Lords Sitting of 29 April 1875

MINUTES.
Sat First in Parliament—The Lord Lovel and Holland, after the death of his Uncle.
PUBLIC BILLS—First Reading—Bishops Resignation Act (1869) Perpetuation* (74); Explosive Substances * (75); Bank Holidays Act (1871) Extension and Amendment* (76).
Second Reading—Saint Paul's Cathedral (Minor Canonries) (60); (£15,000,000) Consolidated Fund *; Public Health (Scotland) Provisional Order Confirmation (No. 2) * (55); Exeter Union of Benefices (58) * discharged.
Committee—Public Entertainments (Hour of Opening) * (51–77).
Committee—Report—Glebe Lands (Ireland) * (47).
Report—Supreme Court of Judicature Act (1873) Amendment (No. 2) (46); Justices of the Peace Qualification* (72).

ST. PAUL'S CATHEDRAL (MINOR CANONRIES) BILL.—(No. 60.)
(The Lord Bishop of London.)
ST. PAUL'S CATHEDRAL (MINOR CANONRIES) BILL.—(No. 60.)

  SECOND BEADING.
  Order of the Day for the Second Reading, read.
  THE BISHOP OF LONDON,in moving that the Bill be now read the second time, said, that the direct purpose of the Bill was to extend the provisions 3 & 4 Vict. c. 113, so as to authorize certain arrangements with reference to the minor canonries in the Cathedral Church of St. Paul; and next to secure the efficient performance of the cathedral services by the appointment to the office of minor canon of men thoroughly competent to perform the duties. The 3 & 4 Vict. c. 113, provided that after the passing of that Act there should not be more than six, nor fewer than two minor canons in each cathedral and collegiate church. At that time the minor canons of St. Paul's were 12 in number, and were a body incorporate by a Royal Charter. For this reason, and because no power was given by the Act to deal with the estates of minor corporations, no regulations had been made pursuant to the Act for limiting the number and fixing the emoluments of the minor canons; but excepting as to the last two the vacancies of their canonries had been from time to time filled up. But doubts having arisen as to the legality of these appointments, the Bill had been introduced to remedy the inconveniences that had arisen. It provided that all past appointments to minor canonries were confirmed, and the right of existing minor canonries preserved: it limited the appointment of future minor canons until the number was reduced to six, which was hereafter to be the establishment: they were to continue a body corporate under the old style, and the corporate property was to vest in the corporation. The separate estates of the minor canons were, as they became vacant, to vest in the Ecclesiastical Commissioners for the purpose of their "common fund." The Ecclesiastical Commissioners, on the other hand, were to provide residences for the six minor canons, and were authorized to prepare schemes for regulating the office and duties of minor canons, for their residence, and for their enforced retirement on pension when no longer able to perform their duties. It was to this last provision he referred when he spoke of the Bill as intended to provide for a more efficient performance of the services of the cathedral church. Under the existing arrangements, the minor canons were not compelled and had no
  1796
  inducement to retire when disabled by age or other circumstances from the efficient performance of their duties. The consequence was that they sometimes continued to hold their appointments long after their retirement had become desirable. In fact, the senior minor canon—a venerable gentleman in every sense of the word—was now 94 years of age. He wished to speak with every respect of the minor canons, and the only fault he could find in them was their tendency to grow old, which was not an uncommon or unpardonable weakness: but when minor canons became old they were no longer able to sing. Three of them at St. Paul's were laid up from various causes; it was more than half-a-century since the senior minor canon had performed service in the cathedral church; another of the minor canons was 70 years of age, and two others were almost entirely incapable of discharging their duties. This condition of affairs would not be desirable at a cathedral in a small city, but it was still less tolerable at St. Paul's, which could no longer be accused of being useless, and was devoted to a most important part of the spiritual work of the present day. On Sunday, besides the early service, which was not choral, there were three full services, attended by congregations varying from 1,000 to 6,000 or 7,000 persons. The week-day services were well attended; while classes and lectures had been established for young men, who formed a large proportion of the residents in the City, as well as lectures for the younger clergy. It was not surprising, therefore, that the Dean and Chapter should ask Parliament, as they did by this Bill, to give them the means for providing for a succession of competent, able minor canons, in order that the services might be made as efficient as possible, and that there might be a body of clergy ready to assist in all the other work of the diocese. He might add that the minor canons were themselves anxious for the proposed change—and in fact they might well be, for they would be secured in all their present rights and privileges, while all future minor canons would on appointment be entitled to an income of not less than £300 a-year with a residence; and when the number was reduced to six, each would receive an annual stipend of £400, The Bill provided

  1797
  that no benefice could hereafter be held with the minor canonry; but probably no grievance would be felt by any clergyman from the loss of his canonry on being appointed to a better benefice. The right rev. Prelate concluded by moving that the Bill be now read the second time.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.

SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT (No. 2) BILL.—(No. 66.)
(The Lord Chancellor.)
SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT (No. 2) BILL.—(No. 66.)

