Lords Sitting of 23 April 1875

MINUTES.
Sat First in Parliament—The Viscount Hill, after the death of his Father.
PUBLIC BILLS—First Reading—Pier and Harbour Orders Confirmation * (64).
Committee—Supreme Court of Judicature Act (1873) Amendment (No. 2) * (48–66).
Committee—Report—County Courts * (57).
Report—Indian Legislation * (59).

PRIVATE BILLS.
Ordered, That no Private Bill brought from the House of Commons shall be read a second time after Thursday the 17 th day of June next:
That no Bill authorising any inclosure of lands under special report of the Inclosure Commissioners for England and Wales, or confirming any scheme of the Charity Commissioners for England and Wales, shall be road a second time after Friday the 18 th day of June next:
That no Bill confirming any provisional order or provisional certificate shall be read a second time after Friday the 18 th day of June next:
That when a Bill shall have passed this House with amendments these orders shall not apply to any new Bill sent up from the House of Commons which the Chairman of Committees shall report to the House is substantially the same as the Bill so amended.

PRIVILEGE.
LORD DENMANcalled the attention of the House to a portion of the Protest against the Supreme Court of Judicature Act, 1873, which complained that at least one of their Lordships had been unfairly reported. He complained that a quotation made by him on the second reading of the Act for amending that Act on 6th June, 1874, from a speech of the noble and learned Lord now on the Woolsack (a copy of which quotation he had directed to be given to one of the reporters in the Gallery) had been placed in The Times as a portion of his speech, which deprived the opinion of the noble and learned Lord (Lord Cairns), then a Lord Justice of Appeal, of the weight which the first impression, as to any substitution for the House of Lords, would have made on the minds of their Lordships. The speech in The Times of June 6th, 1874, was never made as his own by him (Lord Denman). He was glad that these remarks were made in that House, when few Peers were present; but it was impossible for him to overlook the unfairness with which the debates on this subject were reported. He was indifferent as to being reported at all, but must call attention to the incorrectness which he had pointed out.
SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT (No. 2) BILL.
(The lord Chancellor.)

(NO. 48.) COMMITTEE.
Order of the Day for the House to be put into Committee, read.
LORD DENMANsaid, that the inserting the Rules in the Pills instead of laying them (as was at first proposed)

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on the Table of both Houses of Parliament made Amendments possible, whilst if merely laid on the Table like the schemes for schools, they could only have been rejected altogether if disapproved of. He (Lord Denman) considered the Question of having only Scotch and Irish appeals in this House and excluding English appeals, could only be altered by a vote initiated in this House, and he believed that the mere suspension of the Act of 1873 was not sufficient. He had prepared Amendments to the 2nd clause and to the original Act, but would not press them to a division. He quoted also from Boswell's Life of Johnson—
"A reflection having been thrown out against four Peers for having risen in opposition to the opinion of the twelve Judges of the House of Lords as if that were indecent. Dr. Johnson said, Sir, there is no ground for censure—the Peers are Judges themselves: and supposing them really to be of a different opinion, they might from duty be in opposition to the Judges who were there only to be consulted.' In this conversation his biographer fully concurred with him for (he said) unquestionably the Peers are vested with the highest judicial powers, and when they understand a cause, are not obliged, nay ought not, to acquiesce in the opinion of the ordinary Law Judges, or, even in that of those who from their studies and experience are called the Law Lords. He considered the Peers in general as he did a jury who ought to listen with respectful attention to the sages of the law; but if after hearing them they have a firm opinion of their own, are bound as honest men to decide accordingly. Nor is it so difficult for them to understand even law questions as is generally thought, provided they will bestow sufficient attention upon them. This observation was made by Boswell's honoured relation Lord Cathcart, who had spent his life in courts and camps yet assured him, that he could form a clear opinion upon most of the cases which came before the House of Lords, 'as they were so well enucleated in the cases.'"
And with regard to the Appellate Jurisdiction, he (Lord Denman) expressed his opinion that there were abundant materials for an efficient Court of Appeal in their Lordships' House.
