Lords Sitting of 11 March 1873

MINUTES.
PUBLIC BILLS—First Reading—Marriages (Ireland)* (40).
Second Reading—Supreme Court of Judicature (14).
Report—Local Government Provisional Orders* (26).

SUPREME COURT OF JUDICATURE BILL. [H.L.]—(No. 14.)
(The Lord Chancellor.)
SUPREME COURT OF JUDICATURE BILL. [H.L.]—(No. 14.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  LORD DENMAN,who had presented a Petition from a law student against this Bill, said, he had had the audacity in 1856 to oppose almost every stage of a Bill for altering the Appellate Jurisdiction of their Lordships' House; on the present occasion he seemed likely only to be able to found a protest against this measure; but three times in about 150 years the House of Commons had relieved their Lordships from the effect of a Vote likely to be injurious. In 1719, the limiting the number of Peers would have prevented many in their Lordships' House now from having seats in it at all. And he might here remind their Lordships that in 1719 this House had maintained their right to overrule the Irish House of Lords on appeal. In 1823 a Bill passed both

  1715
  Houses, but was inoperative from no salary having been provided for the Deputy Speaker, who was not to have been a Peer. In 1856 a Select Committee of the House of Commons, by dropping the subject, prevented Lord Wensleydale from becoming a paid (life) Peer, and ever since this House had carried on the hearing of appeals to the satisfaction of suitors in the three Kingdoms. In 1871 the projected Bill as to the Appellate Jurisdiction of the House of Lords did not pass the House of Commons. This Bill, as far as it dealt with salaries, ought not to have originated in their Lordships' House; but, if in "another place," salaries could be offered to persons, eminent enough to form a Quorum of a first Court of Appeal, without either Chancellor or retired Judges, their Lordships might consider the proposal. He (Lord Denman) was very glad that the sister Kingdoms retained their right to present appeals to their Lordships' House, but could not think that the right would be much valued if a Court superior in authority were formed for England, and one with diminished consideration and practice were retained for them. He must remind their Lordships that this Bill contained a clause for paying future Lord Chancellors four-fifths of their salary, and for forfeiture of the other fifth if they should not attend during the Session, and beyond it, for the hearing of appeals; but that the first Earl of Eldon wished the whole of the retiring pension to be, by the Minister, made conditional on the retired Chancellor sitting, when able, to hear appeals in their Lordships' House. But it was the House itself which gave the Judicial Committee their authority. Their opinion need not, of course, be adopted, and those of their Lordships who would hear the whole of a cause, would be as well able to decide between the noble and learned Lord (Lord Westbury) and the noble and learned Lord (Lord Chelmsford) on the front Opposition bench, if they differed, where truth and justice existed, as common or special or grand jurymen were able to decide on the direction of a Judge. He (Lord Denman) could not stay to hear the arguments in favour of this Bill. He thought the name he had the honour to bear entitled him to more respect than he had met with on the Irish Church Bill, where opposition had been strangled, as to which he had pro-
  1716
  tested, and as an officer for 18 years in a Court of Justice, he believed that his opinion as to procedure deserved attention.
  Amendment moved to leave out ("now") and insert ("this day six months.")—(The Lord Denman.)
  LORD HATHERLEYsaid, he did not rise for the purpose of raising any protracted discussion on the Bill now before their Lordships. Their Lordships had on a previous occasion affirmed the principle of the greater portion of the measure, and looking at the present Bill as a whole, when it was introduced by his noble and learned Friend on the Woolsack it appeared to have been received with general favour—though certainly not in such a manner as to preclude any noble Lord from making such a Motion as had just been proposed;—he thought however that he would only be doing right in addressing a few words to their Lordships before the Bill received a second reading. In consequence of the part he had felt it his duty to take on a former occasion in reference to a somewhat similar Bill, he was most anxious to avail himself of the first opportunity that had presented itself of expressing his entire concurrence in the essential principles of this Bill from beginning to end. He was still more anxious to express his opinion that a reform so long desired and so much needed could not have been placed in safer hands than those of his noble and learned Friend on the Woolsack, whose great practice in the Courts of Equity, at the bar of their Lordships' House, and before the Privy Council, enabled him to see and weigh the difficulties in the way of a reform, and to judge of the remedies which would be appropriate to the wants of the public in respect of the administration of justice. Unquestionably the time had arrived when it was necessary to take efficient steps for the reform of our system of judicature. It was not necessary that he should enter into the subject at any length on the present occasion, but there could be no question that there were the greatest anomalies in our judicial administration arising out of our conflicting system of law and equity, which gave rise to the greatest embarrassment and even injustice. He would give as an illustration, a case that too frequently occurred, where a suitor