  REPORT OF THE AMENDMENTS.
  Amendments reported (according to Order).
  LORD SELBORNEsaid, that the peculiar circumstances under which the Bill had been brought in, and also the peculiar character of the Bill itself, had naturally prevented discussion on its previous stages, either of the questions involved in the clauses, or of the still larger questions which were opened by the Bill as a whole. He, and those who thought with him, believed that they sufficiently discharged their duty to the House and the country by merely saying Not-Content to the leading provisions of the Bill, without asking their Lordships to divide against them; but they never would have reconciled themselves to that course, if they had not anticipated that there would be a fitting opportunity for stating their view of the principles involved in this measure;—because the questions which it opened, whether as a merely provisional measure, or as one which might influence permanent legislation on the subject, were, in his opinion, such that—especially after the experience of the last two years—there were very cogent reasons why their Lordships should not part with the Bill before there had been a full discussion upon it. Their Lordships knew that the opportunities which had been expected for a discussion of the subject with which the Bill dealt had been suddenly and unexpectedly lost to the House; and that circumstance made it important that the present occasion should be made use of, for contributing suggestions
  1798
  which might be taken into further consideration when this question might again be occupying the attention of Her Majesty's Government, or of that House, or of the country. For himself, he did most heartily desire that, in the interval which would elapse before the subject was again brought under the notice of their Lordships, the country at large should have its attention directed to it and to the great interest which all classes of Her Majesty's subjects had in its being settled on sound principles. With this object in view, he would pass in review, first of all, the arrangements of the Act of 1873, which the present Bill suspended; next, the modifications of those arrangements which were proposed to their Lordships last year and in the early part of the present Session, and, so far as their Lordships knew, not relinquished without regret by Her Majesty's Government; and, lastly, the manner in which the present plan would operate as a provisional measure during the year while the question of the Final Court of Appeal was in suspense, and what its operation would be if it were made the basis of a permanent scheme. He held now, as he held in 1873, that the good and sound working of our altered system of judicature must depend, if not entirely, at all events mainly, upon the constitution and the working of the Court of Appeal. He was, therefore, bound to admit that if the appellate arrangements of the measure of 1873 were not what they ought to have been, it was important that there should be a rearrangement; but, at the same time, he must say that the more consideration he had been able to give to the matter the more had he become convinced that the arrangement made for appeals in the Act of 1873 was not only good in itself, but better than anything which had been since proposed, or that was likely to be proposed, as a substitute for that plan. When framing the Act of 1873, he did so with the conviction that to have a large number of highly-qualified Judges available for the business of the Court of Appeal was one of the most important requisites of a sound judicial system. Accordingly, the Act provided that the ordinary Judges should, in the first instance, at all events, be nine in number. In addition to those, there were five ex officio Members of the

  1799
  Court of Appeal, who were also to be the heads of the different Divisions of the High Court—namely, the Lord Chancellor, the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron, and the Master of the Rolls. The Lord Chancellor was to be the head of the whole system. Of the ordinary Judges, four were to be taken from the Judicial Committee of the Privy Council by virtue of the powers given in the Act appointing four paid Members of that Committee; two others were to be the present Lords Justices, and three were to be nominated by the Crown. He thought it must be admitted that those materials must go far to constitute a strong Court of Appeal. But in addition to these elements, which were fixed in number, there was another which he had always regarded as one of great importance. It was the element composed of such retired Lord Chancellors and Judges of Her Majesty's Courts as, being selected by Her Majesty, might express their willingness to serve in the Court of Appeal. That provision, if acted on, would practically contribute to the Court of Appeal the same Judges who now administered justice in their Lordships' House, and also the effective unpaid members of the Judicial Committee of the Privy Council. In that element he should have hoped to see included such men as his noble and learned Friend, with whom he had the misfortune to differ on this Appellate question (Lord Penzance), and Sir Henry Keating, who was at present giving his assistance to the Judicial Committee of the Privy Council. With such materials, he thought they would have a Court as strong as imagination could conceive in respect of knowledge and experience both of Equity and of Common Law; and the whole strength of that Court would have been available for all the Appellate business of England, if the Act of 1873 had been allowed to come into operation in its integrity. If authority were wanted in support of that view, it might be found in the published opinion of the Lord Chief Justice, whose opinion on all subjects was of great weight and value, but on this question of especial value, not only because of his experience and eminent qualities, but also because of the close attention which he had given to the question in 1870 and 1871, during which years the Lord
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  Chief Justice was one of the most jealous critics of the proposals which were then made to their Lordships' House. The Lord Chief Justice favoured the country in those two consecutive years with the expression of his opinion on the subject; and the conclusion at which he arrived, after the best consideration he could give the matter, was that there should be only one Court of Appeal, and that it should consist of the materials which had just been described to their Lordships, and which in the Act of 1873 constituted the Appellate portion of the Supreme Court; with this exception—that the Lord Chief Justice then suggested that there should be four, and not nine ordinary Judges. He did not know whether, when suggesting that number, his Lordship contemplated that the Privy Council Appeals would not be heard by the new Court, or whether his Lordship might have counted more than he himself had thought it safe to do upon the constant attendance of some of the ex-officio Members. For the present he postponed the question of the appeals from Scotland and Ireland, and also the question of the Privy Council appeals—what he wished now to bring under their Lordships' special consideration was, the enormous importance of giving the strongest possible constitution to the Court which was to hear the first appeals. He used the term "first appeals" on the supposition that there might be a second appeal. At present, first appeals constituted the great mass of the Appellate business of the country. It would be an error to suppose that the further appeals which came to their Lordships' House generally represented business of special legal importance. It was quite true that important cases, in respect of which great difference of opinion existed, or in which large interests were at stake, would from time to time be brought to the Court of Pinal Appeal, whatever that Court might be; but from his long experience at the Bar of the House, and his more limited experience as one of the Law Lords, he believed that by far the greater number of appeals to their Lordships' House did not involve very important questions, either as regarded points of law or as to the value of the property involved in the decision. But what was the number of appeals

