THE LORD CHANCELLORMy Lords, I do not think any apology will be required of me when I ask your earnest attention for a short time to some subjects connected with the administration of the law in this Empire, and which, as connected with that administration, are of the greatest importance. My Lords, I refer to the present system of Judicature in Scotland, and the present system of Judicature in Ireland, and to the arrangement which was made by Parliament last year with regard to appeals—to the question how far appeals from Ireland and Scotland should be connected with that legislation.
1809 My Lords, the subject divides itself into three questions. First, I will state to your Lordships the new proposals which I desire to make with regard to the Judicature of Scotland. Your Lordships are aware that the judicial system of Scotland differs from the system of law in England and Ireland; and as the system of law differs, so also does the course of procedure in the Scotch Courts differ widely from that in this country. Your Lordships are, perhaps, aware that in Scotland, as a general rule, cases which arise for litigation are heard in the first instance before a single Judge, who is called the Lord Ordinary. If either of the litigants should desire to appeal from his decision, the case is carried from the Lord Ordinary, by what is called a "reclaiming note," to either of the two divisions of the Court of Session. This is a prompt and efficacious system of intermediate appeal. But when the primary process and the intermediate appeal are exhausted, the case may still he brought to an ultimate and final Court of Appeal. My Lords, of that system as it prevails in Scotland there is not, as far as I am aware, any complaint either as regards the time occupied in litigation or as regards expenses. The course of procedure has been amended more than once in recent years; and, so far as I can learn, it may be pronounced to be, on the whole, satisfactory to the people of that country. By accident I am able to mention to your Lordships a case from Scotland heard in this House during the present week. It was one of considerable importance, involving questions—which are always nice and difficult—as to the validity of an entail of Scotch estates connected with a Scotch peerage. I observe that, in disposing of the case in Scotland, the Lord Ordinary made some observations which are so interesting as to justify me, at this stage, in reading them to your Lordships. The case was disposed of by him on the 12th of July, 1872:—
The Lord Ordinary cannot help expressing his gratification that this case, in which he observes the summons is dated and signeted the 4th of Juno last, which was brought into Court on the 25th of June, and in which, since then, the record has been closed, and a very full and able discussion has taken place, has been completely, and, as he trusts, satisfactorily disposed of, so far as its dependence in the Outer House is concerned, within a few weeks. It is not six weeks since the summons was raised, or three weeks since it came into Court, and yet it in- 1810 volves large and important interests. This case is an example of the expedition, and consequently little cost, with which causes are and may, if the parties desire it, be heard and determined in the Supreme Court as it is now constituted. The Lord Ordinary, however, is not to be understood to say that those cases in which a jury trial or a proof is indispensable can be so expeditiously disposed of, but even in such cases he is convinced that parties may always have it in their power, by the exercise of ordinary vigilance, to get their suits brought to a termination without any just cause for complaint on account of delay, so far at least as the Court is concerned.I observe that an appeal—or, as it is termed in Scotland, "a reclaiming note"—was brought against the Lord Ordinary's "interlocutor," and that appeal was disposed of by the Court of Session on the 8th of January following; so that within six months from the commencement of the proceedings—the greater part of which time was included with the autumnal and Christmas Vacations—the case was disposed of as far a Scotland was concerned. I think, my Lords, that it will not be unsatisfactory to add that the case thus disposed of in Scotland in January, 1873, has been in this month of May, 1874, finally disposed of in your Lordships' House:—so that from the first proceeding in the case till the final judgment not more than 18 months have elapsed. So far as Scotland, therefore, I have very few proposals to make, and these are connected chiefly with litigation before it arrives at the Ultimate Court of Appeal. The first proposal I have to ask your Lordships to adopt is connected with a subject very much spoken of a few years ago. At that time it had been remarked that a number of appeals came up from Scotland in cases in which the subject-matter of the litigation was very small. To meet that inconvenience Lord Westbury made proposals to check frivolous appeals in respect of such cases. I will now ask your Lordships to make provision that no appeal shall be allowed to leave Scotland in which the subject-matter of appeal does not exceed £500, excepting when some important question of law, some right of property or franchise, which are not to be estimated by the money value, are involved, or personal status, matrimonial status and status of legitimacy. At present a case may not be brought from Scotland to the Court of Ultimate Appeal before it is fully wound up in the Scotch Court of Appeal, Now, this is found to be a 1811 source of great expense; and I propose that an appeal may be brought to the Court of Ultimate Appeal in the first instance; and I propose that when an appeal leaves Scotland no cross appeals shall be necessary Some limitation as to the time within which appeals shall be allowable will also be provided.I now turn to the case of Ireland. Your Lordships are aware that the system of law is the same in Ireland as in England; and as the system is the same, so also in substance is the arrangement of the Courts of Judicature the same as that which exists in England. There are in Ireland, as in England, Courts of Equity and Courts of Common Law. There are three Courts of Common Law—the Queen's Bench, the Common Pleas, and the Exchequer. Then, in Chancery there are the Lord Chancellor, the Master of the Rolls, and a Vice Chancellor. There is a Judge of Admiralty, there is a Judge of Probate, there is the Landed Estates Court, in which there may be two Judges, though at present there is only one—and there is the Court of Bankruptcy, with two Judges. My Lords, following the example set with regard to England last year, I propose to blend the whole of those Courts in one Supreme Court—one High Court—for Ireland, in every branch of which all the jurisdiction now exercised in all the Courts shall be exercisable. I propose that, to the extent it was done in the case of England last year, law and equity shall be assimilated in Ireland; and I propose that, as in the case of England, the divisional names shall be retained. I propose that the Lauded Estates Court shall be attached to the Court of Chancery