  1717
  might have proved himself perfectly right in a Court of Law—so right that costs were given to him against his opponent—and his opponent might immediately after apply to the Court of Chancery in the same matter, and there prove himself so right that he defeated with costs the suitor in the Court of Law. Now, that could not be a rational or intelligent mode of carrying out our judicial administration. With the purpose of remedying this conflict of jurisdiction there had arisen a demand for what was called "a fusion of law and equity;" but he must observe that there was in that phrase a confusion of what was really meant, and that it did not convey any adequate idea of what was required. The distinction between law and equity could not be at once abolished by any measure; because if such a proposition were made he would ask with his noble and learned Friend on the Woolsack—"Are you going to abolish trusts?" Of course nothing of the kind could be done. There must be distinctions between legal and beneficial ownerships, and this Bill did not seek to wipe away those distinctions. The real effect of the Bill would be this:—That, whereas at the present time a certain class of cases could be entered on in a Court of Law, but in respect of those cases the Court was obliged to stop mid to hold its hands when there arose a question as between legal and equitable ownerships, if the Bill passed there would be no such interruption and handing over of the proceedings from one tribunal to another; but the whole of the matters connected with a case would be administered by one Court, which would have charge of it from beginning to end. No doubt some years ago the law was altered so as to allow of equitable defences being set up in Courts of Law; but, in many cases, the Courts of Law felt themselves obliged to continue to leave such defences to the Court of Chancery. For instance, the answer to an action for ejectment might be that the plaintiff had agreed to sell the property in question to the defendant, and to give the defendant possession, pending the inquiry into the title of the plaintiff to the property, and the Court of Law having no machinery for investigating the title, was unable to give effect to the equitable defence. If this Bill were carried, business would be divided among
  1718
  the different Divisions of the High Court, so that each Division would get its proper share of labour; but in any case in which the assistance of a particular Division was required that assistance would be had without the necessity for filing new Bills, the employment of additional Counsel, and perhaps of other attorneys, all of which necessarily imposed additional expense on the suitor. He would now have the opportunity of having his cause heard and settled within the four walls of the Court and by Judges who were acquainted with the details of every part of his case. The machinery of the High Court would be sufficient for all classes of cases, and would be available for all. But some persons objected to the scheme of his noble and learned Friend on the ground, as they alleged, that under it the public would continue to have just the same thing as they had now—that there would be just the same Courts and the same Judges, and the same modes of procedure under other names. Now, he begged leave to say that he entirely differed from the persons who made that statement; because there would be but one single Court with one Jurisdiction running through its several Divisions and with facilities for passing all cases from any one Division to another without the institution of fresh proceedings. There were possibly some grounds for the apprehension entertained by the persons to whom he alluded, because they argued on the assumption that those who had been accustomed to the existing state of things would not be inclined to favour a course with which they were not familiar, and that therefore the proceedings in our Courts would be found running in the old grooves. He did not think this would be so. He had much greater confidence in men than he had in rules, and in cases like this he would not be for laying down any but broad rules. He did not like minute rules for those who had to administer the law; but he believed that hereafter care would be taken to introduce as Judges into say the First Division, or Court of Queen's Bench, persons acquainted with equity, and to put in the Second or Chancery Division Judges who were acquainted with common law; so that in the course of a few years one complete system of justice would be administered in each of the Divisions of the High Court. He thought

  1719
  the admixture of common law and equity lawyers on the same bench would be of great advantage. While he was on the Woolsack he made the experiment by recommending the appointment of an eminent common-law lawyer to the Court of Appeal, and he believed that appointment had met with general approval, and had resulted in great advantage. As to the Appellate Court proposed by his noble and learned Friend, he regarded it as of the greatest importance to have a Court of Appeal in connection with the Supreme Court. It would be a saving of expense. Then it was most desirable that there should be a Court of Appeal the force and regularity of which could be depended on. At present the judicial force of their Lordships' House was greater than it had usually been in times past; but a succession of Law Lords who would give a constant attendance could not be depended on. The majority of Law Lords—and unfortunately he was among that majority—were men of between 70 and 80 years of age, and consequently their constant attendance for a series of years could not be expected. As regarded the exclusion of Scotland and Ireland from the advantages of the new Court of Appeal, he found that it was justified by the belief that those countries were well pleased with the Appellate Jurisdiction of their Lordships' House. He would, however, be glad when the time came at which there should be one Court of Appeal for the entire realm. Believing that the measure of his noble and learned Friend would effect a very great improvement in the administration of justice, he cordially supported the second reading.
  LORD CHELMSFORDdesired to congratulate his noble and learned Friend who had just sat down on his return to their Lordships' House, and hoped that for very many years he would continue to take part in its debates. He concurred with his noble and learned Friend in thinking that the subject now under discussion could not have been in better hands than those of his noble and learned Friend on the Woolsack. The scheme now before their Lordships was large and comprehensive, and, as he thought, calculated to produce great improvement. The foundation of his noble and learned Friend's scheme was laid in one Supreme Court, which was to possess an original
  1720
  and an appellate jurisdiction, and through which one uniform system of justice was to be administered. They must all agree with the observation of his noble and learned Friend who had just addressed them—that it was not right a suitor who resorted to a Court for a remedy should be told it was impossible he could get complete justice there, but if he wanted redress upon some particular point he must resort to another Court. He agreed with his noble and learned Friend that "fusion of law and equity" was not a satisfactory phrase; but everyone knew what was understood by it. What was desired was that there should be a complete administration of justice by the one Court. That was understood to be the object of the present Bill; but he must say it appeared to him that if the Bill were passed in its present shape law and equity would continue to flow in separate channels, as at present, instead of running through each of the different Divisions of the High Court. He might be mistaken in that; but as he construed the wording of the Bill, that was the effect of it. The Supreme Court was to consist of two permanent Divisions—the High Court of Justice for original business, and the Court of Appeal for appellate jurisdiction. The High Court of Justice was to consist of four Divisions, each of which was to exercise a separate and exclusive jurisdiction in a certain sense. The first Division was to have jurisdiction in respect of those subjects which now exclusively belonged to the Queen's Bench. The second Division was to have it in respect of matters which now went into the Court of Chancery, the London Court of Bankruptcy, and the Admiralty Court. The third Division was to have jurisdiction in the cases which now went to the Common Pleas; and the fourth Division in those which now went to the Exchequer. The Judge of Probate and Divorce was still to have jurisdiction in the matters which were brought into his Court at present. Besides all actions at law, actions for debt recognizable at common law, will be dealt with by the first, third, and fourth Divisions, and not by the second Division. This arrangement might be intended as a sort of experiment; but he gathered from the Bill that it must be permanent, because, not only were the present Lord Chief Justice of the Common Pleas and