  1801
  brought to the First Court of Appeal, and what was the number brought to that Pinal Court, their Lordships' House? Taking the year 1873—a year in which there were a greater number of appeals in their Lordships' House than there were this last year—he found by the judicial statistics for 1873 that in that year the number of errors and appeals disposed of by the Court of Exchequer Chamber was 51; the number disposed of in Chancery, including Bankruptcy appeals, was 189; and the Admiralty appeals which went to the Privy Council were 13. Those figures gave a total of 202 cases from the English Courts to the First Courts of Appeal. On the other hand, in the same year, the whole number of errors and appeals disposed of in the House of Lords was 32. That was the proportion—32 to 202; and that proportion was, he believed, quite as true in respect of the importance and value, and as to the legal questions involved in the litigation, as it was with respect to the mere number of cases. There could be no doubt, therefore, that the law was mainly built up by the decisions of the Court of First Appeal, and consequently the constitution of that Court and the operations of that Court were of the greatest importance. If that were so under the existing system of judicature, he asked their Lordships how much more must it be so under the system introduced by the Judicature Act, in the carrying out of which system all the branches of the Supreme Court and all the Judges were to administer Equity as well as Law? He quite agreed with his noble and learned Friend Lord Coleridge, and he had himself always said, that it was an error to talk of the fusion of Law and Equity—the true expression was a "fusion of the administration" of Law and Equity. When framing the Act of 1873, he gave full credit to the Judges of this country for capacity to administer the new system; but, at the same time, he was perfectly conscious that in the first working of it a great number of questions in Law and in Equity must arise, which would necessarily lead to frequent recourse to the Court of Appeal. An efficient Court of First Appeal was, therefore, essential—one capable of grappling with all questions of Law or of Equity, and with all questions relating to the working of the Supreme Court. For the discharge of such a duty, the Appeal
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  Court constituted by the Act of 1873 was well qualified. Well, having regard to the amount of business which that Court would have had to discharge, he had thought it necessary that it should be capable of being sub-divided, and sit in two, or perhaps three Divisions. He was still convinced that with the amount of business likely to arise under the Judicature Act, it would be impossible to prevent arrears, unless the Court were able to sit in Divisions, and did so. Some persons thought that to have a Court of Appeal sitting in Divisions might result in conflicting decisions and a confusion as to the state of the law. That objection was not consistent with his experience, and in these matters one grain of fact was worth an ounce of theory. There was no difference, in this respect, between having a Court of three Judges sitting in one room and a Court of three sitting in another room and exercising Appellate Jurisdiction at the same time, and having a Court of one set of three Judges sitting to-day and a Court of another set of throe other Judges sitting to-morrow and hearing appeals. The system would not be at all like that of the pre-sent Court of Exchequer Chamber: you would not have the same Judges continually sitting together elsewhere as members of a particular Court, by the traditions or prevailing views of which they might be, or supposed to be, in some cases, biassed. You would have had, in principle, the same state of things which was now found in their Lordships' House and in the Judicial Committee of the Privy Council. It might, for instance, and it did sometimes happen, that on one day three Law Lords—say, his noble and learned Friends Lord Chelmsford, Lord Penzance, and Lord O'Hagan—might sit to hear appeals, and on the next day throe others—say, the Lord Chancellor, Lord Hatherley, and himself. And this happened without any inconvenience, because the Law Lords in that House and the Members of the Judicial Committee were not persons who continually sat together or who were sorted in classes. As he understood the proposal of his noble and learned Friend (the Lord Chancellor) it was intended that the ordinary Members of his Court of Appeal should sit three at a time. His noble and learned Friend seemed to contemplate

