Lords Sitting of 30 May 1870

MINUTES.
PUBLIC BILLS—First Reading—Irish Land* (122); British Columbia* (123).
Second Reading—Tramways (107).
Committee—High Court of Justice (72–120); Sequestration* (81); Mortgage Debenture Act (1865) Amendment* (89–121).
Third Reading—Railways (Powers and Construction) * (96), and passed.

HIGH COURT OF JUSTICE BILL.—(No. 72.)
(The Lord Chancellor.)
HIGH COURT OF JUSTICE BILL.—(No. 72.)

  COMMITTEE (on Re-commitment.)
  Order of the Day for the House to be put into Committee (on Re-commitment,) read.
  THE LORD CHANCELLORsaid, that on a former occasion an intimation was made by his noble and learned Friend on his left (Lord Cairns), that Her Majesty's Judges were anxious that the Committee should be postponed, in order that they might have an opportunity of considering the measure and expressing an opinion upon it, He had since had the advantage of receiving their opinions, which had been printed and circulated, and which he believed had been placed in their Lordships' hands. He had a personal explanation to make on this point. He begged to disclaim all discourtesy in not having previously obtained the opinions of these learned persons. The Report on which the Bill was framed was presented as long ago as March, 1869, and the Commission which made that Report included the representatives of every portion of our judicature, as well as of both branches of the legal profession. Among its members were Sir William Erle, than whom there could not have been an abler representative not only of the Court of Common Pleas, over which he had long presided with so much distinction, but of the Judicial Committee of the Privy Council, to which tribunal he had given so much attention, with very great benefit to the suitors. The Court of Chancery was represented by his noble and learned Friend who soon afterwards became Lord Chancellor (Lord Cairns), as well as by a Lord Justice of Appeal and a Vice Chancellor. There was a Judge from each of the three Common Law Courts, which were respectively represented by Mr. Justice Blackburn, Mr. Justice Montagu Smith, and Baron Bramwell; and there were also the Judge of the Court of Probate and Divorce, and the Judge of the Court of Admiralty. The Bar was represented by the then Attorney General (Sir John Karslake), the present Attorney and Solicitor General, Sir Roundell Palmer, Mr. Quain, and other well-known members of the profession. There were also eminent solicitors on the Commission. The Report, as far
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  as he proposed to give it effect by this Bill, was all but an unanimous one, there being but one dissentient—the Judge of the Admiralty Court, who doubted the expediency of merging his Court with the other Courts—though he understood that the learned Judge had on this point since changed his mind. That being so, and the Report having been before the profession and the public for nine months, without any substantial objections having been offered to it in any quarter, it appeared to him in the course of the winter to be his manifest duty to embody its recommendations in a Bill to be submitted to Parliament. It was accordingly announced in the Speech from the Throne that such a course would be taken. No objection was made. Now, he was quite willing to take upon himself any blame for not having consulted the Judges; but he hoped to stand excused from the imputation of intentional discourtesy. What struck him—though as it now appeared wrongly—was that, after the matter had been so long before the public and was so thoroughly understood, it was not desirable to attempt to compromise the Judges either by seeking their special sanction to the Bill, or by putting them in the disagreeable position of throwing any difficulty in its way—since even if they had objected to it he could not, under the circumstances, have withdrawn it. He, therefore, contented himself with sending a copy of it to each of the judicial body—his mistake being that he did not accompany it with a letter specially requesting their attention to it. He was very thankful that on becoming aware of their desire to express an opinion he acceded to a postponement, since he was now in possession of their views. He had, indeed, been previously informed in some degree on that head, by a pamphlet written in his usually clear, vigorous, and powerful style by the Lord Chief Justice of England, who, though complaining of his want of courtesy in not accompanying the Bill with a letter, treated him with extreme kindness and courtesy. It was satisfactory to know that both the Lord Chief Justice and the other Judges unhesitatingly approved the principle of the Bill. The Lord Chief Justice, indeed, found great fault with the Common Law Courts for not having rendered their rules and procedure sufficiently elastic to meet the necessities of the time, and urged that

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  any distinction between Law and Equity was unnecessary in a well-constituted system of jurisprudence. He added that in 1860, in the time of Lord Chancellor Campbell, there was a strong desire to hand over to the Courts of Common Law such power and authority as would enable them to administer both systems, and that the master was postponed at the instance of the Equity Judges, including himself. Now, if he then really did so object, all he could say was that he hoped he had become wiser. His recollection of the case, however, was that it was proposed to hand over to the Common Law Courts a certain amount of power and authority, but without any machinery for carrying into effect such matters as they would have had to deal with on the new system. They were to be authorized, for instance, to hear an equitable defence to an action; but if, on the other hand, in an action for ejectment, a person pleaded that he had bought the estate, the Court might have taken that plea into consideration; but they would have had no machinery for inquiry into the title of the estate. Several other instances might be given. Now, this Bill, provided that the Courts of Law and Equity should be fused into one High Court, possessing every power which existed in any one of them, so that there should be no want of power in administering justice in any of its divisions. He was glad to be able to cite the Lord Chief Justice's approval of this scheme—
  "I do not hesitate to say that the idea of combining the Superior Courts of Law and Equity into one great Court, and forming, as it were, a new Aula Regia, or, as I would prefer to call, a great Judicial Council of the Realm, as proposed by the Commission and embodied in the first Bill, appeared to me a project as admirable as i was daring and novel. For the distribution of judicial strength, for the distribution of judicial business, for necessary alteration in matters of procedure and practice, nothing could be more happily conceived or more likely to operate to the public advantage."
  The Lord Chief Justice and the other Judges, however, while concurring in the desirability of a power of administering Law and Equity by the same tribunal, had offered some objections to the details of the Bill. They thought it essentially necessary, in order to prevent confusion in the future administration of justice, that, instead of a general enactment, such as Clause 13 of the Bill, a careful collation of the Common Law
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  and Equity Law having being first made, and a thoroughly good digest prepared of them, express provision should be made as to what the law should be in each particular instance; or, if this course should be deemed impracticable, owing to the time it would require, that clauses should be carefully framed, expressly stating the principles determined on by Parliament for the purpose in view. Now, though he (the Lord Chancellor) by no means despaired of such a code or digest being ultimately achieved he was convinced if the fusion of Law and Equity had to wait such a work five, six, or seven years would intervene. The next proposition of the Judges was—
  "That while the Courts of Common Law should be required to administer the law as thus altered and settled in civil suits, it is wholly unnecessary, and, on the contrary, eminently undesirable, that their constitutions or peculiar jurisdictions in other matters should be in any way interfered with."
  Now, he felt sure that this would involve a falling back into the very evil we desired to escape from—namely, the narrowness of jurisdiction which had been the primary cause of a suitor being driven from one Court to another till he discovered which was the proper tribunal. The question as to the titles of the Courts and Judges was so small a question that he would not stop to consider it. The fourth observation of the Judges was—
  "That, looking to the great and substantial difference which exists between the procedure of the Equity and the Common Law Courts, the more important matters of procedure ought to be considered and determined by Parliament, and should form part of the Bill."
  Under this head they included trial by jury and a variety of other subjects. Now, he agreed, when he brought the Bill forward, that the rules and regulations of procedure should be well considered in passing a measure of this kind; but if these rules and regulations were to be considered through the medium of discussions in Parliament, what would be the result? The Courts of Common Law Procedure Act proceeded on this plan, and the rules it contained occupied 200 closely printed pages; but what chance would there be of the speedy passage of a Bill containing such rules and regulations not only through this House, but through the other, in which he believed there were

