Lords Sitting of 1 April 1873

MINUTES.
PUBLIC BILLS—First Reading—Mutiny*; Income Tax Assessment* (55); Public Worship Facilities* (56).
Second Reading—Committee negatived—Endowed Schools (Address)* (54).
Referred to Select Committee—Supreme Court of Judicature (45).
Committee—Report—Salmon Fisheries Commissioners* (47).
Third Reading—Custody of Infants* (51), and passed.

SUPREME COURT OF JUDICATURE BILL—(No. 45.)
(The Lord Chancellor.)
SUPREME COURT OF JUDICATURE BILL—(No. 45.)

  REFERRED TO A SELECT COMMITTEE.
  Order of the Day for the House to be put into Committee (on Re-commitment), read.
  LORD CAIRNS: My Lords, although I have given no Notice of Amendments on this Bill, I venture to take this opportunity of suggesting to my noble and learned Friend on the Woolsack the expediency and advantage, as it seems to me, of passing this Bill in the first instance through a Select Committee. I have communicated my views on this subject to my noble Friend, and I have refrained from putting Amendments on the Paper lest it might be supposed that I desired to impede, much less endanger the measure. I have already had an opportunity of stating to your Lordships that in all that concerns its outline and its leading features, this Bill has my entire approval; and I should be sorry that anything should occur to endanger its passing in this present Session. But when the details of the measure are looked at it appears to me obvious that in discussing a Bill of this extent, and which deals with such a variety of subjects, there must arise from time to time differences in the arrangement on which a considerable amount of conversation will be necessary, and that this conversation must proceed very much on minute particulars. It appears to me equally obvious, therefore, that a Select Committee would be more fitted to deal with those questions than this House—in the first instance at all events. Without entering into any argument I will point out two matters on which I think there must be a considerable amount of minute discussion. One is the Schedule which contains the Code of Procedure to be introduced by the Bill. I think my noble and learned Friend informed your Lordships that this Schedule had been prepared under the very competent supervision of some gentlemen whose names he mentioned to your Lordships. I own the skill with which it has been prepared, but I must express my opinion that when it comes to be examined it is much more adapted to the plain and simple issues which arise in the Courts of Common Law than to the more com-
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  plicated cases which arise in the Courts of Equity. That is a matter with respect to which, as I have already stated, I will not enter into any argument now; but if there is found to be considerable reason for the statement I have ventured to make on this point, the alteration which will have to be made in the Bill is one which can be better made in a Select Committee than in a Committee of the Whole House. The other matter is one which I have already mentioned to my noble and learned Friend in conversation. My noble and learned Friend, in composing the Supreme Court, has taken the Queen's Bench, the Common Pleas, and the Exchequer, and through their Chiefs preserved their present names, while making them separate departments of the Supreme Court. I know this arrangement has been criticised in some quarters, but I believe my noble and learned Friend is right in what he has done. I quite agree with those who hold that there never can be a complete fusion of law and equity till the distinction between them is abolished; but, as regards the present day, I believe my noble and learned Friend is right in the course he has adopted. He has taken as large a step as can be taken at the present time. But he has adopted a course with regard to the Court of Chancery which to my mind requires consideration. The Bill proposes to make the Court of Chancery the Second Division of the Supreme Court; but the Lord Chancellor, who has hitherto been at the head of the Court of Chancery, is taken away from it altogether. This Division is to have the Master of the Rolls for its head, with the Vice-Chancellors and the Judge of the Court of Admiralty under him; so that the effect of this portion of the Bill will be to sever altogether the connection which has hitherto existed between the Lord Chancellor and the Court of Chancery, and which, it appears to me, has been the life and essence of that Court. This objection, even if it be well founded, does not impair the principle of the Bill; but at the same time the alterations which it would be necessary to make in regard to this matter, if my objection prevails, would be so much of changes of detail, and be so minute, that they again could be more conveniently dealt with by a Select Committee. I am anxious that there should

