§ Order of the Day for considering the Commons Amendments, read.
, in pursuance of a printed Notice as to Clause 5, objected to three Law Lords being necessary to form a quorum.
The LORD CHANCELLOR
observed that the Amendment of the noble and learned Lord was not relevant to the Bill.
said, that as an Amendment had been made to the clause in another place, he had a right to move an Amendment. He accordingly moved that the clause be not agreed to. By this clause not only Lord Kingsdown, if 947 he had still been a Member of their Lordships' House, would have been insufficient to make up a quorum of three, but also the noble Lord the Chairman of Committees (who had carried a Standing Order to the same effect) would have been considered insufficient, even if desired by both parties (in an Appeal) to be one of three. He read to their Lordships a letter from Lord Hatherley, in which his Lordship wrote that it would be "idle to call the new tribunal the House of Lords, though his Lordship hoped it might be made a very good Court." By the measure the character of their Lordships' House as an Appellate Tribunal was entirely changed, and he thought so important a matter should not be determined without the fullest consideration.
§ LORD REDESDALE
said, he could not agree with the purport of the noble and learned Lord's (Lord Denman's) Amendment. The noble and learned Lord was wholly mistaken in thinking that the character of the House as an Appellate Tribunal would be altered. The Appellate Jurisdiction of the House would remain what it was, and all that the Bill would do was to secure the necessary attendance of Peers, who would be qualified by their legal attainments to advise the House on difficult legal questions. In 1873 the Leaders of both Parties agreed to recommend the taking away of that Jurisdiction from their Lordships; and that course was approved of in 1874 and 1875. Then a change came over the mind of the House, and public opinion was strongly expressed in a variety of ways against the removal of the Appellate Jurisdiction from the House. It was very remarkable that the change in public opinion was spontaneous, and uninfluenced by the leading Parties on either side. Ultimately, it was resolved that the Jurisdiction of that House should be retained, the consideration of the manner in which that should be done being deferred to the present Session. The Bill did not take away the privilege of any noble Lord to attend the hearing of appeals, and under it the Appellate Court would be as much the House of Lords as it ever was. He believed the country was satisfied with the tribunal of the House of Lords, and he hoped that the Bill would become part of the law of the land this Session, for there was a prestige attaching to 948 that House as a tribunal which could not be acquired for generations by any other Court of Appeal which might be substituted for it.
THE LORD CHANCELLOR
said, that the Question before the House was simply the consideration of the Amendments which the Commons had made in that Bill, and he therefore could not enter upon a discussion of its principle. The great subject of that Bill sent down to the other House was the question of this House as the Tribunal of Ultimate Appeal of the country; and he thought he was correct in saying that on that subject the House of Commons had made absolutely no alteration in the measure, but had only supplemented it by those financial provisions which could only spring from the other House, and could not be introduced in this House. He could not refrain from expressing his feelings of gratitude at the course taken by the other House in the matter. The provisions of the Bill on that subject were matters on which different opinions might well be entertained, and actually were entertained by various persons in the House of Commons. Those opinions were placed in abeyance, and that Bill now came back to their Lordships in that respect exactly as it had been sent down to the other House. Though there were several Amendments made in the Bill there were only two of importance. One, to which he thought no objection could reasonably be offered, related to the Intermediate Court of Appeal, and the position of things with respect to that Court was this—Under the Act of last year the Lord Chancellor had power to take from each of the three Divisions of Queen's Bench, Common Pleas, and Exchequer one Judge to assist in the work of the Intermediate Court of Appeal. When this Bill went to the other House considerable objection was taken to that provision. It was said that its working would be uncertain and unsatisfactory, that there would be a change in the Judges, and that the object should be to obtain Judges who would be permanent. The first important Amendment was to meet that defect. A provision was introduced for the actual transfer of three primary Judges to the Intermediate Court of Appeal, but these Judges might be required to go on Circuit. The second important Amendment provided that rules might be made to insure. 949 to a much greater degree than at present the hearing by a single Judge of cases in the Divisions of Queen's Bench, Common Pleas, and Exchequer, so as to produce to a greater extent than could now be done the same results as were obtained in the Chancery Division, whereby points of law were decided at the hearing of cases, and it was rendered unnecessary to refer those points to the Court in Banco. Those were the only Amendments of any substance which had now to be considered. He hoped the results of the attention which had been bestowed upon this Bill would be to materially improve our system of Judicature.