  1803
  that only three would sit at a time; so that some of them might always be free, this relaxation being taken by the Judges in turn. Experience, he thought, showed that there would be no inconvenience, but might often be a great practical convenience in adding to the numerical power of a Court of Appeal, and therefore he must express his opinion against the Rule of Three in this matter, which his noble and learned Friend on the Woolsack told them on a former occasion had been favoured by the late Lord Kingsdown. That noble and learned Lord appeared to have held that three Judges were the best number for a Court of Appeal. For the ordinary business of appeal three might do, and in the Act of 1873 he (Lord Selborne) himself proceeded on that principle; but in cases of great importance, on which judicial minds had differed, he thought that five Judges at least were desirable as an Appellate tribunal. He now proposed to show that, in the Act of 1873, the principle of a rehearing, or what some noble Lords liked to call a second appeal, was not overlooked. He retained to the full all the opinions which he formerly expressed on that subject, and he took the liberty of now vindicating the arrangement for re-hearings made in the Act of 1873. Section 53 of that Act was in these terms—
  "Every appeal to the Court of Appeal shall be heard and determined, cither by the whole Court or by a divisional Court consisting of any number, not less than three, of the Judges thereof. Any number of such divisional Courts may sit at the same time. Any appeal, which for any reason may be deemed fit to be reargued before decision, or to be re-heard before final judgment, may be so re-argued or re-heard before a greater number of Judges, if the Court of Appeal think fit to direct."
  The meaning of that was, that, in cases in which there was a difference among the Appeal Judges, or in which their decision would reverse on important points the opinions of other Judges, or in which there were serious questions of law or great interests at stake, the Court would have power to order a rehearing before a greater number of Judges. His noble and learned Friend (Lord Penzance) the other day had represented that as a provision for a second hearing "when the Court wished for it." The correct way of putting it was, that it was a provision for a second hearing where the Court gave leave for it. The parties,
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  who desired it, would in all cases make the application; and he had not the slightest doubt that under such a provision the second hearing would have been granted in all cases in which it ought to be granted; and his only doubt in respect of it was, whether it might not have thrown an invidious duty on the Judges in some cases. He had no doubt, that the interest of the public and the suitors would be much better promoted by such a system, than by establishing the right to a second appeal, as a general rule—a principle which seemed to be so strongly favoured by some of their Lordships? That was not now and never had been the law. The fact was, that there were great inconsistencies and discrepancies in the present state of the law as regarded appeals. There was no such thing now as an obligation on any one appealing from the Court of Chancery in England to bring his case to any Court of Intermediate Appeal. From one of the Chancery Courts a suitor might go, and not unfrequently did go, direct to their Lordships' House, and thus deprive the other party—who might have succeeded in the Court of Chancery, but might fail in this House—of a second appeal. The late Lord St. Leonards remarked that not a few decisions had been pronounced by their Lordships' House which were open to much criticism; and it was said to be the opinion of the Profession that if there had been a further appeal from their Lordships' House to some other tribunal, some at least of these decisions of their Lordships would probably have been reversed. Again, from the Court of Admiralty there was but one appeal, which was to the Privy Council. He did not refer to these things as if it were an advantage to have discrepancies in the law as regarded appeals—he referred to them because, in practice, no one had been dissatisfied with the finality of one appeal, when the law made it final. Suitors never cried out and complained that they were unjustly dealt with, because they had not another appeal in these cases. The real truth was, that in the great majority of cases finality was the greatest boon you could give to suitors. The system established by the Act of 1873 had these great merits, above every other which had yet been proposed:—it was the best for maintaining the authority of the Court;

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  it interfered least with its available strength; it would have worked rapidly, easily, and cheaply; it gave the least opportunity for excessive litigation and oppressive costs. He ventured to say that all these objects were accomplished by the Bill of 1873 in a degree and in a way in which they could not be accomplished by any other system. He was speaking now of the Appellate Court and of the regulation which provided that the rehearing should be by a greater number of the same Court of Appeal. Their Lordships would permit him to remind them of the reasons which, so far as they were stated by him, satisfied them in 1873. On the 13th of February of that year, in introducing the Bill, he said—
  "If you have a good Court with sufficient judicial power to command the confidence of the country, it is better that there should he no double appeal. I would not exclude the power, where you have an appeal heard by a small number of Judges, of having it reconsidered by a larger number of Judges. But my opinion is that, if you establish an adequate Court, it is desirable for the parties, and for the general interest of the country that the decision of that Court should be final, and that you should not multiply appeals. You never can escape, by going through any number of Courts of Appeal, from the risk of differences of opinion in each and every one of them, and from doubts arising as to whether the last Court decided better than these before it. What you want is to make as good a Court as possible, and to give it all the power and authority you can, and that in my humble judgment, is best accomplished by making it final."—[3 Hansard, ccxiv. 350.]
  He begged their Lordships to notice how the two first objects—the maintenance of the authority of the Court and the utilization of its whole available strength for all purposes for which that strength might be useful, were accomplished by the Act of 1873. They had not half of the Judges to do a small part only of the business—to dispose of 32 appeals instead of 202; but every one of them was available for every part of the business; and by enabling a re-hearing to be taken before a greater number, they at the same time secured the necessary amount of authority for the careful consideration of all such cases as required rehearing. It was, in his view, no objection to that system that the final decision or rehearing would be by Judges some of whom at other times sat in other Divisions of the Court and had themselves pronounced other judgments
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  which might also be the subject of rehearing by a greater number; because that happened now, and it did not interfere in any way with the authority of the Final Court. He himself and his noble and learned Friends (Lord Hatherley and the Lord Chancellor) had pronounced judgments which had been appealed from to their Lordships' House; and though they might not, in these cases, have followed the example which some of their Predecessors—probably of necessity—had set, of deciding on appeals from themselves, they sat on the very next day to decide on other appeals with others to assist them. So far from thinking there was a disadvantage in such a circulation of Judges, he thought there would be a very great advantage, because in that way a greater amount of business would be transacted by each of them, their experience would be derived from a larger area, and there would not be the same danger of falling into a narrow groove, or getting into possible habits of negligence, which might arise from dealing with business of a more limited quantity or kind. He would now ask their Lordships to consider how the Court proposed by the present Bill would be constituted, in these respects, as compared with the Court established by the Bill of 1873. His noble and learned Friend took out of the Court which would transact the greatest amount of business, which would deal with the far larger amount of property and the vast majority of suitors, some of its most important Members, and by so doing greatly weakened it: he at the same time ran the risk of weakening the Courts of First Instance, and the Judicial Committee of the Privy Council—which was still to continue—so far as he relied on the regular services of Judges who had also duties to discharge in these other Courts. Then there were these two other considerations which in point of importance could not be exaggerated—namely, that the Court of Appeal should be easily accessible and expeditious, and that there should be as little burden of costs thrown upon the suitor as possible. Of all the evils of the present system, none was greater than the enormous power which it gave to the largest purse. Was there no substantial difference in these respects between a rehearing such as was proposed by the