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  be no delay. I hope there will be none. I hope that if the Bill be referred to a Select Committee, that Committee may meet immediately after the re-assembling of your Lordships, and that it may hold its sittings de die in diem; and if this course be adopted I think I am not too sanguine in saying that the whole work of the Select Committee may be concluded within a week. I may say that my noble and learned Friend Lord Westbury, who is suffering from acute illness and is unable to be in the House to-night, has communicated with me. Your Lordships will not be astonished to hear his great anxiety to take a part in the discussion of this measure, and he is extremely anxious, as I am, that it should be referred to a Select Committee, and if named on such a Committee he hopes to be able to serve. Under all the circumstances I have mentioned I hope my noble and learned Friend on the Woolsack will adopt the suggestion of referring this Bill to a Select Committee.
  THE LORD CHANCELLORMy Lords, the mere fact that my noble and learned Friend who has just addressed your Lordships considers it the most advisable course to refer this Bill to a Select Committee goes very far indeed with me as a reason why that course should be adopted. Nothing is more desired by myself, and I think that probably nothing is more desired by your Lordships who feel the importance of this subject, than that what we do should be well done. I have no particular attachment to any matter of detail in this Bill, apart from the opinion I have formed that it tends to accomplish the object we all have in view. My noble and learned Friend has not only given an earnest, by the manner in which he has spoken on this subject on a former occasion, of his desire to accomplish this work in the best manner possible, but, as your Lordships are aware, he took an active part on the Royal Commission on whose first Report this Bill is mainly founded. I am bound also to say that while not indisposed to grapple in your Lordships' House with whatever difficulties may arise on the details of the measure, I am far from insensible of the convenience of dealing with the details of particular clauses in the manner my noble and learned Friend proposes. Hoping and believing that by this means we may have more fully
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  than we otherwise should the benefit of the advice and assistance of my noble and learned Friend, and of other noble Lords both learned and not learned in the Law, and that as a result the Bill will go down stamped with more authority to to another place, I cheerfully accede to the suggestion of my noble and learned Friend. Your Lordships will, perhaps, allow me to say that while I entirely go with my noble and learned Friend in what he said as to the importance of the Rules of Procedure contained in the Schedule, and as to the improvements of which they may be susceptible, in order to meet the variety of cases with which we have to deal, I must reserve myself entirely on the other point raised by my noble and learned Friend. With respect to the future relations of the Lord Chancellor and the Court of Chancery, as at present advised, I am disposed to adhere to the provision in the Bill; but on that and every other subject I shall be glad to have an opportunity of exchanging opinions and reasons with those who may sit on the Select Committee. I believe the proper course will be for me to now move the discharge of the Order for going into Committee, with the view of moving subsequently that the Bill be referred to a Select Committee. I therefore beg to move the discharge of the Order.
  LORD DENMANexpressed his disapproval of the plan of abolishing the Appellate Jurisdiction of their Lordships' House; and was as much opposed to the Bill being referred to a Select Committee as to a Committee of the whole House.
  LORD REDESDALEsaid, he could not let the measure pass its present stage without making a few observations respecting it. He could not but think that the proposed abolition of the Appellate Jurisdiction of their Lordships' House was a much more serious matter than many persons supposed, and that to interfere with that jurisdiction would be a very unwise step. In justice to the memory of Lord Lyndhurst, he thought it right to say that was the opinion of that noble and learned Lord. He had many conversations with him on the subject, and on one occasion in particular Lord Lyndhurst said to him "Never consent to give up the jurisdiction of the House of Lords in appeals." It was sometimes contended that the Prerogative of their Lordships' House in