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  not fewer than 100 Members belonging to the legal profession—where every one of those rules would have to be discussed, and if necessary amended. Such a course would be an idle expenditure of the proper force of Parliament. Of course, the rules would have to be prepared under proper supervision, and it was proposed that they should be framed under a Committee of the Privy Council, by persons properly qualified by practice and experience for the task. And these persons must be paid, for the work would require much time, care, and deliberation; there being the supervision of a body which would see that the rules were reasonable. A still greater objection to including the rules in one Act of Parliament was that they would not be elastic and capable of prompt modification; whereas, on the plan proposed by the Bill, they would be easily altered, such alterations being laid before Parliament. The Bill originally proposed that the rules should be framed by the Court itself; but in deference to the objection that the Judges had not the requisite time or leisure, he thought it best—and he had embodied the proposal in an Amendment—to intrust the work to a Committee of the Privy Council, to include the Lord Chancellor, as the person charged with the duty of attending to measures for the amendment of the law, and the Chancellor of the Exchequer, who alone could properly determine the expenditure proper for achieving the work. It was never his intention to refer the question to those two officers alone; but he contemplated that they should have the assistance of many legal members of the Privy Council, and should continue to have the power of making and altering rules. The Lord Chief Justice, however, had strongly objected to this proposal as unconstitutional; urging that times might change and that it might be of the utmost importance to keep the independence of the Courts wholly free from any influence of the Crown. Now, while seeing no cause for serious apprehension on this point, he proposed to get over the difficulty. The Lord Chief Justice had remarked that it would be very different if such a body were only to start rules, leaving afterwards to the Court complete power of modifying them; and this was what he now proposed. In the first instance the framing of the rules
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  must be attended with considerable expense, and he proposed to intrust it to a Committee of the Privy Council, consisting of the Lord Chancellor, the Chancellor of the Exchequer, the Chiefs of the three Common Law Courts, the Judge of the Court of Probate, the Judge of the Court of Admiralty, and such other Members of the Council as might be thought fit. The rules, it was provided, must necessarily be framed before the Courts came into operation, and this was fixed for Michaelmas Term, 1871. When once launched the High Court would be able to add to or vary the rules, submitting such alterations to the Committee of Privy Council, and of course laying them before Parliament. Moreover, to meet the wish of the Lord Chief Justice and other Judges, that criminal business should be left as far as possible to the Court over which he so ably presided, he proposed so to amend the Bill as to keep that high and ancient officer as President of one division, and to direct as far as was consistent with the other provisions of the Bill, that criminal business should be allotted to that Court, over which the Lord Chief Justice would preside. The qualifying words were necessary on account of some matters, such as an indictment against a railway company for stopping up a road, being technically criminal, though really civil. The criminal business was easily separated from the other business of the Court. He had received numerous applications expressing a desire that the Bill should pass as speedily as possible, from mercantile bodies, from four or five large bodies of attorneys in the North, from the Metropolitan and Provincial Law Association, and from the Society for the Amendment of the Law; the resolution of this last body having been adopted at one of the largest meetings it had known, presided over by Mr. Mellish, an eminent member of the Common Law Bar. He hoped, therefore, that there would be no further delay. With regard to the Appellate Jurisdiction Bill, the Commissioners recommended that the Court of Appeal should be a branch of the High Court of Justice, one advantage of which would be that it would assist in the framing of subsequent rules and regulations. There was, however, a feeling in favour of separating the appellate and original jurisdictions and Judges, and he should be glad to

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  know the opinion of the House on this point. The Bill could easily be moulded into either shape, and he did not purpose to proceed with the Committee on that Bill to-night.
  Moved, "That the House do now resolve itself into Committee."—(The Lord Chancellor.)
  LORD CAIRNSsaid, the subject was one in which he took a deep interest, and he warmly approved of the reform which it was desired to carry into effect—for he would willingly admit that the changes which his noble and learned Friend proposed were decided improvements so far as they went. Therefore he was very unwilling to do anything that might have the appearance of impeding the progress of a measure which he warmly approved. But, at the same time, he was anxious to call the noble and learned Lord's attention to the position of the Bill at the present moment, because he thought that, upon reflection, it might occur to him that there were very grave doubts as to the desirability of persevering with it during the present Session. Passing by details, on which much discussion would necessarily arise hereafter, there were two cardinal questions on which the House ought to arrive at some distinct conclusion before going into Committee. First, there was the entire absence from the Bill of all those details which were necessary in order to furnish a clear and definite idea of what the condition of our Courts of judicature would be after the changes which the Bill would bring about; for he defied anyone by merely reading the Bill to get any definite idea as to what our judicature and procedure would be after the Bill passed. His noble and learned Friend proposed to leave these to be settled by a Committee of the Privy Council—not that they were themselves to prepare the details which were necessary to clothe the Bill with life; but that other persons would have to be largely paid for doing it, and that the Committee would approve the work of those paid draftsmen. If, however, the duty must devolve on persons who could give it a great deal of time and consideration, why could not his noble and learned Friend employ such trained persons to prepare the rules in the first instance, and then embody them in a Bill, so that Parliament might know what was to be
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  our future system of judicature? He had used the word "details," but it was in truth quite inappropriate—these were questions of principle, which went to the very root of our judicature. They included, for instance, the selection of the business to be heard before the High Court itself, and the times of the sitting thereof; and to the question, whether a particular cause should be heard before one Judge, or three, four, or five Judges. These were questions which it was proposed should be left, not to Parliament or to any rules established by Parliament, but to rules established by the Judicial Committee of the Privy Council. Then there was the distribution of the business among the several Divisional Courts; and then again the constitution of Judges, consisting of a less number of Judges than was required for a Divisional Court, and the appropriation of the business to be transacted by such Courts. Thus the Committee would determine whether a suit should be heard by a plurality of Judges or by a single Judge. But there was a still more extraordinary matter. The Committee would have to decide by a rule, having the force of an enactment, what should be the number of Judges required to concur in a judgment of the High Court, or of a Divisional or other Court, and the mode in which such judgments were to be delivered—whether as the judgment of the Court, or, if there were a difference of opinion, as the judgment of the individual Judges. The Committee would hold the Court in subjection on all these questions. They were also to regulate all matters relating to the institution and conduct of business coming within the cognizance of the Court—the pleadings, the mode of taking evidence, the mode of hearing, the costs to be allowed, the mode of taxation thereof, the parties by whom costs should be borne—in fact, all matters incidental to or connected with the administration of justice. He was aware that some of these general principles were mentioned with more precision in Amendments which his noble and learned Friend proposed to make, but the greater number were still left to the Committee for settlement. Moreover, the Court was to come into operation next November, or at such earlier time as the Queen in Council might determine. But although the rules were were to be sub-