Division of the High Court, carrying with it all the powers it now possesses. My Lords, in Ireland there now exists an intermediate Court of Appeal—and this we propose to retain. The system of intermediate appeal in Ireland is this—there is an appeal from the Lord Chancellor sitting alone, to the Lord Chancellor sitting with the Lord Justice of Appeal—an appeal to a Court of two members. From the Common Law Courts an appeal lies to the Exchequer Chamber—that is, an appeal from the Judges of one of the Common Law Courts to the Judges of the other two. I cannot think that either of those modes of appeal is satisfactory. With regard to the appeal in Equity, in coming to a 1812 Court which consists of only two members you always risk that the appeal will altogether fail; and, in Common Law, with regard to the Court of Exchequer Chamber, that tribunal in Ireland is open to the same objection urged with such force against the Exchequer Chamber in England—that it is fluctuating in its composition and uncertain as to its time of sitting. Then it is a Court in which a set of primary Judges sit in appeal on another set of primary Judges, who again sit in appeal on the first. What I am anxious to do, and what I ask your Lordships to assist in doing, is to create a strong, simple, and firm Court of Appeal for all cases coming from the various primary Courts. The mode in which I propose that should be done, is this—To have a Court of Appeal, consisting of the Lord Chancellor, who shall be President, and two "ordinary" Judges who shall be styled "Lord Justices of Appeal—making three Judges of regular attendance; and to have, in addition, as ex officio members, the heads of the three Common Law Courts. I propose that the Court of Appeal should never consist of fewer than three members as a Quorum; and that to it should go all cases that may have been decided in any Division of the new High Court of Justice, all the jurisdiction and powers now exercised by the Court of Appeal in Chancery, and of the Court of Exchequer Chamber; and that there should also go to it cases of criminal appeal, with this qualification—that in such cases, in addition to the Judges of Appeal, two at least of the Chiefs of the Common Law Courts shall sit. We propose, also, that to this Appeal Court should go all appeals in land cases, which at present go to a fluctuating and uncertain body of Judges. I have nothing more to say with regard to the Court of Appeal except that the Lord Chancellor and Lords Justices, if their time should not be fully occupied by appeals, should be qualified to lighten some of the original business in the Court of Chancery by taking some of the unheard causes. I shall now refer to the number of the Common Law Judges in Ireland. Of these there are twelve—four in each Court—the Chief and three Puisne Judges. There are in Ireland six circuits, and two Judges go each circuit. Two Judges have also to attend the sittings of the Criminal Court for the 1813 city and county of Dublin. We propose to take advantage of the blending and amalgamation of all the Courts for doing that which was done in England last year—for dispensing, in future appointments, with some of the Judicial staff. In this country your Lordships and the other House of Parliament were able to reduce the number of the Common Law Judges by three. We propose under the new arrangements in Ireland to have in future five Circuits in place of six, dividing the assize business among the five; and to require the attendance of only one Judge instead of two to preside at the criminal sittings in Dublin. We propose to leave in the Division of the Court of Queen's Bench, where the business is somewhat heavier because of Crown cases, the four Judges; but to take one Judge each from the Court of Common Pleas and the Exchequer. As the transfer of the Judge of the Landed Estates Court to the Chancery Division of the High Court will get rid of some complicated business in the two Courts as they exist now, we propose that the Judge who at present so ably conducts the business of the Landed Estates Court should take it in the Chancery Division, and that no second Judge should be appointed to that Court we propose that on the death or the resignation of the present Judge of Admiralty, no new appointment to that office should be made, but the business of his Court be transacted by the Common Pleas Division of the High Court. We propose, after the tenure of office of the present holder, to dispense with an expensive office, and one to which a considerable staff is attached—the office of Receiver Master; and also to dispense with the double office of Accountant General and Notice Officer of the Landed Estates Court and the Court of Chancery. On the other hand, we propose to make an addition to the judicial staff by the appointment of another Lord Justice of Appeal. I should state to your Lordships also—though this is rather a financial question for the other House—that, inasmuch as the Puisne Judges in Ireland at present receive a salary of £4,000 Irish, or about £3,700 British, and the Master of the Polls and the Vice Chancellor receive £4,000 British, we propose by way of remunerating them for the addition to their duties, to increase the salaries of the Puisne Judges to 1814 £4,000 British. I believe that even after this increase has been set against the reduction, the saving will be about £14,000; but I commend the proposal to your Lordships not on that ground. We propose that the measure effecting these objects should come into operation on the 1st of January in next year. That disposes of all I have to trouble your Lordships with on the subject of judicature inside of Ireland.
I now come to the Ultimate Appeal as regards Scotland and Ireland and other parts of the Empire. My Lords, the Judicature Act passed last year is made to come into operation on the 2nd of November in the present year. After that Act was passed its provisions left, as it seemed to me, fully as much to be done outside the Act as was done by the Act itself. And very properly so, because there were outside the Act matters of detail that could not have been settled by the Bill itself. It was provided that Rules should be made under the direction of the Judges of the High Court, and in November last that operation was commenced. Three learned gentlemen, exceedingly well qualified, were selected as draftsmen by my noble and learned Friend (Lord Selborne) who preceded me in office. Mr. Jones, Dr. Tristram, and Mr. Arthur Wilson were selected by my noble and learned Friend, and these gentlemen were to act under a committee of the Judges. The Rules of two of the Divisions have been printed, and are now in course of circulation among the Judges for the purpose of obtaining their approval, and among those bodies of professional lawyers who have an interest in these Rules, and are naturally able to give special assistance with regard to them. There remains another Division of these Rules still to be printed and circulated in the same way; but it is anticipated that they will be printed and circulated before the 1st of June, and after that I have reason to think that some of the Rules can be adjourned to a later period.
