under Secretary for War that the responsibility for the sanitary arrangements in India and for the movements of troops rested with the noble Duke the Secretary of State for India (the Duke of Argyll); but there were other Departments of the Government concerned in the relief of troops in India, including the Department presided over by the Royal Duke the Commander-in-Chief, the Office of Secretary for War, and the Admiralty Office, as represented in the Transport branch at Somerset House. It was, therefore, rather diffi-

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  cult to steer one's way through, such a labyrinth of Departments in order to reach the fountain head of authority and responsibility; which, however, as he had said, he had ascertained to be the Secretary of State. The facts of the case were these—The 21st Fusiliers left this country in February last, and arrived in India about the latter end of March. Soon after their arrival fever broke out among them, cholera supervened, and the regiment was soon reduced to a condition which had been graphically described in a local paper. According to that account, sickness and death had been the portion of the regiment ever since their arrival at Kurrachee. The entire strength of the regiment was something like 800 of all ranks, but not above 280 men of all ranks represented the regiment on parade—a great proportion even of these being unfit for the performance of duty, as they had hardly recovered from the effects of sickness. Many of them were in the ranks on one day, and in the hospital laid up with fever on the next. The regiment was, in fact, to all intents and purposes hors de combat. They all knew that disease and death always hovered too closely over the cities of India; but if it could be shown that pestilence was more rife at one season of the year than at another, and that it was more deadly at that season in its attacks upon those who were exposed to it for the first time, it was contrary to humanity and to common sense to send out our troops at that time, and to discover too late that we had sent them out only to die. But their Lordships would be surprised to hear that, in spite of the warning which the fate of the 21st Fusiliers ought to have given, there was another regiment now at Gibraltar which was ordered to leave there in March, in order to arrive in India in April, at a time when a burning, deadly, and consuming heat prevailed. It was melancholy to reflect on what would be the destiny of that unhappy corps; but he hoped the noble Lord (Lord Northbrook) would be able to assure their Lordships that the order for the despatch of that regiment had been countermanded, and that arrangements would be made for so carrying out the reliefs that the troops would arrive in India between the beginning of November and the following February. If it was only a question of providing
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  more steam transport by the Red Sea route, or of sending some of the troops round by the Cape, he was sure the British public would never allow paltry considerations of expense to stand in the way when the health and lives of British soldiers were at stake.
  LORD NORTHBROOKsaid, that certainly the noble and gallant Earl, having been one of the most distinguished officers of the 21st Fusiliers, had no need to apologize for bringing forward this matter; but he was happy to assure him that the statement in the Indian newspaper, which the noble and gallant Earl had quoted, gave an exaggerated account of the state of the regiment. The regiment arrived at Kurrachee at the end of March, and the medical statistics for the following six months showed that it suffered no excessive rate of sickness or mortality as compared with the general rate in the Bombay Presidency at that time. There was no such connection as the noble Earl appeared to assume between the date of the arrival of the regiment at Kurrachee and the epidemic which subsequently broke out in the ranks of the regiment. The Government had not received precise statistics for the time that had elapsed after the first six months; but he held in his hand two reports from the principal Medical Officer at Bombay, giving full particulars of the epidemic which broke out about December last, and at the date of the last return was very prevalent. The strength of the regiment was then 682, and there were in hospital 195 fever and twenty other cases, making a total of 215. The degree of sickness in the regiment had, undoubtedly, been very great, but that of mortality small; for between November and the 15th of January there were only two deaths, making thirteen since the arrival of the regiment in India. The noble Earl would see that this was by no means an excessive rate for a regiment serving in India. In consequence of a recommendation of the Medical Officer at Bombay the military authorities of India had removed the regiment from Kurrachee to Beypore, which it was hoped would tend to improve its health. The past year had been a very unhealthy one, excessive heat being followed by an excessive downfall of rain in Scinde, the result being an outbreak and prevalence not of cholera, but of a malarious fever.

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  The India Office was responsible for the transport arrangements; but in the un-avoidable absence of the noble Duke (the Duke of Argyll) he might state that they were made in 1865, in concert with the different Departments interested, and with the approval of the highest medical authorities, the 15th of September to the 20th March being fixed as the period during which the reliefs should be made; but on the recommendation of the Army medical authorities the dates were altered to the 29th of September and the 1st of April. It was thought bettor for the troops to arrive in March than to start early in the autumn. It would, no doubt, be advantageous if it could be so arranged that the troops should only arrive in the winter months; and it was hoped that next year there would be fewer regiments to relieve, so that the reliefs could be more quickly accomplished. With regard to the 83rd Regiment, it was impossible, as the ship would start to-morrow, to make any alteration in the transport of that regiment to India; and he hoped their Lordships were not convinced that any such alteration was required, because he believed he had shewn that the epidemic in the case of the 21st Fusiliers was not a consequence of the date of their arrival. His Royal Highness the Field Marshal Commanding-in-Chief had communicated with the Indian authorities with the view of selecting for the 83rd a healthy station in the immediate neighbourhood of Bombay. The health of the army in India was not primarily under the responsibility of the Secretary of State for War, but Mr. Cardwell took a deep interest in it, and in the course of last year, in consequence of serious outbreaks of cholera at Peshawur and other stations, he wrote to the India Office, requesting that the attention of the Governor General should be directed to the question of removing troops as far as possible from stations subject to such epidemics. Both the noble Duke (the Duke of Argyll) and the Government in India were very anxious as to the sanitary condition of the troops, and during the last five or six years large sums had been spent in the improvement of barracks and other ways connected with the health of the troops, which it was believed would result in a diminution of the rate of mortality.

JUDGES' JURISDICTION BILL.

