THE LORD CHANCELLOR
My Lords, in asking your Lordships to give a second reading to these Bills—the one for establishing a High Court of Justice, the other for regulating the constitution and procedure of Courts of Appeal—I have but little to add to the statement which I made to your Lordships on a former occasion. They embody, as I then mentioned, the recommendations of a Royal Commission which was originally appointed by my noble and learned Friend on my left (Lord Chelmsford), and was presided over by my noble and learned Friend who preceded me on the Woolsack (Lord Cairns); three of the Common Law Judges, the Judge of the 170 Divorce Court, Sir Roundell Palmer, the then and the present Attorney General, the Judge of the Admiralty Court, and Sir William Erle being also members of it. Excepting that the Judge of the Admiralty Court entertained some doubt whether his Court should be included in the arrangement, the Commissioners were unanimous in their recommendations, save as regards matters not in any way connected with these Bills. Having given on a former occasion the reasons for the changes which are proposed, and what those changes will be, I will now explain briefly what are the provisions of the first Bill—the High Court of Justice Bill. It proposes that the division of law and equity, which, for the reasons I then advanced, and which are fully set forth in the Report, has been found of singular inconvenience in conducting the complicated transactions of our present state of society, should be at once abolished, and that all litigation—the litigation which must necessarily occur where property has so largely increased and such various interests have become established—should be brought into one Court and under one system of judicature. It is proposed that this one great Court shall consist of all the Judges of all the separate Courts; and that those separate Courts, instead of being divided in their jurisdiction from each other, shall be all divisions of the one great Court. Further, provisions will be made solely for the purpose of the convenient distribution of business and the division of labour; that there shall be no wall of division, so to speak, between any one Court and any other; but that there shall be a free circulation of Judges from one division to any other, so that any business may be performed by any one division; and the reference of any particular business to any one Court will be made by general orders, framed solely with regard to convenience and the despatch of business. It now not unfrequently happens that proceedings instituted in one Court are arrested as not being a proper matter for the jurisdiction of that Court, and the cause has consequently to be commenced de novo elsewhere, but this will no longer be the case; for if a matter originating in one division of the Court can be more conveniently dealt with by being allowed to pass to the consideration of another division, it will so pass without any new 171 proceedings, with their attendant expense, being instituted, and there will be none of that contradiction which now exists between decisions of the Courts of Law and of the Courts of Equity. The Bill proposes to vest in one High Court the whole power and authority of the Court of Chancery, the Courts of Queen's Bench, Common Pleas, and Exchequer, the Court of Probate and Divorce, and the Court of Admiralty. At present there are seven Judges of the Court of Chancery—namely, the Lord Chancellor, the two Lords Justices of Appeal, the Master of the Rolls, and the three Vice Chancellors; from the Master of the Rolls and the Vice Chancellors there is an appeal to the Lord Chancellor and the Lords Justices; there are eighteen Common Law Judges—namely, six each in the Courts of Queen's Bench, Common Pleas, and Exchequer, besides one Judge in the Court of Probate and one in the Court of Admiralty, making a total of twenty-seven. The alteration proposed is that the Master of the Rolls shall henceforth have an appellate jurisdiction, and an appellate jurisdiction only, being transferred to the Appellate Court, which is the subject of the second Bill; and that the Lord Chancellor, assisted by four other Judges, shall form one division of original jurisdiction. Thus the Lords Justices will no longer constitute a portion of the Appeal Court, and the Master of the Rolls will no longer be one of the Judges of the Court of Chancery, but there will be a Court consisting of the Lord Chancellor and four other Judges, originally representing the Court of Equity, but henceforth forming one division of the High Court. There will be three other divisions, each with five Judges, occupying the position of the six who now sit in each of the Common Law Courts. The Lord Chief Justice of England will be at the head of one of these divisions, and a Lord President at the head of each of the other two. There will also be another division, which, in the first instance, for the purpose of the convenient division of labour among the several Judges, will consist of the Judges of the Courts of Probate and Admiralty, who will be assisted by a third Judge, making three in that division. The total number of Judges for these various divisions will thus be twenty-three. A Court of Appeal is proposed to be constituted by 172 the second Bill; but it is so connected with the first that I can hardly explain either of them separately. The Court of Appeal will consist of the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, four permanent Judges, and three Judges to be named yearly by Her Majesty under the sign manual, who will be Judges of the Court of First Instance, but may also sit in the Court of Appeal, which will thus be composed of ten Judges. The Judicature Commission, as I mentioned on a former occasion, recommended this number, but I thought nine would be sufficient. My noble and learned Friend, however, whose absence I much regret (Lord Cairns), suggested that the number ten should be adhered to, since three divisions of the Court might occasionally be required, and the Lord Chancellor, owing to his other duties, might be unable to attend. I have therefore inserted the Lord Chief Justice of England as one of the ten; but I still doubt whether more business will come before the Court of Appeal than will occupy two divisions; for at present one Court of Appeal in Chancery has been found sufficient, while the Court of Exchequer Chamber, which hears appeals from the Common Law Courts, is only required to sit nine or ten days four times a year; and as only appeals from the Courts of Probate and Admiralty will be added, I believe two divisions will be sufficient. It is, however, desirable that there should be opportunities of affording relief to the Judges sitting in those divisions, as three of them will not be permanent, and they and the Lord Chief Justice will be occupied in the discharge of duties in the Court of First Instance. We propose to vest in the High Court all the powers and authorities now existing in any one of the Courts which it is proposed to mould into one; and that the High Court shall meet from time to time, not for the despatch of ordinary business, but for the purpose of arranging procedure and framing regulations for distribution of the business of the Court, both between the High Court itself and the several divisional Courts. The divisional Courts, too, though sitting apart, will have power to interchange Judges and to facilitate the conducting of business in one division or the other exactly as the exigencies of the moment may require. The most important power, 173 however, to be given to the High Court of Justice is with reference to framing regulations for its proceedings. The true principle, I apprehend, is that Parliament should not intrust to the Court anything which concerns the rights of parties between themselves in the subject-matter of litigation, for these must be determined by common or statute law, and can only be varied by the authority of Parliament; but what every Court ought to be able to do, and what Parliament is singularly incompetent to undertake, is to settle the course of procedure which experience shows, from time to time, to be the most convenient for the attainment of justice. The Court will be