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  mitted to Parliament, Parliament might not be sitting prior to their coming into operation; in which case we might have to abandon the whole of our present system of judicature, and replace it by a new system not having the authority of Parliament, resting on no authority but that of a Committee of the Privy Council. Of this Committee it was true the chiefs of the three Common Law Courts would be members; but whether they would be a majority or minority would be in the discretion of those who appointed the Committee. To take one point as a sample of the whole—it would depend on the view of this Committee and on the amount of discretion they might give to a Judge whether trial by jury should be retained or discarded. He maintained that these were cardinal objections to dealing with this subject in the manner proposed by the Bill. It was a delegation by Parliament of what was its own proper duty. Parliament ought not to refer such questions to any external authority, however respectable. Moreover, if these questions were determined in the Bill, the consent of both Houses was necessary; but it was proposed that the rules of the Committee should take effect, unless both Houses concurred in an Address to the Crown against them. One great advantage of proceeding by Bill was that everything was done publicly, and that valuable suggestions were offered by persons conversant with the subject, so that in two or three months a measure was so settled that it was likely to prove acceptable to the public; whereas the framing of rules by a Committee of the Privy Council must be done in the dark—the public and the profession would know nothing of them until they actually appeared, when criticism would be too late. His noble and learned Friend had urged that rules established by Act of Parliament were inelastic, and that there was an inconvenience in not being able to make trifling Amendments without a second Act. But his noble and learned Friend proposed to give the power of legislation in the first instance to the Committee of Privy Council, and the power of amendment or alteration of the rules not to the Committee of Council, but to the Judges of the High Court. But if the Court were to be empowered to modify the regulations of the Committee, why could not
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  the Court be equally empowered to modify the regulations contained in an Act of Parliament—always, of course, submitting them to the cognizance of Parliament As to the anxiety of professional men for the speedy passing of the Bill, there was an old proverb—"It is done quickly enough if it is done well enough;" and if a thing was not done well, speed was detrimental rather than beneficial. As far as he could collect public opinion, the strongest objection was felt to consigning to a dark Committee of the Privy Council the framing of a code for the judicature of the country. Even if their Lordships were to assent to the plan, he was sure that it would never become the law of Parliament. There was, moreover, another point for their Lordships' consideration. When, three years ago, the Commission commenced its sittings, there was a fair prospect of the almost immediate commencement of the new Palace of Justice, designed to bring all the Courts under one roof, and of its early completion; but he was sorry to say that those hopes had proved too sanguine, and that there was no sign of the work being even commenced. Now, how did that circumstance operate on the present Bill? Why, desirable as the concentration of all the Courts under one roof in the metropolis might be, it was physically and mechanically impossible, until we had a building in which to put them. Until the Courts were built the passing of this Bill was immaterial. Some of the Courts were in Westminster Hall, the Masters of some of those Courts sitting at Lincoln's Inn. The Rolls' Court was in Chancery Lane; the Lord Chancellor sat in the dining-hall of Lincoln's Inn, and the Vice Chancellors in buildings scattered about Lincoln's Inn, their chambers being in other places. The Court of Bankruptcy sat in Lincoln's Inn Fields, the Judge's chambers, to which they were obliged continually to resort, were in the Rolls' Garden; the Probate and Divorce Court sat in Westminster Hall, and the Admiralty Court, he believed, in the same neighbourhood. Now, if these Courts were to be fused into one, on the principle that it should form but one homogeneous Court, so that each Division should co-operate and assist the other, and one with a superfluity of time relieve another which was overburdened, how could there be any

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  proper consolidation? how could the Judges and officers act together, until they were all brought into one building so as to have easy access to each other? Without this there would be inextricable confusion. He was glad to hear that his noble and learned Friend did not propose to proceed with the Appellate Jurisdiction Bill. It was an entire misconception of the Commissioners' Report to imagine that they desired to establish a new Appeal Court, outside the High Court of Justice, and somewhat intermediate between it and the House of Lords. Their recommendation was that the High Court should in one of its Divisions have the material for the hearing of appeals, whether those appeals were afterwards carried to the ultimate Court of Appeal or not. In no spirit of hostility to the Bills, he would press on his noble and learned Friend the expediency of resting satisfied with the second reading for this Session, of abandoning the Committee of the Privy Council, and of turning to qualified persons for assistance in order to bring before Parliament a code of procedure on his own responsibility. If he refused to take this course—this was not a question on which he could contemplate the possibility of a Division, which might have a party appearance—but if his noble and learned Friend insisted on proceeding with the Bills in their present shape he would incur a serious responsibility.
  LORD WESTBURYsaid, that the introduction of the Bill had been hailed by him with great satisfaction; but its machinery and provisions disappointed him—as, indeed, they did everybody. Nothing could be more un-Parliamentary and insufficient than to accept the mere outline of a measure, leaving everything that was to give it life and body and action to be filled up by another authority. On his urging this objection, his noble and learned Friend on the Woolsack asked for the committal of the Bill pro formâ, for the purpose of introducing Amendments, but it emerged more ugly than before, and still a miserable skeleton. Nobody could make out what it was intended to do, or how its intention was to be carried out. His noble and learned Friend had appealed to the Report of the Commission, but he appeared to have misapprehended it. It comprehended, for instance, that there should be the idea of a Supreme Court, into which all the existing jurisdictions should
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  be thrown, and from which, as from one living spring, the water should be drawn to feed all the subordinate jurisdictions. Instead of this, his noble and learned Friend proposed to constitute the High Court as a positive independent Court. They found accordingly that the High Court was a body that was to administer justice independently of all the Divisional Courts into which it was subdivided. But when they came to look into the Bill what was the High Court to do? There was nothing to show what the High Court was to do—whether it was to be simply appellate or original. If appellate, in what character? How were appeals to be presented to it? They found, indeed, some few indications that it was to have the power of rehearing some things that were not stated; but there was nothing to show in what character it was to act, how it was to proceed, of whom it was to be constituted, when it was to sit, and what relations it was to bear to other Courts. What they were told was, that the Committee of the Privy Council were to determine all those things. But he (Lord Westbury), would ask whether the House of Lords were now to approve a scheme which was unknown and unseen, and which at present was incapable of being denned? Then, in what relation was the High Court of Justice to stand towards the new appellate tribunal? If it was to be in itself an appellate tribunal, and to gather up all the appeals and all the rehearings from the subordinate Divisional Courts, was it itself to be again subordinate to the High Court of Appeal, which was the subject of the second Bill? and if it was subordinate to that, was it also to be subordinate to the House of Lords? Did his noble and learned Friend wish the House to sanction such a scheme—to go from the Divisional Court to the High Court, from the High Court to the New Court of Appeal, and from the New Court of Appeal to the old jurisdiction of their Lordships' House? All that was left mere matter of uncertainty. He would ask was it right—was it fit—that a measure should be passed in that form, so far as legislation was concerned? Then, again, when they came to the recreating—to the great number of original tribunals which were to administer the new scheme of justice—it was right that they should know who was to distribute the business among those tribunals.