I have now to state to your Lordships some minor changes which are found to be necessary, and with regard to which the part of the Bill which I shall have the honour to lay on the Table contains provisions. One relates to a question as to which I will not trouble your Lordships with any detail, but only refer to it—the position of the Judge of the 1815 Court of Admiralty. When the Judicature Act of last year was in progress through this House, it contained a proposal to put the Judge of the Admiralty Court, who has at present a salary somewhat smaller than the other Judges, on an equality as regards salary with the other Judges, and to require him to perform duties of the same nature as the other Judges perform. Your Lordships are aware that at present the Judge of the Court of Admiralty holds certain ecclesiastical appointments. When the Bill went down to the other House of Parliament a proposal was made, with the view of advancing the position of the Judge of the Court of Admiralty that those ecclesiastical appointments should be relinquished. I understand that some communication passed between the Law Officers of the Crown and the Judge of the Court of Admiralty. Unfortunately, that communication on one side and the other was misunderstood and the result was that the Bill passed into law, leaving the Judge of the Admiralty Court charged with the performance of increased duties under the Act, but without the provision which was made in this House that he should be advanced, both as regards salary and rank, to the position of the other Judges. I mention this because I understand that my noble and learned Friend (Lord Selborne) and the late Government were of opinion that this was an oversight and ought to be remedied, and Her Majesty's Government feel it their duty to propose a clause in the present Bill to remedy this oversight. Another minor matter as to which I have proposed modifications of the Act of last year relates to a subject not fully understood at the time—the subject of Ecclesiastical Assessors. Your Lordships will recollect that when the measure was passing through the House last year, some clauses were introduced giving Her Majesty power to remit ecclesiastical appeals to the consideration of the new Appellate Tribunal, and directing Rules to be made for the appointment of Ecclesiastical Assessors, to be present at the hearing of those appeals. In our anxiety to agree upon clauses to this effect, the composition of the clauses was not quite so well considered as it might have been. They appear now, on examination, to be somewhat inelastic. In the first place, they provide that the Rules should not 1816 be made until after the Act comes into operation; whereas it is highly desirable that they should be made before the 2nd of November next. They also do not appear to provide for the appointment of Ecclesiastical Assessors for a number of years. We thought it was desirable that these appointments should be for a term of years. I shall therefore have to propose to your Lordships to alter and enlarge the Act of last year in these respects.
Passing from these, which are really minor matters; I come to one of the most important parts of the measure of last year—I mean that which dealt with the question of the Court of Ultimate Appeal. Your Lordships will remember that what Parliament did by the measure of last year was to provide that all appeals from the Courts in England, and that all the appeals at present heard by the Judicial Committee of the Privy Council—whether ecclesiastical appeals or other appeals—should be heard, if Her Majesty thought fit, by the Appellate Tribunal created by the Act of last year. The Legislature having prevented any further appeals in these cases either to the Judicial Committee of the Privy Council or to your Lordships' House, the question now remains—What shall be done with regard to appeals from Scotland and from Ireland? I should observe that recently there has been a certain amount of discussion and controversy as to the feeling of the people of Scotland and of Ireland on the subject. I do not know that anything has occurred which could enable us to say certainly what is the feeling of those countries at large. But I think we have had considerable indication of the feeling of the professional people in Scotland and Ireland on the subject, and, so far as I can gather it, the professional feeling in Scotland has been, and is at this time, that of contentment with the mode in which the jurisdiction of this House has been exercised—the professional classes in Scotland would be well satisfied if appeals from Scotland continued to be made to your Lordships' House. But I think that, at the same time, they have indicated that, assuming that the jurisdiction of this House will be no longer exercised with regard to English appeals, they would prefer Scotch appeals being disposed of by the same tribunal as disposed of English 1817 appeals. I think that a similar feeling exists on the part of the Bench and. Bar of Ireland. An official communication was made last year to the Chief Secretary for Ireland, in the month of June, on behalf of the Judges of Ireland who assembled at that time to take into consideration the Supreme Court of Judicature Bill. From that communication it appears that the Irish Judges unanimously resolved—
That it is of essential importance to the administration of the law that there should be preserved a right of final appeal from the decisions of the Courts in Ireland to the same tribunal as that to which the right of final appeal shall lie from the like decisions of the Courts in England.I will not trouble your Lordships more particularly with that resolution, for this reason—I have this morning had a communication with one of the learned Judges in Ireland, who, I understand, was referred to in "another place" as entertaining a different opinion, and as having suggested that a different opinion was entertained in Ireland by the Judges generally; and he has begged me to state that the Judicial Bench in Ireland adhere to the resolution that I have just read—that whatever opinion they might entertain in favour of continuing appeals to this House, now that English appeals will cease to be made to this House they think it is expedient that Irish appeals should go to the same tribunal as the English appeals. Now, I may say at once that it is upon this principle that Her Majesty's Government propose to act. They propose to supplement the measure of last year by provisions which will carry to the same tribunal Scotch and Irish appeals; and they propose to constitute that tribunal as an "Imperial Court of Appeal."Here at once arises a question