conscious, from its daily experience, of the changes in procedure which are from time to time required, and therefore the power for framing the regulations will make them sufficiently elastic and adapted to the necessities of the times. Certain general principles should, no doubt, be pointed out by Parliament as indicating the course which it is expected any Court should take; and accordingly the 13th clause provides for the selection and distribution of business, the transfer of business from one divisional Court to another, and for the transfer of Judges in like manner; for the scale of fees and their collection whether by stamps or otherwise; for the concurrence of the Judges in the decisions of the Courts, and the mode in which those judgments shall be given; for the control of pleadings, evidence, and other matters relating to the institution and conduct of business; the costs and mode of taxation. The 13th clause further provides that the procedure in each divisional or other Court shall, as far as possible, be assimilated; that provision may be made for reference of proper matters to accountants, scientific, or other special referees; and that there shall be no appeal to any Court of Appeal superior to the High Court from any interlocutory order made by three or more Judges without special leave of the High Court or of the Superior Court of Appeal. This last provision will restrict appeals from interlocutory orders, which would not determine the whole cause, and the object of which is vexatious delay. I think that, these principles being kept in view, the High Court may safely be allowed to regulate its course of procedure. With reference to the salaries 174 to be paid to the Judges of the High Court of Justice—a matter which will be more fully discussed in "another place"—the Bill provides that the Lord Chancellor, the Master of the Rolls, and the Lord Chief Justice of England—designations which have been reserved by the Bill to the occupants of ancient offices and to which the public have long been accustomed, and which it is thought desirable to retain—shall receive the same remuneration as at present; and it is proposed that any future occupants of those high offices shall receive the same remuneration as the present occupants. With regard to the chiefs, hereafter to be styled Presidents of the divisional Courts, it is proposed that the present holders should retain their present salaries of £7,000; but that their position shall in future be assimilated to that of the Master of the Polls, their salaries being £6,000. The salaries of the permanent Judges of the Court of Appeal are proposed to be £5,000, reserving, of course, to the present Lord Justice, who will be one of them, his present income of £6,000. The reason for fixing £5,000 is, that if any Judge should be transferred from his present position to that Court, he will have the advantage of being freed, not only from the duties, but from the heavy expenses which, as everyone knows, are attendant on going circuit, amounting probably to £500 or £600 a year; and, therefore, practically the salaries of Judges transferred would be increased by that amount. Retired Lord Chancellors, who take part in the judicial business of this House, receive £5,000 a year as their retiring pension. It would be unpardonable in me to repeat what I said on a former occasion as to the general merits of the measure; I may, however, mention an additional fact in justification of what I then said as to the dissatisfaction occasioned by the expense and delay incident to our very complicated system of judicature, under which a person may proceed in one Court in one way, and on reaching a certain length may be arrested and have to begin de novo in another way, and under which suitors are entangled in knotty questions, not as to whether their claim is well grounded, but as to whether they have taken the right mode of enforcing it. The fact I refer to is this—that I have received a deputation of gen- 175 tlemen representing the profession of solicitors in Manchester, Liverpool, Newcastle, Sheffield, and Birmingham, who, representing different provincial societies, and expressing, as they assured me, the general feeling of that branch of the profession in those towns, urged that these reforms should be speedily carried into effect. I mention this to their honour; for no doubt the effect of the Bill will be to expedite the administration of justice, and everything tending to that result tends to diminish the time, labour, and cost to each individual litigant—though not, perhaps, to diminish business, for in that respect the present system exercises a deterrent influence. I have taken the two Bills and dealt with them together, in order that I might save your Lordships the trouble of listening to two speeches. Then the Bill adopts the recommendation of the Commission as to the abolition of the Home Circuit, for though of course it is not necessarily involved in its principle, it has seemed to be advantageous that the point should be considered in connection with it. The business transacted on the Home Circuit, as regards the business proper to the circuit, is of the smallest conceivable amount; but, owing to the difficulty of having all London causes despatched in London during the sittings of the Courts at Nisi Prius, a large number of cases are sent to one or other of the Assize towns on that circuit—generally to the one which transacts its business at the latest period—usually Kingston at the Spring, and Croydon at the Summer Assizes—producing a burdensome overflow of business. Of this the county, having to bear a considerable share of the costs of the protracted sittings, has great reason to complain, as also have the jurors, who have to sit on cases unconnected with the locality. Considering that from every town on the circuit London can be reached in two or three hours, the Commissioners unanimously recommended that the business of the circuit should be transferred to London, where, under the new system, by constant sittings at Nisi Prius, both London business and disputes in the counties themselves will be much more rapidly disposed of than at assizes held at long intervals twice a year. With regard to the second Bill, it takes away none of the privileges or authority of this House; but it gives a power, which your Lordships may or may not exercise, of 176 appointing at the commencement of every Session a Judicial Committee, who will have power to sit at any period, whether the House is sitting or not, and will make a Report, which will have no binding effect until it is sanctioned by a vote of your Lordships' House. This would be a means of clearing off the arrears of appeals which I am sorry to say now exist, and are likely rather to increase than diminish; and I cannot too strongly urge the advantage of this, for many of the appeals—I am far from saying all or even the majority of them—are simply presented for the purpose of delay. Indeed, experience has shown that appeals increase exactly in proportion as there is a likehood of a long time intervening before the cause can come on. There is also a power of obtaining assistance from the Judicial Committee of the Privy Council, care being taken that in that case there shall be a majority of the Committee Members of this House; and the Bill likewise provides that such members of the Appellate Court as are Privy Councillors shall be entitled to sit on the Judicial Committee of the Privy Council; as also may the Chief Judge in Bankruptcy if a Privy Councillor. There will in reality be only one additional Judge, and the present Chief Judge in Bankruptcy will be placed in the position of one of the Judges of the divisions of the High Court, as his duties in bankruptcy will not necessarily occupy the whole of his time. In order that the Bills may be carefally considered by those who, having a thorough knowledge of the subject, have not yet had that opportunity, I propose to postpone the Committee for some time—for they may throw a good deal of light on points which will justly require consideration. There is, for instance, scarcely any provision as to the transfer of the patronage now possessed by various Judges, and that must be considered before the next stage.
§ Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
§ LORD WESTBURY
My Lords, I have listened with much pleasure to the statement of my noble and learned Friend with regard to the leading provisions of his Bills. There are, however, some of the provisions of this Bill, which I have read with some feeling of despondency. I heartily agree 177 with the deputation from the legal profession which waited on my noble and learned Friend, and I especially commend their anxiety that the enactments proposed in this Bill should have a speedy fulfilment. But I fear its provisions hold out no such hope. It is not to come into operation till November, 1871, when the High Court of Justice is to be called into existence. In the early part of the Bill, this Court is clothed in a very excellent way with all the jurisdictions and powers now appertaining to all the chief tribunals of the land. I had some expectation that the Court would at once enter on the fulfilment of that important duty, and that that mischievous barrier between jurisdiction in law and jurisdiction in equity would be effectually removed, and the wall rent in twain. I fear, however, that as the provisions of the Bill are worded, much delay is likely to be occasioned; because on reading further I find that certain things are not to be done until the majority of the members of the High Court—and they are many—shall have arrived at conclusions as to the rules to be laid down, and the procedure to be adopted, and as to a great variety of other matters. In fact, they are to shape the Bill rather than Parliament; and in the meantime, as the 19th clause tells us—Subject to the provisions of tins Act, and to any alteration that may be made by rules of court, the divisional Court of Chancery and the Judges thereof shall exercise the same jurisdiction and perform the same duties as they would have performed as Lord Chancellor and Vice-Chancellors if this Act had not passed;and so with regard to the Courts of Queen's Bench, Common Pleas, Exchequer, and all the rest. Thus, the existing abuses and evils are to be perpetuated until these rules are made, and this procedure comes into force. Why men may wander forty years in the desert before that is done. The youngest Peer will be a sanguine man if he expects to live to see that day; and the High Court of Justice will probably enter on its functions when the long promised Courts of Justice are ready for occupation. I entreat my noble and learned Friend to anticipate this delay, and to prevent it by sending it back to the Commissioners by whom this very excellent reform is recommended, to frame rules and a mode of procedure. Their Report may be considered by any noble and learned Friend and by the Government, and if necessary may be submitted to 178 this House, so that when November, 1871, comes you may find the High Court of Justice ready clothed, instead of being naked and destitute, and able to enter at once on the glorious functions that you have provided for it. I do trust we shall not have to wait till the majority of twenty-one Judges have deliberated and arrived at a uniform conclusion upon subjects which, will be fertile of controversy; for probably the Equity Judge will look at them from his point of view, and the Common Law Judge will regard them from his, and it is impossible to expect anything like unanimity or agreement for an indefinite period. The subjects which it is proposed to remit to them are of the greatest moment—the rules of procedure—the selection of the business to be heard before the High Court, the distribution of business among the divisional Courts, the transfer of business from one division to another—that probably might be within their competence—the constitution of the Courts as to the number of Judges, and the number of Judges required to concur in a judgment of the High Court. Surely these things should be settled by the wisdom of Parliament. Then there is a provision—which I confess I am at a loss to understand—that the quorum of a sitting for the High Court shall not be less than seven, and that the quorum of the divisional Courts shall be not less than three nor more than five; but the Bill goes on to provide that the divisional Courts shall be on an equality with the High Court, and shall exercise all its authority. So far, indeed, is that carried, that by Clause 6 the authority of the High Court is actually given to one Judge—the authority of twenty-one Judges being committed to a single individual. I must also call attention to the multiplication of Courts of Appeal. There is an appeal from the divisional Court to the High Court—appeal No. 1; then there is an appeal from the High Court to the Court of Appeal—appeal No. 2; and finally, there is an appeal from that Court to what is called the Ultimate Court of Appeal—namely, the transcendental region of your Lordships' House. Now this multiplication of appeals is very undesirable, for it enables the richer and more litigious suitor to harass his poorer opponent, and enables the man who really has no case to multiply delay and consequently ex- 179 pense, by carrying the cause from one tribunal to another. Now, having regard to the enormous amount of delay existing under the present system, and the enormous expense attendant on it, we may imagine what will be the consequence of this proposal: a case commenced in the divisional Court may be carried on appeal from the High Court, with a delay perhaps of twelve months, the appeal from the High Court to the Court of Appeal, with the delay of another twelve months—if the Court did not happen to be obstructed by the appeals already before it—and thence the suitor would have to go to the Ultimate Court of Appeal. Why, it may take eight or ten years before a cause gets finally settled. I hope my noble and learned Friend will not consent to the introduction of another Court of Appeal, which can only be a new source of delay and vexation. I will now call the attention of my noble and learned Friend to a matter which I am sure he intended to provide for, although it does not seem to be accomplished by the Bill as it now stands. I refer to that portion of the jurisdiction of the Court of Chancery which enables that Court to grant injunctions to meet or prevent some extraordinary or imminent evil. That jurisdiction is at present exercised conveniently and satisfactorily. An injunction may issue to prevent the sailing of a ship whose departure would be productive of much mischief; or to prohibit the continuance of a nuisance; or it might be directed against a large factory, or a mine or works of any kind. At present, if the Vice Chancellor makes an order which, if carried into effect might be injurious, the parties could bring the matter before the higher Court, and if the case is clearly an urgent one the appeal is determined within a very few days. It must have occurred to my noble and learned Friend, as it has happened to me when presiding in the Court of Chancery, to interpose within a week of the time when the order of the Vice Chancellor was made to prevent its execution in cases of pressing emergency. But I cannot find that this jurisdiction is preserved in this Bill, though it must have been the intention to retain it. In the 6th clause it is provided that the Lord Chancellor shall cease to exercise appellate jurisdiction as Judge of the Court of Chancery. The jurisdiction of 180 which I speak is ordinarily called appellate jurisdiction, though perhaps not accurately; but whatever it is, the Bill clearly intends to take it away. If a Vice Chancellor in future should make an order which should be unsatisfactory to any of the parties, the only mode of intervention will be an appeal to the High Court of Justice—because the Vice Chancellor will represent a divisional Court; and thus the appellate jurisdiction of the Lord Chancellor, enabling him either to affirm or reverse an order within a few days, will be completely lost. That would be a great inconvenience, much to be regretted. I hope my noble and learned Friend will preserve this wholesome jurisdiction as it now stands, and not leave the party aggrieved to the slow and cumbersome means of relief provided in this Bill. I desire to know also why the jurisdiction in bankruptcy is not transferred to the High Court of Justice. Every thing but that jurisdiction is transferred. The 16th clause is so awkwardly worded, that I am unable to ascertain from it what will be the status of the unfortunate Chief Judge of the Court of Bankruptcy—I say unfortunate, because that Judge has served a long time without any augmentation of salary: but, whether he will become Vice Chancellor, or will get any pension, it is impossible to understand. By the portion of the Bill which refers to the Court of Bankruptcy it is declared that—The existing Chief Judge in Bankruptcy shall hold the same rank and official name, and be entitled to the same salary and pension, as if immediately previous to the commencement of this Act, he had been appointed a Vice Chancellor.But whether he is a Vice Chancellor or not does not appear. Again, it is said—"he is in this Act referred to as an existing Vice Chancellor;" and next, that the divisional Court shall consist of the Lord Chancellor and the existing Vice Chancellors. This ambiguity, it is true, is a trifling matter, and will be set right, no doubt, in Committee. Why, however, I repeat, should not the jurisdiction in bankruptcy be transferred as well as other jurisdictions? With regard to appointments, I hope the Government will not appoint aged men to the office of Judges. The great fault of our system is, that our Judges continue on the Bench up to too great an age. I have a right to say this, for I frankly admit that I 181 am now approaching seventy, and that I am painfully conscious of declining powers which would undoubtedly unfit me to be long a Judge. I believe in America the age of retirement is sixty-six; and I doubt whether it is advisable that a Judge should hold his office long after that age; for at an advanced period of life, undoubtedly, there is a loss of quickness of apprehension, a failure of memory, and an incapacity of continued attention. Between fifty and seventy the judicial faculties may be in full exercise, but not after that period; and therefore I hope that the services of those who are entrusted to perform these important functions will not be extended beyond that age. With regard to the constitution of the Court of Appeal I have no objection to make. The difficulties I have pointed out I shall be most happy to assist in removing; and I trust my noble and learned Friend will not allow a considerable time to elapse before the Bill goes into Committee. So many points require attention that I am almost inclined to suggest that it should be referred to a Select Committee, in the hope that it would come back to us and reach the other House in sufficient time to pass into law during the present Session.
