HL Deb 24 July 1873 vol 217 cc856-66

Order of the Day for considering the Commons Amendments to the SUPREME COURT OF JUDICATURE BILL, read.


Before proceeding to the consideration of these Amendments I will ask permission of your Lordships to make an explanatory statement upon a matter personal to myself, and which, I think, had better be kept distinct from the merits or demerits of' any of the Amendments we are about to consider. I have said that the statement I wish to make is personal to myself; but if it were merely personal to myself I am not sure that at this period of the Session I should have ventured to delay your Lordships in proceeding to other business. But the charge or the statement to which I am about to refer, although personal to myself, conveys also in it that which appears to me to be a reflection upon the conduct of the legal business of your Lordships' House, and therefore I think it is my duty to mention it to your Lordships, and to make the statement for which I have asked permission. I have yet another reason for taking this course. The charge, while referring to me, refers also to one whose voice can no longer be heard among us to defend himself—I mean my late lamented Friend Lord Westbury—and knowing as I do the facts of the case, it is my duty on behalf of his memory, as well as on my own behalf, to call your Lordships' attention to the subject which I am about to mention. One of the Amendments which has been made in the Judicature Bill—and on the merits or demerits of the Amendment I am not now about to say a word—has dealt with the question of the relations between those who may hereafter be appointed to the office of Lord Chancellor and the Appellate Court created by the Bill; and a provision has been introduced into this Bill with regard to the terms upon which future Lord Chancellors shall be expected to take and to hold office. The argument by which that Amendment was pressed by the Prime Minister and the Attorney General had reference to circumstances connected with myself and the late Lord Westbury. The right hon. and the hon. and learned Gentleman to whom I have just alluded referred to some cases in which, under the authority of Acts of Parliament, Lord Westbury and myself have acted for some time in the discharge of a high judicial function created by the Acts. As far as I am personally concerned, the Acts of Parliament were, one connected with the London, Chatham, and Dover Railway, and another connected with certain Insurance Companies, of which the Albert was the head; and the statement made was, that my late Friend and myself had assumed in our positions as ex-Chancellors the transaction of that which was private as distinguished from public business; and the suggestion was, that that which was termed private business had interfered with the performance of what were described as our public duties, and that therefore legislation upon the subject for the future had become necessary. The Prime Minister and the Attorney General were good enough to say that they did not deny the perfect right of either my noble Friend or myself to act as we had done; but they stated that the House of Commons had a right to prevent a repetition of that which had been done—or, at all events, that they had a right so to guard the relations of ex-Chancellors towards the public as that the consequences which had been suggested should not again occur. Of those statements and arguments made and urged in the other House of Parliament I had no notice—if I had such notice, I could possibly, through the kindness of some Friends of my own who are Members of the House of Commons, have laid before the audience addressed the facts which I am now about to state to your Lordships. My late Friend, Lord Westbury, could not have had such notice, for at the time the statements were made he was in a condition in which notice could not have been given to him; and the same circumstances spared him what I cannot but think would have been to him the inexpressible pain of being made aware of the observations which had been made by his Friends upon his course of action. I will now state to your Lordships the facts which ought to be mentioned with reference to this subject. The charge divides itself into two portions. In the first place. there is the suggestion that judicial occupations of a private nature were undertaken by Lord Westbury and myself; and, in the second place, there is the statement that such occupations interfered and must interfere with the duties to be performed by us in this House. Let me, therefore, lay before your Lordships the short facts connected with the first Act of Parliament to which I have referred. A few years ago, the London, Chatham, and Dover Railway was on the point of collapse—or I suppose I might say had been reduced to a state of insolvency. The interests involved in that Company were between £17,000,000 and £18,000,000 sterling. There were, at the time the Act was passed, no less than 46 Chancery suits and 78 actions at Common Law pending with reference to the affairs of the Company; and, in addition, there were filed for the consideration of the Arbitrators appointed under the Act of Parliament 79 cases. At the time the Act was passed, the large revenues of the Company were entirely locked up, and whole families were reduced to destitution, because the income which they ought to have derived from the securities of the Company could not be paid. In addition to the Chancery suits which I have mentioned, some branches of the Courts, and particularly the Chambers, were absolutely blocked up and impeded by the magnitude and the cumbrousness of the litigation which had arisen. Tinder these circumstances, a measure was introduced into Parliament, and it was proposed that a special tribunal should be created in order to deliver the Company from its