which I have no doubt your Lordships will put to me—If the Court created by the legislation of last year is to become an Imperial Court of Appeal, what alteration is it proposed should be made in the constitution of the Court, and in the qualification and quality of the Judges? Now let me remind your Lordships what the composition of the Court of Appeal is under the Act of 1873. There are nine ordinary Judges of the Court of Appeal—that is to say, the two Lords Justices, four Members of the Judicial Committee of the Privy Council, and 1818 three other ordinary members to be appointed, but who have not yet been appointed, as members of the Court of Appeal. Then, there are five ex officio members—the Lord Chancellor, the Chief Justice of the Queen's Bench, the Chief Justice of the Common Pleas, the Chief Baron of the Exchequer, and the Master of the Bolls—14 in all. In addition to that there are what are termed "Additional Members" of this Court of Appeal—that is to say, any person who has held the office of Judge of the Supreme Court in England, or the office of Lord Justice Clerk in Scotland, or the office of Lord Chancellor, or Lord Justice of Appeal in Ireland, or the office of Chief Justice of any of the three Presidencies in India. They who have served in those offices and who will express in writing their willingness to serve in the Court of Appeal, may be appointed by the Crown to serve as Additional Judges. It is, of course, impossible for me to say how many might be found with the necessary qualification, and willing to give the requisite amount of what I may term voluntary service; but, to speak of probabilities with safety, I will assume that two or three could generally be secured to give attendance upon the Appellate Court. That bring so, your Lordships will observe that we have nine ordinary members, five ex officio members, and other two or three of these voluntary or additional members. In that way you will have the Appellate Court composed of sixteen or seventeen Judges. Now, I may here state to your Lordships as a matter of some interest, the amount of business which we may suppose will require to be done, including Scotch and Irish appeals. I have taken as a test the number of appeals which have come before your Lordships during the last five years, and I find that the average number in the year is 54½, of which 27½ come from England, 22 from Scotland, and only five from Ireland. It will be remarked that the appellate business from Ireland, at all events, is not very heavy. Now, the question naturally arises, are we to have any ex officio members of the Imperial Court of Appeal from Scotland and from Ireland—that is to say, are we to have any of the Judges at the time actually in office in Scotland or Ireland attending the Appellate Court in this country? The con- 1819 clusion at which Her Majesty's Government has arrived is that it would not be desirable or expedient to have any ex officio members of that kind; and this is not from any want of appreciation of the value of the services of those eminent men, but for a very different reason. Your Lordships will observe from what I have said that the Judges in Scotland are at present fully occupied either as primary Judges or as fulfilling the duties of the intermediate Court of Appeal in that country. And the same remark applies to Ireland. Your Lordships, therefore, will see that the precedent set in England by taking certain existing Judges and making them ex officio members of the Court of Appeal is entirely inapplicable to the case of Scotland or Ireland, because in England there is no intermediate appeal, and the fudges are therefore able to give a certain amount of their time to the business of the Appellate Court. Moreover it might be in the highest degree inconvenient to have Judges coming from Scotland or Ireland for one or two days to take part in proceedings here, to the derangement of the business of their own Courts, which would have to be interrupted and on subsequent days resumed, and the whole arrangements in regard to which would be impeded if They were made to depend on the arrival of Judges occupied elsewhere. We have, therefore, as regards the ex officio Judges, no alteration to propose in the composition of the Appellate Court as settled last year. Now arises the question what alteration should be made in the qualification of those who are to be appointed Judges of the Court of Appeal. Your Lordships may remember that last year when it was proposed to transfer the appeals from Scotland and Ireland to this Court, the further provision was suggested that, of the ordinary Judges of the Court one should necessarily be chosen from the Bar or Bench of Scotland, and one necessarily from the Bar or Bench of Ireland. I think there are very grave objections to a provision of that kind. In the first place, if you lay down the hard and unyielding rule that you must always make a selection in Scotland or Ireland for a particular vacancy, it ceases to be in your power to consider whether it is possible at the time to find a suitable man in the country where the choice has to be made. 1820 No doubt at times there may be persons extremely eligible; but it might happen at other times that no eligible person could be found. There is another very strong objection to the clause. If you lay down the rule that the Appellate Court cannot be properly constituted unless there is a member from Scotland and one from Ireland, it will at once be said that the rule is intended to indicate an intention that Irish business must be heard by the Irish member and others, and Scotch business by the Scotch member and others. In fact, we should have logically to make a provision to that effect; and this would, of course, put an end to the idea of one general Imperial Court of Appeal, homogeneous in its composition and with no difference whatever in the capacity of its members. We think it would be more satisfactory to the Kingdom at large to give a much more extensive area of choice to those who have the responsibility of appointing the ordinary Judges of the Court of Appeal. We propose that, without exception, all the ordinary Judges may be selected from the Bar or Bench of England, Scotland, or Ireland. We propose to make no distinction, but to leave it to those with whom the choice rests to appoint the best man they can get at the time—and probably this arrangement will be regarded as one which is likely to work efficaciously for the good of every one. I have no doubt that a great advantage will be derived from bringing together on the Bench of the Court men who have been trained at the different Bars of England, Scotland, and Ireland.