§ LORD PENZANCE
My Lords, as a Member of the Commission on whose Report the Bill is framed, I desire to express my gratification at finding that my noble and learned Friend has so faithfully reproduced in his measure the ideas and opinions which, after mature consideration by a Commission representing all classes, and including three attorneys of great eminence and ability, were ultimately arrived at. I am also glad to find that the noble and learned Lord who has just sat down (Lord Westbury) coincides with the Commissioners and with the noble and learned Lord on the Woolsack as to the desirability of a scheme of this character being carried into effect; and I am further glad to hear that my noble and learned Friend will render every assistance in his power with the view of carrying the Bill to a successful conclusion. But my noble and learned Friend appears to be troubled in mind on several points; and what seems to trouble him most is the distant period at which, the proposed changes are to come into operation. He says the Bill is not to come into operation till November, 1871; but 182 if he looks to the Bill he will find that November, 1871, is named as the latest date at which it is to come into operation, and that Her Majesty, by an Order in Council, can direct that it shall come into operation at an earlier period. No doubt the time at which it will really be brought into operation will depend on the interval which may be found necessary for the framing of the rules. My noble and learned Friend asked how can we expect the twenty-three Judges to be able to frame rules in a matter of such complexity, and in respect of which there will be so many different and conflicting opinions. Well, my Lords, if it would be so very difficult for twenty-three men more competent than any other in the kingdom to frame rules for the successful carrying out this measure, how does my noble and learned Friend expect that such rules could be framed, even by November, 1871, in the two Houses of Parliament, which of all places are the places where the drawing up of rules on so complicated a subject would be attended with the greatest difficulty? I know my noble and learned Friend proposes to refer the matter back to the Commission; but the Commission can only report again, and when it does so, the matter would still have to be brought before Parliament, and then, probably, under circumstances less favourable than exist at present. I hope I may administer some comfort to my noble Friend, whose appeals are quite pathetic, and who on this occasion as well as on a former one is "like the voice of one crying in the wilderness," or like one wandering in the desert. I hope the few words I have spoken will solace his feelings by showing him that the Bill can be more effectually and rapidly brought into operation by the course proposed by my noble and learned Friend on the Woolsack. My noble and learned Friend also objects to the scheme, on the ground that it will multiply appeals. If it would have that effect I should agree with him in objecting to it; because I believe there can be no greater evil in the administration of justice than a multiplicity of appeals; but I think that is not the intention of my noble and learned Friend on the Woolsack. The Bill merely establishes a Court of Appeal from the High Court, at the same time providing that the final appeal to your Lordships' House shall 183 not be interfered with. The Bill therefore will give one good appeal and an ultimate appeal; so that, after all, the number of appeals will not be greater than it is at present. My noble and learned Friend called attention to a clause which he argued would give an appeal to the High Court. Now, as I understand the clause, what it gives is not an appeal, but an opportunity for the production of further evidence and for a re-hearing. And I would remark that this clause which provides for a rehearing, and which is a subject of complaint by my noble and learned Friend, meets another difficulty which has been suggested. He says that if the Vice Chancellor makes an order that is unsatisfactory, there is no means provided for a re-hearing; but this very clause provides for a re-hearing before the High Court. Even if that were not so, the order of the Vice Chancellor would be matter of appeal which could be heard by the Court of Appeal. It will be found, my Lords, that throughout the two Bills provision is made for adjusting as between the Courts the cases according to their nature, and no doubt a rapid appeal can be secured in all instances where it is desirable. Having thus replied to my noble and learned Friend's objections to the Bill, I will trouble your Lordships with a few remarks on what seems to me to be its great merit. The defects which have existed for years in the Courts of Common Law have arisen from the want of a sufficient power in those Courts to adjust their remedies to the evils they have to redress. The Courts of Common Law have but one remedy for all complaints, and that is the assessment of damages. It is true that under a recent statute they may grant an injunction; but they have no power to compel the wrongful litigant to give redress for his wrong-doing except by damages. That is one grievance. Another grievance is that in the Courts of Common Law there is no method of trial, no matter how intricate or complicated the case, but trial by jury, however ludicrously inappropriate that form of trial may be for the particular case. In olden times no difficulty arose from that circumstance; but when commercial law, which took its rise about the time of Lord Mansfield, came to be administered, complex and technical questions 184 came to be tried, for which, as I have just stated, trial by jury is ludicrously inappropriate. Take, for example, trials arising out of patents, which very often involve not only intricate technical questions, but discussions carried on in scientific phraseology quite beyond the knowledge of juries. An instance occurred some few years ago within my own knowledge. In a trial at Nisi Prius the question was as to the original instrument for which Mr. Wheatstone had obtained a patent. No fewer than fourteen or fifteen instruments of great delicacy were examined, there were numerous discussions in respect of the transmission of galvanic fluid, and a great amount of philosophic reasoning was carried on throughout the trial. Everyone felt that such a case could not be tried in a satisfactory manner by a jury, and that it ought to go to another tribunal. Again, in cases of art, of engineering, and of the collision of ships, technical language with which juries cannot be supposed to be acquainted must constantly be used. When the Bill introduced by my noble and learned Friend on the Woolsack becomes law, the combined Court will have power to summon to its aid scientific persons and persons of special knowledge, so as to constitute a tribunal suited to the nature of the case. The measure also meets another great evil which my noble and learned Friend (Lord Westbury) expatiated upon. I allude to the distinction which now exists between the Courts of Law and the Courts of Equity; but I should be saying what might lead to disappointment on the part of some of your Lordships if I said I expected that distinction will disappear immediately upon this Bill coming into operation. No; that alteration must take a long time. Your Lordships will bear in mind that the two systems have grown up side by side, the difficulties in common law having made redress in equity necessary as far as such redress could be effected. Well, those two separate systems have grown up. The Judges on one side of Westminster Hall are more or less ignorant of the practices