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  Was this distribution to be left to the will of the suitors? At present this was determined by the distinctions which existed in the law; but when there was no distinction between the law administered by one set of tribunals and that administered by another, who was to have the power of distributing and assigning the different descriptions of business? With all respect and deference to his noble and learned Friend, he would entreat him to take warning by what he himself had done—by the changes which he himself had found it necessary to make so repeatedly in his own scheme within a short period. He very much doubted whether the public quite understood the immense alterations which would be introduced into the present law by this scheme. They were to take all the waters derived from the streams of Common Law and Equity and blend them together, declaring that henceforth there should be but one stream of justice to be administered for different founts: the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, and the Court of Chancery were to be pulled down to make room for this new tribunal, which was to administer a code of justice which was yet to be framed by a body out of Parliament. The old Courts ought not to be parted with until it was known what was to be substituted for them. No man would be so unwise as to part with his garment, which had hitherto kept him warm, without first of all ascertaining what he was to wear instead. When the objects of the new Courts had been settled, and when they knew what it was that was to be substituted for the present system, they would embrace with the greatest delight the change proposed by his noble and learned Friend—a change of which it was impossible to speak in words of too high commendation—throwing down, as it did, the difference that now existed between our systems of Law and Equity, and doing away with the antagonism that now prevailed. While congratulating his noble and learned Friend on what he had done, on the courage and resolution he had exhibited in bringing forward that great reform, he would beg him to pause for a little while, until he could show what form and body the new institutions were to take. Nor in doing that need there be any delay. His noble and learned Friend proposed, after this
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  imperfect sketch, to address himself to the duty of filling up the sketch, and of doing that which, as he (Lord Westbury) contended, ought to be done before their Lordships were asked to go into Committee. Why should not all these matters be settled in the Bill itself? The Bill was not to come into operation till the 1st of November, 1871, and therefore there was no great object to be gained by pressing it forward at the present moment. What was proposed to be done out-of-doors would be done in the interval, but it would be done behind their Lordships' backs. Where was the necessity for it? Was not the time abundant? His noble and learned Friend had encountered no opposition, beyond the representations of those who urged that he was pressing it on in a manner that must of necessity defeat itself. What was asked of his noble and learned Friend was, that he should allow the Bill to stand where it was, that he should take advantage of the interval to fill up the hiatus—to fill up the gaps which existed—and so to afford the House an opportunity of judging what was to be the nature and form of the new institutions. The Report of the Commission, which his noble and learned Friend desired to follow, recommended not only that there should be a consolidation of the Courts into an uniform body, but they went on to recommend the establishment of uniformity of precedure and jurisdiction. And if they had uniformity of the law and uniformity of the tribunals they must still further carry out that uniformity by having uniformity of procedure—a change that was by no means a trifling one. At present the system of pleading at Law and Equity differed toto cœlo. At Law a definite issue was raised, while in Equity the pleadings on the plaintiff's side consisted of a condensed statement of the facts on which he relied, and on the defendant's side of a condensed statement of the facts on which he relied; but there was no necessity on the part either of plaintiff or defendant to set forth any proposition of law on which the case would depend. Now, when these uniform Courts had been established, what was to be done in the way of establishing a uniform system of pleading and procedure? Would Ms noble and learned Friend be good enough to lay down a definite proposition upon that point? What he might

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  call the last edition of the Bill, the Amendments which his noble and learned Friend had laid upon the Table on their last night of meeting, went a certain length in recognition of this obligation to establish an uniform procedure. His noble and learned Friend had already given up some of the points to which objection was made—if he could go so far, why should he not go to the fullest extent of what was asked? It was idle to say that rules of practice extending to 200 folios would be needed; nothing of the kind was necessary. The principles which were wanted were those which would regulate pleadings, regulate procedure, regulate the mode of trial and the mode of taking evidence; and once these principles were settled they would go far towards the establishment of a tribunal armed at all points. But under the Bill all these matters were left to be determined by an extrinsic tribunal. Why did his noble and learned Friend desire to withdraw those matters from the knowledge of Parliament; why did he cut off from himself the assistance he would receive; why did he voluntarily incur all the obloquy, the difficulty, and labour attendant on the performance, elsewhere, of a work which ought to be done under the sanction and with the knowledge and approbation of Parliament? He entreated his noble and learned Friend to take into his consideration these suggestions, which were offered in the kindest spirit and with the most earnest desire to help him, and to see whether it was not possible for him to allow the Bill to stand over for this Session, and re-produce it next year with the necessary alterations. If that course were adopted he (Lord Westbury), for one, promised that he would then co-operate most anxiously and most industriously in the task of carrying such a Bill next Session as would carry with it the approbation of all his noble and learned Friends. But if his noble and learned Friend, with courage and pertinacity rather than with sound discretion, insisted on proceeding with the Bill this year, then, with the greatest respect for his noble and learned Friend, and feeling sure that he would not for a moment impute to him any unworthy motive, he must decline to incur any further responsibility by making any attempt to improve the Bill in Committee. That, perhaps, might not be
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  felt as any very great loss, but it was a course which he should feel it his duty to adopt. He never could be a party to a course so unconstitutional as that of sacrificing the independence of the judicial tribunals by sanctioning this unheard-of plan, according to which the conduct and procedure of these tribunals was to be regulated and controlled by the decrees of the Privy Council. From the very beginning it had been the object of our Constitution to make the Judges independent of the Crown, and it ought not less to be the object of Parliament, in the present day, to preserve the perfect independence of the legal tribunals, and their efficiency for the discharge of the duties committed to them. He had given Notice of several Amendments to the Bill; but they were all of a milk-and-water character, as compared with the necessity of correcting the defects of the Bill in the points to which attention had now been called. He hoped his noble and learned Friend would yield to the advice which had been given him upon the other side of the House; and, resting satisfied for the present with the honours which he had so justly won, would allow the Bill to stand over till he could produce it next Session with the necessary Amendments, when it would, no doubt, meet with the acknowledgment it so justly deserved.
  LORD PENZANCEsaid, he hardly knew whether to congratulate or condole his noble and learned Friend upon the Woolsack, who had been the object of abundant compliment, but, at the same time, had been the recipient, from two different quarters, of advice totally opposite in character, though directed to the same end—the postponement of the Bill. His noble and learned Friend who had just sat down (Lord Westbury) felt so strongly the unconstitutional tendency of the Bill that he considered it to be past mending, and declined to take any part in its discussion in Committee. He was sure no one would regret that determination more than his noble and learned Friend on the Woolsack, for the noble and learned Lord (Lord Westbury) had placed upon the Bill Notice of Amendments apparently of the best possible character, and well deserving the consideration of the House. But if his noble and learned Friend now thought the Bill so utterly bad that he would, take no fur-