§ LORD COLERIDGE
said, he thought the compromise that had been effected was a reasonable one, and one which he thought would work well in practice. He had laid on the Table a Notice that he would call the attention of the House to the working of the Judicature Act, and move for a Return to supplement one which had been previously obtained; but, perhaps, it would be more convenient and save time if he said what he had got to say on the consideration of these Amendments. Unfortunately, the controversy, if controversy it ought to be called which dealt with matters of fact, was conducted on certain inconvenient conditions, because those who really knew about the working of the Act up to this time were not, with the single exception of the person now addressing their Lordships, able to speak in that or the other House of Parliament, and of course they could not enter on a controversy in the newspapers, and those who, he was quite satisfied unintentionally, had misrepresented the facts of the case had not that definite information which was essential for dealing with this very important question. He was, therefore, sorry to find from the statements that had appeared in the newspapers and which had been made "elsewhere" that there had been very gross exaggerations as regarded the present arrears. The Act divided the Courts of Justice into the High Court of Justice and the Court of Appeal. He would take first, the working of the High Court of Justice, which, as their Lordships would remember, was divided into five Divisions, but for all ordinary purposes into three—namely, the Divisions represented by the Vice Chancellors, by the Queen's Bench, Common Pleas, and 950 Exchequer, and by the Probate and Admiralty Courts. The working of the Chancery Division had been somewhat slow, because the most salutary practice of vivâ voce examination had been introduced. Anyone who knew anything about the matter would see that if we tried cases by vivâ voce examination, they would take up a longer time,; but, for all that, there was no comparison between that system and the system of affidavits for eliciting the truth. Every one knew perfectly well that the result of affidavits drawn by the score, settled by the counsel, and sworn to, perhaps, without much examination, could not for a moment be compared with the result attained by examination and cross-examination vivâ voce. In the Probate and Admiralty Courts there was very little difference, except that as the Judge of the Probate Court could call in the Judge of the Admiralty, he believed, on the whole, more important work had been got out of that Division. He now came to what he understood better—namely, the working of the Queen's Bench, Common Pleas, and Exchequer Division. And, first, with regard to sittings in Banco, he had to say that there were, practically speaking, no arrears. He did not mean that there might not be some few cases standing over, but practically there were no arrears at all. Therefore as far as regarded two very important portions of the High Court of Justice, the work had been done to a greater extent than he believed had ever been done before. He quite admitted that in trial by jury cases there were very considerable arrears. He had to say, however, that as to this matter there had been gross exaggeration. The fact of the exaggeration was unquestionable. There was no kind of use in disputing about the facts. He did not invent these statements; but he desired their Lordships to know the facts, in order that they might see how far the Amendments made in the Bill were really well founded. The question was how many cases were standing for trial, and it was a question of figures and nothing else, and his authorities for the figures he had given on a previous occasion, and was about to give, were of the best kind—namely, the Associates of the Courts—Mr. Campbell, Mr. Erle, and Mr. Pollock. He said then, and now repeated a statement which he saw was 951 questioned "elsewhere"—that, whereas between November, 1874, and November, 1875, the Judges sat 540 days in London and Middlesex to try cases, they sat for 676 days from November, 1875, up to the close of the sittings in 1876. Some doubt had been cast upon his meaning in the use of the expression "judicial days." What he meant was, of course, that if two Judges each sat for 30 days the result was 60 judicial days; and he repeated that there had been 150 or thereabouts more days spent by the same number of Judges in the same time since the passing of the Judicature Act compared with the number of days' sittings by the same Judges in the same time and upon the same work before the passing of the Act. Further, he stated, and now repeated, that in the words of the Return furnished to him—Every action which has been entered for trial since the Judicature Act came into operation has been tried within three months of its entry, and every action now left untried since the beginning of the Long Vacation will have been standing for trial less than three months.In his statement he made no distinction between common jury and special jury cases; it applied unreservedly to both classes. He did not mean to say that three months was no time to wait or that the arrear was not a large arrear; but he did say that to talk of the Act having broken down, of the state of things being unprecedented, was to indulge in extravagant language and to go altogether beyond what the facts of the case, as he believed them to be, warranted. Nobody could foretell what would happen hereafter, but as they began last year with 549 cases, and as they would begin the next year with 