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  Act of 1873 and a second appeal? In the first place, under the Judicature Act of 1873, in the 48th and the following Rules of the Schedule, and the 58th order of the Schedule to the present Bill, regulations were laid down for the conduct of appeals, of such a nature that greater facilities and expedition would be afforded than had ever hitherto been done, and thereby the costs would be proportionately diminished. But these advantages would be lost if the rehearing were taken to their Lordships' House or to another place. Some light would be thrown on these points by a Return of certain costs which he moved for not long since, and which had been laid on the Table. His object in moving for that Return was to enable their Lordships to compare the cost of appeals in the Court of Chancery with the costs of appeals to their Lordships' House. The Return contained only three cases, in which such a direct comparison could be made: but the other cases—to which he would refer by the numbers affixed to them in the Return—were also examples of the great expense of appeals to this House. Cases 4, 7, 10, 11, and 12, were, he could say, from his own recollection, of quite an ordinary character, in each of which there was only a single respondent. The average cost of these five appeals was £491 8s. 9d. There was another case (No. 5) which was also of an ordinary description, except that there happened to be three respondents—the costs which their Lordships' House adjudged to these three respondents against the appellant were £1,121 8s. 2d. With regard to the three cases which afforded materials for a direct comparison, No. 12 was an ordinary case, quite as simple as the common run of Chancery cases, and the costs, taxed even as between solicitor and client, in the Court of Appeal in Chancery, were £191 11 s. 8d. The costs given in their Lordships' House to the successful party were £587 10 s. 9d., taxed as between party and party—a difference of about £400 more in the House of Lords. Nos. 6 and 15 were heavy cases, with one respondent in each. The costs of the appeal of No. 6 in Chancery were £780 3s. 4d., and of the appeal to that House £1,248 15 s. 9d. In No. 15, the costs of the appeal in Chancery were £509 14 s. 2d.; but in the House of Lords they were £1,248 5s. 7d., being a difference of
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  £738. This was not a trifling matter, and he thought their Lordships must be satisfied that the suitors had a great interest indeed in the substitution of a system which would avoid these ruinous expenses. The promptitude with which a second hearing by a greater number of the same Court could take place was also a great advantage in these cases where there ought to be a second appeal, and a still greater incidental advantage in preventing frivolous appeals. Having said so much in favour of the scheme of 1873, he would observe that there were some variations of that scheme proposed by the Bill of 1874, in which he had acquiesced, and he acquiesced for several reasons. He did so principally because he did not wish to throw difficulties in the way of the noble and learned Lord now on the Woolsack, when following up and completing the work of 1873, and for other reasons also, which he would now state. Under the Act of 1873 there would have been the advantage of discouraging unnecessary and frivolous re-hearings: but, on the other hand, he was not insensible to the existence of some real force in the objection to throwing upon the Court the responsibility of saying whether there should or should not be any rehearing, in each particular case. When, therefore, his noble and learned Friend thought it better to establish the right to have an appeal reheard, if it were desired, before final judgment—for that was his proposal—in certain defined cases—being in substance the same which he himself had in view as likely to be proper cases for rehearing—he had no difficulty in ac-accepting that change. The other change was that which proposed to fix the manner in which the rehearing of English appeals, and also the hearing of Scotch and Irish cases, should take place before what his noble and learned Friend then called the First Divisional Court of the Court of Appeal. About this he felt much greater difficulty, though a difficulty, rather of sentiment than of a practical kind. He believed that change might, in practice, have worked as well as, though not better than, the plan of 1873. The objection to it was that it might appear to constitute, from time to time, some inequality of position as between the different members of the Court of Appeal. He still felt it was a weak point in that scheme that it did