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  ther part in it, he was fairly entitled to ask him how many days ago he had come to that conclusion—for it was only three or four days ago that Notice was given of those very Amendments which his noble and learned Friend proposed, but now declined, to introduce? The advice given to his noble and learned Friend upon the Woolsack was, that he should wait until next year, and have what were commonly called rules of procedure, framed and elaborated in the meantime, and introduced into the Bill. If that were done, he (Lord Penzance) quite agreed that, as far as time was concerned, the delay suggested would not make any practical difference in the period at which the operation of the Bill was to commence. But there were many grave objections to such a course. The main objection was that it was an idle form to say—"Frame your rules"—a number of elaborate rules—"to guide the working of the Law Courts of this country, and then lay them before Parliament and obtain its sanction." It was beyond the competence of Assemblies like the two Houses of Parliament fitly and adequately to deal with details of that character; and, therefore, it was hardly fair to place upon Parliament the responsibility of giving a sanction to rules and regulations which, by their very character, were unfitted for their decision. If, however, the matter stood, there might not be any great delay involved in the postponement which was suggested. But his noble and learned Friend opposite, who made some very pertinent remarks on the subject of this Bill, announced that the measure could not possibly be carried out until the new Courts of Justice were built. In reality, therefore, his noble and learned Friend on the Woolsack was asked to wait till what were commonly called the Greek Kalends. The noble and learned Lord opposite had stated that the first stone of the New Courts of Justice had not yet been laid. He (Lord Penzance) did not know with what rate of speed the architect might proceed when he had once begun with the building; but, according to the ordinary rate of progress in such matters, about 10 years must elapse from the time the first stone was laid until the building was completed. If, in addition to this interval, his noble and learned Friend on the Woolsack were asked to delay this
  1578
  Bill for a year, in order to introduce Amendments, it was evident that the period of legislation would be indefinitely postponed. Substantially, the points which were raised in this discussion resolved themselves into this question—Who were to frame the regulations for the procedure and distribution of business in the great Court—the general design and structure of which was approved by all his noble and learned Friends? Now, he must admit that the arrangement, as it stood in the Bill, was somewhat imperfect. When the Bill was brought in originally, his noble and learned Friend upon the Woolsack proposed that the task of framing these rules should be left to the Judicial Body, and that the Judges themselves should elaborate and frame their own procedure. That, no doubt, was a task of some difficulty; but the materials for such a compilation existed in the set of rules by which the business in each Court was regulated at the present moment. It was said, however, that the Judges had no time for this purpose; and his noble and learned Friend upon the Woolsack altered his system, and proposed that the rides should be framed by the Committee of the Privy Council. For his own part, he certainly agreed with what had been said by some of his noble and learned Friends; he entertained a strong objection to the framing of rules which should govern the procedure of the Judges by any body external to the Judges themselves. In the first place, this would be a direct reflection upon the independence of the Judicial Body. Looking to the past history of our judicial tribunals, their Lordships were well aware that the independence of the Judicial Body had always been jealously secured by Parliament; and anything that would tend to place them directly or indirectly under the control of the Executive would be a severe constitutional blow to the liberties which those tribunals enjoyed, and which they held in trust for the people of this kingdom. But his noble and learned Friend had on the Paper an Amendment which in a great measure would meet that objection. The new Court was not to come into operation until the commencement of Michaelmas Term of 1871, and what he now proposed was to remit to the Committee of Privy Council, consist-

  1579
  ing in a great part of Judges, to frame the rules with which the Court might start, and when the Court was constituted and became possessed of its functions, they would have the power of altering or regulating these rules as they might think fit. He must, however, say he hoped, if the Bill went into Committee, his noble and learned Friend would be content to surrender that amendment, and leave it to the Judges to settle their own rules of procedure in the way that appeared to them best calculated to promote the ends of justice. It was of incalculable advantage that those who had to administer justice should have the power of dealing with all the details under the forms of which justice would be administered. If a difficulty arose on the form of a rule which constituted part of a Schedule in an Act of Parliament, it straightway led to discussion and judicial decisions which swelled the body of law and became anything but a practical good; and, therefore, it was of the highest value that every Court should have power from time to time to make the procedure meet the growing necessities of the case. But what was suggested by his noble and learned Friend opposite (Lord Cairns) as a substitute for the composition of these rules by the Judicial Body? He suggested that in the Act of Parliament there should be a Schedule containing the complete legal code of procedure, and that being passed by the Legislature and embodied in an Act the Judges should have power to alter what Parliament had done. He put it to their Lordships to say whether that would be a constitutional mode of proceeding. His noble and learned Friend proposed that these rules should be framed and put into the Bill, in all their complexity and detail—that the Bill should be passed through Parliament, and that, having got the sanction of Parliament to the Schedule, the Judges should be at liberty to alter as they please. That he thought a most mischievous suggestion. If they left it to Parliament, they must allow Parliament to be dominant in the matter—to settle it once for all; if amendment were needed, they must come to Parliament for it—to set right what Parliament had set wrong. But what his noble and learned Friend proposed was, that when Parliament had, with all gravity and dignity, elaborated
  1580
  a system of rules, the Judges should have power to set them aside. His noble and learned Friend asked if the House were aware that the Committee of Privy Council would have the Power under this Bill of saying what causes should be tried by a jury and what should not—were they aware that so sacred a thing as trial by jury was now at issue, and was to be left for determination to the Committee of Privy Council? Why, the Judicature Commissioners, of whom his noble and learned Friend was Chairman, recommended distinctly that the Judges from time to time—not as a body but as individual Judges, sitting in Chambers—should have the power to say whether this or that cause should be tried by a jury, or in some other way. He (Lord Penzance) thought that this was one of the most valuable suggestions of the Commission; for it was the misfortune of the Common Law system that many cases were sent before a jury which juries were incompetent to try: it was, therefore, a very valuable suggestion that the Judge, on becoming acquainted with the case, should have power to say whether it should be tried by a jury or in some other way. Accordingly, the Commissioners reported that skilled arbitrators should be attached to the Court, persons skilled in particular branches of trade, in order that when questions of that kind arose, reference might at once be made to them. Yet his noble and learned Friend having been one of the first to make the suggestion, now turned round and said it was quite unconstitutional that the Committee of Privy Council should have power to decide on this question. He quite admitted that the fusion of the jurisdictions into one was a most difficult thing, and would be accomplished only gradually. The objection was to its inception; but, as soon as the Court was established, they should leave it to the Judges to work it, and he believed it would be found to work with perfect smoothness and facility. It would certainly be a great misfortune if the noble and learned Lord on the Woolsack were persuaded by the opinions which had teen expressed, and the shallow compliments which had been paid to him on all sides, to postpone proceeding with his Bill till next Session.
  THE DUKE OF RICHMONDsaid, he had no intention to touch at all on any of the legal points which had been introduced into this discussion; but after listening to the speech of his noble and learned Friend behind him (Lord Cairns), and the speech of the noble and learned Lord opposite (Lord Westbury), both condemning the proceeding with this measure at the present time, he confessed they had fully convinced him that the noble and learned Lord on the Woolsack would be unwise if he attempted to press it forward during this Session. He had thought the noble and learned Lord who last addressed their Lordships might, perhaps, with his great legal knowledge, adduce some legal arguments which would induce him to alter the opinion he had formed; but, instead of convincing him that either of the two noble and learned Lords who preceded him was wrong, he had only strengthened the opinion he already entertained; because on one of the most material points adverted to—namely, the proposal that the Privy Council should form the rules of procedure—he understood the noble and learned Lord to state that he considered that part of the measure very imperfect, and he would leave it to the Judicial Body to regulate them. [Lord PENZANCE: After they had been established.] Yes; but this showed how imperfect the measure was in its details. He must say he thought this was a subject which both Houses of Parliament were perfectly competent to deal with. One of the features of the Bill was, that the Committee of the Privy Council was invested with the power of regulating the whole legal proceedings of the country, and they might abolish trial by jury if they thought fit. He must also observe that the instances brought forward by the noble and learned Lord (Lord Penzance) in which the Judges, according to the recommendations in the Report, might, in certain cases, dispense with a jury did not go on all fours with those in the 8th sub-section of this Bill, which gave power to the Privy Council to abolish trial by jury altogether. That might be a very useful power; but the proposal was now made for the first time to give it to the Privy Council, and certainly, in his opinion, it was a matter which ought to be dealt with by both Houses of Parliament. Entertaining these views, he thought it would be un-
  1582
  wise to proceed further with this measure at present; and if, after what had been stated, the noble and learned Lord on the Woolsack persevered with it, if the Bill did reach Committee, he should hope his noble and learned Friend behind (Lord Cairns) would at some future stage take the sense of their Lordships in regard to it.
  EARL GRANVILLEmust say he felt, as most of their Lordships probably would feel, how very unsatisfactory it was, from a want of legal learning, that he was not able to take part in a discussion, the subject of which was to do away with some of the greatest deformities in the existing systems of judicial procedure. But this consideration had some bearing on the question which had been raised by the noble and learned Lords present. He quite admitted that it seemed rather flattering that noble and learned Lords should get up and insist that these very important details should be settled by Parliament. But, first of all, he wished to know whether—only a fragmentary portion being settled by Parliament—the bulk of the legal regulations had not been settled by the Judges? He must further ask if these subjects came now to be discussed in Parliament what would happen? Why, that not one of the lay Members of the House would venture to go into these intricate matters. All would be left, as that evening they had been left, to a discussion between four or five noble and learned Lords—of whom he must say, however it came about, so long as he had been a Member of their Lordships' House, some how or other, whenever a legal reform was proposed by one of them, the majority set to work to pull it to pieces. This might be interesting from the ingenuity and forensic skill displayed, but was not encouraging to lay Peers, and he objected to being one of a dumb audience. His noble and learned Friend had brought forward a very important Bill, and he trusted he would persevere with it.
  THE MARQUESS OF SALISBURYsaid, that one of the most important points in the consideration of this Bill was the condition of opinion that prevailed respecting it among noble and learned Lords. It was impossible that each Member of their Lordships' House could form an independent judgment as to the merits of the details of great legal