  PRESENTED. FIRST READING.
  THE LORD CHANCELLOR, who had given notice, in moving the first reading of the "Jurisdiction of Judges' Bill," to call the attention of the House to the Report of the Judicature Commission, and to the measures about to be brought forward in regard to the re-commendations of changes in the Court of Original and Appellate Jurisdiction, said, My Lords, in presenting to your Lordships a measure called the Judges' Jurisdiction Bill, I can in a very few words state its purport. But the occasion for bringing it forward at the present time induces me to bespeak a larger measure of your Lordships' indulgence than the immediate subject of the Bill would require. Its object is simply to enable any one Judge of any one of the three Superior Courts at Westminster to sit, upon request, in any of the other Courts for every purpose, and with the same jurisdiction and power as if originally appointed Judge of the Court to which he is so invited. It proposes to enable either Chief Justice or the Chief Baron, on his Court being overloaded with work, to invite to his assistance a Judge from any of the other Courts, and to enjoy the full benefit of his exertions. I am aware that by two previous Acts this assistance can now be partially rendered; but it is confined to a particular subject-matter, and the Acts do not give this power in its totality to a Judge of another Court. The Bill further provides that the Judges may sit in Banco in any one Court in two divisions, if they think fit—thus expediting the administration of justice—and that more than two Courts may sit at the same time in London or Westminster at Nisi Prius, that power being at present confined to two. The occasion of the Bill is this—The Court of Queen's Bench happens to be very much overcharged with business in comparison with the Common Pleas and Exchequer, and unhappily one of its Judges, Mr. Justice Hayes, has departed this life. Now, if ulterior measures, to which I shall presently refer, should not be carried into effect during the present Session, this Bill will provide for the emergency which will occur through the vacancy in that Court. It will be in your Lordships' recollection that three

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  additional Judges were appointed only two years ago, for the purpose of investigating the petitions which might arise out of the then approaching General Election. They were nominated principally for that express occasion, and it is quite obvious that there is no immediate probability of their services being required to the same extent; and I have no hesitation in saying that seventeen Judges are perfectly adequate to the discharge of all the ordinary duties of the Common Law Courts. It has therefore appeared to the Government expedient not to fill up the vacancy caused by the death of Sir. Justice Hayes. There is another vacancy, which I have the deepest reason to deplore, caused towards the close of last Session in the Court of Appeal in Chancery, by the death of Lord Justice Selwyn. Remembering his extraordinary quickness of apprehension, his retentive and well-stored memory with reference to determinations which had taken place in the Courts of Equity, and his ready judgment in applying those cases to the facts before him, I have great reason to deplore his loss to the Court of Appeal. I may mention that when it first became my duty to sit with him as Lord Justice of Appeal, during the Chancellorship of my noble and learned Friend Lord Cairns, we found, owing to the ill-health of Lord Justice Rolt—who is happily still preserved to his family, though not to the profession—and to other accidental circumstances, arrears of about a year and a half in the appeals then pending; whereas, during the period that intervened between my noble and learned Friend's appointment to the Woolsack and Lord Justice Selwyn's death they were so reduced that on more than one occasion the Court rose on account of having nothing more to hear; and they are still so kept down that, notwithstanding that loss, not more than thirteen appeals are awaiting hearing, the three oldest of those dating from the middle of last December, and the others from only last January. Under those circumstances it did not appear to me advisable that the Government should fill up the vacancy occasioned by the death of Lord Justice Selwyn. The special reason why the two vacancies were not filled up I have now to explain. In March, 1867, my noble and learned Friend Lord Chelmsford being Lord
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  Chancellor, a Commission was appointed presided over by my noble and learned predecessor (Lord Cairns), to inquire into the general question of the state of our Judicature; and there was included in the scope of the Commission power to inquire into the Courts of Equity, the Superior Courts of Common Law, the Court of Probate, and the Court of Divorce, and to recommend such steps as might be thought expedient for the purpose of ascertaining what was the operation and effect of the present separation and division of jurisdiction in the several Courts, as well as of the arrangements for holding sittings in London and Westminster, and sittings and assizes in England and Wales. The composition of the Commission will, I think, satisfy your Lordships that the subject received full and complete inquiry. The Commissioners were Lord Cairns, myself, Sir William Erle, Sir James Wilde (now Lord Penzance), Mr. Baron Bramwell, Mr. Justice Blackburn, Mr. Justice Montague Smith, Sir Robert Phillimore, Judge of the Admiralty Court; Mr. Hunt, Chancellor of the Exchequer under the late Government; Mr. Childers, the present First Lord of the Admiralty; Vice Chancellor James; the present Attorney and Solicitor Generals; Sir Roundell Palmer; Sir John Karslake, the late Attorney General; Mr. Ayrton; Mr. Quain, an eminent member of the Bar; Mr. Rothery, Registrar of the Court of Admiralty; and three eminent solicitors, Messrs. Bateson, Hollams, and Lowndes. The result of the inquiry was awaited with the greatest anxiety; for it had long been the opinion that we had suffered grievously in our whole system of judicature—nay, in our whole system of jurisprudence—from the unhappy separation of our Courts into two distinct branches, administering law on totally distinct principles. I suppose no civilized nation, at any period of its history, has failed to arrive at an epoch when, from the desire; of rendering justice fully and fairly to all persons, according to the various emergencies which arise as civilization advances, it has found itself obstructed by those precautionary measures which tribunals from time to time have thought fit to take in order to secure justice, but which, at length, settle down into a rigidity of practice incapable of accommodating itself to the wants of mankind, and therefore necessarily bring-