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  this matter was only a name. Even if that were so, which was not the case, the same might be said of many other things which were conducive to feelings and results which it was very desirable to preserve. Why, for instance, if this House ceased to be a Court of Judicature should the decision on Impeachments be any longer referred to it? If it was to become a political and legislative Assembly only, why might not the House of Commons assert themselves equally qualified to exercise that jurisdiction? Why was that House asked to give up its jurisdiction as a Supreme Court of Appeal? Not because the House did not exercise that jurisdiction efficiently:—all the evidence given before the Committee which sat last year proved that as a Court of Appeal the House of Lords did its business in an efficient and a satisfactory manner. The Bill of the noble and learned Lord on the Woolsack reserved the Appellate Jurisdiction of their Lordships' House for Scotland and Ireland. Why? Because it was believed that no other Court of Appeal that might be constituted would give equal satisfaction to suitors from those countries. A noble and learned Lord who spoke on the occasion of the second reading (Lord Cairns), suggested that, in certain cases, it might be desirable to give a further appeal from the first decision of the Appellate Court to be constituted under the Bill. Why should not their Appellate Jurisdiction be retained for such cases? If this were done their Lordships' House would continue to be the Supreme Court of Appeal. It was urged as an objection to the Appellate Jurisdiction of the House of Lords that it was competent to any lay Lord to come in and give his judgment on an appeal; but for a long time the practice had been to delegate the hearing and deciding of appeals to the Law Lords. The House at large ratified what they did. But, to remove the theoretical objection, the House might by formal order select certain members, the Law Lords, to hear and decide appeals. He believed the legal jurisdiction of their Lordships' House had arisen even before the constitution of Parliament itself. It was granted originally by Magna Charta, which provided that twenty-five Barons should be appointed to receive Petitions as to wrongdone, and that when complaint was made it should be referred for hearing to four of them.
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  Afterwards, when such matters came to their Lordships' House, and down to the present day, Triers were appointed of Petitions from England and Ireland, and also Triers of Petitions from Gascony and other places beyond the sea. This was an old form; but it showed that from remote times the custom had been to appoint a select number of their Lordships' House to try appeals, the proceedings of which select number were ratified by the House. Another objection to the continuance of the Appellate Jurisdiction of their Lordships' House was that the number of the Law Lords who heard appeals was too limited. To meet that objection, he himself so long back as 1851 gave Notice of an Address to the Crown for the summoning to that House of certain persons holding judicial offices. He thought that the Law, as well as the Church, should be represented in their Lordships' House, and his proposition was to have the Lord Chief Justice of the Queen's Bench, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer called to it by Writ of Parliament or an Address to the Crown. The noble Marquess behind him (the Marquess of Salisbury), since the introduction of the Bill now before their Lordships, had given Notice of an Amendment having for its object the introduction into that House of the members of the Court of Appeal to be constituted by the Bill. He thought the proposition of the noble Marquess was open to an objection on a point of form, inasmuch as it did not propose to proceed by Address to the Crown. He also thought that the number it would introduce into their Lordships' House was too large. He thought his own plan that an Address should be presented to the Crown to call to the House certain professional Peers a preferable mode of proceeding, for he thought that the consent of the Crown should be first obtained. These, however, were not objections which need stand in the way of an addition to the power of their Lordships' House as a Court of Appeal, and he begged again to express an opinion that it would be unwise to part with their jurisdiction as the Supreme Court of Appeal.
  Order discharged.
  THE LORD CHANCELLORmoved that the Bill be referred to a Select Committee.
  THE MARQUESS OF SALISBURYsaid, he presumed that the fact of the Bill being sent to a Select Committee would not deprive him of the opportunity of bringing forward at a future stage the proposition of which he had given Notice, and to which his noble Friend the Chairman of Committees had just referred. In reply to the criticism of his noble Friend, he wished to observe that he did not think that the question of the number of legal officials that ought to be introduced into their Lordships' House affected the essence of his proposition; nor did he think the other matter—the Royal Prerogative—touched the principle. He had no wish to interfere with the Royal Prerogative, and a clause might be introduced providing that the fiat of Her Majesty should be necessary.
  Motion agreed to; Bill referred to a Select Committee.
  And, on Friday, April 3, the Lords following were named of the Committee.

  L. Abp. Canterbury.

  L. Redesdale.

  Ld. Chancellor.

  L. Chelmsford.

  Ld. President.

  L. Lyveden.

  Ld. Privy Seal.

  L. Westbury.

  D. Bedford.

  L. Romilly.

  M. Salisbury.

  L. Penrhyn.

  E. Derby.

  L. Colonsay.

  E. Grey.

  L. Cairns.

  E. Morley.

  L. Hatherley.

  V. Eversley.

  L. Blachford.

  L. Clinton.

  House adjourned at Six o'clock, to Thursday next, Two o'clock.