  1721
  the present Lord Chief Baron to retain their titles, but when new Judges were appointed to fill the places vacant by the retirement of those two learned Judges, they, too, were to bear the same titles, though the Court of Common Pleas and the Court of Exchequer were to be abolished by their consolidation into the Supreme Court, of which they were to form two of the Divisions. It appeared to him that so long as such a system was continued there could not be any fusion of law and equity in the sense that was generally understood; because as the Dvisions were to exercise their separate jurisdiction, he could not see how it was possible that the Judges of those Courts could obtain experience in the administration of a combined system of law and equity. He thought, therefore, that though there was to be a nominal division of Courts, the Courts now existing would continue to exist under another name, though with chiefs bearing the same titles as those now borne by them. Now, he ventured to say there never could be a fusion of law and equity, unless there was constituted a Supreme Court—not nominally only, but one Supreme Court in which the Judges should interchange jurisdiction. He begged to assure his noble and learned Friend that he did not make these remarks in any spirit of hostility to the Bill, but only for the purpose of directing his attention to what appeared to him to be a defect which he would do well to remedy.
  THE LORD CHANCELLORsaid, his noble and learned Friend was mistaken. The Supreme Court would have one jurisdiction, perfectly interchangeable in its different Divisions.
  LORD CHELMSFORDsaid, no doubt his noble and learned Friend was right, but he should like his noble and learned Friend to explain in what respect he was mistaken in saying that, according to the wording of the Bill, there would be an exclusive jurisdiction in each of the Divisions of the Court. He wished now to say a few words with respect to appellate jurisdiction. He had long been of opinion that it was quite impossible for their Lordships, with the feeling which existed on the subject in the public mind, to retain the appellate jurisdiction of their Lordships' House; and he must confess that the machinery proposed by his noble and learned Friend
  1722
  for supplying a satisfactory Court of Appeal was infinitely better than any which had previously been devised. He believed he might say with truth that for some time the appellate jurisdiction of their Lordships' House had been exercised not unsatisfactorily; but at the same time he would not deny that their Lordships' House did not constitute a satisfactory tribunal for the disposal of appeals, because the Court by which the appeals were actually disposed of, was of a most precarious character. Many of the Law Lords were very advanced in life, and they would not be capable of constant attendance for any very long time. It happened that at the present time there were a very large number of Law Lords, who sat for the hearing of appeals; but, on the whole their Lordships' House, as an appellate tribunal, must be regarded as precarious and uncertain; and it was the duty of the Legislature to provide a Court of Ultimate Appeal which would be permanent and certain, and in this respect he considered the tribunal proposed by this Bill infinitely preferable. He regretted that the appellate jurisdiction of their Lordships was to be preserved for appeals coming from Scotland and Ireland. He thought it was possible that, as had been suggested, the exception was made out of deference to the wishes of those two countries, which thought that appeals from their own Courts ought not to be heard by any Court but the House of Lords. He was sure that if that House parted with the greater portion of their appellate jurisdiction their Lordships would have no wish to retain any part of it, and he should be very sorry to think that any sentimental feeling should stand in the way of a resort by Scotland and Ireland to an appellate tribunal, which he believed would be a good one, and one calculated to inspire great confidence. He wished, therefore, that his noble and learned Friend on the Woolsack would take a bold step and include Scotch and Irish appeals in the Bill. He would reserve some remarks he had to offer, but which could be offered more conveniently in Committee. He was extremely desirous that the Bill should pass, and would give every assistance in his power to his noble and learned Friend on the Woolsack.
  LORD ROMILLYsaid, that when he heard the luminous and lucid statement