of the Judges on the other side. The Bar is divided into common law and equity barristers; the attorneys are equally divided, so that I believe there is scarcely a respectable attorney's office in which there is not one clerk for equity and another for 185 common law. It would be vain, therefore, to expect any new arrangement to at once get rid of a difficulty so gradually created, and which has brought about so marked n distinction between the two branches of the legal profession. But, my Lords, the Bill will do all that any legislative measure can effect in that direction. The Judges of what are now separate Courts will be brought into one Court; the two sets of Judges will meet together in the Court of Appeal, where they will mutually assist each other, and where they may become better acquainted with the details of the law administered in their respective tribunals. They will come together to frame rules and to apportion to each Court the business which it is best suited to discharge. But while the Bill does all this, there is something it does not do. It does not propose to throw all the business together to be taken haphazard by one or the other division. There will be a marked difference between the classes of cases sent to the Courts of Law and the Courts of Equity respectively. The distinction consists in this—that in the Courts of Common Law the questions in dispute between the parties are almost invariably questions of disputed facts; and for the elucidation of the truth of a disputed fact there is no trial equal to one at common law in an open court, with or without a jury, with witnesses and the attendance of skilled advocates. The Courts of Equity are engaged, for the most part, in the investigation of matters of a totally different character; they are largely engaged with suits of administration, with matters connected with the construction of wills, with the winding up of bankrupt companies, and with matters of account; they have under their charge, in a quasi administrative form, estates, and trust property which has to be administered from time to time. All these are matters obviously of a totally different character from those disputed questions of fact which find their way into the Common Law Courts; and therefore I rejoice that this Bill provides for the re-distribution of business, by which the class of business which flows into the Common Law Courts shall find its way to the common law division, and the class of business which flows into the Courts of Equity shall find its way to the equity division of the Court.
186 The Commission on which I had the honour to serve considered the question of appeals with very great care, and they were of opinion that if there could be but one Court of Appeal, which should enlist the services of those most distinguished in both branches of the profession, and which should attract the consideration and confidence of the public both by the Judges who might sit in it and by the way in which it would work, a great object would be attained. It was thought, not unreasonably, that if there was one such Court of Appeal the suitors might be content with it, and would not come to this House so frequently. I own, however, I regret to find, as I read the Bill, that my noble and learned Friend has hardly constituted the Court of Appeal in the manner in which I think the Commission intended it should be done. The Commission reported that it should consist of the Lord Chancellor, two Lords Justices, the Master of the Rolls, and three permanent Judges; and certainly it was not in the contemplation of the Commission that, instead of two Lords Justices, only one should be retained, and that his salary should be reduced, subject to the existing life interest. I would suggest to my noble and learned Friend on the Woolsack whether he will not reconsider this matter carefully, and see whether he cannot more closely adapt the constitution of his Court of Appeal to the one proposed by the Commission. But matters of detail will be more properly dealt with in Committee, and I hope the House will now assent to the second reading of the Bill.
§ LORD ROMILLY
My Lords, although this is the proper occasion for discussing the principle of the Bill, yet, as I believe most of your Lordships are agreed on this point, I should not now have addressed your Lordships, but have reserved what I have to say to those matters of detail which can be best dealt with in Committee, were it not for two of the statements made by my noble and learned Friend who has just spoken (Lord Penzance), which are so important that I cannot help calling attention to them; because, if your Lordships adopt my noble and learned Friend's view, it will be useless passing this Bill, and you might as well stop the whole matter. My noble and learned Friend said that by degrees there will be a 187 fusion of law and equity, but that in the nature of things, actions at law are distinct from suits in equity, and that the one must necessarily be given to the one division of the proposed Court, and the other to the other division. Now, if that is to be done, does it not necessarily imply a distinction between law and equity? If my noble and learned Friend is right in holding the distinction between law and equity to be natural and inevitable, you can never fuse them; you can only effect some stupid combination, as in the case of the old Court of Exchequer, where the Judges, endowed with all the powers, and entrusted to exercise all the functions necessary for determining actions at law and suits in equity, were more sedulous in keeping up the distinction than any other Court in the kingdom. My noble and learned Friend also says that the Court of Chancery does not deal with complicated and disputed questions of fact. I appeal to noble and learned Lords present who have sat on the Woolsack whether it is not one of the great duties and functions of the Court of Chancery to settle disputed matters of fact. Whether it is not a great evil that this should be done by affidavits, instead of by vivâ voce testimony, is another question. But to some extent vivâ voce testimony has been introduced into that Court. I do not deny that juries are fitter for trying some cases than for trying others, nor that there are some cases which are not fit for juries at all; but why should not the Court of Chancery determine questions of fact in the manner most suitable for the purpose; and why should not a Court of Law decide the construction of a will as well as the Court of Chancery? Again, it has been asked whether there would not be a greater number of appeals under the Bill as it stands than was intended by the noble and learned Lord on the Woolsack; and my noble and learned Friend who spoke last says they are not appeals, but re-hearings. But if an appeal is bad, a re-hearing is ten times worse. A re-hearing is merely having the cause over again on fresh evidence; the result is this—a suitor brings forward a part of his evidence which he thinks will prove sufficient, but the Court of Chancery comes to the decision that it does not support his case, stating the reason why it does not, and pointing out the weak 188 parts of it; whereupon he applies to get a re-hearing, and produces fresh evidence to remedy the defects the Court has exposed; and the result is that a re-hearing acts as an inducement for perjury, and by it litigation is perpetuated at a very serious expense. The late Sir James Graham, who took a very great interest in this matter, arrived at the conclusion that there ought not to be such a thing as a re-hearing. If, indeed, a manifest mistake had been made in some Court, it might be set right with the consent of the Court, but these cases are rare.