EARL GRANVILLE: I rise, not for the purpose of renewing the debate of last Friday, nor of delaying the Bill—I merely wish to offer an apology, and to give explanations as to certain facts. I have learnt, from the usual sources of information, that the noble and learned Lord on the Woolsack complained—very good-humouredly complained—of my not having waited for his reply to a speech I made at the beginning of Friday evening. I might plead some circumstances in mitigation of my of-
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fence. I am not an old offender. After the noble and learned Lord, and the noble Duke the Leader of the Government, I may perhaps compare not unfavourably with many Members of your Lordships' House in the frequency and persistency of my attendance. I might urge that although I made an attack upon the Government for the withdrawal of the Bill, I showed a strong and sincere appreciation of what the noble and learned Lord had done up to that moment. I was replied to in two consecutive speeches by the noble Lord the Chairman of our Committees, one of the ablest debaters in the House, but also by the Secretary of State for India. I observed that, notwithstanding the great patience of the noble and learned Lord, he showed, perhaps unconsciously, by a very expressive pantomime, how tired and bored he was with the debate, which, by-the-by, entirely left the points on which my speech turned. And, lastly, I might observe that the absence of opponents did not appear to be a difficulty in the way in which the noble and learned Lord recapitulated our arguments and replied to them. But I admit that I was in the wrong, and accordingly offer my apologies to the noble and learned Lord. Having done this, I may be allowed not to refer to arguments used by us, or the replies to them, but to certain matters of fact. I mentioned in debate that although I could not previously tell whether any or many of my political Friends had been converted by the canvassing in and out of the House on the subject, I was glad to find that they had numerously come up in answer to a summons to support the Bill on going into Committee. The noble and learned Lord is reported to have flatly contradicted me—to have said that he could not see in the House the numerous hosts I had mentioned, and to have said that on one side of the House there were not 10 men on whom reliance could have been placed to support the Bill. I do not know on what authority that assertion was made. It happens that although we were not informed of the postponement of the noble Duke (the Duke of Buccleugh's) Amendment on the day when it was settled, in which case we could have spared several of our Friends the inconvenience of coming to town. One of those noble Lords who undertake

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honourable and useful service respectively for both sides of the House learnt the fact on the afternoon of the day, and posted it at a Liberal Club. The result was that several Peers did not come to Westminster, and others went to hear a debate of a sensational character" elsewhere." But, notwithstanding these defections, your Lordships would like to know whether there were or were not more than 10 Peers ready to support the Bill. A list is always kept by the Clerks of the Table of the number of Peers who attend each day. On that day there were 12 Peers who almost always vote with us, and of these the noble Lord to whom I have alluded assures me that there were only six of those present who would have voted against the Bill. I believe his statement to be perfectly correct, but even if there were double that number, what becomes of the quotation of 10 made by the noble Lord? There was another fact on which they were agreed, but the inference of the noble and learned Lord that the small number of Peers on the night of the withdrawal of the Bill showed a want of interest in the Bill was extraordinary. For the complaint made by him (Lord Granville) had been that the Bill was withdrawn without Notice, and that only three Peers on his side of the House knew that a statement was to be made, and none knew that that statement was to end in the withdrawal of the' Bill. I was unwilling to leave your Lordships under the impression that I had made an inaccurate statement. But the matter is now over, and all that I desire to contribute is to the object which the noble and learned Lord has in view—the best possible means of securing the administration of justice.
THE LORD CHANCELLOR: I can assure the noble Earl that I accept with the utmost sincerity the apology which he has thought it necessary to offer for his absence during my remarks on the second reading of this Bill; but I must say, that as far as I was concerned, no apology was necessary. With reference to what I said about the attendance of noble Lords on the Opposition side of the House, the noble Earl misconceived my intended reference. I alluded not to the day when the former Bill was withdrawn, but to the day when the Amendment was to have been moved by the noble Duke (the Duke of Buccleuch)
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for retaining the Appellate Jurisdiction of this House; and certainly on this latter occasion I did not see 10 Peers on the Opposition side on whose votes I could have relied in opposition to that Amendment. Until I heard the explanation of the noble Earl, of course I did not know there was a reason why a larger number of the noble Lords who sit on that side were not then in their places.