600 or 700, it was not unlikely that by the end of the year the arrear would be got rid of. It was alleged, first, that the business was shown to be declining, and yet that more time was taken to try fewer cases, which was said to prove the bad working of the system; and, secondly, it was said that the sittings of the Judges had neither been so continuous nor so long as they ought to have been. Now, it was almost a universal rule that as you amended procedure and made it more reasonable and expeditious, you diminished the quantity, but increased the quality of the business that was left. It was wholly fallacious to go back a good many years and say there were then more writs 952 issued, and a larger number of cases tried. That was true, but those were days when a larger number of cases were undefended, when a number of small technical questions arose for decision, and when the parties, by interlocutories and discoveries, did not know each other's hands as they did now. A larger number of such cases might be tried in the same period; they did not occupy the same amount of judicial time. But now almost every case coming before the Judge and jury was a substantial case. By proceedings in Chambers and otherwise the chaff was winnowed away, the case on both sides was ascertained, and understood, and when the parties came into Court it was upon a substantial issue. Under one of the most useful provisions of the Judicature Act it was ordered that a defendant should swear to his defence; he could no longer keep the plaintiff at arm's length, but was put to his oath. Then, again, he understood that a large portion of business which, before the Judicature Act, would come into Court, was now disposed of in Chambers, and did not figure in the returns of cases. But it was business done all the same, and in any fair and candid comparison of systems it must be taken into account as business now done in one way, while before the Judicature Act it was disposed of in another way. He ventured to say, therefore, that the amount of litigious business before the Judges was not, substantially at all events, smaller at the present moment than in previous years. The Judges, he thought, had good ground to complain of observations made upon them elsewhere, as though they had not been loyal to the spirit of the Act, and, instead of doing their best to carry it into effect, had been obstructive and prevented the proper working of the Act. He was certain that this sort of attack upon the Judges would receive no countenance from his noble and learned Friend opposite (the Lord Chancellor) who had said no more than was just—though it was generously and kindly said—in moving the second reading of this Bill—namely, that the Judges, so far from obstructing the operation of the Act, had accepted it loyally and with ardour and energy. A more unfair and unfounded accusation than to say that they had in any way obstructed the fair working of the Act was never made by 953 any man in anyplace, however considerable the man and however high the place. It was absolutely unfounded. In January and February so much had the work diminished that a Judge might occasionally not have been sitting. But speaking for himself and all the Judges he knew, and excepting the short statutory vacations, there had been no Judge who had not in some place or in some Court been sitting day by day from November 2, 1875, up to the present time. A good deal had been said about Circuits, and he wished to state that it was perfectly indifferent to the Judges whether they sat in London or the country; they did not care where the work was. He said that so far as he knew a full amount of work had been required from the Judges. It must be remembered that the presence throughout the country of the Judges on Circuit had an importance of its own which ought not to be measured, and which could not be fairly measured, by the particular number of hours consumed by the Judges. Indirect, yet most valuable, results were produced by the presence of the Judges in various parts of England. He altogether denied that the mode of criticism which had been applied to those learned persons was a fair, or a generous, or a right mode of criticism at all. When he saw it stated that the Judges ought to work in shifts, that they only considered their own convenience, and that they did not think of the public whom they ought to serve, he maintained that that was not seemly language, but language which the facts of the case did not in any degree or in any manner justify. So far as his own Court was concerned, he maintained that the working of the High Court had, upon the whole, been successful. He did not say he should not have preferred to state that there were no arrears in the Nisi Prius Court, but he did assert that if what he had stated to their Lordships was anything like the truth, the exaggerated statements on the subject must be attributable in a great degree to the circumstance that sufficient attention had not been paid to the figures and facts before those statements were made. We were hardly yet in a position to judge what the normal working of the High Court would be. It seemed to him to be as unreasonable to legislate on the existing state of things as it would have been to come to Parlia- 954 ment in January and to say—"Abolish three Judges because there is not sufficient work for them." With reference to the Amendments in the Bill they revolutionized the system of Common Law procedure, and he considered that it was inconvenient and unfortunate that a change of this great importance should have been introduced into this