embarrassments. I have no word to say in favour of the policy of special tribunals. I have always entertained a very strong opinion against their policy, for I look upon the creation of special tribunals of this kind as a species of reproach upon our whole system of judicature. That, however, is not the question now under consideration. An application was made to my noble Friend not now present (the Marquess of Salisbury) and myself to act as Arbitrators. The answer I made was, that if Parliament conceived that I could be performing with advantage a public duty by undertaking the office proposed to be created by the Act, and if powers were conferred which appeared to me to be adequate to rescue the Company and those concerned in it from the difficulties they were in, I should feel myself bound to perform the duty which Parliament would thus impose upon me. I do not know what answer my noble Friend (the Marquess of Salisbury) returned, but I presume it would be something to the same effect. The Act of Parliament was passed and powers of the most ample and unusual kind were conferred upon us. The term "Arbitrator" was applied to us by that Act; but, in point of fact, the office we were asked to undertake was not that of Arbitrators at all. I understand an arbitrator to be a person who by the agreement of other persons decides disputes between them. But there was no agreement in this case—there was an absolute, unqualified, and unappealable power conferred by the Act upon the Arbitrators in reference to the whole affairs of the Company. They were clothed with a power higher than that possessed by any Court of Law or Equity in the country, and, as I have said, their decisions were unappealable and irreversible. I repeat that I do not argue with the policy of the Act; but the result of its working was that the whole of the litigation which had arisen and had occupied the Courts to the extent I have mentioned was finally concluded in 18 months from the time of the passing of the Act. I am not unwilling to admit that I look with satisfaction upon this result, although I question the policy of the Act of Parliament under which it was attained. I attribute the result mainly to the unexampled assistance which I received from my co-Arbitrator in the work. What I now want to ask your Lordships is, whether it is proper to describe the discharge of duties such as these as the assumption of private business to the detriment of public duties? I do not wish to argue the question; but I will state to your Lordships the views which I take of it. I believe the duties which under the Act of Parliament were imposed upon me, and which I performed, were duties which for their authority and their sanction, and as regards their responsibility, were as high in their nature and as public, and were as much clothed with the whole power and force of the Parliament of the country, as are the functions performed either by the Prime Minister or the Attorney General. Now, I pass to the other Act of Parliament to which I have referred. About five years ago, a huge Assurance Company—the Albert—collapsed and failed. In that Company were rolled up some 20 or more of other Assurance Companies. Your Lordships will be surprised to hear that the number of persons interested in the failure as policyholders was upwards of 23,000, everyone of whom either had or might have a separate case which he might raise and require to have determined. The number of shareholders having different interests was upwards of 2,000. The business of endeavouring to settle the affairs of the Company had gone on in the Court of Chancery for something like two years. It had been found absolutely impossible to arrive at the solution of any one of the various questions which were involved in the failure. Nothing had been got in and nothing had been paid at the time I speak of, and at the end of two years after the failure the only result of the proceedings was the incurring of an amount of costs, the magnitude of which would startle your Lordships were I to mention the figures. In this state of things, how came it to be suggested that Parliament should create a special and exceptional tribunal for dealing with the case? Lord Justice James made the following remarks upon the case, and those remarks were quoted in Parliament as a justification of the Bill:— I considered that as a Vice Chancellor could only give a portion of his time to things of that kind, it was desirable that Parliament should find some means of appointing some special tribunal which could give the time that was necessary and not give merely portions of days or portions of weeks. I did not see how it was to be worked out under half-a-century, if it could be done in that time. That was really the ground on which I proceeded. Again, I have nothing to say as to the policy upon which Parliament proceeded in passing a Bill in conformity with the recommendation of this learned Judge. I was asked to undertake the office which was to be created under the Act. I stated that I was not much encouraged by my former experience; but in this case too, knowing the extent to which the Court of Chancery was blocked up hr the litigation—knowing, also, the extent of the interests which were involved, and the amount of misery which was being suffered by persons interested—I stated that if Parliament thought fit to confer upon me the duty of acting upon this tribunal, I should feel myself bound to accept the duty and perform it to the best of my power. Acting on this tribunal—which the Prime Minister and the Attorney General pleasantly describe as a piece of private business—powers were vested in me which I certainly believe were undesirable, for the Act of Parliament not only armed me with the whole of the powers of the Court of Chancery without appeal, but gave me in every part of Her Majesty's