§ LORD ROMILLY
No doubt; and, therefore, it is of great importance to lay down rules of the Court which would prevent these re-hearings. As a rule, the case, when taken to a superior Court, should be heard on the same evidence as it was in the Court below, as is now the practice in your Lordships' House. I hope my noble and learned Friend on the Woolsack will give his attention to these points, and I shall be happy to render him every assistance I can. I am quite certain my noble and learned Friend will never think of perpetuating a system which enables people to go on re-hearing and re-hearing, producing their evidence by driblets, and, after all, to go to a Court of Appeal. These points are, however, in reality, matters for Committee. I trust he will postpone the Committee on the Bill till after Easter, for the measure is one which requires great consideration.
§ LORD CHELMSFORD
I quite agree with the noble and learned Lords who have spoken that the principle of this Bill is most important; but I cannot help expressing my regret that it has been presented to us in what I must deem an imperfect shape. I concur in what my noble and learned Friend (Lord Westbury) has said as to the importance of having rules of procedure laid down for consideration. The noble and learned Lord on the Woolsack says he has been very much pressed to get this Bill forward as soon as possible; but I think it would have been far better if it had been made more perfect before its introduction—especially as regards the rules of procedure, seeing that it will not come into operation till November, 1871. The 189 High Court will not be constituted till that time, and it will not begin its work until these rules are established. It is said that an Order in Council may direct it to come into operation before that date; but if no such Order is issued it will not come into operation any sooner than that. It has been observed that it would be infinitely better that the Judges should have imposed on them the duty of framing the rules, as Parliament is a very unfit assembly for that purpose. I agree in that; but my noble and learned Friend (Lord Westbury) suggested that the matter should be sent back to that competent Commission which reported on the subject, in order that the Commissioners may frame the rules. My noble and learned Friend is aware that when great alterations were made in common law procedure, in 1854, there were rules framed by the Commission, and these rules were afterwards embodied in an Act of Parliament, which contained 400 or 500 clauses. If that were so in the former case, it follows that there must be a very great number of rules framed for the procedure under this Bill; and, besides the delay which will arise before the High Court of Justice is constituted, for the purpose of ascertaining its powers, there will be very great difference of opinion among its members, and very considerable delay—though probably not so much as my noble and learned Friend (Lord Westbury) anticipated—before the rules can come into operation. I desire, therefore, that this matter should be referred back to the Commission, that the Commission should make the rules, and that Parliament then should consider them. I hold that the rules of procedure, most important as they are, should be laid before Parliament for consideration; and no doubt, emanating as they would from so excellent a Commission, Parliament, after deliberation, would adopt them. I was anxious that my noble and learned Friend on the Woolsack should explain the clause for abolishing the Home Circuit—because I observe that in all places on this circuit to which the Judges have gone there has been a sort of presentment made by the grand jury against the abolition of that circuit. I was myself for twenty or thirty years connected with the Home Circuit; I know it intimately, and I can testify that what my noble and learned Friend has said is correct—that the great 190 majority of the cases on that circuit are carried there from London and Westminster. There is one point in connection with the proposed abolition of this circuit to which I wish to call attention. It refers to the criminal cases. The Bill provides that all criminal cases which but for this Act would have been triable in London or Westminster shall continue to be triable there; but that all other cases arising within the Home Circuit should be triable at Westminster. But it should be remembered that this would include cases in Sussex, which is far beyond the reach of the jurisdiction of the Central Criminal Court, and I hardly believe that it is the intention of the Bill that criminal cases of that kind should be brought up to Westminster to be tried. With respect to the proposed constitution of the ultimate Court of Appeal in this House, I consider that to be a very important matter. Your Lordships are quite aware that it has been a question for many years whether the jurisdiction in appeals should not be removed from this House. Various opinions have been entertained on the subject, and I very much regret that that question, when this most important measure was introduced, was not decided one way or the other. My noble and learned Friend on the Woolsack will forgive me if I say that this Bill seems to me to halt between two opinions in this matter, because he has substantially removed the jurisdiction of this House, although he retains the empty form. According to the 16th clause—It shall be lawful for the House of Lords at the commencement of every Session after the commencement of this Act to appoint a Committee, to be called 'The Judicial Committee of the House of Lords,' consisting of such members of the House as have at anytime held any judicial office, and such other Peers as the House may think fit. The Judicial Committee shall have power to sit for the hearing of appeals during any recess or prorogation of Parliament.And then comes a proviso empowering this Committee to call to their assistance any member of the Judicial Committee of the Privy Council, not as assessor, but having power for the time being, and holding the same position as if he were a Peer duly appointed by the House of Lords as a member of their Judicial Committee. Then, to prevent the members of the Judicial Committee who are Peers of Parliament from being outvoted by those who are not, it is provided that in all cases there shall be 191 present a greater number of members of the Judicial Committee of the House of Lords than members of the Judicial Committee of the Privy Council who are not Peers of Parliament. Now, that seems to me to introduce an entirely new principle, while it is, at the same time, a clumsy contrivance for avoiding a difficulty. Your Lordships are aware that at present appeals are supposed to be heard by the whole House; a debate ensues, and the Question is put by the noble and learned Lord on the Woolsack to the House, who vote upon it. What is to be the course which this new Committee is to pursue? They are not to deliver a judgment, but to express an opinion. What is this but a semblance of preserving the appellate authority of this House? The Committee are to report to the House and to recommend the affirmation, reversal, or variation of the decision of the Court below, or such other course as they may think fit with reference to the matter in appeal. Then, what is the House to do? The Bill says—"The Report of the Judicial Committee of the House of Lords is not to be conclusive until it has been confirmed by the House." Then, has the House the power to refuse assent to the opinion of the Committee? If not, it is an idle form to report to the House; if it has, is there to be a debate on the Report of the Judicial Committee, and is there to be an appeal upon an appeal? It appears to me that this is a most inconvenient and improper mode, by a sort of side wind, of getting rid altogether of the jurisdiction of this House in appeals. I see no objection at all to calling in the Members of the Privy Council as assessors; but I have a great objection to putting them exactly in the same position as the members of the Judicial Committee of this House, making them to all intents and purpose Peers pro hâc vice. I want to know also, when the Judicial Committee is appointed are our services to be compulsory? The noble and learned Lord (Lord Westbury) has spoken of the decay of our faculties at a certain time of life. I see no appearance of such decay in him at present; but if a Committee is to be appointed in this way, as we are not ourselves very sensible of the decay of our faculties, I think there should be some limit laid down, and that no man should be compelled to serve after a certain age. I have myself attended almost all the appeals in this 192 House, and shall always endeavour to perform my duties; but I confess I should feel it a hardship if I were compelled to serve after a certain time of life, instead of being left to my voluntary sense of action. I certainly very much regret that when this great and important measure was introduced it was not proposed to constitute one great Court of Appeal, consisting of Judges of high dignity, who might receive the cases which now come before the two High Courts of Appeal—the Privy Council and the House of Lords. I think that would be a most desirable thing, and that it would be infinitely better than preserving the appearance to this House of having authority over questions of appeal, and indirectly undermining that authority.