  1809
  constitute some difference in the position of the members of the Court, and he confessed in that respect he preferred the Act of 1873. But there were certain other provisions which the noble and learned Lord introduced into that Bill which more than anything else tended to reconcile him to that proposal:—a proposal for which there was, at least, one very substantial reason—namely, that it was made in connection with, and mainly for the purposes of, the transfer of Scotch and Irish appeals in the new Court. If their Lordships would refer either to the Bill of 1874, or to the corresponding provisions in the now abandoned Bill of the present Session, they would see that, so far as the available strength of the Court was con-corned, it was as completely preserved by these two Bills as by the Act of 1873, and the essential unity of the Court was preserved also. If they referred to the Bill of 1874 they would find, that subsections 5 and 7 of section 15 enabled Judges of the Court of Appeal, not belonging to the First Division, to sit in that Division under the authority of the Crown or the Lord Chancellor, in case of need; and it was expressly provided that—
  "Any member of the first Divisional Court may, when the state of business will permit it, sit in one of the other Divisional Courts;"
  so that the whole strength of the First Divisional Court was available for all the business of the whole Court of Appeal. Then the 16th section was exactly like the provision of the Act of 1873—
  "An arrangement for re-hearing any appeal before the First Divisional Court of Appeal shall provide that such re-hearing shall take place before any judgment, decree, or order made on such appeal is registered, passed, or entered."
  He thought he was warranted in saying that, under these circumstances, the changes in which he had acquiesced last year were mere modifications in detail of the Act of 1873. It now became necessary for him to make some observations upon the Court of Intermediate Appeal, which would be established—he hoped only provisionally—by the present measure. He confessed he had the greatest possible misgiving as to the sufficiency of the strength of the Court as it was proposed to be constituted, and he deplored the exclusion from that
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  Court of such elements as the Lord Chancellor, when sitting in that House, and the other Members of their Lordships' House who had filled high judicial positions. When the Bill was in Committee, he stated his concurrence with his noble and learned Friend upon one point, as to the mere construction of the Act under which the four Judges of the Judicial Committee were appointed. He did not see his way to the conclusion, that the Supreme Court of Appellate Jurisdiction, contemplated by that Act, must necessarily be one, from which there could be no further appeal. But a more serious difficulty—though one which might, of course, be removed by the consent of the Judges concerned—was, that the Act in question certainly did not appear to contemplate, that new duties should be imposed on some of these four Judges, which would not be shared by them all. And as long as the functions of the Judicial Committee continued, the first and primary duty of all the four, under that Act, must necessarily be to the suitors before that Tribunal. In 1873, when it was proposed that power should be given to the Queen to transfer the appeals before the Privy Council to the new Court, he said this—
  "If Her Majesty should exercise the power which I shall ask the House to confer upon her, all the other judicial business of the Privy Council would be transferred to the new Court of Appeal. It is convenient it should he so; because if we are to have the services of these four Judges appointed for the business of the Court of Appeal, it is manifest we must provide, in the first instance, for the discharge by them of these duties for which they were especially appointed to the Judicial Committee, and the two systems will be most conveniently combined if we have the whole business brought together."—[3 Hansard, ccxiv. 358.]
  With regard to the ex-officio Members, his noble and learned Friend had expressed his belief that each of them would be able to devote six weeks in the year to the Court of Appeal though glad, he was surprised to hear that statement; because a rumour had reached him that some of the heads of the Common Law Courts were of opinion that the pressure of business upon them was so great that any diminution of the strength of these Courts would interfere materially with the conduct of their ordinary business. The energetic Master of the Rolls might possibly get through his own work, and have six weeks to spare for the Court

  1811
  of Appeal; but he should not have ventured to expect that this could be the case with all the other Judges. Besides, it might fairly be expected that the Appellate business would very largely increase during the early years of the working of the Act—especially as in all the Courts interlocutory orders would now be subject to appeal. As a permanent scheme he could not expect it to work well, and in the first year the difficulties would be particularly numerous. He would say no more as to the present Bill, which was admitted to be provisional for one year only:—in another Session, he understood his noble and learned Friend to say, they would have before them the alternative, either to adhere to the Act of 1873, with such modifications as were consistent with its principle, or to constitute some other final Court of Appeal. For his own part, he could certainly see no reason whatever why the Act of 1873 should not have at least a full trial. As far as Ireland and Scotland were concerned, he adhered to the opinions he expressed when that Act was under consideration. The fact that the Irish Act of Union contained a clause which made it proper that changes as to Irish appeals should not be made without the consent of the Irish people, or these who could speak on their behalf, was no reason why Parliament should be precluded from making any arrangement which might be for the advantage of England, as to English appeals. The Irish Courts—if the Irish people were indeed so much attached to the right of appeal to the House of Lords—must do their work remarkably well, judging by the number of appeals which had come during the present year from the different parts of the United Kingdom. There were 21 English appeals, 15 Scotch appeals, and only three from Ireland. As for Scotland, there was no clause in the Act of Union with that country about the jurisdiction of the House of Lords. There was only a clause providing that the Courts at Westminster Hall should not have cognizance of Scotch appeals. He should be well content to carry on the Irish and Scotch appeals as at present: still believing, that when the new Court of Appeal was established and in operation for England, it would not be long before the people of Scotland and Ireland would again express their desire to be brought
  1812
  into the same system. If the arrangement of 1873 were not in the end to be maintained, he should very much like to foresee what was to be done with the Ecclesiastical, the Indian, and the Colonial appeals. Political considerations might be imported into the question. The Colonies, for example, might entertain some objection to the transfer of their appeals to the House of Lords without their consent. As to Ecclesiastical appeals, he was not sanguine of perfect contentment resulting from any arrangement which had been or which could be made; and this being so, he thought the safest course would be to abide by our present arrangements, which had been supposed to be likely to be treated with more respect by some of the clergy, than had been shown to the Judicial Committee of the Privy Council. Any Court, which consisted of, or included, paid Judges who were not Peers, and which sat in the Parliamentary Recess, when the House of Lords did not sit, could not possibly be the House of Lords; it would be just as much a new Parliamentary Court as that which was created by the Act of 1873. To call such a new Court the House of Lords would be nothing less than ridiculous. Their Lordships would add nothing to their own dignity, or to the dignity of the Court, by endeavouring to transfer to it by Act of Parliament the historical prestige of the existing tribunal. That tribunal, whatever might be its merits or defects, stood on historical foundations; whereas this new tribunal would be as much the creature of an Act of Parliament and would be as totally different from their Lordships' House as was the Court constituted by the Act of 1873. He had made these remarks because he looked upon the subject as one of momentous importance. No necessity had been shown for hastily deciding to overturn what was done two years ago. There was yet time for the country, through all its organs of opinion, to address itself seriously to the consideration of what would most conduce to the public interest in this matter; and when he spoke of the country he, of course, intended to include Scotland and Ireland. There was yet time to re-consider this question; and, so far as Scotland was concerned, he would mention one fact, that The Scotsman newspaper—which he ventured to say