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  ing about the very reverse—namely, injustice, sometimes of the most serious description. I do not propose to enter into an antiquarian investigation of the history of the Roman law; but, happily for Rome, hard and severe as her rules of Common Law at one time were, she early learned, as time advanced, and the various interests of civilization required change, to intrust the Prætor with the power of so far mitigating its severity as by degrees to introduce those changes which resulted, at a far later period than that of which I am speaking, in the whole administration of justice being committed to one single tribunal, which had full power over every dispute in the cases brought before it, and was competent to administer full and complete justice. Scotland has had the benefit of that course of procedure in connection with the law of Rome; as have also all the various countries of Europe which have in effect adopted the system of Roman law, though wisely modifying it by various codes of procedure of their own. But in this country it was not so. Originally, I doubt not, we were free from many of the difficulties which have since sprung up. Originally, the great Council of the King, dividing itself into various branches, administered the law, not, as afterwards, by separation into totally distinct Courts having no intercommunion with each other, but simply as the division of labour required, by handing over to one or another branch those particular functions for which it was thought peculiarly competent—still preserving an interchange and intercommunion of the several branches of the judicature. The Privy Council is still framed very much more on that model than any of our Courts, for it never separated itself by hard and definite lines into separate Courts and jurisdictions, but retained the power of intrusting to committees the particular subject-matters thought most expedient for separate investigation—always with the freest power of intercommunion and assistance. I do not intend to detain your Lordships by antiquarian research. From the King's Bench, Common Pleas, and Exchequer being intrusted with various functions, it ultimately resulted that each, in many respects, held exclusive jurisdiction, introducing a rigidity and stiffness into the administration of law which was in itself disastrous. When, moreover, the evil
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  became apparent—when the necessities of mankind required far more elasticity than any of those Courts appeared to possess—when property passed more freely, and a greater variety of rights arose—the Court of Chancery, which had for its earliest and principal function the issuing and framing writs of procedure in the Courts of Common Law, and for a time kept pace with the wants of the age by framing special writs for special circumstances was compelled, by the difficulty of determining rights at Common Law according to the strict system which had gradually grown up, to introduce a jurisdiction of its own. It thus not only remedied the severity of the law, which by some is supposed to be its function, though that is not the case unless that severity contains some ingredients rendering it manifestly subsevient to fraud, but adapted itself to the wants of mankind by specific remedies, such as the Courts of Common Law could not grant. In that way it took upon itself a juisdiction wholly separate from the Common Law, and the consequence was that two species of rights co-existed constantly in the same individual, by one of which he was entitled to a remedy against his opponent by summoning him before the jurisdiction of a Court of Common Law; but while doing this, with the certainty of obtaining a verdict against his opponent, he might be declared by another jurisdiction—merely equitable—to be as clearly in the wrong in the second Court as he was clearly in the right in the first. He could not only be arrested in his proceedings in the first Court, where he was entirely right, but arrested on penalty of costs for having attempted to assert his rights in that inequitable manner. Now that surely cannot be a satisfactory state of things. It cannot surely be right that a man on appeal to one tribunal be declared to have right and justice on his side; while his opponent on appeal to another tribunal may have it declared that he is right and his opponent wrong. Further, there is another ground of difficulty with regard to the Courts of Common Law—namely, that they cannot in frequent cases afford an adequate remedy. The Common Law Courts began to administer the law at a time when there was great simplicity in the ordinary transactions of life, even in such small portions of dealing with contracts and mercantile affairs as

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  came before them; and the general result was "aye" or "no" upon a single issue, matters being brought to a simple issue of law or fact, to which result the whole energies of the Common Law Judges were directed. They would scarcely hear of anything which could not be brought to a single point either of law or of fact, and it was necessary therefore that there shall be a regular course of pleading, a regular statement of the case, a plea put in, replication to that plea, and so on, until the case was reduced to a distinct point of law or fact, whereupon the whole matter was one between A and B; no other parties could be introduced, and the question of fact was determined by a jury. The Court of Chancery, on the other hand, could enter into a complete investigation of any matter, however complicated, accommodating itself to every species of right and injury, simply stated in what was called an English bill, from the use at Common Law of Norman-French. It required all parties interested to be brought before it, and gave great facilities for determining once for all the rights of all concerned. It had more-over several means of affording redress of which the Common Law was destitute. One powerful engine for preventing apprehended injustice was the right of granting injunctions—this being an early and beneficial use of its powers; and it could not only give damages for breach of contract, but could require specific performance of a contract into which a man might have entered. For the broach of a contract for buying an estate, for instance, the Common Law could simply award damages; whereas the Court of Chancery could require its fulfilment, no matter whether the estate had since increased or decreased in value. Unhappily, from a very early period there arose a two-fold jealousy of the Court of Chancery, which diminished its popularity—a jealousy on account of its being administered at one time almost entirely by ecclesiastics, and a notion that it introduced the Roman law, and that this was adverse to the principles of liberty. There was a great preference, too, on the part of the great majority of the people, for a decision by a jury over one by a single Judge. But, whatever the causes, the effects were for many years apparent. Thus, on the one hand, the Courts of Common Law by degrees
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  became so rigid in their rules that a man not unfrequently lost his property, not because he was not the owner of the property, or because his opponent did not withhold it from him unjustly, but through a mistake in the pleading or conduct of the case and through the plea being overruled. On the other, great difficulties, I am bound to say, arose in the Court of Chancery through its becoming somewhat more prolix in its proceedings than formerly. Then conflicts occurred in the reign of James I. between the two classes of Courts, arising simply from a misapprehension of the state of the case, the interference of the Court of Chancery being not with the Court but with the plaintiff, in respect of his not being entitled to take advantage of his remedy at Common Law. But it was not until late years that attention was drawn as it ought to have been to the great inconvenience of the separation of the two jurisdictions, which gave but too much ground to the saying that a litigant might be torn into two parts, one half of his case being decided at Common Law and the other in Chancery. It is clear and manifest, and it is daily becoming more so to all men, that a man should have his whole right determined from beginning to end by one Court, whichever it may be, and I think the only plan is to intrust to one Court jurisdiction over the whole subject-matter of any cause. I believe your Lordships also will come to this conclusion. As early, indeed, as 1657, a man of singular quickness of apprehension and foresight, shown by the number of very valuable remarks and pregnant suggestions on the improvement of the law, condensed in a small volume to which Lord Justice Rolt called my attention—I mean Mr. Sheppard, in a book entitled in the quaint language of the day, England's Balm, made this recommendation—
  "That the Courts continue at Westminster as now they be, but that when anything of law doth, arise in a Court of Equity, it be ended in the same Court; and on the other side, if a matter of Equity arise in a Court of Equity, it shall be ended there."
  Mr. Sheppard, who also published a book on Conveyancing, called Sheppard's Touchstone, appears to have been so impressed with this opinion that he recurs to it again at the close of the book; and it is most remarkable that he