LORD SELBORNEdesired to give Notice that on the Report of the Amendments, he would enter at large into a vindication of the Judicature Bill of 1873, and of his reasons for declining to be a party to the 2nd section of this Bill, which suspended the operation of certain portions of that Act, and the 4th section, which provided for the constitution of the intermediate Court of Appeal. He would say "Not-Content" to those clauses; but as he did not wish to increase the difficulties in the way of his noble and learned Friend (the Lord Chancellor), he would not divide the Committee.
House in Committee.
Clauses 1 to 3, inclusive, agreed to.
Clause 4 (Constitution of Court of Appeal).
LORD COLERIDGEsaid, that while the scheme of an Intermediate Court of Appeal was unobjectionable under the circumstances in which his noble and learned Friend on the Woolsack was placed by their Lordships' decision last year, he thought the proposal in the clause to remove from the Judicial Committee of the Privy Council two out of its four paid Members was open to objection. At present the Judicial Committee worked extremely well, and its decisions were received with general satisfaction. This was owing in no small degree to the fact that the Committee gave a great deal of time to the discharge of its duties, and that the paid Members were enabled to devote their undivided attention to the great questions which came before the Committee. But the effect of this clause would be to remove two of those Members from the Committee by making them two of the ordinary Members of the Court of Appeal to be constituted by the clause. He was aware of the Amendment which his noble and learned

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Friend intended to move with the view of compensating the Judicial Committee for the loss of those two Members. His noble and learned Friend intended to propose that one or more of the Lords Justices of the Court of Chancery might attend the sittings of that Committee. But it must be borne in mind that the two Lords Justices were to be Members of the Intermediate Court of Appeal which this clause would constitute. This Court would have to discharge a very large amount of business, and to this Court more than any other we should have to look for the moulding of the Judicature Act of 1873, and the bringing of it into good working order. Was it well, therefore, to weaken this Court by imposing on two of its Members the performance of duties on the Judicial Committee of the Privy Council? Perhaps this arrangement was forced on his noble and learned Friend; but even if that were so he could not but suggest to his noble and learned Friend that it was open to great objection. It was unadvisable to take two of the paid Members from the Judicial Committee, and the Amendment by which in compensation two Members would be taken from the ordinary Judges of the Court of Appeal provided by this Bill, only made matters worse. Without wishing to weigh Judges, he must express his opinion that the Lords Justices would bring great weight to the intermediate Court; and, therefore, he should regard it as unfortunate if their services were removed from that Court to anything like a large extent. He believed that his noble and learned Friend, like many members of the legal profession, thought that three Members were sufficient for such a Court of Appeal. His noble and learned Friend was, perhaps, somewhat misled on that point by his great and fortunate Equity experience. The Appeal Judges in the Court of Chancery were usually men of great judicial eminence; but it was not to be expected that another Court of Appeal could count on men of such eminence. Again, while in the Court of Chancery the appeal was from a single Judge to three Judges of great ability, in the Court under this Bill the appeal would be from an equal number of Judges, who—without wishing to weigh Judges—he might say would be of as great eminence as the Judges of Appeal themselves. Nay,
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more, the appeal to the Court under this Bill might be from two Courts; and it would not be satisfactory to have such an appeal reversed by a tribunal only equal in number to one of those Courts. Neither the Judges nor the Profession would be satisfied with the decisions of a tribunal such as his noble and learned Friend proposed to constitute, if he weakened the number of its Members in the way proposed. He should be glad that his noble and learned Friend could see his way to making a rule that in the Intermediate Court of Appeal there should be some Judges sitting from the Common Law side of the High Court and some Judges from the Equity side of the High Court. He disbelieved in the fusion of Law and Equity. He believed that Law and Equity were quite distinct; but he thought they might be concurrently administered, and he hoped they would be. He would call attention to one other point. In the Act appointing the four paid Members of the Judicial Committee it was provided that their services should be placed at the disposal of the State for any "Supreme Court of Appeal," which might be be established. Now the Appeal Court constituted by this Bill was not a Supreme Court. The paid Members of the Judicial Committee did not complain of the proposal of his noble and learned Friend, nor did it enter his head to charge either the Government or his noble and learned Friend with anything like a breach of faith; but those right hon. and learned Gentlemen, while leaving the matter with Parliament, did think at the time of the passing of the Act under which they were constituted it was not contemplated that they should be called upon to give their services on any but a Supreme Court of Appeal. He asked his noble and learned Friend to look into this matter and consider the circumstances under which the paid Members of the Judicial Committee were appointed. He asked no more. The only object he could see for proposing to appoint those gentlemen Members of the Intermediate Court was to save expense. When he was in the House of Commons he had never shown a disposition to increase the public expenditure; but he was sure that the House of Commons would grudge no expenditure which might be necessary for the due administration of justice.