  1813
  expressed the opinions entertained by a large part of the people of Scotland—and, in his judgment, hardly any newspaper in the kingdom was more ably conducted—was in favour of the Act of 1873, and of its extension to Scotland. He did not believe there was either in Scotland or in Ireland such a unanimity of opinion as ought to stand in the way of any settlement which might after grave consideration be deemed the best. All he desired was, that, whatever conclusion was arrived at it should be good in itself and conducive to the administration of justice. It could not be for the public interest that the decisions of Parliament upon questions of that great magnitude, whatever they might be, should be constantly disturbed. If his noble and learned Friend made any proposition which might commend itself to their Lordships and to the other House of Parliament, even though it might not be one that would commend itself to his (Lord Selborne's) own judgment, yet if in practice it should be found conducive to the due administration of justice he would not be the man afterwards to attempt again to disturb it.
  LORD PENZANCEsaid, he did not think that it was a convenient thing to discuss the question of the Appellate jurisdiction of this country without any definite plan being before the House. His noble and learned Friend had indicated a Court of his own construction, and then told them that it was not the House of Lords. He admitted it; but the question which was to be discussed was whether the House, preserving its immemorial jurisdiction, might not be so improved in its judicial character as to become an efficient Appellate Tribunal for the Empire. The question of the Court of Ultimate Appeal was an open question, and as the consideration of that question had been relegated to next Session he would not now deal with it. He quite agreed with his noble and learned Friend that the costs of appeals to that House of Lords were considerable, and that the matter required to be looked to; but meanwhile he thought that they might be reduced if by a Standing Order the printed matter used in connection with the appeal cases in the Court below might also be used before that House and only reasonable fees allowed on taxation. Their Lordships were aware that the larger portion of the law of this
  1814
  country was what was called judge-made law. No Court reversed its own decision; therefore, as soon as the Court of Ultimate Appeal pronounced its decision upon a question the law on that subject was fixed, subject, of course, to an Act of Parliament. With regard to points of a novel character, the course frequently taken was this:—The Court of the First Instance decided one way on a question of that kind; the losing party did not ask for a re-hearing; but in the course of time the same question was raised in another case, and it was then submitted to the Intermediate Court of Appeal, which enunciated a general principle in deciding the ease. As time went on the Judges began to see that the principle laid down by the Intermediate Court of Appeal could not be maintained, and they therefore threw doubts on the decision of that Court. Finally, after the matter had been considered by the Judges, and they were ripe for a decision, the question came by appeal to the House of Lords, where the matter was settled once for all. The only escape from a decision of that House was an Act of Parliament.
  LORD HATHERLEYdid not agree that this was not the proper occasion for discussing the question what should be the Ultimate Court of Appeal, because that question had been settled by an Act of Parliament, to suspend the action of which this Bill had been brought in. A case that ought to be re-heard he was of opinion should be re-heard before a larger number of Judges than when it was heard in the first instance. In the Court of Chancery it was not uncommon, when a cause had been heard by the Master of the Polls or by one of the Vice Chancellors, for the appeal to be taken at once to the House of Lords without first going either to the Lords Justices or the Lord Chancellor. The reason for this was that the suitor wished to appeal to a more numerous tribunal, and to bring fresh minds to bear upon the law of the case. The result, however, frequently had been that the House of Lords, sitting as a Final Court, consisted of one noble and learned Lord and two lay Peers, which last, if the hearing continued for any length of time, were not always the same on successive days. Even in cases where there had been an intermediate appeal in Chancery, the final appeal had been, in many cases, from a