House on the 10thof August in a Bill which had been much altered in the House of Commons since it left their Lordships some time ago. As the Bill went from the House their Lordships fully concurred with it, but it was now sent back in an entirely different form from that in which it left. Was it unreasonable to effect a change of that very considerable importance without any consultation, or the possibility of consultation, with those who had to administer the law? A very large majority of those persons were opposed to the change, and he ventured to think there was no real reason for its being effected at all. It was said to be made with the universal assent of the Profession, but he emphatically denied that the assent of the Profession had been even asked for anything like this change. He entertained great respect for those barristers who happened to be Members of the House of Commons, but he denied that they generally represented the feeling of the Profession on the subject, and he should require a much stronger consensus of opinion for the absolute destruction of the old system of Common Law, under which there was a trial of disputed facts before a jury and an adjudication on disputed points of law by a Court in Banco. He would now read some extracts from a letter addressed to him by his excellent Colleague Mr. Justice Brett—First, it is alteration in a panic of legislation hardly yet dry. This block of causes at Nisi Prius in London and Middlesex is probably only temporary. Secondly, the proposed plan ignores entirely the essential difference between the causes tried before juries and those tried before Vice Chancellors. The causes in the Common Law Divisions are those which arise in the ever-varying transactions of every-day life. There is not a month, or even a week, in which some new combination does not arise in business, and therefore some totally new application of law does not arise. It seems never to be understood by those who are not conversant with the administration of law by Judge and jury that the trial before the jury is to ascertain what are the facts of that new combination, and that the law must be applied after the facts are ascertained. Let any one look into 955 the Reports, and he will see how incessantly new business, which is, in other words, a new point of law, arises. It is practically impossible, from want of time and books, that each new point should be determined at the Nisi Prius trial, as Mr. Gregory's Amendment, for instance, supposes it could be. If the point were then to be determined, either Nisi Prius trials must he postponed for months or the number of Judges and Courts must be increased by 60. And if each new point were reserved for the determination of the same Judge sitting in London or for another single Judge sitting alone, it is practically impossible to suppose that the number of appeals would not be increased ten or twenty-fold. Suppose an opinion expressed by Baron Bramwell or Mr. Justice Blackburn, let us say, at the trial referred to any Judge you may think wholly inferior or whom the public may think wholly inferior, and his judgment is different from the opinion; or even if the single judgment be that of the most trusted of the Judges. The assumption is that the point or application is new. Now, is it possible to suppose that it will be acquiesced in? I will give two or three instances which are recent—the crossed cheques, the negotiability of foreign bonds or coupons, the questions now raised as to disclosures or concealments in a prospectus, customs of the Stock Exchange, &c. The truth is that the proposal would make the Court of Appeal the only Court in Banco, and so the House of Lords the first instead of the second Court of Appeal. It is only, in fact, upon the question of a suggested misdirection that the Courts in Banco are a Court of Appeal. As to points reserved or special cases or other motions, they are a Court of First Instance upon questions of law. It may be that a single Judge should more often sit to hear points of practice; but that requires no legislation. Thirdly, if the Judges are to determine each of them singly these questions of law which so constantly arise, all idea of authority, which has hitherto been the backbone of the consistency of the law, must cease. Surely it cannot be supposed that the decision of a single Judge is to be cited as a binding authority to another single Judge. Such things as reported cases, which are now more useful even to prevent litigation than to guide it, must cease. No lawyer will be able to advise his client that the point has been decided by a binding authority; at all events, not till the Court of Appeal has decided; and so, again, that appeals must multiply. Fourthly, how is the work to be distributed? Three Judges in the Court of Appeal—are these to be three sitting singly, as it were, in Banco? If so, are there to be six at Nisi Prius and one at Chambers? That gives 13. Are five to be idle? Or are there to be more than three Courts in Banco or more than six at Nisi Prius? If yes, where are the Courts and the Bar? Fifth, what is to become of the peculiar business—the Revenue cases in the Exchequer, the magisterial and other cases in the Queen's Bench, the election cases (Parliamentary and Municipal) in the Common Pleas? Sixth, is not the veiled idea the idea of doing away with trial by jury? Seventh, I should say that at present nine-tenths of the daily Common Law disputes—i.e., cases—stop at the Court in Banco, whereas under the proposed system those nine-tenths would almost 956 all go to the Court of Appeal. For these reasons I have