dominions, in every colony, in India, and in all Her Majesty's possessions, all the powers of all the Courts in these colonies and possessions. I look with some surprise upon the magnitude of those powers, and I trust I have exercised them with care; but I do not think the exercise of such powers can be called private business. The result is this—I am happy to say that at the end of the first year after the passing of the Act of Parliament, the first award, which settled almost all the cases in dispute, has been made; the second award is on the point of being made; every case has been heard and disposed of; and the only circumstance which prevents the whole proceeding being wound up and closed is that some assets remain to be got in, and that persons to whom money has been awarded will not come and take it away. Let me add one fact. These Acts of Parliament contained clauses contemplating the refusal of the persons named, and if I had refused the office, Parliament has thought fit to declare by these clauses that the only persons who could be appointed in my place were just the persons to whom the objections of the Prime Minister and the Attorney General would apply as much as to myself—namely, ex-Lord Chancellors. Judges of one of the Superior Courts, or Members of the Judicial Committee. Let me now say a word as to the case in which Lord Westbury acted. Subsequently to the failure of the Albert, another huge Assurance Company, the European, collapsed, and a similar Bill was introduced for dealing with its affairs. While it was pending Lord Westbury came to me and said he had been asked to discharge the duties which were created by the Bill, and he was good enough to add that he had declined to do so unless he found that I was unwilling to undertake these duties. I said it was quite impossible for me to undertake them, and I begged him earnestly, if he found his health and strength equal to the task, not to fail to give to the public—because it was given to the public—the benefit of the assistance which he, perhaps, beyond all other men could give in such a case. I believe it was owing to my strong representation that Lord Westbury very reluctantly undertook to give effect to the Act of Parliament. I come now to the other question—whether the discharge of those duties has interfered with my duties in this House. As regards those persons who have held the office which I have had the honour to hold, I apprehend there is little doubt as to their duties to the public. I hold that, altogether irrespective of the office which I have had the honour to holding. I, as a Member of your Lordships' House, and as what is called a Legal Member of the House, am bound by my obligations to your Lordships to undertake, to the best of my poor ability, along with my noble and learned Friends, the duties of the Appellate Jurisdiction of this House; and I hold, again, that, irrespective of any office which I have had the honour of holding, as a Member of the Judicial Committee of the Privy Council, when summoned by Her Ma- jesty to attend the Judicial Committee, I am bound to attend and offer my services there. But let me now consider the charge which was made that the functions I have described interfered with my duties in the House. The proceedings in the case of the London, Chatham, and Dover Railway Company occurred in 1859. On looking back I find that 18 sittings were held by my noble Friend and myself in that case, and not one of those 18 sittings was held upon a day devoted to appellate business in your Lordships House. So much for that charge. I have also turned to the case of the Albert Company. I find that 38 sittings were held under the Albert Act. Out of these 38 sittings, only four were held upon days when judicial business was taken in this House; and upon one of those days I find that, owing to the meetings being at different hours, I was able to sit in this House as well as in the Arbitration. Thus, out of 56 sittings which occurred during five years, three only were held upon days when judicial business was proceeding here. Your Lordships will now be able to judge what degree of foundation there was for the statement either that the duties undertaken by me were private duties, or that they interfered with my duties in this House. I have already stated that I had no notice of the statement or the charge—whichever it must be called—made against me in the other House of Parliament. I must go further. This is a Bill which began in your Lordships' House. It was considered here upon the second reading, and also before a Select Committee, upon which there were several Members of Her Majesty's Government. The scheme of the Bill then was, that future Chancellors should have their choice of a certain pension if they were willing to serve upon the Appellate Court, and of a certain other pension if they were unwilling to do so. That clause was not accepted in the Select Committee, and I rather think that the Members of the Government concurred in its omission. What I have to call your Lordships' attention to, however, though not by way of complaint against my noble and learned Friend on the Woolsack, is this—if the Government were of opinion that any functions undertaken by Lord Westbury and myself should be made the foundation of changes in the Bill, why was not that opinion expressed here? Why were not the proposals of the Government made here? Why was this statement made in "another place?" Why were these proposals reserved till the last stage of the Bill in "another place?" What led to a change in the Bill in the other House I do not stay to inquire. I have laid the facts before your Lordships, and I leave it to your Lordships as men of honour to judge whether the course adopted in this case by the Prime Minister and by the Attorney General has been marked by courtesy or by justice.