  1723
  of his noble and learned Friend (the Lord Chancellor) on the introduction of this Bill, and read the Bill itself, he made the remark that it was the first Bill which had over really grappled with the difficulty they had to meet; and he should therefore give his cordial support to the second reading. But there were two or three things in it which he thought were open to objection, and for this purpose it was necessary that he should state what he thought was required. It was his belief that the judicial administration of the country should be vested in several Courts, each of which should be presided over by a single Judge, all the Courts having co-ordinate jurisdiction and dealing with cases of law and equity indiscriminately as they arose, and that to accomplish this a fresh code of procedure should be enacted applying equally to law and to equity. There should also be a system of appeal from each Court in the first instance—but there ought not to be such a distribution of the business as that equity should be administered in one Court and common law in another—equity and common law should both be carried into effect by the same tribunal. It was desirable that a similar arrangement should be carried into effect by all the minor tribunals. He doubted whether the public mind was prepared for it at present; but the present measure should be as nearly as possible assimilated to this, so that the measure might ultimately be carried into execution in entirety. In order to bring about a fusion of law and equity, the mode of procedure should be simple; but he was afraid that his noble and learned Friend on the Woolsack had rather overdone the thing in respect of simplicity. In his Rules of Procedure his noble and learned Friend had cut out everything except the particular demand and the relief or remedy asked for. There could be in his opinion no doubt that they would never produce a fusion of law and equity without altering the mode of procedure by putting an end to declarations and bills in Chancery, and substituting short and simple statements of the facts, raising the question to be decided, and asking in plain words for the relief sought; but his experience in the Court of Chancery enabled him to say that the result of setting out merely what you asked
  1724
  for, without stating any of the facts on which you relied as entitling you to that relief, very much increased the expense of the proceedings. This occurred now. When summonses came from the Chief Clerk's office, counsel had the greatest difficulty in making out what were the facts to be relied on. As to the Court of Appeal, he quite agreed that there ought to be an appeal to a Court of the nature his noble and learned Friend proposed to constitute; but it ought to be so constituted in respect of numbers as to give a substantial majority on one side whenever there was a difference of opinion. Thus there should be an appeal from one Judge to a tribunal consisting of four Judges, so that there would be at least three opinions to two, whichever way it decided. Besides this, not unfrequently there were cases of peculiar difficulty and great importance, in which, he confessed, he thought the House of Lords would be the best Court of Appeal, even after the establishment of the Court of Appeal proposed by his noble and learned Friend. It must be observed that when all the members of a tribunal were lawyers there was a constant disposition to run into technicalities. When lawyers met together, in spite of their best endeavour to the contrary, they were more or less disposed to have regard to technicalities, and if laymen were mixed with lawyers it infused common sense and common justice as distinguished from minute refinements which lead to technicalities, and thus a great evil might be avoided by keeping the spirit of the law in its right course, and by preventing the introduction of false analogies, by which real justice might be more substantially attained. He had the honour of being on a Commission which had effected more good for the Court of Chancery than any, he believed, which previously existed, and the value of its labours was greatly due to two Members of it—the late Sir James Graham and his right hon. Friend Mr. Henley, both of whom were laymen, and who by their influence had great effect in the advancement of broad principles of justice and the diminution of technical rules. He felt assured, therefore, that an appeal to the House of Lords under certain restrictions might be found to operate very beneficially. He wished in the next place to say a few words on the subject of patronage. It had hitherto

  1725
  been the invariable practice that all the Puisne Judges should be appointed by the Lord Chancellor, and he saw no reason why that patronage should be taken away from the occupant of the Woolsack and vested entirely in the hands of the Prime Minister. As to circuits, he should propose to put an end to them, seeing that they led to great expense. There ought instead to be a series of district Courts within the reach of everyone, performing the functions of a Court of Equity as well as of Common Law, with a speedy and inexpensive procedure. With regard to the salaries of the Judges, no doubt they were properly to be dealt with by the other House; but he might observe that the 'retiring pension of Lord Chancellors had been fixed, after some consideration, at half their salary—£5,000; but it should be borne in mind that the Lord Chancellor was in a very particular position, for he never resigned except on compulsion—he did not, however, refer to his noble and learned Friend (Lord Hatherley), whose re-appearance in the House their Lordships viewed with so much pleasure, but even his retirement was no exception to the rule. That was not, however, the case with the other Judges, and it was highly desirable that they should be always men with powers competent to the discharge of their duties. It was, therefore of the utmost importance that the salaries should be such as to secure the services of the best men, and that men should not be induced by reluctance to go from a large salary to a small retiring pension to continue performing duties to the performance of which they might not be entirely equal. Lawyers, he might add, did not, generally speaking, inherit fortunes, and if they were to receive only small salaries on being appointed Judges they would probably refuse to take such appointments until they had earned what they considered a sufficient sum of money to provide for their children, and so decline to accept a seat on the Bench until a later period of life than was beneficial to the administration of justice. Again, it would be very unfortunate if, by the insufficiency of the salaries assigned, all the eminent lawyers should prefer to remain practising at the Bar, while lawyers of inferior repute should be appointed; when the Judges of the Court would be overborne by the superior knowledge and
  1726
  repute of the counsel practising before them, whose weight they had already experienced at the Bar. As he had already said, he very much approved the general scheme of the Bill, and should be happy to give his noble and learned Friend his assistance in passing it satisfactorily through Committee.
  THE MARQUESS OF SALISBURYsaid, he owed the House, perhaps, an apology for intruding himself into the discussion; but, inasmuch as the Bill had political as well as legal aspects, and inasmuch as it was now proposed to renounce a jurisdiction which their Lordships had exercised for centuries, even a lay Member of the House might be permitted to take an interest in its provisions. But before he touched further on that part of the subject, he would venture to express a hope that the noble and learned Lord on the Woolsack would scrutinize most carefully those clauses of the Bill the object of which was to fuse the several Courts of Law and Equity; for it was not only his impression, but the impression of lawyers whose opinions were entitled to great weight, that the effect of the measure, as it now stood, would be to leave those Courts divided by a line of demarcation practically almost as great as that by which they were now separated. It was commonly said that the existing system of law and equity was absurd, because it set up one solemn machinery to make blunders and another equally solemn to correct them. That was not, however, a just statement of the case. Two conflicting systems had grown up in the course of our history like two hostile powers, each pushing forward its own ideas in the course of its historical development; and if by this Bill they assigned Judges to special Courts with definite boundaries, judging from the experience of the past, the result of the proposals contained in the Bill was likely to be that two separate bars would practice the two different kinds of jurisdiction, and that there would be from the point where the reform was made a new growth of law and a new growth of equity—two practically still conflicting jurisdictions—thus leaving it to future ages to complete the fusion which it was now thought to accomplish. He hoped, therefore, the noble and learned Lord on the Woolsack would give his special attention to the clauses of which he referred. But