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  suggests reforms which were only effected in Bills brought in by Lord Cairns and Lord Justice Rolt a few years ago—the first by my noble and learned Predecessor enacting that the Court of Chancery should have power to try causes and give damages, instead of specific relief; and the other by Sir John Rolt, to prevent the Court of Chancery from doing what they had been in the habit of doing before—sending every question in a cause that involved a point of Common Law for the opinion of a Court of Common Law. I may mention also, as a curious question of prevision on the part of Mr. Sheppard, that he notices the inconsistency of giving damages for injuries to the person to the sufferer alone, and refusing them to his family in the event of his being killed—an anomaly remedied by Lord Campbell; and he recommends that a bankrupt's subsequently acquired property should be available for his creditors—a principle which your Lordships adopted in the Bankruptcy Bill of last Session. The Court of Chancery allowed itself to be so hampered by the rigidity of its practice that one might have supposed the Judges ignorant of the simplest points of Common Law. However simple might be the point of law that arose it was at once sent to a Court of Common Law; and so, on the other hand, in Common Law, if an injunction were wanted or a discovery was to be made, the case was at once sent to the Court of Equity. These things have, it is true, been remedied, but the remedy is a very partial one. A man has never been deemed disabled for the Lord Chancellorship because he has not been trained at Equity, although, when sitting in Equity, he is supposed to have forgotten all the law he ever learned, and would have to consult the Common Law Judges on a legal question. Certainly no such incompetency could have been alleged against Lord Eldon, who was taken from the Chief Justiceship of the Common Pleas to preside in Chancery. Lord Erskine was almost entirely a Common Law man, and of his successors, five received their whole training at Common Law, five their whole training in Chancery, where my late learned and lamented Friend (Lord Cranworth) happily combined both sources of instruction. Taking all these things into account, one cannot be surprised at the appointment of the Commission to consider the whole
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  subject of our judicature. Commissions on the Court of Chancery had been issued from time to time, commencing, I believe, in 1815, by the issue of a Commission by Lord Eldon. This inquiry was of very feeble efficacy, the only result being the appointment of a Vice Chancellor, which, no doubt, was very desirable and necessary. After that, Lord Brougham made, in 1828, his celebrated speech in the House of Commons, to which I had the pleasure of listening, and which stirred the public mind to its very depths, on the difficulties and embarrassments thrown in the way of the administration of justice. One may date from that period the more general interest shown in this confessedly somewhat dry subject. Lord Chancellor Lyndhurst, in 1827, commenced reforms in the Court by Orders, and that course has been continued by successive Chancellors. In the time of Lord Truro, a Commission was appointed, mainly at the instance of my noble and learned Friend (Lord Romilly), then Attorney General, over the deliberations of which he for a long time presided. It recommended improvements in Chancery, with the recital of which I need not weary your Lordships, and there was in 1851 a Commission also on the Common Law Courts. Both these Commissions recommended that in whatever Court a cause began there it should end, and that gave rise to some subsequent arrangements I have, mentioned. My noble and learned Friend (Lord Westbury), in a most eloquent and lucid account of the state of the law, has also done much to stir up public opinion in the same direction, and to create a desire that the great evils and inconveniences of the present system should be remedied. Now, inconvenience is caused by a man being bandied about from one Court to another till he ascertains which is the proper Court; expense is entailed through a mistaken selection of the Court, and it is uncertain in many "border" cases where they should be carried. At last, the Commission, the recommendations of which I have now to bring before your Lordships, was issued in 1867; and I think we may take credit to ourselves, considering the numerous duties and engagements of the members, and that our meetings could never commence until after 4 o'clock, that we finished our labours in a year and a half, having made our Report in March, 1869. The

