§ Clauses 1 and 2 (Constitution and Judges of Supreme Court), agreed to.
§ Clause 3 (Union of existing Courts in Supreme Court), agreed to.
1259§ Clause 4 (Division of Supreme Courts into High Court and Court of Appeal), agreed to.
§ Clause 5 (Constitution of High Court of Justice.)
§ LORD CAIRNSMy Lords, I will now ask your Lordships' attention to the Amendment I have to propose in this clause, and which raises a question of considerable importance with reference to this measure. I am glad to say that though several Amendments appear in my name on the Paper, they in point of fact all resolve themselves into one main question. The question raised by the Amendment which I have to propose is, so far as I am aware, the only point of difference as regards the plan contemplated in this Bill; but if your Lordships—as I hope you will—should think fit to adopt the change contained in my Amendment, that change can be made without the slightest difficulty and without any injury whatever to the scope and bearing of the Bill; while it will, as I think, be of great advantage to the new system about to be established by the measure of my noble and learned Friend on the Woolsack. I have to propose in this clause that the words "the Lord Chancellor" be inserted in line 12 of page 2 of the Bill, so as to provide that the Lord Chancellor shall be a member of what is to be termed the High Court of Justice. While your Lordships are considering the Amendment I must ask you to take Clauses 5 and 31 of the Bill together, in order that you may fully understand the nature of the proposition in the Bill. The outline of the measure proposed by my noble and learned Friend may be very shortly described as one having for its object the consolidation of all the principal Courts of the country; and inasmuch as those Courts at present administer some of them a system of jurisprudence different from that administered by the others, the object of this Bill is to bind up in one common system all the jurisdiction of the Courts of Law and of every Court in the country administering primary jurisdiction, and to allow each of them to administer that portion of the general business to the discharge of which it is best fitted. That being the scheme, the Bill proposes that it should be divided into two great portions—one, the Primary Court, to be called the High Court of 1260 Justice, and the other, the Appellate Court, to deal with appeals from the Primary Court. Well, my Lords, such being the outline of the measure, I have to remind your Lordships of what was so clearly stated by my noble and learned Friend on the introduction of the Bill. He stated that for the purpose of effecting an easy transition, the distinction existing between the Courts was to be retained as a matter of arrangement. The principal Common Law Courts and the Court of Chancery for that purpose, and that alone, are to be kept distinct and to become different Divisions or Chambers of the High Court of Justice. That was the recommendation of the Judicature Commission, and the Bill professes to carry it into effect. And it does so in respect of the Courts of Common Law—the Queen's Bench, the Common Pleas, and the Exchequer. Those three Courts become Divisions or Chambers of the High Court; they are to be continued under their present Chiefs, and those learned Judges are to retain the titles which they at present bear. This would be, so far as the Courts of Common Law are concerned, a most judicious arrangement. But when we come to the Court of Chancery we find a marked distinction, and one that I fear will be attended with very injurious results. The present constitution of the Court of Chancery is this:—The Lord Chancellor is the head of the Court; by legislation of comparatively recent years there are two Lords Justices of Appeal in Chancery who sometimes sit alone and sometimes sit with the Lord Chancellor; generally disposing of Appellate business, but sometimes disposing of Primary business. Here, then, we have three Primary Judges of the Court of Chancery, the Lord Chancellor being the head. We next come to the Master of the Rolls, who hitherto has performed in Chancery the functions of a Primary Judge; and then come three Vice Chancellors who are Primary Judges. So that, on the whole, there are seven Chancery Judges, with the Lord Chancellor at their head, four of them Primary Judges, and the Lord Chancellor and the Lords Justices, Appellate Judges. Now contrast that with what this Bill proposes in respect of the Court of Chancery which is to be the second Division of the High Court of Justice. The 31st section deals with the 1261 question, and enumerates the Judges who are to constitute the various divisions of the High Court. It provides that the second Division shall consist of four Judges, and shall include the Master of the Rolls; who shall be the President, and the several Vice Chancellors of the Court of Chancery, or such of them as shall not be transferred as ordinary Judges to the Court of Appeal. The clause therefore reduces the Court of Chancery, which now consists of seven Judges to four; it takes away the present head of the Court, and provides that the Master of the Rolls shall be President. If the matter rested there, it appears to me my case would have been a strong one. Continuing in the Common Law Courts five Judges, and reducing the number of Judges in the Court of Chancery from seven to four appears to me to be a violent change; but the change is really greater than even section 31 would lead your Lordships to imagine—because, looking merely at that section, it might be supposed that the Master of the Rolls would continue to be, as he is now, a Primary Judge, disposing of business coming before the Court of Chancery in the first instance. But that would be a delusion, because another section takes the Master of the Rolls and makes him a member of the Court of Appeal. I have no objection to his being dealt with in that way—it is a very proper course to take with a Judge in his high position; but I must state to your Lordships that it is wholly out of the question that the Master of the Rolls can perform the double functions of a member of the Court of Appeal and a Judge of Primary Jurisdiction in the Court of Chancery. I am glad of the presence of my noble and learned Friend (Lord Romilly), who for a period longer I believe than that during which it has been held by any other Judge has filled the office of Master of the Rolls. In the noble and learned Lord's presence I must not attempt to speak of the manner in which that office has been filled by him; but I may allude to the fact that, taking the average amount of business disposed of by the various branches of the Court of Chancery during the last 22 years, my noble and learned Friend, owing to the constancy of his sittings, or to his aptitude for business, or to both, has got through as much business 1262 as any other Judge and a half. Now, that being so, I appeal to my noble and learned Friend and ask him this question—Would it be possible for the Master of the Rolls, continuing to sit as a Primary Judge in the Court of Chancery, and disposing of the business he has hitherto disposed of, to perform also the functions of a Judge of Appeal in the Appellate Court to be created under this Bill? Your Lordships will remember that the Judges of the Court of Chancery sit continuously, except during the vacations, and if you withdraw one of them from his Court, you stop the business of the Court; you suspend the operations of the bar in that Court, and you interrupt the business of the suitors, which causes not only a great loss of time, but a very great waste of money. I am aware that my noble and learned Friend has been accustomed to sit in a Court of Appeal—the Judicial Committee of the Privy Council; but I believe I am correct in saying that the occasions on which he has done so were periods of vacation in the Rolls and other Courts. I am confident, however, that as a general rule you cannot have the Master of the Rolls performing the functions of a member of the Court of Appeal. It is clear that there will be no superfluous or ornamental members of the new Appellate Court. The attendance—the constant attendance—of all the members will be required; so that as the Bill stands the Chancery Division of the High Court of Justice will consist of nominally four members, but in reality only three—because the Master of the Rolls will be taken away to serve as one of the members of the Court of Appeal. It is quite true that when the Judicature Commission considered the subject they recommended that the Master of the Rolls should be a member of the Court of Appeal; but they recommended also that an additional Vice Chancellor should be substituted as a Judge of the First Instance for the Master of the Rolls. They held it impossible for the Master of the Rolls to perform the functions of a Primary Judge, and at the same time act as a member of the Court of Appeal, and therefore they recommended that an additional Vice Chancellor should be appointed as a substitute for him in the Court of Chancery. I am asking your Lordships at this moment to consider what would be the staff of 1263 the Court of Chancery. Let me ask you to compare the staff of the Court of Chancery even at present with the staff of the Courts of Common Law. If you take the cases which actually come to be tried, you will find that as many cases are tried in the Court of Chancery in