Now, having, in this way, stated the only alterations we propose to make in the composition of the Court and the qualification of its members, I have to ask your Lordships to approach the subject which naturally presents itself next, and which is by no means the least important of all. Having got your Court of Appeal in this way, how do you mean to use it? What provisions do you mean to make as to the manner in which appeals are to be heard before it? I must remind your Lordships that under the legislation of last year there are no arrangements of that nature beyond this—that it is provided that the members of the Appellate Court—who, as I mentioned to your Lordships, may be sixteen or seventeen in number—may sit in any number of Divisions—with 1821 this qualification, that there must not be less than three Judges in any Division. The consequence is, that you may have three or even four Divisions, with three members in each, all sitting at the same time and discharging all the ordinary functions of a Court of Ultimate Appeal. Now, I mention this not in the slightest degree to express surprise at the legislation of last year. When we remember the magnitude of the work which was then undertaken, and the novelty of the provisions that were proposed, I think that, instead of wondering that the work was not then once and for all completed, it would be much more natural for us to be surprised if supplemental legislation on the subject were found to be unnecessary. Whatever difficulties may have to be met in connection with the Act of last year, I believe that on account of the immense area of legal arrangements with which it dealt, and the manner in which it treated the constitutions of our Courts—constitutions which had taken deep root in all our traditions and practices—it will take rank in future times among those works of legislation that are regarded as of the greatest magnitude and importance. But it is for us now to consider whether some further provisions are not required with a view to an efficient working of the system of Ultimate Appeal. I certainly objected last year, and so did others, to the arrangements laid down by the Act. It appeared to me and to many others, that the arrangements with regard to the Ultimate Court of Appeal were anomalous in this respect—that they abolished any intermediate appeal for England, while an intermediate appeal would remain for Scotland and Ireland, and for all the Colonies, and also in ecclesiastical cases. The only cases in which there would be no intermediate appeal would therefore be the cases from England. That appeared to me to be a very considerable anomaly; and, in addition, it certainly did seem to me there would be a very great danger of two or three Courts of Ultimate and Final Appeal sitting at the same time, and perhaps differing in the conclusions at which they arrived. It appears to me, also, that this consequence may possibly occur—you may have an appeal involving property of great magnitude brought to a Division of this Ultimate Court of Appeal from the decision of one Judge, 1822 or it may be from a Court in which there were three Judges, and you may have the three members of the Appellate Court divided upon it—two against one. Now, the decision of the case would of course rest upon the opinion of the two; and so you might have two Judges in the last resort over-ruling the opinion of three, or it may be four, other Judges. This, I think, would be a very great evil, if it were allowed to pass without a remedy. And I would ask your Lordships to bear in mind what are the real advantages of an Ultimate Court of Appeal. It is a great mistake to suppose that its main and only object is to secure the best possible decision that can be arrived at in any particular case. That, no doubt, is one object, but it is by no means the only, or even the chief object. I believe one of the great objects of an Ultimate Court of Appeal is to steady and settle the law of the country. I believe you could have nothing more to be deprecated or deplored than a system of appeal, which, in place of settling or steadying the law of the country, would, by a conflict between the different Divisions of the Court of Final Appeal, unsteady and unsettle the law. One of the objections which have been taken by many to the appellate jurisdiction which has hitherto existed in England, was that this House and the Judicial Committee of the Privy Council might come to a different decision on cases involving questions of English law, and that varying opinions on those questions might be pronounced by those two final Courts of Appeal. There was, of course, the possibility of such a difference arising in theory if not in practice; but when we take the case of an Appellate Tribunal divided into two or three sections, the difficulty, of course, becomes greater. By a slight departure among the different Divisions from one settled principle of law, you might by degrees get up such a divergence as would unsettle the law altogether. These being the difficulties of the case—which I do not desire to dwell on at this stage—the question is, how are they to be avoided? I must remind your Lordships of the materials which we have for a final Court of Appeal. Nine ordinary Judges, the Lord Chancellor, and four other ex officio Judges, and probably two or three additional or voluntary Judges. Well, we propose that there should be a First 1823 Division of this Court of Appeal sitting with not less than five members to constitute a Quorum. We propose, as to the composition of that First Division, that three of the ordinary members of the Court of Appeal should be nominated to it by the Crown triennially; we propose that the Lord Chancellor, the Lord Chief Justice of the Queen's Bench, and the Master of the Rolls should be ex officio members of the First Division; and we propose that two of the additional or voluntary members of the Court of Appeal should be nominated to that First Division and nominated also for a period of three years. In that way, your Lordships will perceive, you will have three ordinary and three ex officio members and two additional members—eight in all, who are to sit with a Quorum of not less than five. We propose that to this First Division should be assigned the hearing and decision of all Scotch and Irish appeals, including those which may have been heard in a Court of intermediate appeal in these respective countries. We propose to assign to this First Division, also, for hearing and decision, all ecclesiastical appeals, those also which may have been heard on intermediate appeal. We propose that the remaining members of the Court of Appeal should sit in one or two Divisions of not less than three each; and that whenever, in any of the cases heard before cither of those two other Divisions, the Judges are not unanimous in their decision, that case may, if the parties desire it, be heard before the First Division. In that way there would be virtually a second appeal whenever the Judges on the hearing of the first appeal were not unanimous. We propose, further, that to the First Division shall also be sent, in the first instance, any colonial cases which are considered to be peculiarly important—cases such as are well known from time to time at the Privy Council Office involving questions of constitutional law. Of course, any colonial cases which might be heard by either of the other Divisions may by arrangement come also before the First Division. I must not omit to say that the 23rd Clause in the Act of last year provided that any appeal which might for any reason be re-heard might be so heard before a greater number of Judges in the Court of Appeal. I do not think that provision would be adequate to 1824 meet the necessities of the case. It is obvious that if you have two Judges deciding against one, the one Judge would probably be out-voted by the others who might desire that there should be a rehearing. We propose, therefore, to give an absolute right to the parties, if they desire it, to have their case re-heard. These arrangements, should your Lordships think fit to adopt them, will, I believe, have the effect, which is, after all, the great object of a Court of Appeal, of steadying and settling the law. We shall give a point of contact between the Second and Third Divisions of the Appellate Court and the First Division, and in that way I trust we shall preserve the inestimable benefit to the law of this country—an advantage we have hitherto possessed—of having one Ultimate Court of Appeal upon all points of the law of this country.