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  Commission was directed to consider the whole question of our judicature—the Courts of Chancery, the Courts of Common Law, of the Admiralty, and of Probate and Divorce; and subject to certain notes appended, to some of the signatures and to the objections of the Judge of the Court of Admiralty as to consolidating his Court we unanimously agreed that all the Courts into which we were directed to inquire should be consolidated into one great Court, and that that Court should have the power of dividing itself into separate divisions—not for the purpose of continuing the system of separate jurisdictions of law and equity, but in order to hand over from time to time, like the Privy Council, any business to that Court which shall seem most appropriate for it, and subject to this reservation—that no one Judge of this High Court shall be irrevocably attached to any one division; and, further, that if at any time it is thought desirable to transfer a cause from one division to another it shall not be done by a new beginning of the cause, but it shall be transferred bodily from one division to the other by the simple process of walking from one room to the other. Great care should, however, be taken to avoid again hardening into a rigid system, incapable of application to the exigencies of the times, which is the besetting sin of all Courts. That, we recommend, should be provided for in this manner—The High Court should, in itself, unite all the powers now vested in any of the Courts, or in the Judges of any one of the Courts. Having these powers, it should then commence the work of distribution of business—not acting in so rigid or settled a manner as to prevent its arrangements from being altered again, if necessary, by the same body, but laying down rules for the guidance and conduct of business; and also laying down rules as to pleading, endeavouring to make them as simple as possible. The Report goes into considerable details, with which I need not weary your Lordships, as to the mode in which these pleadings may be made in the simplest form, and also with regard to the taking of evidence, as to which I shall have another opportunity of explanation when the Bills are brought forward. I may mention, in order to show that we did not overlook any part of the difficulties of the case, that we that we strove to provide, I hope and
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  think effectually, for those difficulties as they might arise. The scheme will resolve itself into this, that you will still have a Court of Chancery, or a Court equivalent to the Court of Chancery—for, as to names, there is no great magic in them; you will have a Court equivalent, in the same way, to the Courts of Queen's Bench, of Common Pleas, and Exchequer; and, lastly, you will have a Court in which the business of the Courts of Probate, of Divorce, and of Admiralty will be carried out in the same division. That being so, I will now proceed to state to your Lordships the alterations we propose shall take place. It was thought desirable that the Court of Appeal should not be constituted of Judges who had already exercised their functions in the Court of First Instance. A few of these Judges, as I shall have presently to point out, may be placed in the Court of Appeal; but, as a general rule, it was thought desirable that the High Court of Justiciary should be constituted of Judges devoted to that particular work. As to the Master of the Rolls, it was determined that he should be a Judge of Appeal, and should be removed from the Court of First Instance; and for this reason. In 1851 two Lords Justices of Appeal in Chancery were appointed, who, together with the Lord Chancellor, formed the Court of Appeal; in which Court either the Lord Chancellor might sit alone, or the two Lords Justices might sit by themselves, or all three might be united in the hearing of causes. The Lords Justices were placed in a rank which is assigned to them by the Act of Parliament—that is to say, next after the Lord Chief Baron. The Master of the Rolls, on the other hand, occupies the third place in the roll of legal dignities—the Lord Chancellor being first, the Chief Justice of England second, and the Master of the Rolls third. Accordingly, it has been thought desirable that the Master of the Rolls should not occupy a position in the Court of First Instance; otherwise his decisions, if overruled, would be overruled by two Lord Justices, inferior in professional rank to himself. But if he be removed to the Court of Appeal an additional Judge will be necessary to supply his place in the earlier tribunal; and that is provided for by a provision in an Act of last year. As your Lordships are aware, the Chief Judge of

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  the Bankruptcy Court was appointed specially by a clause in the Act; but it was provided that in any future appointment a Judge of one of the Superior Courts should exercise the functions of the Chief Judge in Bankruptcy; in this manner, therefore, the places of the four Judges in Equity, who are at present found sufficient, will be filled up. With regard to the Judges of the Common Law Courts, regard being had to the other changes which are to be made, the recommendation is that there shall be five Judges acting in each division, instead of six Judges, as at present. If five Judges only be retained for this purpose, there will remain three Judges whom we can dispose of for the discharge of the other duties cast upon them. Of these three, one will be placed in the Court which will deal usually with Admiralty, Divorce, and Probate proceedings; and thus we shall have the same tribunal in point of number, and no doubt also in point of ability, as we now have in the Court for hearing appeals in Divorce, which is composed of the Judge of the Divorce Court assisted by two Common Law Judges. After taking one Judge for that Court there will remain two others, who may otherwise be usefully employed. The Court of Appeal is proposed to be constituted as a permanent Court of Appeal, which shall take all cases, Common Law or Equity, indiscriminately. Over this Court the Lord Chancellor will preside; the Master of the Rolls, by virtue of his office, will also be a member; together with the two Judges to whom I have already referred as being disposable for the office. The Court will therefore be constituted of four permanent Judges; but with these we further propose to associate three Judges to be selected by Her Majesty, annually, from among the Judges of the Courts of First Instance. By this means it is hoped that we shall not only secure a permanent body of a very high judicial character, but shall combine with this permanent body Judges who will bring to its deliberations the recent experience acquired from their practice in the Courts of First Instance; the supposition being that the permanent Judges may not have constantly present to their minds the current daily course of decisions going on in the Courts below. Your Lordships will see that I have mentioned one less in num-
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  ber of the Judges than the Report speaks of. I do not now propose to go into details upon the subject, but merely to give a general outline of the plan proposed; but I think it will be found that nine instead of ten will be quite sufficient. The Report mentions three as the quorum in cases of appeals; and if so, with nine Judges, there can hardly be any difficulty in finding a quorum for the Appellate Court. It may be asked whether there are not special circumstances in the case of the Courts of Admiralty, of Probate, and of Divorce; and undoubtedly their functions have been exclusively confined to a course of procedure having reference to those special matters; but eases are continually arising, especially under the enlarged powers which have been granted to the Court of Probate, which on strict examination it will be found may as well be dealt with by one branch of the judicature as another. As regards the Court of Admiralty, there is this peculiarity, that in time of war special and very difficult questions may arise; but in ordinary times it deals solely with questions of property. And with regard to Admiralty practice, it is to be borne in mind that there are two rules based on totally opposite principles now in operation—one, that acted on in the Courts of Law, the other adopted by the Admiralty Court, the results of which are frequently in direct conflict. For instance, if a ship be run down, and an action be brought at Common Law, and it is proved that there have been faults on both sides, the plaintiffs will fail to recover damages altogether; whereas in the Court of Admiralty, somewhat after the Jewish jurisprudence, the two losses are added together, and the Court divides the burden between the parties. To give other instances—they are not very many, but there are other instances of inconveniences arising under the present system—would be tiresome. Let me simply remind your Lordships of the present constitution of the Court of Exchequer Chamber—the Court for Common Law appeals. I cannot better describe the working of that Court than by reading a passage from the Report of the Commission—
  "The Court of Exchequer Chamber is formed by a combination of all the Judges of the Courts of Queen's Bench, Common Pleas, and Exchequer, under such arrangements that errors and