  1583
  changes, and their Lordships, therefore, naturally looked to the legal Members of the House for advice and guidance. Now, what did they find? They found that all the Judges, and both the Lord Chancellors who had spoken—and he believed those who had not—were opposed to this Bill; and that the noble and learned Lord opposite, whose authority was so great, and who had been brought hither to bless the Bill, had ended by cursing it altogether, and he had moreover suggested such changes in the Bill as would justify any noble Lord in voting against the second reading. Therefore, with the exception of the modified support of the noble and learned Lord opposite, no legal voice, except that of the Lord Chancellor, had been raised in favour of this enormous constitutional change. Upon that ground alone he should regard the proposal with much hesitation. But considered in itself, there were equal grounds for mistrust. The 8th sub-section of Clause 16 remitted to the Privy Council—
  "The regulation of all matters relative to the institution and conduct of business coming within the cognizance of the Court, or of the Judges thereof on circuit, or at Nisi Prius sittings in London or at Westminster, the pleadings, the mode of taking evidence, the mode of hearing, the costs to be allowed, the mode of taxation thereof, and the parties by whom costs should be borne, and all matters incidental to or connected with the administration of justice, the composition and publication of reports of cases decided in the High Court of Justice, or in any Divisional or other Court of such High Court."
  When he read these words he thought their range so comprehensive that he asked his noble and learned Friend near him (Lord Cairns) whether, under the authority thus proposed to be conferred, it would not be possible to set up the Star Chamber; and he was unable to answer that it was not possible. It was true that, in order to disarm opposition in some degree, the noble and learned Lord had named the five hon. Gentlemen who, as Members of the Privy Council, would be concerned in drawing up the rules; but it must be remembered that their labours would not commence till 1871, and there was no security that the present holders of the offices in question would be in actual possession of them next year, when these tremendous and unconstitutional powers came to be exercised. He had on more than one occasion expressed his opinion
  1584
  that Parliament was becoming much too fond of the easy process of delegating to other persons the execution of the business which constitutionally belonged to itself. No doubt, the temptation was very great; but, if it was yielded to, the result would be that Parliament—and especially that House—would be deprived of a great portion of its powers; and it was just at such a period as this, when Parliament was so much in the hands of the Executive Government, that they should be most jealous of instituting precedents that might in future be used for the purpose of giving to the Executive Government great and unconstitutional preponderance. He felt that the House had not yet had this question fairly before it. It touched not only questions of law, but the powers of government and the constitution of the country. If the noble and learned Lord on the Woolsack insisted in now going into Committee, in spite of the opinions expressed in favour of delay, it must be on the full understanding that all the questions that had been touched upon in debate might be raised again at a subsequent stage.
  LORD ROMILLYsaid, that this was in no sense a party question, and ought not to be discussed with any reference to the different Benches on which noble Lords sat. He was obliged, for his own part, to concur with those who had asked his noble and learned Friend on the Woolsack not to proceed further with the Bill this Session. He had studied it with the most anxious care—he had even attempted to frame rules such as might be necessary under it; but he had not been able to satisfy himself, either as to what the nature of those rules should be, or to what extent they should go: nor did he believe that any one would be able satisfactorily to frame rules, unless the principles on which they were to proceed were first laid down. He was far from coinciding in the opinion that the lay Members of their Lordships' House were unable advantageously to take part in discussions on legal details. On the contrary, it had always been his belief that one of our great evils was that we were too much in the habit of leaving all legal matters to lawyers; whereas, if they took them in hand themselves, they might reduce them to the rules of common sense, and get rid of unnecessary technicalities.