a year as in the three Courts of Law; and the cases tried in the Court of Chancery involve questions certainly as grave as those disposed of by the Courts of Common Law, and involve an amount of property, not only equal to that dealt with by the Courts of Common Law, but very greatly exceeding it. Now, at present, you have a staff of 18 Common Law Judges against seven Equity Judges. Mind you, I do not say that the Common Law Courts have too many Judges. I am only asking your Lordships to consider what will be the results when the proposed fusion is effected. What is the existing state of things as regards business in the Court of Chancery? I do not know whether your Lordships have been, observing the remonstrances which have been made as to the accumulation of business in that Court? Here I would beg it to be understood that I am in no way insinuating that my noble and learned Friend the present Lord Chancellor is in any way answerable for that accumulation. I believe that everything that man could do he has done, and will be done by him, to dispose of the causes brought into that Court. The accumulation arises from the limited staff of the Court and not from any shortcomings of my noble and learned Friend and the staff of the Court. Well, my Lords, I observe that the other day one of the Judges of the Court of Chancery—one of the Vice Chancellors—said the arrears in his Court were such that they amounted to a denial of justice to the suitor. That is a very serious statement coining from a Judge. Again, in a letter to The Times, "A Solicitor" states—
I wish to draw the attention of the public through your columns to the present state of the business in the Court of Chancery. I shall not make any comment, but leave facts to speak for themselves. In June, 1872, a special case, in which I am concerned, was set down for hearing before Vice Chancellor Malins. In the Cause List for Michaelmas Term, 1872, the case stood No. 47. In the Cause List for the sitting after the same Term it stood No. 45. In the Cause List for Hilary Term, 1873, it stood No. 52. In the Cause List for the sittings after the same Term it stood No. 27, and in the Cause 1264 List for the present Term it stands No. 30. Practically, therefore, even if the case be heard during the present Term, nearly 12 months will have elapsed between the time of setting down and the hearing. In another case, in Vice Chancellor Bacon's Court, I carried an order into his Honour's Chambers on the 14th of March, 1871, directing various accounts to be taken and inquiries made of a complicated nature. These accounts and inquiries have recently been completed, all possible diligence having been used by the solicitors in the cause, but I have not yet got the draft certificate, and I cannot tell when it will be delivered to me; and after it is delivered two or three months at the least will probably elapse before it is finally settled. This most vexatious delay is caused in seine measure by the mode of doing business in Chambers, but more especially by the enormous amount of work which each Chief Clerk has to undertake. I make no complaints of the Vice Chancellors, or their Chief Clerks—on the contrary, I believe they do all that men can be reasonably expected to do; but the truth is there is not a sufficient number of Judges, and the Staff is wholly unequal to the amount of business. I have known the Courts of Chancery for upwards of 40 years, and believe that at no time during that period has the delay in proceeding with business been greater than it is at the present time."Another Solicitor" writes to The Times a letter, in which he states—The letter of 'A Solicitor' in The Times of to-day is too moderate. There are now waiting to be heard 69 causes before the Master of the Rolls, 193 before Vice Chancellor Malins, 55 before Vice Chancellor Bacon, and 190 before Vice Chancellor Wickens—or 507 in all, to be heard by four Judges. This, besides as many other applications by petitions, motions, and adjourned summonses, will give about 126 causes to each Judge, and at the present rate of progress the last of them will not be heard for three years. To say this is perfectly scandalous is but too mild.I do not, my Lords, take all these statements for gospel. I dare say there may be some amount of exaggeration or mistake; but they cannot be far from truth. There can be no doubt whatever that from whatever cause—whether from the increase of the business of the country or from the growing complexity of relations between man and man—there are considerable arrears of business. Your Lordships will also bear in mind that there will be an increased demand on the time of the Judges from other causes, and I ask you whether under the new system it is to be expected that the progress of business will be greater. Hitherto, as a general rule, it has not been the practice of the Court of Chancery to take evidence viva voce. It has been the practice in the Courts of Common Law, but not in the Court of 1265 Chancery. This has not, I believe, arisen from any objection of the Judges to take evidence in that way, but because they have apprehended, and I think with some reason, that it would occupy too much time. For that reason they have preferred to get the evidence taken beforehand by affidavit. But this Bill provides—and I think rightly, for I am a strong advocate of the system—that the evidence in the Court of Chancery shall be taken viva voce. Consequently, there will be a greater demand on the time of the Judges. There would appear, therefore, to be no prospect of a decrease of business, and I think, therefore, your Lordships will be of opinion that to reduce the number of Judges nominally to four, but practically to three, must, by tending to a still larger accumulation of arrears, operate very injuriously against the interests of suitors. No doubt there has been a suggestion that by the provisions of this Bill there will be a power to supplement the strength of the Court of Chancery by passing into it Judges from any of the other Courts. No doubt there will be that power, but it does not, I think, in any way affect the argument I have been addressing to your Lordships. In the first place, you will not have the Judges. Three are to be removed from the Common Law Courts, so that the present number of the Judges of those Courts—18—will be reduced to 15. But that is not all. I speak with respect—with the greatest respect—of the Common Law Judges; I have the highest respect for them; but for years you will not have Judges in the Common Law Courts willing—and, with all deference, I will add competent—to administer in the Court of Chancery a system in which they are entirely untrained. The object of this Bill is to bring about a fusion of Law and Equity, and it appears to me to be of the greatest importance that when you are endeavouring to do that, you should be most careful not to weaken the Court of Chancery either numerically or morally. Your Lordships know that the system of Equity has grown up mainly not through the medium or intervention of Statute Law, but through the efforts of the Judges who have presided in the Court of Chancery to temper the severity and the strictness of the Common Law, and to form a system which would harmonize more with the 1266 wider and broader principles of justice; and the highest authorities have been of opinion that in bringing about a fusion of Law and Equity, whenever there is a difference between them, the rules of Equity ought to prevail, and ought to precede those of Common Law. I will quote the opinion of the Lord Chief Justice Cockburn on this point, and there could be no better. He says—I admit that where Law and Equity differ the principles on which justice is administered in Equity are more consonant to rational justice than those of the Common Law, and, consequently, that the Law ought to be adapted to the standard of Equity. …. I am not sorry to have an opportunity of, as it were, placing on record my reasons for thinking that the fusion of Law and Equity is a consummation devoutly to be wished; and further, that it must take place at the expense of the Law.If that is so, and you are proposing to fuse the two systems together, I ask your Lordships to view the matter first from a numerical point of view. Suppose a fusion of metals were proposed, and that 15 ounces of silver were to be fused with 4 ounces of gold. You might have a very excellent metal produced, no doubt; but I venture to say that the alloy would partake more of the nature of silver than of gold; and I have great doubt whether in this incarnation of the fusion of Law and Equity the mixing of 15 Common Law Judges with 4 Equity Judges will not result in the preponderance of the Common Law system over that of Equity when the jurisprudence of the country is carried out under this Bill. I therefore object to the way the Court of Chancery is treated numerically by this Bill, and I object still more strongly to the way in which it is treated morally. The Lord Chancellor is entirely dissevered from the Court of Chancery. Strange as it may appear, when this Bill passes, if it should pass in its present form, he will be a stranger and intruder in the Court which has hitherto been called his own, and of which he has been the head. He will have no more right to enter that Court, to interfere in it or take part in its proceedings, than any other Member of your Lordships' House. But it was said when this subject was discussed