  1727
  the point which really concerned their Lordships as politicians was the appellate jurisdiction of the House. There was no doubt that those who sat on the benches behind him had always manifested great jealousy with respect to that jurisdiction, and that they would witness its disappearance with great sorrow. He must, however, confess that it seemed to him as a practical matter impossible that things could remain as they are, and that the precariousness of the power was the great argument against it. Practically the jurisdiction was exercised by ex-Lord Chancellors. Sometimes an ex-Lord Chancellor combined an experience both of common law and equity, but generally speaking their Supreme Court of Appeal was too much confined to one great branch of legal learning. Moreover, ex-Chancellors were produced by political changes, and when there were frequent political changes they had a large supply of ex-Chancellors. Great natural convulsions—for example great floods—when they came over the land, left behind them a deposit that fertilized the soil. So, when the waters of a great political flood retired, they left behind them a fertilizing deposit of ex-Chancellors. But suppose no political convulsion occurred for a long period; supposing they had—as occurred in the beginning of this century—a long domination of one political party in power, their supply of Judges of Appeal would fail, and they would be again reduced to the position of things in which Lord Eldon sat in judgment upon himself. He did not think their Lordships' appellate jurisdiction had been, as it had been called, the mere shadow of a shade. He believed the idea enshrined in it had been a real, genuine, and useful one. The benefits which resulted to a final Court of Appeal from the fact that its Members had to work with laymen in the ordinary business of life had been already indicated by the noble and learned Lord who had just sat down. No doubt evil tendencies of the legal, as of every other profession were mitigated by contact with men who were animated by other notions and who moved in other grooves; and it was to be feared that if they set up the new Court of Appeal proposed by this Bill it would be less broad than it would be if its members were—as those of the last Court of Appeal were
  1728
  now—in the habit of taking part constantly in the duties of legislation, making the laws which they would afterwards have to apply, and seeing the difficulties which a too exact and theoretical interpretation of them would involve. But that was only one side of the case. He believed that a Supreme Court of Appeal would benefit amazingly if its members were members of the Legislature. That was one of the advantages of the system they were about to destroy. But he believed also that the Legislature itself would benefit enormously if the members of the Court of Appeal belonged to it. It was one of the inconveniences of the English legal system that those who administered the law had too small a share in making it. It was compulsory that the Judges should be precluded from sitting in the House of Commons, which was practically the most powerful branch of the Legislature; and the distinguished lawyers who became Members of that House were so engrossed with their private professional occupations that it was impossible for them to give that attention to those difficulties of legislation in which the care of lawyers was so much required. And even in their Lordships' House, although from time to time they had the advantage of the presence of the most distinguished legal intellects, still they could without injury bear an addition to the legal power by which that supervision which was now so much wanted could be given to their legislation. There had been much complaint about the form which Acts of Parliament had taken in recent years: the Judges were constantly telling them their Acts were passed in so slovenly a manner that it was a perfect punishment to have to interpret them. Was there no mode of remedying that evil? If the noble and learned Lord had been guided a little more, though not entirely, by the recommendations of the Committee of last year, he might have retained some of the principal advantages which resulted from the existence of that House as a Court of Appeal, while at the same time he removed all the evils attaching to that jurisdiction. The Committee of last year recommended that the Court of Appeal should have sitting on it Judges who should be Peers, but it attached to that the condition that they should be Peers of rank only, and should not,

  1729
  except in some special circumstances, sit in Parliament. That was a condition which as soon as it came to be discussed was seen to be indefensible. If they were to be Peers at all they must be Peers of Parliament. But why could not the precedent of the Episcopal Bench be followed? What objection could there be to following the recommendations of the Committee so far as to compose the Court of Appeal of ex officio Peers with the right to sit and vote in Parliament? In this way there might be imported into this House that amount of legal strength which it sorely wanted to supervise, correct, and watch over the technical parts of their legislation, and also obtain the assistance of a vein of legal talent which was now practically closed against the Legislature. What objections could be made to such a proposal? It might be said that if there were so many Law Lords together in that House they would always vote together and would form a kind of imperium in imperio. In answer to that he might say that he had not observed that the Law Lords usually showed any extravagant unanimity of opinion. Again, it might be urged that the Prime Minister, in appointing those Judges of the Court of Appeal, might possibly be unduly influenced by the fact that they would have votes, and would therefore choose, not the best lawyer, but the best party man. But no such results arose in the selection of the Members of the Episcopal Bench. Conservative Bishops were often appointed by Liberal Governments, and Liberal Bishops by Conservative Governments; but the Members of the Court of Appeal would be appointed under a much stronger action of public opinion than that which operated on the appointment of Bishops. It was not always easy to tell that a particular clergyman would be the best Bishop, because there was not that external and obvious seal of success which entitled one to say that one man was better than another; whereas, in regard to lawyers, the universal feeling of the profession almost invariably pointed out who was the most fit man for the position of a Judge. Besides, the Minister who for the interests of party sacrificed the interests of justice would do himself infinitely more damage in the public mind than would be compensated for by a single vote in the House of Peers. He
  1730
  was also bound to say that the party fidelity of the noble and learned Lords appointed to that House was of a very doubtful character, and he had not seen that they obeyed the "whip" with any wonderful facility. He thought they gave their votes according to their consciences, and not at the bidding of any Minister. That fear he therefore held to be chimerical. What he was suggesting was really no great change, but the only way of avoiding what would be a great change—the permanent separation between that House and the final Court of Appeal, the conjunction of which had existed for centuries, and could not be destroyed without serious and fatal injury to the interests both of justice and legislation. With regard to the exclusion of ecclesiastical appeals from the proposed Court of Appeal, he was sorry to see it. When a few years ago he protested against that exclusion, it might have been said that, the recent decisions of the Judicial Committee of the Privy Council having been against his views, he was for that reason opposed to its present constitution. That objection certainly would not be applied to him at the present time, because the Privy Council had been very impartial in its decisions as far as giving them to various parties in the Church was concerned. What he then insisted upon, and would now urge, was that while consecrating the valuable principle that law should only be administered by lawyers, and that even the shadow of lay jurisdiction over final appeals should be taken away, it was most unjust to deprive the clergy, of all people, of the advantages of a learned and impartial tribunal. He did not desire to throw the shadow of a reflection on the Members of the Episcopal Bench having seats on the Judicial Committee, for he doubted not their learning in their own profession or their impartiality; but if they were impartial it was special merit, Bishops being the least likely persons to carry impartiality into questions deeply interesting them. They were likely to have pledged themselves at some period of their career to one side or the other; they had probably expressed opinions more or less strong on particular subjects, and they had none of that freedom from interest or prejudice which we were proud to recognize in the Judges of the land. They could not in the nature of the case be