  1585
  Some practical difficulties had presented themselves to his mind as likely to occur under the Bill. He would give an example. Soon after he entered the profession, a person desired to recover an amount duo to him. It was doubtful whether it was a legal or an equitable claim, and he was advised to proceed on the Equity side of the Court of Exchequer, and also to bring an action on the Common Law side. The defendant, however, insisted that he must choose one or other of the two courses, but not both. Ultimately, he was advised that it was an Equity case, and he proceeded by a bill in Equity. After about three years the case was heard, when the Barons of the Exchequer decided that it was a legal debt, and the Bill was dismissed with costs. The claimant then brought an action at Common Law; but, unfortunately, owing to the delay that had elapsed, the Statute of Limitations could be pleaded, and he was non-suited. He argued that the delay was not his own fault, because those Judges had not told him originally how to proceed; but they replied that it was not part of their business to do that. He (Lord Romilly) desired to know how it was proposed to deal with a case of that kind, and whether it was intended to put an end to the distinction between legal and equitable debts; or to state the limitations, which would apply equally to both? He had, therefore, felt the greatest perplexity as to the manner in which the rules and orders should be drawn up. He thought that no time would be lost in postponing the measure to another year, as the interval might be occupied in preparing the necessary provisions. The fusion of Law and Equity had been a favourite object with all law reformers. Everybody admitted its advantages. He must be permitted to say that the observation that all lawyers attacked any measure of law reform not introduced by themselves did not apply to him, for he had always been ready to assist in the work of law reform; but his apprehension was that the measure of his noble and learned Friend would fail; and, if it did, the result would be the postponement for an indefinite number of years of the fusion of Law and Equity, which would be much better advanced by a measure more precise in its enactments, such as would put an end to equitable presumptions found to be so
  1586
  interminable. He would give no opposition to the Bill, but, on the contrary, would do all he could to amend it; though, in its present state, he did not think it likely to lead to a satisfactory result.
  THE LORD CHANCELLORsaid, that the discussion which had arisen did not offer much encouragement to the course of procedure, which had lately been recommended, of commencing Bills of law reform in the House of Lords. Last year he had been wiser, and had resisted the pressure brought to bear upon him to induce him to bring the Bankruptcy Bill in their Lordships' House. Now, what was the head and front of his offending in the present instance? The principal grievance alleged against the present Bill was that the rules and regulations which would be necessary under the measure were not included in the Bill itself—that was the head and front of his offending. He was a little alarmed when the noble Marquess (the Marquess of Salisbury) intimated that they were rushing into an enormous constitutional change without due deliberation. He admitted that one-half of the Bill, fusing all the Courts into one, was a great change, and that it might be called a constitutional change. No doubt the Bill proposed a great constitutional change; but it was one that had been approved by almost every one specially qualified to express an opinion upon it. He should be ashamed if, from any petty vanity of his own, he were to press forward that change from the mere wish to see it carried while he was Lord Chancellor; but he confessed he did hope to see it accomplished before he died; and his heart sank within him when he heard the suggestion of the noble and learned Lord (Lord Cairns) that the Bill should be postponed until the new Law Courts were erected—a suggestion which almost made him doubt the earnestness, for this reform, of the noble and learned Lord who made it. In regard to the opposition that had been raised because he had not included the rules and regulations in the Bill—he had already pointed out that a code of procedure for the Common Law Courts would occupy 200 closely printed pages—he might now mention that the code of civil procedure of the United States occupied a large quarto volume, and there were in addition three volumes of decisions as to whether cases

  1587
  came within the code or not. He must also repeat what he had said last year in debate—last year the Bankruptcy Bill came up from "another place," giving ample powers to the Judge to make the rules and regulations under the direction of the Lord Chancellor. With assistance he supervised the framing the rules and regulations, which occupied 100 pages—it was very easily accomplished within two or three months after the Bill had passed; they were now in full operation, and were working satisfactorily. The result of thus adopting the principle of separating the framing of the code of procedure from the clauses of the Bills was that the Bills were reduced from 500 to 170 clauses. In the present instance codes of procedure were required for the Court of Chancery, the Common Law Courts, the Court of Probate, and the Court of Admiralty, and it was idle to think of discussing them in Parliament. The great principle of the Bill was the reconstitution of the Courts, and the investing them with such power and authority that each might be full and complete in its parts; and the forms of procedure by which the principle was to be worked out it was proposed to hand over to others. He did not object to define more precisely the guiding grooves for those who were to make the rules; but he could not undertake the responsibility of introducing into the Bill 400 or 500 clauses embodying these regulations. He was sure that he should be himself incompetent to the task, nor would he undertake the responsibility of inviting the House to undertake it unless he were obliged to do so by the decision of their Lordships. He denied that the spirit and essence of the Bill had undergone any change. He must confess his surprise that the noble and learned Lord (Lord Westbury) should now object to referring the framing of the rules to the Privy Council, and should express his preference for the Judges, seeing that the noble and learned Lord, when it was first proposed to confide the duty to the latter, declared that if it was left to them it would never be done. He thought no serious fault could be found with his present proposition. What he now proposed was, that the Privy Council should frame the code, and that it should be left to the Judges to modify it, and he was happy in having on his side Lord Chief Justice Cockburn, who said—
  1588
  "Our procedure will be at the mercy of a small conclave under the control of the Chancellor; the course of our judicial business will be at the discretion of the Government, who may transfer questions of constitutional right in which they may be interested from one Divisional Court to another, or transfer Judges from one Court to another, as they may deem it expedient. For it is to be observed—and this makes all the difference—that it is not merely for making a new code of procedure at the first starting of the Court that this extraordinary power is conferred. It is to continue permanently, and may be exercised at any time, either for general or temporary purposes. It will be said, indeed, that rules so made are to be laid before Parliament. But this is but poor protection if a Government has the good fortune to have a commanding majority at its call. Moreover, in the interval, the rules will have had the effect of law."
  In reply to the assertion that all legal opinion was against him, he averred that an enormous mass of legal opinion was with him, and the solicitors of the country supported him, and that he had not met with one adverse criticism in a single legal publication of authority. It was admitted by all that a great reform was essentially necessary, and the question was, whether it was to be effected now or postponed indefinitely. He believed that if their Lordships should come to the conclusion that the rules must be embodied in the Bill, the first thing they would do with the Bill would be to strike the rules out, and to say it must not be encumbered with them; and as he believed their Lordships desired to see such a Bill carried long before the building of the Courts, he trusted they would consent to go into Committee on the Bill.
  LORD CAIRNSsaid, that the noble Earl opposite (Earl Granville) had not thought it unworthy of his own position, or of his office as Leader in that House, to throw a sneer—a somewhat common and not very amusing sneer, and one which many people might think not very well founded—against the legal Members of the House, whose assistance, at the same time, he expressed himself very anxious to have. The noble Earl said that, in his experience of the House, whenever a legal measure had been introduced by the occupant of the Woolsack, it was always pulled to pieces by all the noble and learned Lords in the House. He (Lord Cairns) could not allow that statement to pass unchallenged. When he had himself the honour of a seat on the Woolsack, he must say he had invariably received the most frank and kind assist-