The se proposals of the Government are embraced in two Bills, which I am about to lay on your Lordships' Table—the one being for the Amendment of the Judicature in Ireland, the other for the Amendment and extension of the Judicature Act of last year. I will only say that I hope these Bills will be in the hands of your Lordships on Saturday, and that I propose to fix the second reading for next Tuesday week.
§ Then—
§ SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL [H.L.] (NO. 56.) A Bill to amend and extend the Supreme Court of Judicature Act, 1873; And also,
§ COURT OF JUDICATURE (IRELAND) BILL [H.L.] (NO 57.) A Bill for the constitution of one Court of Judicature, and for other purposes relating to the bettor administration of Justice in Ireland:
§ Were severally presented by The LORD CHANCELLOR.
§ LORD SELBORNEsaid, he had listened with great satisfaction to the very lucid and able statement of his noble and learned Friend; and he was happy to be able to add that on the subject under discussion, as well as upon another very important one which was recently under the consideration of their Lordships, there would probably be no serious difference of opinion—if any at all—between the noble and learned Lord and himself. He should, however, be agreeably surprised if the pecuniary 1825 saving with regard to the Irish Judicature anticipated by his noble and learned Friend should turn out to be so great as he seemed to suppose. As to the Scotch and Irish appeals, he felt persuaded, the noble and learned Lord had come to a wise decision in determining not to introduce ex officio members into the Court of Appeal from either Ireland or Scotland. The subject was necessarily under the consideration of the late Government during the Recess; he could not say that any conclusion with respect to it had been finally arrived at—it was still under consideration when the change of Government occurred; but, on the question whether there should be ex officio Judges in the Pinal Court of Appeal brought from Scotland and Ireland or not, the opinion of the late Lord Advocate (Lord Young) was that it was not, on the whole, advisable that this should be done. The reasons given by the late Lord Advocate completely satisfied his (Lord Selborne's) mind that he was right in taking that view; because to withdraw from Scotland the leading members of the Scotch Bench in order to make them practically useful in an Imperial Court of Appeal must necessarily much interfere with the course of justice in Scotland, and particularly in the intermediate Court of Appeal there; while, moreover, those Scotch Judges would not necessarily, in the decision of Scotch cases, have greater authority than the other Members of the new Appellate Court. When it was proposed last year to introduce ex officio members it was never intended that the Scotch appeals should necessarily be decided by Scotch Judges, nor the Irish appeals by Irish Judges. On the whole, he thought his noble and learned Friend had adopted the wisest course in laying before their Lordships the proposition on that subject which he had now explained. That the highest Court of Appeal should, from time to time, include some of the most eminent Scotch and Irish lawyers, was clearly desirable; but that object might be attained without laying down, by Act of Parliament, any more fixed rule of selection than that which his noble and learned Friend proposed. With respect to the proposed modification of the manner in which the Court of Appeal should deal with the cases coming before it—and more especially by constituting a First Division of not fewer 1826 than five Judges sitting at a time, who should take Scotch, Irish, and Ecclesiastical appeals, with re-hearings of cases in which there was difference of opinion—he might point out that in some degree, at all events, that part of the question had assumed a different relation to the whole measure from the introduction of Irish and Scotch appeals. The introduction of those appeals of course rendered necessary some special provision as to the manner in which they were to be disposed of. He had never been insensible to the necessity, in establishing a new Final Court of Appeal, of avoiding the evil of discordant judgments. In the measure of last year, which was limited to English appeals, a power was given of re-hearing cases as to which the Judges of a Division had differed in opinion, and other important cases also. He should have placed great confidence in the discretion with which the Judges would have exercised that power. His noble and learned Friend now proposed that, instead of its being left to the discretion of the Judges, the right of rehearing should be more definitely regulated by statute. He was not disposed to offer any serious objection to his noble and learned Friend's proposal in that respect; more especially as he understood it was not meant to make the Judges of the First Division unavailable for any other business of the Court of Appeal for which their assistance might be required. Some indeed might think that the bill of fare which his noble and learned friend provided for the Judges of the First Division would probably be sufficient to occupy the whole of their time. That remained to be seen. His own opinion was that if the plan which had been suggested were adopted, the number of Scotch appeals would considerably diminish, and also that the Irish Appeals—now few in number—would not have a tendency to increase. Therefore he did not think there was any overwhelming amount of business to be expected from either the Scotch or the Irish appeals; and he did not despair of seeing all the business which would come before the new Appellate Court done both well and expeditiously.