  1731
  the most impartial tribunal, and they certainly were not educated for the law. It would, therefore, be a palpable injustice to debar the clergy of the boon extended to all other classes, the advantages of a legal tribunal as a Court of final Appeal.
  THE LORD CHANCELLOR,sincerely thanked their Lordships generally for the manner in which they had received the measure—particularly those noble Lords who had addressed the Hence to-night. They had contributed the good will which was of great importance in an undertaking of this kind, and also valuable suggestions by which he should gladly profit, as far as they appeared capable of adoption with advantage. He was far from assuming that the Bill was a perfect one; but with reference to some observations which bad been made upon: it he must remind their Lordships of the nature of the undertaking in which they were engaged; and he now spoke not of the appellate part of the question, but of the reconstitution and re-arrangement of original jurisdiction. An enormous business went into the Courts, the value of the property at stake was of prodigious magnitude, and experience of different kinds had been acquired by different Judges, in different Courts. The reconstitution and fusion of these Courts, so as to bring on to a single platform the whole of these jurisdictions, was a work of difficulty and magnitude which should be attempted, not in a spirit of mere theory or experiment, but with a careful regard to all the necessities and circumstances of the transition from one system to another. It was, no doubt, true that the habits of Judges formed under one system were not at once and easily accommodated to the habits and traditions of a different system, and that, with the best intentions and machinery, Parliament could not expect all at once to attain to the complete union of two systems hitherto administered as distinct. They must accept as inevitable the necessity of moving by practical steps and degrees, passing from one line to another without the violence of transition which would give a shock to the interests of the community and prevent the success of the measure. Time and experience were requisite to bring to perfection the union of law and equity; and the worst course that could be taken would be to try to per-
  1732
  form impossibilities in the first instance, to get to the end without going through a process of transition, and—to use an expression sometimes applied by way of reproach to those who wanted to unite law and equity—to introduce confusion in the beginning in order that they might arrive at fusion in the end. This Bill had been carefully framed—not in the exercise merely of his own judgment, but closely following the recommendations of the Judicature Commission—the latter based on the opinions of persons of the greatest experience in the administration of the law—in order to clear the platform, to unite jurisdictions, to bring together the Courts, to abolish all technical and legal impediments to the perfect and complete action of the Courts upon every matter within their cognizance, but so to do this that the immediate transition should be made without violence, without danger to the rights of persons or property, or to the interests of the public at large. That had been the object of the carefully framed provisions which some of their Lordships thought had too much the appearance of preserving or restoring for a time those divisions of jurisdiction which it was intended in substance to abolish. He thought he should be able to satisfy them that this would not be their real effect. It was remarkable that in the criticisms elsewhere offered by those who had taken the least favourable view of the measure—two opposite, and both of them erroneous—views appeared to prevail. He had seen ably represented the view expressed by his noble and learned Friend near him (Lord Chelmsford), supported in some degree by his noble and learned Friend the Master of the Rolls, that the Bill tended too much to keep things in the old grooves, and made a change more nominal than substantial. Another view, urged with extreme ability and energy in a very able organ of opinion, was that whereas a true reform would give equity uniform ascendancy over law, the Bill, by giving to all the Judges the whole jurisdiction in matters of equity as well as law, would practically abolish equity and make the common law supreme. Now, unless he deceived himself, the provisions of the Bill, rightly understood, steered a middle course between those opposite objections. First of all, was it correct that the measure proposed to