elsewhere that though the Lord Chancellor will be severed from the Court of Chancery, he will be a member of the Appellate Court to be established by this Bill, and will have precedence in the Court of Appeal. That, I think, is 1267 an argument which may be very shortly disposed of. The Lord Chancellor now sits on appeals; but he sits within the walls of his own Court, also, and is its head. Under this Bill he will not only be a stranger in the Court of Chancery, but he will be only a unit in the Appeal Court. No doubt he will be first in point of rank or precedence, but he will not be there as having any connection with his own Court. It must also be considered my Lords, that the Lord Chancellor's duties in the Court of Chancery are not confined to judicial functions. High as are the functions of the Lord Chancellor in the administration of justice directly by himself, he also performs very useful and important work, which is altogether separate from the administration of justice as between suitors. There are a number of offices and a great number of officers in the Court of Chancery. There are a number of officers who perform duties which are administrative in the strongest sense of the term, and in the offices questions are constantly arising which are submitted to the Lord Chancellor for his judgment, opinion, and advice. If his advice were not taken on questions such as those to which I allude, dis-organization would creep into the office, and a disorder most injurious to the interests of suitors would be the result. This is not provided for in this Bill. It is very true the Bill provides that the second Division of the High Court shall be presided over by the Master of the Rolls; but the Master of the Rolls is not the actual head of the Court of Chancery—in that Division he will be only a Primary Judge, and I do not speak of the individual but of the office when I say that advice which when coming from the Lord Chancellor would, from the traditional weight that attaches to his authority, be received with deference and listened to, would be resisted and resented when coming from a Primary Judge. Then it is all but impossible that from time to time questions should not arise with reference to the conduct of officers of the Court, and it is most important that those questions should be heard by the Lord Chancellor and not by a Judge of the First Instance. Again, your Lordships should not lose sight of the fact that when the right of appeal will be contracted by the provision allowing only one appeal from the original Judge, the 1268 discretionary arrangement of having a case heard by two Judges instead of by one becomes very important. These are the reasons which appear to me to make it undesirable that the Court of Chancery should be weakened, either numerically or morally. But before I ask your Lordships to consider my Amendment I wish to say a few words on another point. In my opinion the proposal in his Bill to which I have been referring will have a very serious effect on the office of Lord Chancellor itself. Hitherto the Lord Chancellor has been the greatest legal officer in the kingdom, and he has been so because he has held the position of head of the Court of Chancery. My Lords, there are those who entertain the opinion that it is not desirable the Lord Chancellor, as head of the Court of Chancery, should be a great political officer changing with the Government. I must say that is not my opinion. I hold that, whatever may be said to the contrary, in point of theory, very great advantages have resulted in this country from the fact that, owing to the political office held by the Lord Chancellor, changes and alterations have been made in the mind of that Court more rapidly than could have been the case if those changes and alterations had to depend on the ordinary duration of Judicial life. I would further have your Lordships consider whether in this country, where we have no Minister of Justice, it is not of very great advantage to the public to have one high Judicial functionary connected with the Executive Government, and subject to those Parliamentary responsibilities which result from his presence in Parliament as a member of the Government. If your Lordships share in those opinions, I will ask your Lordships to observe the very serious risk you run of not maintaining that connection between the Lord Chancellorship and the Executive Government if you separate the Lord Chancellor from the Court of Chancery in the manner proposed by this Bill. Consider that if you alter the conditions and the elements of the office you must be prepared to defend it, not as a traditional office, but as one of a new creation. It appears to me that the step proposed may be regarded a new creation—one of a judicial office to be held by a person who will be a mere unit in a large Court of Appeal. The office, no doubt, will be one of im- 1269 portance and dignity, but it will be a new office created now for the first time, and a new office must run the gauntlet of criticisms on a new creation. I put it to your Lordships, without wishing to in any way exaggerate the matter, whether the office of the Lord Chancellor as a political office will not be exposed to danger—whether it may not be said that as you are making a new office to be filled by the Lord Chancellor, it would be very much better that the Lord Chancellor should not be a political officer at all, but simply President of the Court of Appeal. I believe, my Lords, that in the matter my noble and learned Friend, the Lord Chancellor, stands entirely on his own authority, because as far as other authority goes it is all the other way. The Judicature Commission recommended that the High Court should be formed of different Divisions or Chambers; but it laid down as a standard that the Lord Chancellor should be at the head of the Court. In the Bill of my noble and learned Friend (Lord Hatherley), which passed this House in 1870, but was interrupted in its progress through the House of Commons by the press of other business, it was provided that the Lord Chancellor was to be at the head of the Court of Chancery. And, my Lords, a very striking proof of the opinion of a section of the public which I think is well deserving of consideration has come to our knowledge within the last few days. My Lords, the Equity Bar have no personal interest in the matter. As regards any personal interest, it must be a matter of indifference to them whether the Lord Chancellor continues at the head of the Court of Chancery or not; but within the last few days two memorials on the subject have been submitted to my noble and learned Friend the Lord Chancellor, and I think more remarkable documents have seldom come under public notice. One of them, I am told, is signed by every Queen's Counsel practising in the various Equity Courts, with the exception of the Solicitor General. Those learned gentlemen may therefore be said to be unanimous. What they say is this—From the terms of the Bill and from the views expressed in your Lordship's published speeches, we believe that your Lordship will agree that the only fusion of Law and Equity which can be advantageous to the public, must be a union by which, wherever the decisions of 1270 the Courts of Law and Equity would at present conflict, the doctrines of Equity should be adopted, instead of those of the Common Law. In the Bill before Parliament the paramount authority of the Courts of Chancery, by which this result is now obtained is abolished. For the Courts of Chancery there is substituted a Division consisting of five Judges. From this Division the Lord Chancellor will be entirely separated.They go on to comment on what they say will be the effect of that arrangement. This is not all. There is another memorial from the Junior Bar. I have not counted the signatures, but I am told it is signed by 360 members, and is the positively unanimous representation of the Junior Bar. I see the names of those who, though they have not received the rank of Queen's Counsel, are gentlemen of the greatest weight in the profession, and whose opinions are entitled to consideration and respect. They say that—the Bill, if passed as it now stands, will endanger the very existence of Equity Jurisprudence… Equity Jurisprudence has been maintained up to the present time solely by the paramount authority of the Court of Chancery, the life and essence of which have been derived from its association with the Lord Chancellor. The Bill proposes to sever this association and. destroy this authority. It does not, as it seems to us, substitute any means of preserving intact the spirit of the jurisprudence created by the long line of your Lordship's illustrious predecessors.My Lords, I repeat that so far as authority goes we have strong authority for the Amendment which I have suggested; and I am not aware of any authority on the other side. I hope, therefore, nay noble and learned Friend will really consider this matter. He and I have but one desire—to make the Bill as perfect as we can. I should be sorry that his incumbency in the Court of Chancery should be signalized by a determination of that existence which is hardly yet established. I hope he will continuo there long as the head of that Court, and the Amendment which I ask your Lordships to adopt will tend to secure that object.
§ Amendment moved, Clause 5, page 2, line 12, after ("be") to insert ("the Lord Chancellor.")—(The Lord Cairns.)