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  appeals from each of those Courts are determined by Judges taken from the other two. The inconveniences of this system are, in practice, very serious. All these Judges having during nearly the whole year pressing demands upon their time for other purposes, are only able to devote a very limited number of days after each term to the hearing of appeals and errors; and each of these periods requires to be broken up into three parts, and the constitution of the Court to be three times changed, in order to dispose of a portion of the appeals and errors from each of the Courts of First Instance. The effect, generally, is so far to reduce the number of Judges who are able to attend in the Court of Exchequer Chamber as, in case of any difference of opinion, to render it possible that the majority of opinions, in the Court of Appeal and the Court of First Instance taken together, may be overruled by the minority—a result which, as the Judges of Appeal are not appointed or selected especially to act as such Judges, and the Judges who have been overruled to-day may to-morrow themselves sit in appeal from some decision of the Judges who have taken part in overruling them, is eminently unsatisfactory."
  There cannot, I think, be a doubt that the Court of Appeal which the Commissioners recommend would be an improvement upon this system. It is suggested that this Court should be empowered to sit either as a full Court, or in divisions, but that the number of Judges sitting together in any division should never be less than three. The Judges of the Court other than the nominated Judges should always form a majority of the Court. At present the appeal in Chancery lies to the Lord Chancellor sitting alone, if he chooses to hear the case; but I do not think it desirable that there should be in any case a Court of Appeal of less than three Judges to overrule the decision of the Judges of the First Instance. I think I have now stated to your Lordships all that it is necessary to mention with regard to the Report which is proposed to be carried into effect by the Bills which I shall lay before you. The Report, however, deals with other subjects—such as the circuits; but on that point it is not yet altogether complete or satisfactory; so that we do not propose to legislate as to any of these, with the exception of the Home Circuit; and this it is proposed to abolish, in order that all the cases which are now heard upon the Home Circuit may be tried in the metropolis. Further than that it is not now proposed at present to interfere with the circuits. There is another point which is of great interest to your Lordships' House, and to which I wish specially
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  to call attention. I believe the suggestion I am about to make will be found of very great convenience, and that it will not be attended with diminution of the jurisdiction of this House—a matter with which of course the Commission was incompetent to deal. I refer to the possibility of securing a more continuous hearing of appeals by a very simple process—namely, by adopting a practice in this House analogous to that which prevails at the Privy Council. At the Privy Council there is a Judicial Committee which hears and determines cases as far as it is competent finally to determine them; but that determination is not of avail till it be presented to Her Majesty and is by Her Majesty approved. It occurred to me many years ago—as, indeed, the suggestion occurred to others—that your Lordships' House should of yourselves at the commencement of every Session appoint a Committee of Appeal—a Judicial Committee of your Lordships' House. You would place those you thought fit upon that Judicial Committee—probably those who now hear appeals, and probably others you might think desirable should act on that Judicial Committee; and that Judicial Committee would be empowered to hear and report. Their report would be made to the House and would have to be affirmed by your Lordships. The jurisdiction of this House would be preserved intact. The Committee might also be empowered to sit during the Recess and during prorogation should it be found needful. It might possibly have to sit once or twice during the week; but it would not be necessary to continue that practice long, because the appeals would rapidly diminish; and with that power you would be enabled to do justice, which it is now found impossible to do. I have before me a Return of the number of appeals standing for hearing in your Lordships' House at the beginning of the Sessions 1867, 1808, 1809, and 1870. In 1867 they were 43; in 1868, 42; in 1809, 38; and in 1870, 63. No doubt the number was largely augmented by the circumstance of a lady occupying the time of the House for a period of twenty-four days last Session. But I have also a Return of the number of causes set down for hearing. In 1867 there were 40; in 1868 there were 38; and in 1869 there were 56. Your Lordships will find that from the moment

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  any Court falls into arrear appeals multiply; but if the suggestion of a Judicial Committee be adopted, and that Committee be empowered to sit if required at other times than when the House is sitting, the arrear will be cleared off, and justice will be done in cases where parties are really desirous to be heard. I also propose that this Judicial Committee should have power to call in aid any member of the Judicial Committee of the Privy Council—the report of the Committee having always to be affirmed by the House. I propose, my Lords, to embody these alterations in two Bills—one applicable to the Court of First Instance and the other to the Court of Appellate Jurisdiction. I have to apologize for entering into these details when I am not prepared to lay the Bills on the table, but I hope soon to do so. I was anxious to call attention to the subject when I could have the benefit of a full attendance of your Lordships, especially of the noble and learned Lords. I have endeavoured to treat the subject as briefly as was consistent with making, I hope, a clear and distinct statement. In conclusion, my Lords, I do rejoice to think there will be great facility afforded to this scheme by the large public work which seems now at last about to be commenced—I mean the providing suitable courts for the administration of justice. You have a noble palace for the purposes of legislation—suitable to the dignity of the body who assemble here and the convenience of those who from various causes are compelled to have recourse to it; but at the present time there is scarcely a court fit to be used as a court of high judicature, and scarcely a court that affords adequate accommodation to suitors and witnesses. Now, there will be besides a physical advantage a great moral advantage in having one building; you will bring under one roof all those who, forming one Court, will sit in the administration of justice. You will give them an opportunity of convenient communication with one another. You will have then a body of men animated with the spirit of improvement, adequate to meet the various exigencies that may from time to time arise, and not fettered or paralyzed by custom or antiquity, beyond regarding, no doubt, anterior decisions with the respect necessary to secure uniformity and certainty in the law. The Judges will
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  thus give new life, spirit, and fresh activity to the improvement of the law. You will have taken a great step when you have secured a whole body of men animated by one common spirit for that purpose—who shall thus have intrusted to them, so far as concerns procedure, the despatch of business—all that is not of the essence and substance of the law; for you will not intrust to them anything beyond administration, but everything necessary for securing the determination of the just rights upon which they are called upon to adjudicate. Having these men in one building, there will be greatly increased facilities for what ought to form the great object of attainment in any administration of justice—the speed, cheapness, and certainty of its administration.
  The noble and learned Lord then presented a Bill to extend the Jurisdiction of the Judges of the Superior Courts of Common Law at Westminster."
  LORD CAIRNS: My Lords, it certainly is impossible to overrate either the interest or the importance of the statement of the noble and learned Lord on the Woolsack; and if the character of the Bill he has foreshadowed be of interest and importance to your Lordships, it is of equal importance to the whole people of this country. If in a matter so great I might refer to anything personal, I might claim some personal interest myself, because I had the honour of presiding over the Commission to which my noble and learned Friend refers; and I should do less than justice to those with whom I had the honour of serving if I did not testify to the amount of labour and the sacrifice of time which every member of that Commission incurred—labour and attention the more remarkable, nearly every member of it being occupied almost all day and many hours of night also in business of most pressing description. I do not rise in any way to enter into details of the measure recommended by the Commission, and which I understand in its most conspicuous features is embodied in the Bill upon the table. I will refer to only one detail. My noble and learned Friend said he had some reason to be satisfied that the Court of Appeal which the Commission recommended would be sufficiently constituted with nine members instead of ten as recommended by the Commission. The Commission recommended