LORD HATHEREYthought the intermediate Court should be made as strong as possible, with the view of diminishing the probability of cases being carried further; and he could not impress too strongly on their Lordships the necessity of having in that Court a strong infusion of both Equity and Law. The inconvenience of the present division was never more manifested than in an appeal that had come before this House during the present Session. It was a case in which the money at stake was as much as £40,000; but the question whether the person claiming had the right to receive the £40,000 never came before their Lordships' House at all. The question before the House was whether that person ought to have applied to a Court of Law or to a Court of Equity. He had applied to a Court of Equity, and their Lordships' House decided that he ought to have applied to a Court of Law. The last point referred to by his noble and learned Friend (Lord Coleridge) was worthy the consideration of his noble and learned Friend who had charge of the Bill. He had not then before him the Act appointing the four paid Members of the Judicial Committee, but he believed that it contained pretty nearly these words:—"To hold their office subject to any arrangement which Parliament may make for the constitution of a Supreme Court of Appeal."
THE LORD CHANCELLORsaid, he was very anxious that the Court should be constituted in such a manner as to be as strong and efficient as possible, and his noble and learned Friend (Lord Coleridge) was right in treating this clause as the most important part of the Bill. He would discuss the constitution of the intermediate Court without reference to individuals—he preferred to speak of offices rather than of the persons who filled them. It was a mistake to say that this Bill proposed to constitute any Court distinct from the Court constituted by the Act of 1873. It took the Act of 1873, and it took what in that Act was the Supreme Court of Appeal, and it proposed to curtail the number of the Members which was to constitute that Court. By the second section of this Bill, the portion of the Act of 1873 which made the Appeal Court constituted under that Act a Supreme Court of Appeal was postponed:—the question of the Supreme
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Court stood over; but in all other respects the Appeal Court, the constitution of which was dealt with by this fourth section, was the Court of the Act of 1873. Instead of following the Act of 1873 and saying there should be no further appeal, that provision of the Act was left in suspense; and as that suspension made the Court of the Bill of 1873 an intermediate one, it was proposed by this Bill that it should be constituted of a smaller number. The clause provided that the Court should consist of five ex officio and five ordinary Judges. The ex officio members were to be the Lord Chancellor, the Master of the Rolls, and the three Chiefs of the Common Law Courts. The ordinary or permanent members were to be the two Lords Justices of Appeal in Chancery, two of the salaried members of the Judicial Committee, and one other person to be appointed by letters patent. In consequence of the abolition of the Exchequer Chamber and of the regulation by which a smaller number of the Common Law Judges could sit in banco, the three Chiefs thought that each of them would be able to sit in the Court of Appeal for not less than six weeks in each year, and the Master of the Rolls thought he would be able to sit for the same period. That gave 24 weeks for the ex officio members, not counting the Lord Chancellor. He thought, therefore, the judicial strength of the Court of Appeal might be regarded as equal to six members always ready to attend. Not fewer than three were to sit in appeal for final decrees, and two at least were to sit for the hearing of appeals in which only interlocutory decrees were sought. He did not want to revive the discussion of the question of what was the best number of members for a Court of Final Appeal; but it had always seemed to him that the choice lay between three and five. The late Lord Kingsdown had the strongest possible opinion that the best number was three; and he said that when he found three sitting in the House of Lords he thought it better not to add to their number by sitting himself. He might observe to their Lordships that the business in which interlocutory orders would be required came almost exclusively from the Court of Chancery, and in that Court it was found that two Judges were quite sufficient to deal with it. Here he might