THE LORD CHANCELLORMy Lords, I should have been glad to wait to hear the opinions of other noble Lords before addressing you on the subject of this Amendment. I am very glad, 1271 in the outset, to take this opportunity—as I am glad to take every opportunity to acknowledge, not only the fairness and candour with which my noble and learned Friend (Lord Cairns) has stated the reasons for the Amendment which he proposes, but also the valuable assistance which I have received from him in connection with this subject, both in the House and out of it. My noble and learned Friend has stated that he and I have the same object in view—to give effect to the measure in a manner which may be most useful and advantageous to the public. My Lords, I entirely lay aside every other consideration whatever. If, indeed, the question which my noble and learned Friend has raised were to rest on authority, and if it were true that my own authority is the only one that could be offered against it, I should certainly be quite unable to stand up before your Lordships and argue for my own proposal. The very last argument I should wish to weigh with your Lordships at all is the argument from my own personal authority. Whatever may be said against these proposals, they have been made only because I thought them capable of being supported by good and sound reasons. These reasons it is my duty to state to your Lordships, and if your Lordships should not adopt them I would myself be the first to ask you to set aside the authority on which they were proposed. My noble and learned Friend spoke of the effect of the proposals in the Bill in three points of view—first, with respect to the general jurisprudence of the country, and the position of Equity in that jurisprudence; secondly, with respect to the position of the Lord Chancellor; and thirdly—though he did not deal with that in detail—with respect to the position of the Master of the Rolls. The first, and obviously the most important of all these considerations, is that which is connected with the general jurisprudence of the country and the place of Equity in that jurisprudence. My noble and learned Friend adverted towards the close of his speech to some documents, justly characterized by him as remarkable, emanating, the one not absolutely from all with the single exception he mentioned, but from very nearly all the leading practitioners at the Chancery Bar who had attained the rank of Queen's Counsel; the other from certainly a very large 1272 number of the junior members of that Bar. Both documents contain names of the greatest weight, and both suggest the alarm entertained by the gentlemen who signed them lest the Bill in its present shape should endanger the very existence of Equitable Jurisprudence. In dealing with such a representation I feel embarrassed, not so much by the reasons given for that opinion, as by the respect I entertain for the gentlemen who have signed the documents. I really cannot criticize the representations contained in these two papers lest I should, even for a moment, seem to say anything inconsistent with the respect I entertain for all, and the great personal regard I entertain for many of those who signed them; but as my noble and learned Friend can hardly be said to adopt a tone or to recommend a course which would imply concurrence on his part in these very serious alarms, I may be excused for saying a very few words before I entirely pass from this topic. These gentlemen would seem to imply, that unless you very largely multiply the number of Equity Judges both in the Court of First Instance and in the Court of Appeal, the ruin of Equity Jurisprudence must follow from any attempt to do what the Judicature Commission has recommended, and what is of the very essence of the present measure—namely, to give to all the Judges full and equal jurisdiction, in equity, as well as in law. Now, I must say frankly, that, although if a necessity were shown for an increased number of Judges, every Government ought to provide for the due administration of justice, yet, subject to that, I say that the multiplication of Judges beyond the necessity of the case is in itself an evil, not only on account of the expense unnecessarily thrown on the public, but also because the more persons you employ to do the work, if they are beyond the number really required, the greater risk there is of its being done less energetically, and less effectively than it would otherwise be done, and, at the same time, the greater the risk from the inevitable infirmities of mankind of multiplying the diversity of opinion in judgment, instead of tending to the greater perfection or improvement of the law. Therefore, without denying that when a case is proved for additional Judges that addition ought to be made, I do feel 1273 bound to require full and satisfactory proof that it is necessary before assenting to it. My Lords, in my opinion, Equitable Jurisprudence is a much more robust, and a much less mysterious thing, than my friends who are the authors of these remonstrances would seem to think. This great divergence between Equity and Law which has given occasion to so much panic lest Equity Jurisprudence should disappear from among us is a thing of comparatively very modern growth. Those great masters of Jurisprudence who founded our system of Equity were nurtured in the Common Law; and down to very recent times such Judges as Hardwicke, Eldon, and Kenyon were deemed to be equally well qualified to preside in the highest Courts of Equity and of Law. Lord Eldon himself—one of the greatest masters of Equity Jurisdiction that ever lived—did not think he was endangering the purity of Equity administration by recommending the appointment of two successive Judges who never practised at the Equity Bar—Lord Gifford and Lord Lyndhurst—to the office of the Master of the Rolls, where each had to dispose, sitting alone, of Equitable cases. Is that capable of any other explanation than this—that Lord Eldon believed that the principles of Equity were laid upon a sufficiently solid foundation, and sufficiently capable of clear elucidation by argument and authority, to justify the opinion, that where you had a Common Law Judge of capacity and acuteness of mind, though sitting alone in the Court of Chancery, he could be trusted to make himself well enough acquainted with the principles of Equity to administer them effectively—particularly when subject to the correction of a Court of Appeal? It will also be in the recollection of your Lordships that within my own professional time, and I believe within that of my noble and learned Friend, an Equity Jurisdiction was administered by the Court of Exchequer, and that in that Court Judges who had never practised in the Court of Equity sat as Judges of First Instance alone, and by themselves administered Equity. I myself argued many a case before the first Lord Abinger, and before Baron Alderson, each sitting alone in Equity. I hope your Lordships do not think that I want to exaggerate the argument by denying that there would be any disadvantage in appointing men 1274 skilled in Common Law, especially if they were to sit alone, to administer Equity; but I think what I have said will show that Equity Jurisprudence is not of so slight and evanescent a character as to be likely to be greatly endangered by intrusting men capable of discharging the highest functions of Common Law with a share in the administration of Equity. Let it always be remembered that there are abundant authorities and sources of information for the guidance of the Judges, and that those gentlemen of the Equity Bar who share in the alarms to which my noble and learned Friend has called attention would themselves be resorted to, and would assist the Judges; and not only would the great mass of equitable cases still, either by direct appropriation or by the choice of the plaintiffs, find their way naturally and gravitate into the old channels, but also if there is any case taken to what now are the Courts of Common Law which ought to be dealt with in the Chancery Division ample power of transfer is given. And here I feel bound to speak out according to my own convictions, and to say that in my judgment Equitable Jurisprudence has deteriorated rather than improved—has lost something of its breadth and accuracy—since those changes which have led to the more marked and decided separation of the two branches of Jurisprudence. I think that Equitable Jurisprudence, either in breadth or accuracy, does not stand in so high a position as it was left in by Lord Eldon, or as it was when he took those two gentlemen from the Common Law Bar and made them Judges in Equity. As to the numerical argument of my noble and learned Friend, it does, no doubt, at first sight, seem strong. In dealing with it, I will assume that there are four Judges of First Instance in the Chancery Division, though my noble and learned Friend only estimated them as three. It was not my intention, nor can I admit that it would be the effect of my proposal, that there should be only three; but at all events, I agree with my noble and learned Friend that four Judges there ought to be. My noble and learned Friend says that there are 18 Common Law Judges to be set against them; but I would rather say—since three are transferred to the Court of Appeal—that there are 15 Common Law Judges to be set against four Judges in Equity. At first 1275 sight, this seems to be a considerable disparity—more especially as I am bound to admit the correctness of the description which my noble and learned Friend gave of the business of both branches of Jurisprudence. In point of fact, the business of the Court of Chancery is greater, or certainly not less than the aggregate business of the Courts of Common Law. But your Lordships must remember in making a comparison between the two branches that the Judges of the Court of Chancery represent four Courts, whereas the 15 Judges in the Courts of Common Law represent three; and although it is perfectly true that there is some business which may be done by a single Judge, or by two Judges, yet practically the business not despatched on Circuit is done by three Courts, and not by as many Courts as would be constituted if all the Common Law Judges sat alone. The fact is that all questions of law, or nearly all, which have any