  1589
  ance from all the noble and learned Lords on any legal measures that he had felt it to be his duty to propose. He did not desire to say anything as to any assistance that he might himself have been able to render in the passage of legal measures through that House. He was satisfied to leave his character on that subject in the hands of their Lordships, for he was sure that it would not be affected by what the noble Earl had thought fit to say. But he desired the noble Earl to consider that, on this particular question, the noble and learned Lord on the Woolsack occupied a rather peculiar position. Both he and his noble and learned Friend sat on the Royal Commission which had considered this question, and they had both attached their signatures to the Report. As regarded the character of the edifice it was proposed to rear, he was quite at issue with his noble and learned Friend. He spoke from no feeling of mortification on the subject; but he would illustrate his position by saying, that when two persons were co-operating in the construction of a house, they might, if they agreed upon the general mode in which it was to be built, render valuable co-operation to each other. But if one of these persons thought the house should be made of boards and tiles, without windows, doors, or partitions, and if the other was of opinion that it should be made of bricks and mortar, he thought it was utterly impossible that the latter could give any useful assistance or co-operation. That was his position with regard to the Bill. His views on this subject differed so completely from those of his noble and learned Friend on the Woolsack, that he (Lord Cairns) felt it would be useless for him to direct his opposition to the Bill clause by clause, and line by line. He felt, therefore, that he had no course left open to him but that indicated by his noble and learned Friend opposite (Lord Westbury). He (Lord Cairns) should therefore reserve to himself the opportunity of taking the sense of their Lordships' House upon the measure at a future stage of the Bill, and it would then be for their Lordships to decide whether opportunity might not be given for introducing some more satisfactory Bill to the attention of their Lordships.
  Motion agreed to; House in Committee accordingly; Amendments made:
  1590
  The Report thereof to be received on Monday, the 13 th of June next; and Bill to be printed, as amended. (No. 120.)

TRAMWAYS BILL—(No. 107.)
(The Lord Privy Seal.)
TRAMWAYS BILL—(No. 107.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE EARL OF KIMBERLEY, in moving that the Bill be now read the second time, said, that the Government, in fulfilment of a pledge given by them early in the Session, had introduced a Bill in the other House to regulate the terms on which permission should be given for the laying down of tramways; the Bill had been referred to a Select Committee, and the result of their deliberations was embodied in the measure now lying on their Lordships' Table. The Bill was one of considerable detail; but the House no doubt would feel it to be desirable that if, as seemed likely, these tramways were to be extensively constructed in England, they should be governed by some general system, and not armed with powers which were often granted very much at hap-hazard, notwithstanding the great care and attention bestowed by Committees upon the applications which came before them. The Bill consisted of three parts. Of these, the first related to Provisional Orders authorizing the construction of tramways; the second, to the mode of constructing tramways; and the third embodied general provisions regarding carriages, the licensing or purchasing of tramways, power to make by-laws, &c. These Provisional Orders might be applied for either by the local authority of any district, or by any person or corporation with the consent of the local authority. These Provisional Orders were to be dealt with very much in the same manner as those relating to railways, piers, and harbours. When sanctioned by the Board of Trade, they would be brought before Parliament in a Bill, and those who objected to the scheme would therefore have the opportunity of stating their objections before Committees of both Houses. The most important clauses were those which related to the consent and proceedings of local authorities. It was provided, in the first place, that local authorities might themselves apply for a Provisional Order to authorize

  1591
  the construction of a tramway. It was not intended under the Bill that the local authorities should work the tramways; but they might get authority to construct tramways and then lease them to a company, or they might leave the public the use of the tramways, receiving tolls for the user; but they were not themselves to run carriages and take fares or tolls. If the local authority did not apply for a Provisional Order, any person or company might come forward and obtain it, subject to a power of compulsory purchase by the local authority at the end of 21 years, on the basis of the actual value of the line. As to the provisions for construction of the lines he would not enter into detail. The other provisions of the Bill related to various safeguards which were proposed as to the making of the way, the use of roads by the tramway company, and the repair of roads on both sides of the tramway, interference with gas or water-pipes, &c. The manner in which the tramways were proposed to be laid would entirely obviate the objections urged to Mr. Train's plan. It was exceedingly probable that these tramways would be very extensively used; and, if constructed under proper limitations, he believed they would be a great advantage to the public. They would relieve the general traffic and, at the same time, being under the control of the local authorities, would be of great public advantage. In Committee he should be glad to avail himself of any amendment that might be suggested.
  Moved, "That the Bill be now read 2ª—(The Lord Privy Seal.)
  THE MARQUESS OF SALISBURYhoped the Bill would be referred to a Select Committee.
  LORD REDESDALEwas very glad that a general Bill upon this subject had been introduced, following the suggestion he made at the commencement of the Session. The Bill, no doubt, had been prepared with care, and it had gone through a Select Committee of the other House. At the same time, he must say it had gone through that Select Committee rather hastily; and, certainly, it was rather imperfect in its details at present. The noble Earl had stated that the proceedings before the Board of Trade would be similar to those taken in the case of railways, piers, and harbours.
  1592
  But in the case of railways the consent was required of all parties whose land was taken; but in the case of tramways all that was required was the consent of the local authority. There certainly ought to be some approval on the part of the occupiers of the houses in the streets through which the tramways passed; it should be provided that they should be laid along the centre of the street, otherwise it would affect the property more on one side than the other—generally, there ought to be more provision for the approval of persons interested than that of the local authority before tramways were authorized, the more so as the local authority of many towns might be governed by persons having a personal interest in their construction. There was no provision for the incorporation of the tramway company under the Companies Clauses Act. No concession, he thought, should be made for more than 50 years; a tramway consisted of nothing more than the cost of laying the rails; and as that original outlay must have been amply recouped by a user of 50 years, he thought that at the expiration of that time the tramways should lapse to the local authority. The Bill gave the option to the local authority to purchase the concern at the end of 21 years; but Clause 39 was rather ambiguous. He thought it desirable that the Bill should be sent to a Select Committee.
  THE EARL OF KIMBERLEYhad no objection to refer the Bill to a Select Committee, as it was almost impossible to discuss it clause by clause in the House.
  Motion agreed to; Bill read 2ª accordingly, and referred to a Select Committee.
  And, on June 13, the Lords following were named of the Committee:—

  Ld. Privy Seal.

  V. Eversley.

  D. Cleveland.

  Ld. Steward.

  M. Salisbury.

  L. Saltoun.

  E. Kellie.

  L. Redesdale.

  E. Airlie.

  L. Silchester.

  E. Graham.

  L. Belper.

  E. Cadogan.

  L. Lyveden.

  E. Morley.

  BRITISH COLUMBIA BILL [H.L.]
  A Bill to make Provision for the Government of British Columbia—Was presented by The Earl GRANVILLE; read 1ª. (No. 123.)
  House adjourned at Nine o'clock, till To-morrow, half past Ten o'clock.