  1733
  subdivide the Court into four—or, reckoning the Judge not attached to any Division, whom it might be as well to class as another,—into five distinct Divisions, each with separate and exclusive jurisdiction? This was an entire misapprehension of the Bill, and if as it now stood it failed to answer its intended purpose, he should be grateful for assistance in making it accomplish its object better. A statement of the material provisions of the Bill would clear up that misapprehension. The 17th clause established the High Court, and vested in it all the jurisdictions now divided, except those which were properly appellate jurisdictions. The 25th clause provided that in every cause or matter law and equity should be administered by the High Court and the Court of Appeal under seven rules, which were to be binding on every Court and Judge. The first rule stated that if equitable rights or remedies were claimed, the Court and every Judge should give the same effect to them as would be given by the Court of Chancery; and the second provided that if the defence was equitable a like effect should be given to it. The third allowed a defendant to set up a counter claim or adverse right, which at present might require a separate suit, in every Court—every Court and every Judge recognising and taking notice of all such rights, whether legal or equitable. The last rule directed every Court and every Judge to grant all such remedies as the parties appeared entitled to in respect of every legal or equitable claim, so that as far as possible all matters of controversy between the parties might be determined in one suit. The 32nd clause was that on which the misconception had been mainly founded. That clause, no doubt, provided for the subdivision of the High Court into practically five Divisions; but for what purpose? For the more convenient despatch of business only:—and it provided that any Judge of the High Court might sit, whenever it was necessary he should do so, in any one of those Divisions. The quantity, if not the nature of the business, would make that provision convenient for the administration of justice. If, however, it appeared to their Lordships that it would be desirable that the system of Divisions contemplated by the clause should not be a per-
  1734
  manent arrangement, but should rather be mutable, and one that might be altered by rule of the High Court, or by any other method, he should be perfectly willing to assent in Committee to such an amendment of the Bill. But supposing the arrangement proposed to continue, then the 34th clause provided for the distribution of the business among those Divisions, with the proviso that this distribution might be varied in any manner which might from time to time be determined by rules of the High Court or by order of transfer—that is to say, power was given to change the distribution of the business from time to time according to any new arrangement which experience and the progress of the working of the measure might show to be desirable. The Bill, no doubt, proposed, in the first distribution with which the new system would start, to appropriate to the Divisions corresponding with some of the existing Courts those matters which are now in the exclusive cognizance of those Courts, but it was not so done as to give any exclusive cognizance of such matters to those Divisions. It did not give to any Division the sole jurisdiction in respect of any cases now disposed of by the Court where Judges would belong to that particular Division. The rule of distribution adopted for the Second—which might be called the Chancery Division—was to take causes which the Court of Chancery had e present better machinery for administering than had the other Court, and to keep them in that which was their natural classification and order; but that was done for convenience merely. That provision had been criticised in one of the publications to which he had referred. The critic said that the Bill would appropriate to the Division which was coincident in its constitution to the Court of Chancery, particular classes of business according to the convenience of administration, and not according to the distinction between law and equity. That was what was intended to be done. It was not meant that all equitable questions should go to a certain Division of the High Court, but that the business should be distributed most conveniently—the question of convenience being to a great extent determined by the nature of the business and the experience acquired by the different Judges in administering

  1735
  that particular class of business. Under the 36th clause the suitor might commence proceedings in any Division of the High Court he pleased, and if he did so in the least convenient Division it was not of necessity that his suit should be transferred, but power was given to transfer a cause from one Division to another, or to retain it in that in which it had been instituted. Where there were equitable defences the question of transfer was left perfectly at large; but wherever the cause was heard, it would be with all the equities which arose in reference to it. It had been suggested that it would be better not to classify the business according to its subject-matter. The time might possibly arrive when that suggestion could be carried into effect, but he would put it to his noble Friend who made it, and to their Lordships, whether, at the first start of the new system, it would be convenient to send all kinds of business to the High Court generally, without any attempt at discrimination, without reference to its class, the machinery for its disposal, and the experience of the Judges. If free and full option were given to plaintiffs, subject to the general but variable classification, and to the power of transfer, to which he had referred, he thought the business would gravitate very much in its natural direction. If, on the other hand, they established a system of rotation, they would only be forcing men who had experience in a particular class of business to preside in Courts where their want of experience might at the beginning of a new system result possibly in a partial failure of justice. He could not but think that under the Bill there would be abundant opportunity for administering equity in all the Divisions of the Court, while at the same time care was taken to adhere to the natural principles of classification, such as experience indicated as the most convenient to adopt in the first instance. It was also to be remembered, in answer to an objection urged—not in their Lordships' House, but elsewhere—that if they were authorizing Judges to administer equity who were unaccustomed to do so, they were at the same time providing a Court of Appeal in which their decisions might be reviewed. It was a mistake to say that the business was to be decided by Judges of the particular Division to
  1736
  which the cause would be assigned; because under the 39th and 40th sections three Judges of any of the Divisions might sit as a Full Court, the distinction of Divisions being for that purpose disregarded. That was not a convenient time to go into the question of procedure, but he must say that there was great force in the observation that had been made as to pleadings—that the substance of a case should be set forth, while expensive and burdensome prolixity should be guarded against. He hoped in Committee the rules on that subject would be carefully considered with the view, that while they insured to the new Court the benefit of the essential principle of the procedure in equity—namely, a statement of the case on both sides—it should also have the benefit of the comparative brevity adopted in the Courts of Law. It had been objected that the Bill would give to the Prime Minister the patronage now in the hands of the Lord Chancellor. That was not intended to be the case, and the wording of the clause in question should receive his consideration before the Bill reached its next stage. With respect to salaries, no substantial alteration was proposed under the measure. It could not be said that they should pay two of the ordinary Judges of the Court of Appeal more than its other members—they should pay all £6,000 a-year or all £5,000 a-year; and £5,000 a-year seemed to him to be sufficient, and was the amount lately fixed by the Legislature for four of these Judges, under the recent Judicial Committee Act. With respect to the reduced scale of pensions for future Judges, he would only now say, that he had no doubt what had been stated on that subject in the course of the discussion would receive due attention in the proper quarter. With regard to the pension of the Lord Chancellor the case was somewhat different. The Lord Chancellor's pension, which up to 1832 or 1833 had always been £4,000, was at that time suddenly raised to £5,000. It had been urged with some justice, that a Lord Chancellor very seldom resigned except upon compulsion. He should be sorry, therefore, if a Lord Chancellor did not receive a very handsome pension. But at the same time it was reasonable that as long as he enjoyed health and strength he should do what other ex-Lord Chan-