nicety are reserved from the jury trials and come before the three Courts sitting in banco. Taking these things into account, it will be seen that there is really not much weight in the numerical argument of my noble and learned Friend. I come now to deal with the question of the Court of the Master of the Rolls; because I quite agree with my noble and learned Friend that there ought to be four effective Courts of First Instance in the Court of Chancery. But here I confess my views are not similar to those of my noble and learned Friend. I think that under the Bill as proposed by the Government the Master of the Rolls would be as effective a Judge of First Instance as he is at present. It is quite true that he, like the two Lords Chief Justices and the Lord Chief Baron, would be also a member of the Court of Appeal; but it would not be in contemplation that he should be constantly withdrawn from the Rolls' Court to sit in the Court of Appeal, but only that he should come there when it should appear, under particular circumstances, to be practicable and desirable. I believed, and still believe, judging from experience, that the duties he would have to perform in the Court of Appeal might be found consistent with the effective discharge of the duties of his own Court. It is always to be recollected that the Court of Appeal will consist of a very considerable 1276 number of Judges. Some, and I hope not a few, of the most eminent lawyers who have filled the highest positions, either in the Court of Chancery or elsewhere, will act as additional members of the Court of Appeal and give their assistance upon any important questions, when the Court stands in need of their attendance. If that be so, I think, Equity will be powerfully represented in the Court of Appeal, and that though the occasional presence of the Master of the Rolls and the Chief Justices may be desirable, it will not ordinarily be necessary. My noble and learned Friend will propose in a later Amendment, that Her Majesty be enabled to appoint an additional Judge to the Chancery Division of the High Court. I have already given reasons which oblige me to refrain from assenting to that proposition. It will not be necessary for me to enlarge upon this point, because my noble and learned Friend's scheme stands together as a whole. But since my noble and learned Friend has very properly referred to what has lately been stated about the condition of business in the Court of Chancery as re-inforcing some of his arguments, perhaps your Lordships would wish that I should state exactly according to the information I have been able to obtain how the matter really stands. I do not admit that it is quite so bad as it has been represented to be. I am quite sure that the zealous solicitor whose letter in one of the public, journals—The Times—my noble and learned Friend quoted, to the effect that the delay in the transaction of business had never been greater for the last 40 years, was not accurately informed as to the whole of the facts, whether or not he may have been a sufferer in some particular case. But these are the real facts:—In the first place, the numbers were correctly given by my noble and learned Friend of the causes set down for hearing at the beginning of the present Term. There were 69 in the Court of the Master of the Rolls, of which 21 have been heard and disposed of; 193 in the Court of Vice Chancellor Malins, 55 in that of Vice Chancellor Bacon, and 190 in that of Vice Chancellor Wickens. Some of these have, of course, been disposed of. The reason why there were only 69 in the Court of the Master of the Rolls is because my noble and learned Friend (Lord Romilly) disposed 1277 of them with that energy and despatch to which a just tribute has been paid by my noble and learned Friend opposite. Therefore he has left behind him nothing which can be called an arrear. I need not say that there is a power of equalizing the business; and that power has been exercised. There is at present an Order being issued to transfer some of the business from the two Courts which are too much crowded to the Court of the Master of the Rolls. An examination of the state of the first 20 cases on the lists in the several Courts will show us what is the true state of the business—because those cases at the head of the list must include the unduly delayed, if there be such. I have already said that 21 cases on the list of the Master of the Rolls have been heard since the commencement of Term; but these cases were not all taken from the top of the list, because some of the parties to those at the top of the list were not ready, and others lower down were taken out of their turn. Of those remaining not less than 11 wait for the parties, and 9 of them were set down in the present year. In Vice Chancellor Malins' Court four cases await the conscience of the parties, and of the first 20, nine were set down this year, four were set down in April, 1872, five in May, and one in June. As these stand at the head of the list, it is reasonable to assume that the rest have been set down considerably within the year. In Vice Chancellor Bacon's Court there were set down one case this year, two in May, 1872, one in July, two in August, three in November, and 11 in December, a very few months ago. In Vice Chancellor Wickens' Court three cases were set down this year, two in April last, one in July, two in August, one in October, and 11 in November, a few months ago. Considering that these are the facts, and that many of the cases are delayed by the parties, I do not think we can draw conclusions from the present state of the business in Chancery, in support of any proposals not otherwise desirable, Now I come to the remarks of my noble and learned Friend respecting the office of Lord Chancellor. We must not shut our eyes to the fact that the Court of Chancery will not continue to exist as a separate Court, though it is a name, which my noble and learned Friend wishes to be continued, as descrip- 1278 tive of a subdivision of the great aggregate Court to be constituted under this Bill. I quite agree that for the convenience of administration there should be a division corresponding to a great extent with the existing Court of Chancery; but the political and jurisprudential Court of Chancery hitherto known to our history will no longer exist. Bearing that in mind, what will be the position of the Lord Chancellor? He will not only be a member of the Court of Appeal under this Bill; he will be the head of the Supreme Court, comprehending the Court of Appeal and the High Court—a position not less dignified nor less important than that which he now occupies. He will retain every function that is not strictly judicial without alteration—indeed, in some respects the Bill will enhance his position, because all officers who may be officers of the entire Court will be under this Bill under the especial patronage and superintendence of the Lord Chancellor as much as the officers of the Court of Chancery are now. In comparing the relative positions of the Master of the Rolls and the Lord Chancellor under the Bill, I venture to say they will be more nearly the same as they are now than if the Amendment of my noble and learned Friend were accepted. At present the Master of the Rolls is a Judge of a Court superior in authority as well as in rank and precedence above the Vice Chancellors. No small part of the offices of the Court are subject to his special superintendence: He has the appointment to and special superintendence over the Enrolment Office, the Record Office, the Examiner's Office, and the Office of Clerk of the Petty Bag. Under this Amendment the Lord Chancellor would be at the head of a particular Division which he has never been before, wherein he will not be really a Judge of First Instance for any practical purposes, and I presume the Master of the Rolls' office will undergo some corresponding diminution. If it does not, then that Division will be constituted with respect to the position of its President in an entirely different manner from the other Divisions. Under the Bill, on the other hand, the Master of the Rolls will fill a place in the Chancery Division similar to that which the Lord Chief Justice of the Queen's Bench and the Lord Chief Justice of the Court of Common Pleas 1279 and the Lord Chief Baron occupy in regard to their Courts respectively. These eminent Judges have no authority at all over their colleagues. For all practical and useful purposes the Lord Chancellor's position under the Bill will be the same as it now is; and I think, for the purpose of preserving the symmetry of the new scheme and the harmony which should exist between different parts of the Court, the Bill as it stands will be better than if the Amendment is adopted. Upon grounds of mere personal susceptibility to the importance of patronage or precedence, I do not think that any mischief is to be apprehended either from the proposals in the Bill or from those of my noble and learned Friend: but if you adopt his Amendment, I fear you may give rise to doubts whether we are sufficiently maintaining the position of other eminent persons. Down to this time the Lord Chancellor has exercised no authority over the Judges in any of the Common Law Courts; and nothing is more important than that we should preserve the harmony which has hitherto existed, without giving rise to any judicial distrust or idea of a superiority which does not exist. I trust that result would not follow the adoption of the Amendment; but I confess that in making these arrangements under the Bill I have been influenced by the desire to do that which would be least likely to run the risk of disturbing the harmonious cooperation of all the members of the united Courts. Now, I hardly see how you can introduce the Lord Chancellor as the head of the new High Court of Justice, comprehending not only the Judges of the Court of Chancery, but all the Judges of the three Common Law Courts, without putting the Common Law Judges in a position somewhat differing from that which they now hold; and I should be grieved if, for the sake of maintaining some supposed precedence belonging to the office which I now have the honour to hold, we were to raise questions involving any diminution of the dignity or any change in the position of other great Officers of the State.