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observe that while he hoped there would be in the Appeal Court always a sufficient number of Judges who were conversant with Equity and a sufficient number who were conversant with Law, and while that matter might be the subject of arrangement, no notice of such arrangement could be made in the Bill, because to make it the subject of legislative provision would be to again draw the line of demarcation between Law and Equity. As to taking two of the paid Members of the Judicial Committee of the Privy Council, it would be most gratifying to himself personally not to interfere with the Judicial Committee in any way; but the question was one of obligation towards the public—obligation to make use of the materials at command. He put aside for the moment the question raised on the Act of Parliament appointing the salaried Members of that Committee, and he assumed that they would assent to their being made members of the new Court of Appeal; and he calculated that by giving the Judicial Committee the services of one or more of the Lords Justices, when their services were not required in the Court of Appeal, the business both of the Judicial Committee and of the Court of Appeal might be efficiently performed on the plan proposed in the Bill. He was desirous that next Session, when Parliament came to consider the question of the tribunal which ought to be charged with the hearing of final appeals, Parliament should have four salaried Judicial Officers unaffected by the provisions of this Bill. The object held in view in respect of these officers was that next year Parliament should have before it four great salaried Officers who might be utilized in carrying out whatever Parliament might decide upon. If Parliament decided to strengthen the Court of Appeal and make it the ultimate Court of Appeal, these four Officers would be available for that purpose. If Parliament should look elsewhere and propose to rest the responsibility of deciding appeals in the last resort in some other direction, and should require the appointment of salaried Officers for the purpose, there, again, would be four regular salaried Officers available. That was the object he had in view in leaving these four Officers intact. The only other observation he had to make was in reference to the proposal in the Bill to call
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on the several Members of the Judicial Committee to give their services to this Court of Appeal. He wished to speak upon this point with the greatest respect—the most tender respect—to the feelings of those eminent persons the salaried Members of the Judicial Committee. Some of them had long been his personal friends, and nothing would grieve him more than that he should be the means of making any proposal not agreeable to them. The Judicature Commission had, in fact, suggested the constitution of the Appellate Court, appeal from that Court being left to the House of Lords, as before. In 1873, Parliament provided for a Supreme Court. It provided, further, that one branch of that Court should have Appellate Jurisdiction, and that was the Court of Appeal spoken of in the present Bill, although it was not composed of the same number of members. He was bound to say that, according to the letter of the Act of Parliament, Parliament had called on these learned persons to afford their services to this Court of Appeal.
LORD SELBORNEsaid, on the present occasion he would not take the responsibility of proposing any Motion bearing on the constitution of the proposed Court, but he must say he quite sympathized with the eminent persons, the salaried Members of the Judicial Committee, to whom reference had been made, in their feeling, that the position in which it was now proposed to place two of them was different from that to which they had been led to look forward. At the same time, he could not say that he had himself at any time taken the view, that the Supreme Court of Appellate Jurisdiction in which, under the Act which regulated their appointments, they would be liable to be called upon to serve, must, upon the mere construction of the words of that Act, necessarily be one, from which no further appeal would he to the House of Lords. But the Lords Justices were already members of the Judicial Committee, though not salaried members; and they already gave such assistance to the discharge of the business of that tribunal as was compatible with their other duties. He did not, therefore, think the Amendment with regard to the Lords Justices was necessary.
THE LORD CHANCELLORsaid, that, after mature consideration, it appeared to him convenient to make the provision contained in the Bill. He would, however, move, as an Amendment, the omission of lines 8 to 11 in Clause 4 in order to insert the following:—
"One or more of the Lords Justices of Appeal shall, as far as may he necessary, and as far as the state of business in the Court of Appeal may admit, attend the sittings of the Judicial Committee."
LORD DENMANthought their Lordships ought to consider the matter well before they abolished the Intermediate Courts of Appeal—namely, the Lords Justices Court and the Exchequer Chamber.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 5 to 15, inclusive, agreed to.
Clause 16 (Rules in Schedule in substitution for 36 & 37 Vict. c. 66 s. 69 and Schedule).