  1737
  cellors had done, and serve his country as a Judge of Appeal. Of course, he did not propose that this portion of the Bill should have retrospective action, and it would in future be always open to retiring Lord Chancellors who were unwilling to engage in these duties to retire upon the lower scale of remuneration. With regard to what had fallen from his noble and learned Friend the Master of the Rolls, he believed that seine laymen, capable of performing the duties referred to by his noble and learned Friend could always be found in that House. There was no doubt that if such men, for instance, as the noble Marquess who had spoken so ably upon this very Bill (the Marquess of Salisbury) could have been induced to submit themselves to judicial training for the purpose of aiding in the discharge of the judicial functions of their Lordships' House their services would have been of great advantage. But the course of events had not led them to submit themselves to that training—to that preparation, and study, and discipline in the matter of law and attention to the proceedings of our Courts of Justice, without which the exercise, on their part, of judicial functions could not be satisfactory;—in addition to which their Lordships had engaged themselves by a self-imposed obligation not to take that course. The public had adopted the same view, and whether it was right or wrong, secession from that position was no longer possible. He then came to the question as to whether there were, or were not, some matters which ought to be carried into their Lordships' House by way of final appeal. What he desired to do in the Bill was to make the Court of Appeal generally final. It had been urged that cases involving property and interests of great magnitude ought to form an exception; but the effect of such an arrangement would be to prevent for the sake of these few and exceptional cases the services of the legal element in the House of Lords from being made available in the Court of Appeal. It would, however, be in no way inconsistent with the Bill if their Lordships should, in Committee, introduce a clause giving in such cases, when decided by a Court composed of too small a number of Judges, the right of re-hearing before a Court more numerously constituted. With regard to the question raised by
  1738
  the noble Marquess (the Marquess of Salisbury) respecting ecclesiastical appeals, he had felt by no means certain that, if he had proposed that ecclesiastical appeals should be submitted to civil Courts, the proposal might not only have been regarded by the clergy as a new and dangerous intrusion of the secular power into the proper province of the Church; and, if so, the odium of the proposal would have been ascribed, and justly, to the Government. If however, his noble Friend could persuade the House and the right rev. Bench that such a course would be wise, he should have no objection to it, and he believed he might say the Government would, in that case, have no objection to it. It was entirely a question to be considered in the interests of the Church; and, for his own part, he had never been able to understand how a Church whose laws were the laws of the land could expect to have the power of administering these laws, without any control or superintendence of a civil Court. It might, therefore, possibly be found acceptable both to the clergy and laity to have a Court of Appeal before which ecclesiastical judgments might be reviewed. With regard, however, to Irish and Scotch appeals, there were constitutional objections to transferring that portion of their Lordships' jurisdiction to what might be represented as an English Court, unless that transfer were made by the desire or with the approval of the two countries. The Act of Union with Scotland expressly provided that no appeals from that country should be decided by an English Court. With that provision standing in the Act of Union with Scotland it would have been a more dangerous question than he should like to raise in this Bill if the Government had proposed to transfer to the new Court of Appeal the power of reviewing the decisions of the Scotch Courts without first ascertaining that such a transfer would be approved by the people of Scotland. A similar objection also applied to Ireland. It could hardly be forgotten by their Lordships that in the last century a sharp controversy between the English and Irish Bar arose out of the authority assumed by the Court of Queen's Bench in England to act as a Court of Appeal in Irish cases. That was ultimately solved in favour of the authority of the Irish House of Lords,

  1739
  and in the Act of Union it was provided that Irish appeals should be brought to the House of Lords of the United Kingdom. If it were now proposed to transfer Irish cases to the Court proposed to be established the Government might inadvertently and unadvisedly revive that controversy which was settled by the Act of Union, and in the ever-varying currents of opinion in Ireland, with the demand for Home Rule, they might have brought a hornet's nest about them if they had raised that question. If, however, Parliament should now establish a Court such as may commend its judgments, its constitution, its wisdom, and its authority to public opinion both in Scotland and Ireland, and especially if the Court should be established in such a manner as to admit of the introduction of the best elements of the Scotch and Irish Judicatures, they might, after ripe experience, look forward eventually to the further development of that as well as of other parts of the measure. At present it seemed better that their Lordships should begin to do what they saw to be practicable, hoping that if the new Court began well all further improvements would in the result naturally follow, seeing that such improvements, once begun, had a natural tendency to increase and develope themselves.
  On Question, That ("now") stand part of the Motion? Resolved in the Affirmative; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.
  House adjourned at half-past Seven o'clock, to Thursday next, half-past Ten o'clock.