§ LORD MONCREIFFsaid, that he had listened with great pleasure to the perspicuous statement of the noble and learned Lord. As to some parts of his speech he entirely agreed with him, but 1827 in some other respects he should like to see the Bill before expressing a definite opinion. A great deal had been said about the people of Scotland and the distinction which existed between the law of that country and English law. In the first place, in regard to the intermediate appeal, he thought his noble and learned Friend was right in not interfering with the intermediate appeal in the Scotch Courts. He did not think the Judges of that country ought to be occupied with the question of ultimate appeal, nor did he think the Court of Ultimate Appeal should be occupied by the small and trivial cases referred to by his noble and learned Friend. The important matter to which he wished to refer was the proposal to terminate the jurisdiction of that House in regard to appeals from Scotland, and to transfer it to a new tribunal. He had come to the conclusion that it was of great advantage to the people of Scotland that appeals in legal matters should be settled by the new Court of Appeal, and that the jurisdiction of their Lordships' House should cease. An entirely different system of jurisprudence prevailed in Scotland from that which prevailed in England; but it differed only in form, because in every enlightened country the principles of jurisprudence were the same. In truth, the jurisprudence of Scotland was not indigenous to the soil, and there was very little of it that owed its origin to the country itself; on the contrary, both its terminology and its principles had for the most part been derived or adopted from the Continent. It often happened in the last century that young students of Scottish law pursued their education in Continental schools. At the time of the Union there was an appeal to the Scottish Parliament. He would not trouble their Lordships with the history of the transactions which led to the transfer of the appeal to the Imperial Parliament, sitting judicially in their Lordships' House; in which Scotland had its share, though not a very large one, of the representation. At the time it was well known that there was some controversy as to the question of the necessity of appointing Judges conversant with the Scottish law; but from accident or necessity, more than from principle, these appeals had, for the most part, been heard by Judges conversant with the law of England, 1828 though there were among them men who had been originally trained up under the legal system of Scotland. He should be very ungrateful if he did not acknowledge the great obligations which the northern part of the Island was under for the assiduous and judicious exercise of their functions by that House, and to the noble and learned Lords who had presided over them through a long line of illustrious Lord Chancellors, from the time of Lord Eldon down to that of his noble and learned Friend who now occupied the Woolsack. These had brought to bear on Scotch cases a brilliancy of intellect and a weight of judgment and experience which had been of the utmost advantage to the Scotch people. He did not say that the machine had always worked smoothly. Want of familiarity with technicalities had necessarily occurred sometimes; and a too rapid assumption of what was the law of Scotland, or of its being identical with the law of England; but the jurisdiction had, on the whole, been so exercised as to give satisfaction to his countrymen. In the first place, it had enlarged their minds on legal questions, and prevented a sort of tendency to provincialism in the Courts of Scotland; and, in the second place, it had been of immense advantage in giving them sound principles of commercial law, this country being so much larger, and the transactions being so much more numerous. These results, however, would have been insufficient to redeem the anomalies on which the jurisdiction was founded, but for the great learning, ability, and conscientiousness of its administration. The only question was as to the admixture of Scotch Judges with English Judges in the new Court of Appeal. About 20 years ago there was a Committee on this subject, and it was then thought there would be some advantage from the admixture of the Scottish element. He must say that if this was to be the last Session in which this appeal was to exist to the House of Lords, he should certainly part with it with great regret; but to retain it for merely Scotch cases, was out of the question. The question was, what was to be put in its place? The noble and learned Lord had made the best of his materials with one exception, and that was that he certainly thought that it would have been of advantage to have at least one eminent 1829 Judge from Scotland to sit ex officio in the First Division of the new Court. There was greater reason for this in the case of Scotland than there would be in the case of Ireland. He considered that there would be nothing more anomalous in appointing Scotch or Irish Judges on appeals from those countries than in appointing English Judges, and he reminded their Lordships that in the new Appellate Court there would not be the same safe-guards that there existed in this House. He, therefore, submitted that at least one Scotch Judge should have a seat in the Appellate Court. With the rest of the Bill, he entirely concurred. He requested his noble and learned Friend to re-consider this point, and see if he could not make a change in favour of Scotland in this respect. If this was deemed inexpedient, he approved the proposed First Division as likely, perhaps, to be as efficient a successor of that House as any Court which could be devised.
§ LORD O'HAGANsaid, he had heard with satisfaction the lucid statement of his noble and learned Friends, and had nothing to object to a great many of the clauses of the Bill. He desired to say that the late Government had never contemplated the abolition of an intermediate Court of Appeal for Ireland, as had been erroneously asserted. Such a step would have involved a denial of justice to multitudes of suitors. The very small number of Irish appeals which came to the House of Lords by no means represented the Appellate business of Ireland. The cases disposed of were far more numerous, and would, probably, increase; and they were not often of such a character as to bear the costs of an appeal to an Imperial tribunal. It was, therefore, essential that the intermediate Court should be maintained. As to the Final Appeal, the profession, in Ireland generally—of course, with some exceptions—the Bench, the Bar, and the solicitors—would greatly prefer that it should be addressed to the House of Lords. They valued the time honoured jurisdiction of that House, and they had conformed to its decisions, and would grieve to see it destroyed. But they felt that there ought to be only one final Court to regulate the system of law and practice which were common to England and Ireland; and if, ultimately, Parliament should establish a 1830 new tribunal for England, they would accept it, however reluctantly, for Ireland also. The desire for adequate representation of the Scottish Bench in the Supreme Court, which had been expressed by his noble and learned Friends, existed equally in Ireland, and should receive attention and respect.