LORD WINMARLEIGHwished to call attention to the clause, which it seemed to him was calculated to inflict serious injury on the county which he lately had the honour of representing (Lancaster). The Court of Common Pleas in Lancaster was a superior Court, possessing the same jurisdiction and authority as the Courts at Westminster. In the Judicature Act of 1873, Section 78, expressly reserved to the Court of Common Pleas of Lancaster all the privileges and rights it enjoyed at that time—for the simple reason, he believed, that the processes were much less costly than in the Courts in Westminster Hall. But the 16th section of this Bill would authorize new Rules contained in the Schedule that would abolish the rights and privileges reserved to the Court of Common Pleas of Lancaster by the Judicature Act of 1873. He had been requested to submit to their Lordships that it was not just to abolish those rights and privileges.
LORD SELBORNEsaid, with reference to the Rules, that nothing could be more inconvenient than for Parliament to review in detail the work of the Judges; but he still thought that more adequate provision ought to be made by this Bill for the local business of the County Palatine of Lancaster. The case of the Court of Common Pleas
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of Lancaster was as followed. It was in substance already a branch of the Superior Courts at Westminster, the Judges being the Judges of Assize, while appeals could be made to the Courts at Westminster on questions of law. But the local procedure was found sufficient for all the ordinary actions tried in that Court. That procedure with great facility enabled the local practitioners, without coming to London or employing London agents, to carry through the pleadings and preliminary proceedings, and to go on with the proceedings after judgment. The Act of 1873 contained ample power to continue the facilities referred to by the noble Lord opposite; and, in the two or three first drafts of the Rules made under that Act, exceptional provision was made for that purpose; but, in the final settlement of those Rules, the words relating to the Court of Common Pleas of Lancaster had been omitted; so that, under those Rules, an action commenced in the Court of Common Pleas at Lancaster might, at the option of any one of the litigants, be removed from that Court to the Courts at Westminster; and all proceedings for discovery and inter-pleader, and all taxations of costs and other proceedings after judgment, might have to be taken in London. He hoped the noble and learned Lord on the Woolsack would consider this matter before the Bill passed and communicate with the Judges, and it would be satisfactory to learn that he had been able to propose a modification which would in substance preserve to the inhabitants of the County Palatine the same facilities for local procedure which they had hitherto enjoyed.
THE EARL OF HARROWBYsaid, the preservation of this jurisdiction to the Court at Lancaster was desirable not merely for the convenience of practitioners, but for the interests of the commercial community.
LORD HATHERLEYsaid, he was as much opposed as anyone to the granting of privileges to one portion of the public which would not be enjoyed by the rest of the public; nevertheless, as experience had shown that these facilities for local procedure had worked well, he hoped the people of the County Palatino would have continued and secured to them the advantages they appeared to have had under the Act of 1873,
THE LORD CHANCELLORsaid, the view taken of the 73rd clause of the Act of 1873 by his noble Friend (Lord Winmarleigh) was that it left intact the Court of Common Pleas at Lancaster in the position in which it stood previous to the passing of that Act. That clause he (the Lord Chancellor) thought did nothing of the kind. It merely took notice of the Court of Common Pleas at Lancaster and certain officers connected therewith, and of certain rules for its procedure under Act of Parliament; and transferred to the body of Judges appointed under the Act of 1873, the power of making Rules for the regulation of proceedings in the Court of Common Pleas at Lancaster. It was very obvious that any provision in the Act which rolled into one all the various jurisdictions of the country, leaving this single Court unassailed and unassailable, would have been entirely at variance with the spirit of the legislation entered upon at that time. The Schedule of the Bill contained Rules which had been approved by the learned Judges after long and anxious consideration. He had always been of opinion that considerably larger local power should be reserved to the Court of Common Pleas of Lancaster and that the District Registrars should have ampler powers than it would be right to entrust to Registrars in other parts of the country. He was not prepared to give an opinion as to what those ampler powers should be, but he would promise careful consideration to any suggestions which might be made by those who were interested in the question.
LORD WINMARLEIGHsaid, he would undertake that some definite proposal should be made to his noble and learned Friend.
Clause agreed to.
The remaining Clauses agreed to, with Amendments.
The Report of the Amendments to be received on Thursday next; and Bill to be printed, as amended. (No. 66.)
House adjourned at a quarter past Seven o'clock, to Monday next Eleven o'clock.