§ LORD CHELMSFORD
I regret very much that it was not, because I think it one of the most important questions that could come under consideration. I think our appellate jurisdiction is now a more form. I must confess that I have considered the subject, and I entertain a very strong opinion that it would be desirable to constitute one High Court of Appeal such as I have shadowed forth, which would determine all cases of appeal that might arise.
objected to the High Court of Justice Bill, because whilst it prevented the Lord Chief Justice of the Common Pleas and the Lord Chief Baron from having any successors in their offices, it impaired their authority and dignity as heads of a divisional Court. Every suitor had the right of selecting the tribunal before which his cause should be heard; whereas this Bill would deprive him of that right. Again, great confusion must arise from the distribution of business over the several Courts. For the above reasons he objected to the principle of the Bill, and its second reading, he also reserved to himself the right of opposing it at every stage.
My Lords, though I do not belong to the legal profession, I must express the great interest with which I heard the concluding words of the speech of the noble and learned Lord near me (Lord Chelmsford). I have long been of opinion that the appellate jurisdiction in the House of Lords is become a mere form, and that, there- 193 fore, the honour, dignity, and character of this House would be best consulted by our giving up a power which, in actual fact, ceased to exist long ago, instead of adopting the device which has been so well exposed by my noble and learned Friend to whose speech I am referring. What we want is a measure by means of which some real and efficient Appellate Court can be constituted, and this House thereby relieved from the duties it has at present to perform. How can it be said that this House takes any real part in the decision of appeals, when all its Members, except the Law Lords, have long ceased practically to interfere in these proceedings? It is true the lay Peers are sometimes asked to be present during the hearing of appeals, and for some time after I came into this House there was a practice of requiring Peers to attend the House in proper rotation when it was sitting as an Appellate Court. But they never came here for the purpose of taking a real part in judicial proceedings; and, for my own part, I invariably refused to attend as a mere puppet to make a quorum and register other men's decisions, and said that if I was forced to attend I would vote according to my judgment and would not be controlled by any Law Lord or any number of them. Considering, however, the complicated character of the questions that come before the House on appeal, I think it is far from desirable that Peers who have had no education or practice in the law, should be called upon to give an opinion upon them. Technical knowledge seems to me indispensable in the persons composing the Court, and therefore the sooner we, as a general body, give up the exercise of functions we cannot properly perform, the better it will be. In conclusion, let me express a hope that in dealing with this question noble Lords will not forget another question which affects them personally. I allude to the importance of having to preside over our deliberations a Speaker invested with proper authority to conduct the debates in an orderly manner. No one who has watched the progress of this House for some few years past can help seeing that we are becoming much too numerous an assembly for our business to proceed with proper decorum unless we have some such president as I have alluded to. Could anything be much more undignified than for three or four 194 noble Lords to be on their feet at once, each one trying to speak louder than the other, and the House having at length to settle the question of precedence in speaking by a vote of the whole body?
§ EARL GRANVILLE
I venture to suggest that if we had a Speaker now he would point out to the noble Earl that he is out of order in introducing this question at the present moment.
On the contrary, my Lords, a Speaker would have ruled that it is the interruption of my noble Friend that is disorderly; for if he had had patience for a moment he would have found that what I was saying, as to the need of a Speaker, has a direct bearing on the question we are now discussing. We cannot, under our present arrangements, have a Speaker, because it is impossible to confer the authority which an impartial Speaker ought to possess upon the Lord Chancellor, who is himself a member of the Ministry, and deeply interested in political contests. But this difficulty would be removed if we had an Appellate Court differently constituted, having at its head a permanent Judge, who might also preside over the deliberations of this House. That would be a great advantage, because I think it a great anomaly that the highest seat in the Equity Courts should be occupied by a learned Judge who goes out of office with each change of Ministry, and I should say it would not be difficult to adopt some plan whereby this anomalous state of things could be put an end to, and your Lordships' House provided with an authoritative President, without the dignity of the Lord Chancellor's position being in the least degree impaired. There are at the present moment most important functions that might be assigned to the Lord Chancellor, with great advantage to the country, if he were relieved from his judicial duties; and I therefore hope some steps will be taken by the Government in reference to this matter.
§ THE DUKE OF RICHMOND
I shall not interpose in the present debate for longer than a few minutes. I cannot, I confess, quite agree with my noble Friend (Earl Grey) in reference to the removal of the judicial business from this House to a Court of Appeal hereafter to be constituted. I think it is a subject which requires great and mature deliberation before we adopt it. As at present ad 195 vised, I think the system has worked well, and I should not be disposed to assent to a sweeping change without much further consideration of the question than it has at present received. With regard to the High Court of Justice Bill, and what has been said on the subject of abolishing the Home Circuit, and removing to London the legal business usually transacted on that circuit, I would say a few words. So far as the civil business is concerned, I say nothing; but I must be allowed to express an opinion that the removal of the criminal trials would lead to great expense and inconvenience—speaking particularly with reference to the county of Sussex—and it would have this further great disadvantage, that it would prevent the county magistrates from seeing the administration of justice by the Judges at the Assizes, and deriving valuable hints for their own guidance when sitting in courts of petty sessions, which, though not so important as Assize Courts, are still institutions of considerable value. I shall not pretend to discuss the merits of these Bills, but will simply express a hope that the Lord Chancellor will carefully consider the last point I have referred to before he recommends the House to take any decided step.