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  that the Court of Appeal, being only a division of the Supreme Court, should consist of the Lord Chancellor, as President, the two Lords Justices, the Master of the Rolls, three permanent Judges, and three Judges to be selected either annually or every two years from the other Judges of the Supreme Court. In that way there would be seven permanent Judges of the Court of Appeal and three changeable Judges. That was a subject to which the Commission gave the greatest care and consideration. They were extremely anxious to recommend the smaller number, if possible; but, after the most careful examination, they arrived at the conclusion that it was utterly impossible to keep down the appellate business of the country coming from all the Courts with less than Appellate Courts in three divisions. Now, I agree in every word that has been said by my noble and learned Friend as to the immense importance of an Appellate Court keeping down its business, because I believe that arrears of business in any Court multiply in exact proportion to the number of arrears already existing—the more arrears there are the greater they become, because there are always plenty of people willing to run the risks of having to pay costs for the sake of keeping a question open two or three years. We, therefore, thought it of great importance to keep down the appeals; and we were also of opinion that it was a point of great moment that the Appellate Court should obtain a hold, from its strength and character, on the confidence of the country, and it seemed to us that if the Court were successful in obtaining that confidence it would diminish the number of appeals to the House of Lords. With this view we deemed that each of the three divisions of the Appellate Court should be composed of not less than three Judges. If, however, the Appellate Court is to consist of nine members only, one of them being the Lord Chancellor, then, as the Lord Chancellor would be unable to sit on many occasions, and as also casualties might arise preventing some of the other Judges from attending, the number of nine would consequently be reduced, and one division of the Appellate Court would be prevented from sitting. It was therefore thought by the Commission that the Appellate Court should consist of the Lord Chancellor and nine
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  other Judges; so that there might be some certainty of having three Judges for each of the three divisions: and this is a matter which I hope my noble and learned Friend will consider carefully before introducing his Bill on the subject. With your Lordships' permission, I would say a very few words with regard to the other proposal of my noble and learned Friend with respect to the appellate jurisdiction of this House. I am one of those who for some time advocated the idea of having the appellate jurisdiction of the House conducted through a Judicial Committee, in the same way as the appellate jurisdiction of the Privy Council is conducted by the Judicial Committee of that body; but I never thought that one of the advantages to be derived from that measure was the advantage which has struck my noble and learned Friend, perhaps more than it deserves—the proposal that such Judicial Committee of your Lordships should sit during the vacation. This subject connects itself very much with the Judicial Committee of the Privy Council. The judicial business of the House appears to have increased during the last few years, and that of the Privy Council has increased enormously. Latterly, the appeals from India have increased to a great extent year by year, and at present the list for hearing is very heavy at the Privy Council. It is requisite to recollect on whom we can rely for taking part in the deliberations of the Judicial Committee of that body. A great number of the members of it are existing Judges engaged in other Courts, who can only give their assistance for a limited number of days, and all my noble and learned Friends who are here present and have judicial functions 1o discharge as Members of this House are also members of the Judicial Committee. Some other members there are, neither Judges in office nor members of your Lordships' House. And here I cannot speak too highly, without intending to make any invidious distinction, of the great care and attention bestowed by Sir James Colvile on every case coming before the Council. Then, with regard to the Judicial Committee of this House, you must remember that most of its members are, during many months when the House is not sitting, in attendance on the Judicial Committee of the Privy Council. Now, bearing in mind that the attention and