  1815
  noble and learned Lord sitting in Lincoln's Inn to the same noble and learned Lord sitting in the House of Lords at Westminster. The question was one in reference to which the public mind ought in the first place to be informed, and in the second to make its wishes clearly known. This could, in his view of the matter, be better done by a full discussion in their Lordships' House than by taking the opinions either of the solicitors or counsel who were professionally interested. As an instance of the inconvenience resulting from the present state of things he might mention that some years ago a Master in Chancery gave a decision of great importance, affecting many thousands of people, as to whether a provisional director of a joint-stock company committed himself to the position of a shareholder. This decision was reversed by one of the Vice Chancellors, and afterwards reversed again by one noble and learned Lord, an ex-Lord Chancellor, sitting with two lay Lords as the Final Court of Appeal in the House of Lords. The question was one which it was important finally to settle; but, as a matter of fact, the House of Lords subsequently pronounced a totally opposite decision upon a precisely similar set of facts. He thought it must be clear, therefore, that the House of Lords, as at present constituted, could not be regarded as a satisfactory Court of Final Appeal; and, in his opinion, a satisfactory Court of Final Appeal could only be settled in some such manner as was indicated in the measure introduced by his noble and learned Friend (Lord Selborne). Under such circumstances as were proposed by his noble and learned Friend (Lord Penzance) the final jurisdiction would not rest with the House of Lords, but with a new tribunal sitting in their Lordships' Chamber; and he could not think that with the real transference of a jurisdiction which would make the tribunal as a House of Lords only nominal, it would in the slightest degree add to the dignity of their Lordships' House.
  LORD REDESDALEprotested against the assumption that no improvement could be made in the constitution of the House of Lords for the hearing of appeals. He believed they could effect a very great improvement in it, and at the same time retain the constitution of that House in respect to the exercise of its
  1816
  judicial functions as it had existed from the earliest period. On this subject there had lately been a great change in public opinion, and he was convinced that the feeling which was now entertained against the transference of the jurisdiction of their Lordships to another Court would be more fully developed when the Government proposals were laid before the country next Session. That their Lordships should sit during the Recess for the purpose of hearing appeals was not a new principle at all. With regard to the expense of appeals, he had no doubt they could be greatly reduced, and if noble and learned Lords would consult with the officers of the House as to an alteration of the Standing Orders, a great improvement might, he thought, be effected. He must confess he never could understand how the Act of 1873, which did not provide a common Court of Appeal for the Three Kingdoms, could be regarded as satisfactory, while he believed the Privy Council would always continue to be the best Court of Appeal for the trial of Colonial and Indian causes.
  THE LORD CHANCELLORrose for the purpose of addressing only a few sentences to the House, and he might in the first place observe that he had already stated that the Government desired to preserve entirely unprejudiced until next Session the question of the final constitution of an Ultimate Court of Appeal. Their Lordships would not, therefore, expect him now, he was sure, nor would his noble and learned Friend who had introduced the subject expect him to enter into any argument in support of, or in opposition to, any particular view with respect to it which he might entertain. So far as the Government were concerned, they held themselves perfectly at liberty to consider next Session the best proposal on the question which could be made for its settlement. He quite concurred, he might add, with his noble and learned Friend (Lord Hatherley) that it was extremely desirable the public mind should address itself on all occasions to the consideration of the question, and should be as carefully informed upon it as possible. He would, however, put it to his noble and learned Friend whether he had taken the best way to accomplish that end, and whether he was really informing the public mind in any useful manner

  1817
  by raking up a number of old stories which had been repeated 20 times over as to what had happened a quarter or half a century ago, but which everybody knew perfectly well could not occur at the present day. Such stories appeared to him to be about as useful to the elucidation of the subject as if, when a measure for amending the constitution of Parliament was under discussion, some one were to give a narrative of the abuses and scandals which existed previous to the passing of the Reform Bill. He should like to say a few words, in the next place, with respect to what had fallen from his noble and learned Friend as to some remarks of his own which might perhaps lead to misapprehension "elsewhere." He was quite aware of that to which his noble and learned Friend referred—namely, that under certain circumstances an appeal might be made, as it was termed, per saltum from the decision of a Vice Chancellor to that House. Now, in that instance he quite concurred in the statement that there was a perfect right of double appeal, and he should be sorry that there should be any misapprehension on the point. If a decree was made in the Court of Chancery by the Vice Chancellor against the defendant in a cause, that defendant had a perfect right to have a double appeal. He might have it first before the Court of Appeal in Chancery, and then before their Lordships' House. He had, therefore, a perfect right of double appeal, although he might, of course, abandon part of it, and proceed at once to that House—a course of proceeding, however, which was so seldom adopted that it might be practically disregarded. He had on a former occasion stated fully what was to be the constitution of the particular Court which would be established under the present Bill. That constitution must be looked upon as provisional, and he should be sorry to detain their Lordships by repeating the reasons which he had before given for the adoption of the course which the Government deemed it to be their duty to take in the matter, or for thinking, as he did, that the Court would be found quite sufficient for the discharge of the important duties which it would have to perform. Notice had been given of an Amendment on the Report with regard to a District Registrar in Lancashire; but he hoped his
  1818
  noble Friend in whose name the Notice stood (Lord Winmarleigh) would defer the question until the third reading of the Bill, which he would fix for next Friday, inasmuch as the subject was under consideration, and it was his intention to propose certain Amendments altering in a general way the Rules relative to Registration Courts.
  EARL GRANVILLEthought the noble and learned Lord on the Woolsack had exercised a wise discretion in not entering, on the present occasion, into the question of what should be the Final Court of Appeal. He knew the noble and learned Lord was animated by a sincere wish to establish the best tribunal possible; but he must at the same time observe that his noble and learned Friend near him (Lord Selborne) had availed himself of a most legitimate opportunity for laying their views with respect to many important points connected with the Act of 1873 before the House. As to the attack which the noble and learned Lord on the Woolsack had made on what had fallen from his noble and learned Friend behind him (Lord Hatherley), he thought it was somewhat unjustifiable, for his noble and learned Friend had a perfect right to illustrate his views of the jurisdiction of that House as a Final Court of Appeal by referring to circumstances which had happened, not half a century ago, but within his own experience, and even within the last five or six years.
  LORD WINMARLEIGH,at the request of the Lord Chancellor, postponed the Amendment of which he had given Notice to the third reading.
  Bill to be read 3a on Friday, the 7th of May next.
  House adjourned at Eight o'clock, till To-morrow, half past Ten o'clock.