My Lords, one thing I cannot help saying, and that is, that whatever reason there may be for regretting that anything should have been said elsewhere which could have touched or moved the feelings of my noble and learned Friend, or of the other noble and learned Lord to whom he has referred, on one point I think your Lordships have no reason to feel regret—and that is that my noble and learned Friend should have had an opportunity of giving so fully before your Lordships and before the country the facts of this case, and of so entirely justifying himself from any personal imputation. But I cannot for a moment think that any personal imputation was by anyone intended. I can assure my noble and learned Friend that there was no premeditated idea on the part of the Government, or. I will undertake to say, on the part of any Members of the other House, of casting any imputation upon my noble and learned Friend or upon Lord Westbury, and I am convinced that a desire of making such reflections as my noble and learned Friend imagines was not the groundwork of the change in the Bill made in the other House. For reasons right or wrong, that change was made in the Bill—a particular alteration affecting the position of future Lord Chancellors was proposed to be made; and it is undoubtedly true that those who addressed the House, and to whom reference has been made, did refer to the parts taken by my noble and learned Friend and Lord-Westbury in the Arbitrations in question, as in their opinion furnishing some reason why for the future those arrangements should be made. I feel persuaded that if the whole case, as it has been put by my noble and learned Friend, had been before the minds of those who, I am convinced, then spoke without any premeditation, and certainly without any intention of casting imputation, no such observations would have been made. For my part, I do not deem that a sufficient reason for what the other House has done with regard to that clause; but I am sure that nothing that was said was intended to cast personal reflections upon those who undertook the duties undertaken by my noble and learned Friend and Lord Westbury under Acts of Parliament. I am bound to add that it appears to me that when Parliament thought fit to create new special Courts with such enormous and unprecedented powers, it was totally impossible that any persons should be entrusted with those powers except learned men who had the greatest judicial experience, and who, from the public opinion of their capacity, as well as of their virtue, might obtain the confidence of the country in the exercise of such extraordinary powers. If those Acts were to pass at all, it was an indispensable condition that some such men as my noble and learned Friend and Lord Westbury, if they could be prevailed upon to undertake those duties, should discharge them. They did undertake those duties under the direct cognizance of both branches of the Legislature—if I do not mistake they were named in the Bills. I am quite sure, therefore, your Lordships did not need the assurance of my noble and learned Friend that it was from a sense of public duty and nothing else that he and Lord Westbury undertook those duties. I should not satisfy my own conscience in this matter, or do full justice to my noble and learned Friend, if I did not also tell your Lordships that when one of those Bills—I am not quite sure which—was in the House of Commons, a Member of that House communicated with me upon the subject of the propriety of such duties being undertaken by a person who had filled the office of Lord Chancellor; and what I said to him and to other persons was, that I did not feel it consistent with my duty to deprive the promoters of those Bills of the services of men competent to discharge those duties; and that in my opinion only men of the highest judgment in the country, if they were free from other engagements, could dis- charge those duties. I declined, therefore, to take any part in opposing that Bill, and I may have been, in some degree, responsible for the decision of some other Members of the Legislature not to oppose it.