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  time of those noble and learned Lords are not merely occupied during the days only when they sit to hear appeals, but that many other days are also given to the study of the cases which have been argued before them, and also that my noble and learned Friends frequently fix the hearing of appeals in the Privy Council at dates during the Recess, I must say I do not think that the Judicial Committee of your Lordships' House could be so composed as to enable its members during the time when the House is not sitting to devote attention to appeals here. I will not pursue this part of the subject further, but with respect to the other matters referred to by the noble and learned Lord, I believe that we are all anxious that the reform should be passed in the best possible form, and that the great blots in the judicature of the country should be as speedily as possible removed.
  LORD WESTBURY: My Lords, I congratulate your Lordships on the very noble and comprehensive plan of reform sketched out by my noble and learned Friend; and I congratulate the noble and learned Lord on the privilege he has enjoyed of bringing forward a measure from which so much may be expected, and which I think will certainly lead to the most beneficial results—though I am sorry to say that it cannot be expected that those results will be immediate. The faults of our system have not boon confined merely to delay, uncertainty, and contradiction in the administration of the law. The unfortunate division of our laws—or of the administration of them—into Law and Equity, has led to a similar division of the education of young men studying for the Bar, some of them studying for practice exclusively in the Common Law Courts and others for practice only in the Equity Courts. The same has been the case in respect to the Judges. The difference between these two branches has in truth been so great that the jurisdiction and principles of the one set of Courts are almost terra incognita to the practitioners in the other. Therefore, I anticipate that a considerable time will elapse before we have the benefit of this great scheme of reform. It is now nearly forty years since the question of what was called the fusion, or the uniting, of Law and Equity was first agitated. At first it was treated as a species of fond delusion, but it has grown up of late to
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  be regarded as a necessity. We now wonder how we could have endured the whole system so long. It must create surprise when I tell your Lordships that about eighteen or nineteen years ago I heard it said at a great dinner given by the Lord Chancellor of that time to persons eminent in the law, that it was the most perfect state of things to have Common Law administered in one set of Courts and Equity in another; and I remember putting it to those present whether it was not unreasonable that one Court should be bound to commit injustice and that another Court should be instituted, the functions of which should be to watch the proceedings of the first Court, to run after it and stop it in its course. A great deal will require to be done. There will be necessity to invoke the Legislature to settle the differences that now exist between the Courts of Common Law and the Courts of Equity, and above all, it will be necessary to do that without which all else will be unavailing—namely, to prepare a simple code of procedure that shall be common to every tribunal. It was the want of that which originally caused the difference that now exists. When the business and concerns of man-kind became more enlarged, it was the duty of the Judges to have prepared further rules and more enlarged formulœ; but they were chained to the common forms and special pleading in which they delighted, and, therefore, they did not fulfil that duty. That caused suitors in search of justice to go to the Sovereign, by whom they were sent to the Lord Chancellor; and that was the origin of the jurisdiction of the Lord Chancellor and of the difference between the jurisdictions of Equity and of Common Law. We must now have one single form of procedure, and the preparation of that will require considerable care and attention. I hope my noble and learned Friend, when he brings in his Bill, will not content himself with an outline of general principles, but will also tell us that the preparation of a code of procedure shall be entered upon. With reference to the announcement the noble and learned Lord has made of an alteration in the constitution of the appellate tribunal, I feel very considerable difficulty. This is not a time in which the House of Lords should be stripped of any function or public duty,

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  and I see very great difficulty in having a tribunal constituted as proposed. If you call in the aid of those who are not Members of this House you should reserve to this House a majority in the tribunal. The peculiar character of your present tribunal is that it decides appeals in the manner of a deliberative body, and not in that of a judicial Court; and there are several judgments and not one judgment. I am exceedingly glad the noble and learned Lord opposite (Lord Cairns) has called attention to the state of legal business in the Privy Council. There is an enormous amount of colonial appeals, which seems to be increasing every day, and it is undoubtedly of the highest importance that that business should be promptly disposed of for nothing tends more to strengthen the bond of union between this country and her colonies than the giving due attention to the hearing and adjudication of their causes. One fault of the Judicial Committee is this—that the colonial appellant does not know how the tribunal to which he appeals will be constituted; it may consist of two or three to-day and of four or five to-morrow, but it must always be a subject of great interest to the colonial appellant to know what sort of a tribunal he will have. I trust that this matter will receive the attention of the Government.
  LORD ROMILLY: My Lords, I have listened with the greatest pleasure to the statement of the noble and learned Lord on the Woolsack, and I anticipate great advantages from the carrying out of what he proposes. I wish to enforce on your Lordships' attention the point just mentioned by the noble and learned Lord (Lord Westbury), the importance of establishing an uniform code of procedure. It is from the want of such a code that the present confusion has arisen. The proposed Court will fail unless accompanied with a new and uniform system of procedure, applying alike to legal and equitable interests. This is pointed out by the Commissioners in their Report; this was found to be a necessary preliminary in preparing a code for India, and the late Court of Exchequer was a striking instance of this truth; for that Court, having complete jurisdiction in Equity as well as Law, and having all the machinery necessary, found itself so constrained by
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  the form of procedure, that no Court in this country was more strict in preserving the exact boundaries of Law and Equity. With regard to that part of the scheme which relates to the constitution of the ultimate appellate tribunal, by the formation of a Judicial Committee of this House, I approve of the plan generally, but I do not at present think that it will be wise to introduce into it any persons who are not Members of your Lordships' House. When I gave evidence before a Committee of this House on this subject, I pressed strongly the importance of having lay members to sit on such a Judicial Committee, and that view was shared by several persons whose names I could mention and whose opinions have weight with your Lordships. The opinion expressed by them was that among your Lordships were many, who, though they had not received a legal education, nevertheless possessed a considerable amount of judicial aptitude, which is a rarer and more valuable quality than legal knowledge; that the effect of introducing such persons to the Judicial Committee would be to cause decisions to be ultimately founded more on common sense awl less on legal technicalities, and that in this way those that were not lawyers possessed a considerable power of disposing of judicial business; this is proved by the efficiency with which a number of your Lordships perform judicial functions as Chairmen of Quarter Sessions. I think, therefore, that with a little care and proper selection a Judicial Committee might be formed which would be most valuable for the administration of law and of justice. I entirely coincide with the noble and learned Lord who has just spoken (Lord Westbury) of the value of the Judicial Committee of the Privy Council. It is of great importance to impress upon the colonies the conviction that in England real justice will be well and speedily done between contending parties residing in India and different quarters of the globe, and, I firmly believe that an enlightened and strictly important tribunal on which colonists can rely will do more to bind them to us than any arrangement about military forces in times when they are not attacked from without.
  LORD REDESDALEsaid, that as the Bill of the noble and learned Lord would have reference only to England

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  it might be well to remember that out of forty-eight appeals now before the House twenty-four, or exactly one-half, came from Scotland. Whether that was through any defect in the Scotch Courts he did not know; but comparing the amount of legal business in the two countries, it was clear that if the Scotch appeals were in the same proportion as those of England, the labours of that as an appellate tribunal would be considerably relieved.
  THE LORD CHANCELLORreferred to the County Courts to show the extreme advantage of ready justice, and said the reason why so few appeals came from those Courts was attributed by the County Court Judges themselves not to any merits of the tribunal, but to the extreme desire of all persons to settle their business out of hand.
  Bill read 1a and to be printed.
  House adjourned at a quarter past Seven o'clock, to Monday next, Eleven o'clock.