§ LORD REDESDALE
I cannot help thinking that it would be a great blow to this House to deprive it of the appellate jurisdiction it at present exercises. I disagree with the noble Earl (Earl Grey) who thinks the House has discharged those duties in a manner unsatisfactory to the country and discreditable to the House. I believe that the exact opposite of that opinion would convey the truth of the case. I believe at the same time that the machinery for the exercise of appellate jurisdiction might be improved by a plan I have myself suggested on more than one occasion—namely, by attaching peerages to certain high judicial positions as they are at present attached to bishoprics. I cannot see why the Law should not be represented in this House in the same manner as the Bishops represent the Church. Such a course would, in my opinion, remove any objections that may still remain in the minds of certain noble Lords.
THE LORD CHANCELLOR
My Lords, I wish to say a very few words with reference to one or two remarks 196 that have fallen from noble Lords on the present occasion. What has been said on the subject of the judicial business of the House possesses great interest. I have acted, in reference to this measure, on the assumption that the House would be unwilling to part with its judicial authority, and so far from expressing any opinion on the question I rather avoided doing so. I have since had so clear a manifestation of the will of the House that I think it would be dangerous at the present time to propose any measure with that object. I must protest against the charge that has been made against me in the course of the discussion of having resorted to a "device" in order to wrest the jurisdiction from the House of Lords. So far from that being the case, I think that the operation of the Bill I have proposed will do more to secure that jurisdiction than any other means that could have been proposed. I am quite satisfied that matters cannot go on in the course in which they are now proceeding. We are at this moment, owing to changes from time to time in the occupancy of the Woolsack, well supplied with Law Lords, and we have also had the advantage of adding to this House a noble and learned Lord from Scotland (Lord Colonsay) who takes a constant part in the legal business of your Lordships' House. As regards the proposition of my noble Friend (Lord Redesdale) to attach peerages to the tenure of certain offices, I am afraid that would not be of the slightest use in the conduct of the Public Business. We have a proof of this in the case of the two noble Lords who have addressed us tonight, neither of whom, owing to each of them being engaged in the business of his own Court at the very time they would be required in this House, is able to take any active part in the business of the appellate jurisdiction. On the other hand, just see the position in which the House is placed when we have not that abundant assistance which of late we have had—for I think that three or four persons qualified to hear appeals are really sufficient to form a Court of Appeal. The manner in which appeals are heard by this House has long been a reproach to us. It is sometimes objected that we ought not to introduce "the intelligent foreigner" into our debates; but I recollect an occasion when it was my fortune to introduce an 197 intelligent foreigner, now occupying a high judicial position in France, into this House, while an appeal was actually being heard. He saw the Lord Chancellor sitting together with a Law Lord and another noble Peer, who was not a lawyer. Unfortunately, the appeal lasted two or three days, and my foreign friend, who understood English very well, and was much interested in the proceedings, came again and saw the Lord Chancellor with the same Law Lord, but a different lay Lord; and on the third day the lay Lord was changed again. Thereupon he asked—"Is this your way of doing business?"—adding that it seemed to him a perfect farce to call this an appeal from the Lord Chancellor, if such appeal was meant to be effectual. The visit of my foreign friend occurred some time ago; but last summer my noble and learned Friend (Lord Colonsay), of whom I have already spoken as being at all times in his place at the hearing of appeals, was kind enough to assist me in the hearing of a Scotch appeal involving questions of very complicated Scotch law; and though all lawyers who have been properly trained can bring their minds to bear upon anything which is capable of being presented in the shape of a legal argument—I confess that it was a case in which I should have been sorry to sit alone. We had the assistance of a Bishop one day, and the next day that of the lay Lord who has addressed us tonight. No doubt, had he been asked, he would have been perfectly prepared to have aided us with his judgment, but then he had only heard half the case. I was not aware that I had been guilty of any "device" in proposing that a Judicial Committee might be appointed if your Lordships thought fit—certainly nothing of the kind was intended on my part. If the present constitution of the House for the purposes of the appellate jurisdiction satisfies public opinion, nothing need be done under the scheme. The Committee will be empowered to call in assistance should it think it desirable, but it will not be compulsory upon the Committee to do so, and if assistance from, outside the House be called in the legal members of your Lordships' House, under an express provision to that effect, will still be always in the majority. Your Lordships, however, will remember the case of O'Connell, when a number of noble Lords attended with the object of taking 198 part in the decision when the Chancellor put the Question from the Woolsack, and were only restrained by the good sense of a noble Lord—I believe a Conservative—from an exhibition which would have been fatal to the appellate jurisdiction of the House. I assure the House that I am not given to devices, and if I were this would be a very transparent device. In introducing the proposal I had no other object than that of making your Lordships' House what an Appellate Court ought to be, and of enabling the business to be got through as speedily as possible; for, as your Lordships are aware, hitherto we have not been able to sit during the Recess. My noble and learned Friend who followed me this evening (Lord Westbury) was a little jocose, and I do not think could have given his attention seriously to the provisions of the Bill when he spoke of the operation of the High Court being postponed to some indefinite period, or the Greek Kalends. He held that it would be impossible ever to get the assent of twenty-three persons to any code of rules of procedure; seven being, as I ought to point out, a quorum. But I entertain more sanguine hopes of agreement than he does, for I find that in a year and a quarter the Judicature Commission agreed to a Report dealing with far more serious matters than those rules, which I should think would take two or three months in framing. The members of that Commission were twenty-three in number, and they never could attend any meeting until after four o'clock in the afternoon, when they were released from their other duties. As to saying that it is not intended that anything shall be done, because we propose that until the new rules are made the existing system shall continue, let me point out how fallacious this is. If we annihilate all that now exists, and delay were to occur in framing these new rules, justice could not be administered throughout the kingdom. As to the hearing of criminal appeals, I admit that the clause goes beyond what was intended, and will require amendment. And as to the criminal business of the Home Circuit, that also will require consideration, and the noble Duke's experience in these matters ought to secure to his remarks every attention. But I do hope that the provisions of the Bill regarding the judicial business of this House will be seriously thought of. I am quite 199 ready to strip the Bill of anything that may be considered a "device," as long as its substance is carried into effect. I thought at one time my noble and learned Friend was about to declare in favour of the abandonment of this jurisdiction altogether. I cannot now say whether personally I should have been pleased to hear such a declaration; but if the House is reluctant to part with its jurisdiction then, I say, let it be made effective.
§ LORD CHELMSFORD
I am not aware that I used the word "device;" if I did so I withdraw it. But I quite agree with what my noble Friend says of himself—that he is incapable of a device.
§ Motion agreed to; Bill read 2a accordingly.