§ LORD ROMILLYsaid, he was in favour of the Amendment of his noble and learned Friend (Lord Cairns), chiefly on the ground of the influence which the Lord Chancellor should exercise with regard to the officials of the Court. As 1280 Master of the Rolls he had consulted the Lord Chancellor on more than one occasion on this subject; but if the Lord Chancellor ceased to be the head of the Court his opinion could no longer be taken; at all events it would not command the same weight. As to arrears, the truth was that if a Judge once got into such a position he found that arrears made arrears:—there was additional delay, because arrears led to unnecessary motions—suitors tried to get an opinion upon the main point at issue incidentally by means of a motion instead of waiting till the hearing of the cause. As to the Amendment, he thought the greatest advantage was derived from the moral influence of the Lord Chancellor, and he should strongly advise their Lordships to say that, whatever else the Lord Chancellor became, he should have authority over the Court of Chancery, which he could not have without being at the head of the Court. Such an alteration would not endanger the Bill; it would only give the Lord Chancellor a control which would be very beneficial.
§ LORD HATHERLEYsaid, his noble and learned Friend (Lord Cairns) had remarked upon the numerical disparity between the Common Law and Equity Judges, and said this inequality was now about to be aggravated by reducing the seven Judges of the Court of Chancery to four. But there were now really only four Equity Judges of First Instance. It was true that the Judges of the Appellate Court were capable of exercising a primary jurisdiction, and under peculiar and altogether accidental circumstances that jurisdiction had been exercised; but as a rule there were only four Equity Judges of First Instance. Then his noble and learned Friend (Lord Cairns) had called attention to the present arrears as indicating that, instead of a reduction, there should be an increase in the number of Equity Judges. Now, nothing could be more fallacious than to cite the arrears existing at any one moment as a proof of the want of more Judges. The arrears now mentioned were owing to the unfortunate illness of one Judge, and the loss of the services of another. But, during his 15 years' experience as a Primary Judge there were frequently periods when arrears seemed overwhelming, owing to the sickness of Judges, or to one or two great causes blocking the way; yet in 1281 another year these arrears would be cleared off. It happened to him twice to rise because there was nothing to do—rather an unusual incident, he admitted; and this result followed years in which there had been heavy arrears. There could not be anything worse than to have a number of Judges who were not fully occupied, and it was far better that they should occasionally have an extra amount of work put upon them than that they should be at any time for several months together in want of occupation. The present arrears in the Court of Chancery had arisen from accidental causes and could be overcome by vigorous exertion. Their Lordships would recollect that while he occupied a position on the Woolsack there came to pass a case which he would call accidental, and which occupied, he thought, 20 days, in consequence of which the arrears of cases in their Lordships' House became considerable; but he had the happiness of leaving quite as small a number of arrears as existed when he took the office of Chancellor. What was the Chancellor to do if the Amendment were carried? It was quite clear from the memorials which had been presented to the Lord Chancellor by Queen's Counsel and members of the Chancery Bar—for whom no one had greater respect than himself—that those who signed the memorials were afraid that the Court of Chancery would not be kept in a full and effective state as a Court distinct from the Common Law Courts, if this Bill were passed. He hoped the effect of the Bill would be that there should be no longer that clear and trenchant separation which at present existed between the Courts of Equity and the Courts of Common Law. That separation was the very thing that the supporters of the Bill were trying to avoid. If their Lordships were going to say that they would have the Court of Chancery just as it existed at present, they might as well throw the Bill out and have done with it. His noble and learned Friend who moved the Amendment told their Lordships in a speech which must have had very great effect on their Lordships, that it would be a long time before a Judge of a Common Law Court would be competent to undertake the duty of Master of the Rolls or to sit in the Appellate Court. He (Lord Hatherley) hoped there would be a 1282 dozen men in the Common Law Courts who would be able to deal with what was called a Chancery case in the way in which it was ordinarily dealt with by the Court of Chancery. Of the last ten Chancellors four Lord Chancellors had been appointed from the Common Law Bar, and another had practised both at the Common Law and the Chancery Bars, and only the other five—one half of the whole—were especially Equity lawyers. The real truth of the case was this—when certain technicalities were brushed away there could not be any solid distinction in the administration of justice between man and man. As to the memorials which had been addressed to the Lord Chancellor by members of the Chancery Bar on the subject of this Bill, he should have great hesitation in opposing his sentiments to theirs if he had not found that they proceeded on a totally different view of the object of the Bill from that which he entertained. It was quite clear that those who signed the memorials were apprehensive that in the administration of justice under this Bill the Common Law system would prevail; and his noble and learned Friend who moved the Amendment bore out that supposition because he said there would be a preponderance in the number of Common Law Judges over the Chancery Judges. He (Lord Hatherley) apprehended that if there was one thing more true than another it was this—that the Common Law Judges would be delighted to have it in their power to administer full justice without being hampered by those conditions which at present prevented them from doing so in many cases.
§ On Question? their Lordships divided: Contents, 67; Non-Contents, 49. Majority, 18.
§ Amendment agreed to.
1283| CONTENTS. | |
| Beaufort, D. | Bathurst, E. |
| Leeds, D. | Belmore, E. |
| Richmond, D. | Brownlow, E. |
| Rutland, D. | Carnarvon, E. |
| Wellington, D. | Cawdor, E. |
| Dartmouth, E. | |
| Bath, M. | Derby, E. |
| Bristol, M. | Doncaster, E. (D. Buccleuch and Queensberry.) |
| Bute, M. | |
| Exeter, M. | |
| Salisbury, M. | Ellesmere, E. |
| Erne, E. | |
| Abergavenny, E. | Feversham, E. |
| Amherst, E. | Gainsborough, E. |
| Harrowby, E. | Colonsay, L. |
| Lanesborough, E. | Colville of Culross, L. |
| Malmersbury, E. | Dunsany, L. |
| Manvers, E. | Egerton, L. |
| Tankerville, E. | Ellenborough, L. |
| Vane, E. (M. Londonderry.) | Fitzwalter, L. |
| Foxford, L. (E. Limerick.) | |
| Verulam, E. | |
| Headley, L. | |
| Bangor, V. | Houghton, L. |
| Hardinge, V. | Kesteven, L. |
| Hawarden, V. [Teller.] | Leconfield, L. |
| Sidmouth, V. | Northwick, L. |
| Oranmore and Browne, L. | |
| Gloucester and Bristol, Bp. | |
| Penrhyn, L. | |
| Redesdale, L. | |
| Aveland, L. | Romilly, L. |
| Bagot, L. | Saltoun, L. |
| Belper, L. | Sherborne, L. |
| Boston, L. | Silchester, L. (E. Longford.) |
| Braybrooke, L. | |
| Cairns, L. | Skelmersdale, L. [Teller.] |
| Chelmsford, L. | |
| Clanbrassill, L. (E. Roden.) | Sondes, L. |
| Stanley of Alderley, L. | |
| Colchester, L. |
| NOT-CONTENTS. | |
| Selborne, L. (L. Chancellor.) | Carysfort, L. (E. Carysfort.) |
| York, Archp. | Castletown, L. |
| Crewe, L. | |
| Cleveland, D. | Eliot, L. |
| Saint Albans, D. | Ettrick, L. (L. Napier.) |
| Foley, L. | |
| Lansdowne, M. | Greville, L. |
| Ripon, M. | Gwydir, L. |
| Hanmer, L. | |
| Camperdown, E. | Hatherley, L. |
| Clarendon, E. | Keane, L. |
| Dartrey, E. | Kenmare, L. (E. Kenmare.) |
| Granville, E. | |
| Grey, E. | Lawrence, L. |
| Kimberley, E. | Lisgar, L. |
| Morley, E. | Lyttelton, L. |
| Waldegrave, E. | Lyveden, L. |
| Meldrum, L. (M. Huntly.) | |
| Halifax, V. | |
| Powerscourt, V. | Methuen, L. |
| Sydney, V. | Monson, L. |
| Poltimore, L. [Teller.] | |
| Carlisle, Bp. | Ponsonby, L. (E. Bessborough.) |
| Chichester, Bp. | |
| Winchester, Bp. | Rosebery, L. (E. Rosebery.) |
| Auckland, L. | Sundridge, L. (D. Argyll.) |
| Blachford, L. | |
| Boyle, L. (E. Cork and Orrery.) [Teller.] | Vernon, L. |
| Wrottesley, L. | |
| Carrington, L. |
§ Clause 6 (Constitution of Court of Appeal).