LORD DENMANwas understood to express his regret at the decision which had been arrived at by the Government, that the appellate jurisdiction of the House of Lords should be surrendered.
§ LORD PENZANCEsaid, that the Bill of last year swept away that second appeal which had existed in this country from time immemorial; but now the noble and learned Lord on the Woolsack had pointed out that it was this second appeal which gave consistency and standing to the law. He rejoiced, then, that his noble and learned Friend on the Woolsack proposed to amend the legislation of last Session by re-instituting a second appeal for English cases. If he had not done so the Courts of Judicature in the three countries would have been left in a state of hopeless anomaly. There would have been a second appeal for litigants in Scotland and in Ireland, and in England also for ecclesiastical causes; whilst as to the great bulk of English litigation, there would have been only one appeal. Since there was to be a second appeal, he would have hoped that it would have been retained to that House; and he greatly regretted that his noble and learned Friend had not availed himself of the opportunity thus afforded to him of proposing that the second and final appeal should, for the three countries, be to that House. They had just heard from a noble and learned Lord from Scotland, and a noble and learned Lord from Ireland, that the decision of appeals from those countries to the House of Lords had given satisfaction, and it had never been asserted that those decisions had been otherwise than satisfactory to the people of England. He was at a loss, therefore, to see why a jurisdiction which had been so well exercised from time immemorial should be now abolished. If so great a change were effected, he could not help thinking they would have drifted into it by reason of the anomalous legislation of last Session. With respect to the details of the measure, the subordinate 1831 Court of Appeal was to consist of three Judges, and no appeal was to be allowed unless those Judges differed, in opinion. But suppose they did not, and that they decided against a judgment pronounced, say, by three Judges of the Court of Queen's Bench, there would be an equality of opinion on each side—three Judges for the plaintiff and three for the defendant, and no power of further appeal. That, he thought, would not be a satisfactory state of things to an ultimate Court. Again, it might happen that two Divisions of the Court might give opposite judgments. Surely, in such a case, there ought to be an appeal. Further, the now Court of Appeal was to be constituted on a principle entirely new. The Judges were to sit on appeals for three years, and then go back to their Divisions. This would give rise to great inconvenience, because these Judges would leave the Appellate Court just as they were beginning thoroughly to comprehend their duties, and were becoming acquainted with the technicalities of Irish and Scotch law. There would, however, be ample opportunity of discussing these and other details of the measure.
§ LORD REDESDALEexpressed his extreme regret that his noble and learned Friend in proposing to re-establish the right of a second appeal, had not also proposed that the ultimate appeal should be to that House. He was sorry that the opportunity for revising the decision of last year should be lost. As the Bill now stood, only in the event of the Judges of Appeal having some doubts among themselves was there to be a third hearing. The noble and learned Lord on the Woolsack, however, had now brought in a Bill which differed from that which was brought in by the noble and learned Lord opposite (Lord Selborne), permitting a re-hearing; but, at the same time, he did not determine what cases were to be re-heard. For his part, he could see no reason why the appeals from Scotland and Ireland should not be heard before that House. It had been said that the surrendering of the appellate jurisdiction of the House was inevitable; but he utterly repudiated the idea which unfortunately was now so prevalent, that because a thing was mooted it was inevitable. Take the disestablishment and disendowment of the Irish Church for instance; did 1832 anyone suppose that the present House of Commons, elected as it was under the auspices of the late Premier, would ever have consented to such a proposition? Why, then, was it hastily assumed that such a change as that was inevitable? Measures hastily passed in that way were sure to be attended with regret, and he was satisfied that some day the surrender of their Lordships' appellate jurisdiction would come to be deplored.
§ LORD COLERIDGEsaid, he had not a word to say as to the provisions of the measure as far as they related to Ireland and Scotland, which were all that could be desired; but he objected to that part of the Bill which related to the restoration of intermediate appeal in this country. The existing state of things as regarded the Judges and the Court of Intermediate Appeal, though open to much objection had this great merit—that it did not subordinate any of the Superior Judges to any other of the Superior Judges, and in consequence every one of the Superior Judgeships was a post which in practice the very first men in the profession were ready and willing to undertake. The state of things to be introduced by the Judicature Act of last year, though having many great and, in his judgment, countervailing merits, was yet open to the objection that it for the first time introduced differences of rank and authority among the Superior Judges themselves—he was speaking as to the cases of the Judges of Common Law. The plan proposed last night by his noble and learned Friend on the Woolsack, if he understood it, introduced fresh distinctions and differences, not only, as did the Bill of last year, between the ordinary Superior Judges and the Judges of Appeal, but between the Judges of Appeal themselves. On this ground, so far as he could collect his noble and learned Friend's plan, it appeared to him to be open to objection.
THE LORD CHANCELLOR, in replying, said, he would refrain from discussing the various objections and suggestions which had been made in the course of the debate, but he desired to explain that his proposition by no means involved a "subordination" of certain of the Judges of the Court of Appeal to the others. All he proposed was that where necessary an appeal, after having 1833 been heard before one of the smaller Divisions of the Court, might be re-heard before a larger Division of the same Court.
§ Bills severally read 1a; to be printed; and to be read 2a on Tuesday, the 19th instant.