§ THE MARQUESS OF SALISBURYMy Lords, I have to move an Amendment in this clause, line 36, after "jurisdiction," to insert—
It shall be lawful for Her Majesty to direct a writ of summons to be issued to the said 1284 Judges enabling them to sit and vote as Peers of Parliament during the tenure of their office.I am anxious to bring before your Lordships the position which the Judges of the Court of Appeal will occupy in consequence of the course which this question took in Committee last year, and of the decisions which this House has previously arrived at with regard to any modification of the conditions under which a seat in your Lordships' House is now held. It will be within the recollection of your Lordships that four years ago Earl Russell brought forward a measure on this subject, urging upon the House the adoption of the principle of life Peerages. That Motion was supported by the noble Earl opposite, the Leader of the House (Earl Granville), I had the honour of voting in favour of that Bill; but although it received the support of many of your Lordships sitting on both sides of the House, and although it passed successfully through two readings and Committee, it did not on the occasion of the third reading obtain the suffrages of your Lordships. The result has been that that decision has been looked upon as conclusive, and since that time the question of life Peerages has not been revived. The proposition which I desire to submit is not that life Peerages should be created, but that a modification of a definite character should be made in the conditions of hereditary Peerages. No doubt a strong jealousy is felt in this House lest the principle of life Peerages, however carefully guarded, should give to the Minister of the Crown for the time being the power by the creation of such dignities of affecting the decisions of your Lordships' House, and of overawing your policy; and I am conscious that many of your Lordships were influenced by that fear in the votes which they gave upon the question. But I submit that the objections against the creation of life Peerages do not apply to the creation of ex officio Peerages. It is possible there may be some danger that a Minister might be able to persuade the Sovereign that the evil of a creation of a large number of life Peerages to accomplish a particular political object would not extend beyond the existing generation, and that therefore no permanent ill effects would result from such an exercise of power. But there would be no object in a similar abuse of power in the case of ex officio Judges. It 1285 is certain that no Sovereign would ever consent, and that no Minister would ever be permitted by public opinion to attempt to create ex officio Peers—that is to say, Peers who would have to fill grave and important offices—for the sake of influencing a party division. One great objection, therefore, which was urged against the creation of life Peers does not apply to ex officio Peerages. The question is one which has been pressed upon us. We have so far passed this Bill very quietly; we are parting with the jurisdiction which we have held for many hundred years; we are forced to say whether some modification of the principle on which seats are held in this House should not be made, in order that it may keep up that connection with the last Court of Appeal which it has enjoyed for such a length of time. I have this difficulty to contend with—that there is something new in the proposal, and that the addition to the law Peers might be very considerable. Now, I do not myself feel any apprehension in consequence of such an addition. On the contrary, my opinion is that ex officio Peers will add to the strength of the House and to its stability, even though they should be added in very large numbers. The Crown, it should be remembered, now possesses the power to add to the number of Peers in order to swell the forces of party. That is a power which is exercised by the Crown with great freedom; and it is quite certain that if a Minister had the choice between adding Peers to the House in order to strengthen his party, or appointing ex officio Peers for his own political purposes, the loss of credit to him would be much greater if he were to pursue the latter course, because of the imputation that he had given away great offices in a partizan spirit, and not with the object of securing the services of the best men in the interests of the public. But then it may be asked, what is the practical advantage which is likely to flow from my proposition? My proposition is that the members of the Supreme Court of Appeal may be ex officio Peers; and may sit and vote in the House so long as their tenure of office lasts; and my answer to the question is that, if adopted, it will serve to connect the House of Lords with the Supreme Court of Appeal. This House might no longer he actually the Supreme Court of Appeal, 1286 but the Supreme Court of Appeal will be in it, and whatever prestige the House derived in the past from the fact that it was the highest Court of Appeal, it will in some degree continue to possess, if every member of the Supreme Court is by right a member of it. A far more practical and important reason, it appears to me, however, is that such a proposal as that which I am now submitting to your Lordships' notice will have a great influence on the legislation of the House. The business which comes before us, and the duties which we have to discharge, are of two kinds. Our first duty is to moderate and control the action of the other House of Parliament, and to prevent it from making great changes too rapidly, and with too little consideration. Whether this duty is now adequately performed by this House or not, it is not for me at the present moment to discuss. My opinion is that this House does defer too much to the House of Commons in hastening on changes such as those to which I am referring. That subject is not, however, relevant to this discussion. This spirit of concession on the part of the House of Lords is due, not to any special political arrangement, and cannot be altered by, or modified by, political arrangements, but to great movements of public opinion, and to the modification of social relations that are constantly taking place. It is not on that ground, therefore, that I ask you to make this change. There is another function possessed by the House of Lords, which belongs to more quiet times, which is of the highest importance, and which, I think, recommends it to the country—that is, the function of revising legislation and preventing those marks of haste and carelessness which may be impressed on it by the House of Commons from ultimately finding their way into the Statute Book. It is impossible for anybody to be content with the present state of our legislative performances. Complaints on the subject are constantly arising from all quarters—from solicitors, from the Bar, and above all, from the Bench. The strongest condemnations were recently uttered by those who have a right to utter them—the Judges who administer the laws—upon the way in which those laws are framed. This evil, which arises from the state of things in the other House, is one which is likely to increase 1287 instead of diminishing. The House of Commons is overwhelmed with Business, which grows upon it year by year. The prosperity and Business of the country show a natural tendency to grow; and beyond this, the House of Commons is becoming more and more disposed to expend its time in dealing with executive, in addition to legislative matters, and insists more and more that every executive proceeding shall be submitted to its judgment. The result is that legislation is pushed into the small hours of the night, when, as an Irish Attorney General said, a clause is not unfrequently drawn up on a Minister's hat so that there is not time to revise the language of Acts of Parliament, and that they are put upon the Statute Book in a shape which gives rise to so much complaint. I may add that distinguished lawyers find an increasing difficulty in recommending themselves to constituencies, and that the House of Commons is becoming more and more deserving of the title which was given to a Parliament of former days of Parliamentum indoctum. The only way to remedy that state of things is that the legal learning in this House should be such as to be capable of correcting the errors of the other. It may be said that our own energy ought to be sufficient for that purpose, without the influx of lawyers. I wish it were so, but I am afraid that the tendency in the present day is to dislike work more and more. The love of hard work for its own sake, which animated our fathers and those who went before them is in this generation very much confined to those who have been trained to hard work from their youth. What you want is a sufficient number of men who will work at legislation, and who will do it because they have been trained to work, and are fond of it. It may be said that members of the Court of Appeal would be too hard-worked to give much time to legislation in this House; but it is men who have plenty of work to do, I believe, who find the most leisure for other work. The duties of a Lord Chancellor would, one would suppose, be sufficient to tax the energies of any ordinary mortal, yet we see a Lord Chancellor, out of pure gaiety of heart, take upon himself the duties of Master of the Rolls without suffering in his health in the slightest degree. What that noble and learned Lord's zeal has done I have 1288 no doubt other learned persons who love work will perform, and if the Chiefs of the law are given seats in this House, they will, I am sure, enter upon the task of legislation with an energy which will astonish us laymen, who do not understand what work means. It is, then, because I think we want more hard workers that I make this proposal. As things at present stand, the number of legal Peers is likely to diminish rather than increase; because the emoluments derived from the practice of the law are not what they were, and men who do not happen to have a private fortune may very naturally have a disinclination to accept a Peerage. Great pressure will no longer be put on the Crown to find Peers to do the work of the Appeal Court. Perhaps it is another consideration in favour of my proposal that the lawyers whom I propose to introduce into Parliament cannot be introduced in any other way. This is the only Assembly in the world which excludes those who administer the law. The Judges are not allowed to sit in either House. By the great efforts of Lord Macaulay, the Master of the Rolls may sit in the House of Commons, but practically he never does; and in this House, so long as you maintain that bar of a hereditary Peerage, yon can only have a very limited number of lawyers among its members. It is a weakness and a discredit to any Legislature when those who are best acquainted with the defects of the law, because it is their duty to administer it, are excluded from taking part in legislation. There is one part of this subject on which I need not touch. The question may be raised how far parties may be affected by the change. I cannot believe that any man or section of men in this House would, in a matter affecting the strengthening of the House of Lords, look at the question in the effect it would have of strengthening a particular section. But, as I understand, the addition proposed is so nearly balanced that it would make no difference in the state of parties in the House. Still less do I think that a Minister would be governed in his choice of a Judge of Appeal by the effect his appointment would have on the state of parties in this House. We all know such is the happy state of public opinion that no Minister, however strong, would dare to appoint to high judicial office a political partizan 1289 known not to be fit to occupy the post. I believe that so long as you rigorously adhere to the hereditary principle you will have difficulty in introducing within the walls of this House working power enough to perform the duties which the Constitution imposes on us. On the other hand, I am fully alive to all the dangers which rash and hasty measures may involve. But I believe that in ex officio Peerages connected with the law you will find a solution of the difficulty. Pass this Amendment, and you will introduce an element which from its nature is Conservative in the highest sense. The distinguished men I ask you to introduce are admirably fitted to assist in conducting the business of legislation; and I am sure your Lordships will agree with me that it is only by ability to do good work that this House or any other institution can stand long in this country. We must, if we mean to sustain the House of Lords in the credit it has long held and still holds before the people of this country, take the opportunity which possibly may not recur to give it that strength and shed upon it that lustre which the distinguished men to whom my Amendment refers would, above all others, be calculated to impart.
§ An Amendment moved, line 36, after ("jurisdiction") insert ("It shall be lawful for Her Majesty to direct a writ of summons to be issued to the said Judges, enabling them to sit and vote as Peers of Parliament during the tenure of their office.")—(The Marquess of Salisbury.)
§ EARL GRANVILLEMy Lords, I entirely agree in the object which the noble Marquess appears to have in view in introducing this subject to your Lordships' notice—that object being to add strength to the House of Lords. I am bound also to say, having been all along strongly in favour of life Peerages, that I think this House committed one of the gravest errors in rejecting the Bill for establishing them. In several of the arguments used by the noble Marquess I perfectly agree; but I certainly think that the subject is one which demands much more consideration than can be given to it on this occasion—more especially as several noble and learned Lords have left the House under the impress- 1290 sion that the Amendment would not be brought forward. No one values more than myself the assistance of the most distinguished heads of the legal profession; but it must be considered that we have in this House many members of that profession already. We have already eight, and if 13 were added to that number I really do not know what the consequences might be. When I was a Member of the House of Commons there existed a very strong disinclination to listen to lawyers at all. It was said they always spoke better at the Bar. Lord Lyndhurst used to say, "The great difficulty with us lawyers is this—when we speak at the Bar we are obliged to use all our arguments, but in Parliament we ought only to use our good arguments." It happened, however, that legal habits did continue, and if you had 21 lawyers on every legal question taking part in the debate, I am quite sure the result would not be so satisfactory as the noble Marquess imagines. I cannot conceive anything more creditable to this House than the way in which this Bill has been treated. There has been an entire absence of anything like political or personal feeling. On all sides noble and learned Lords—and, indeed, all who have taken part in the discussion—have done their very best to make the most perfect Bill they could, and also to facilitate its progress. I think, however, that it is of the greatest importance not to introduce any collateral matter not absolutely necessary to this Bill, and it appears to me it would be infinitely better to make the proposal of the noble Marquess the subject of a separate Bill, to be considered on its own merits. I quite agree with the noble Marquess that, whatever the faults of a Ministry on one side or another, there is a public feeling in this country which would prevent their committing anything like a prostitution of their patronage for the purposes of party. But these are all questions which ought very carefully to be considered, and which would be much better dealt with in a separate Bill than on an Amendment of this kind.
EARL GREYI think it would be greatly to the advantage of this House if my noble Friend's proposal were agreed to, and I am much disappointed that my noble Friend who represents the Government (Earl Granville) has not met the argument of the noble Marquess 1291 in a direct manner and on its merits. I cannot help fearing he has evaded it from some motive of convenience. There never was a proposition of great importance which had been more fairly and deliberately placed under your Lordships' notice. The accidental absence of some Members, for whatever reason, is no ground for evading the discussion. We are told we had better not adopt this Motion because the matter may be done in a more complete mode hereafter. Now, I have unfortunately sat a very great number of years in this and the other House of Parliament, and I have observed that there is no more effective way of getting rid of a measure which is acknowledged to be important as far as it goes, when there is great difficulty in finding a valid objection to it, than to suggest that it had better be made much more complete, that you should put off this useful step until you can take a much larger and more effectual one. I am sorry to say what a great many important improvements I have seen in my time quashed by that argument of postponement with a view to doing something better, the result being that nothing whatever has been done. Looking to the state of business and the manner in which Bills are now carried through both Houses, I do say that if it is desirable for the credit of Parliament, for the efficiency of legislation, and for the advantage of the public, to introduce a limited number of men of great legal ability into this House, this is the proper opportunity. Such a plan forms an appropriate part of this Bill, and if we neglect this opportunity, we may wait for many years before we have another, or before we see the intention realized of some more perfect measure being passed at last. I do hope that your Lordships will not hastily reject the Motion of the noble Marquess. For my own part, I have no hesitation in giving it my decided support.
§ THE MARQUESS OF SALISBURYI do not think it of any use in the present condition of the House to divide after the adverse speech of the noble Earl opposite. From his previous leanings, I looked for a more favourable reception for the proposal at the noble Earl's hands. I am convinced that the opportunity which is now being thrown away will not recur, and I feel that evils such as both the noble Lord and I would lament will arise unless some such proposal be adopted.
§ Motion (by leave of the Committee) withdrawn: Amendments made: The Report thereof to be received To-morrow.
§ House adjourned at half past Eight o'clock, till To-morrow, half-past Ten o'clock.