no doubt as to the extreme danger and ruin of a scheme which seems to me to be utterly thoughtless.It was further said that the spectacle was often seen of three Judges hearing cases which, men of ordinary intellect might dispose of in a few minutes. Now, he did not aspire to the intellect of his learned Friend who made those observations; but when he spoke of three Judges frequently sitting to decide points which a clerk in a counting-house might dispose of, he could only say that was a state of things which had not come under his own observation. For his own part, he found the strain upon his mind, though, perhaps, not so long, greater since he had the honour of a seat on the Bench than when he practised as a barrister, and his learned Friend in making the comments to which he referred laboured, he could not help thinking, under an entire misapprehension. Under all the circumstances of the case, he might add, he saw no necessity whatever for altering the present system. All that was required to be done was to give the Judges power in the less important cases. At all events, nothing like the alteration proposed in the Amendments before the House was, he believed, at all necessary or would be found in practice to be at all useful. He came, in the next place, to the working of the Court of Appeal, which was, in his opinion, a question somewhat different from the working of the High Court. His noble and learned Friend on the Woolsack had been so kind as to furnish him with a Return as to the working of the Court of Appeal in regard to appeals from the different Divisions of the High Court, and he found that for a period of five years, commencing in 1871, the number of appeals from the Common Law Divisions was 245, whereas the number from the Vice Chancellors' Courts was 1,012. During portions of that time up to the passing of the Judicature Act there were, he admitted, many matters in which the decisions of the Courts of Common Law were final, and that many of the appeals from the Vice Chancellors' Courts were with reference to small matters, so that it was exceedingly difficult to say what deduction ought to be made in making the contrast upon those two grounds. Still there remained the fact of the three 957 Common Law Courts sitting in Banco for five years with only 245 appeals, while there were 1,012 during the same time from the Courts of the Vice Chancellors. His noble and learned Friend had also been good enough to furnish him with a Return with respect to the Court of Appeal for the present year, which included the appeals from the Chancery as well as from the Common Law Divisions. From that Return it appeared that the number of appeals from the Chancery Division was 200, from the Queen's Bench Division 36, from the Divisional Court of Appeal 3, from the Common Pleas 27, from the Exchequer 45, from the Probate and Divorce Division 18, or in all 129. So that there were 200 appeals from the Chancery Division as against 129 from all the other Divisions. Those were facts which did not at all tend to encourage, in his opinion, the idea that the business of the Courts would diminish under the change which was proposed. In conclusion, he thought no Act had worked more successfully than the present, or was more generally satisfactory to the Profession; and as to the Court of Appeal, no Court, he believed, ever started under fairer auspices. It was difficult to say why it was not now viewed by them with the same favour as in the first instance. That was, he believed, due to other and temporary causes rather than its constitution. There was the great difficulty of a Court with permanent Judges as distinguished from Judges sitting from time to time, and although a difference of opinion existed among the Judges upon the point, yet he was strongly of opinion that amid much that was evil in the old system of the Court of Exchequer, there was the good that it prevented all distinctions of rank as among the Judges. Although undoubtedly there were inconveniences and difficulties in the working of the old Court of Exchequer Chamber, he must say that he thought the judgments of that Court commanded the respect of the Profession, and were looked up to. He thought that the portion of the Commons Amendments which added three Judges to the permanent Court of Appeal was a mistake, and that it would be better that all the superior Judges should from time to time take their places in the Court of Appeal. It was not a matter of sentiment with him; he held his opi- 958 nions because he really believed that for a considerable space of time the working of the Common Law Courts had been greatly for the benefit of the people of this country. He felt in a matter of this kind he was really in the hands of Her Majesty's Government, and he knew that in legal subjects Her Majesty's Government was his noble and learned Friend. He had submitted his views, and he left them with his noble and learned Friend on the Woolsack.
THE LORD CHANCELLOR
said, he would not enter upon a general discussion upon the subject under consideration, as he thought it would be better to reserve whatever observations he might have to make upon the Amendments until they were put in their turn, but there was one observation which his noble and learned Friend opposite (Lord Coleridge) had made unconnected with the Amendments to which he must respond at once. His noble and learned Friend had heard that the learned Judges had placed themselves in antagonism to the Judicature Act, and that in some way they were thwarting its operations. He had been reminded by his noble and learned Friend that he (the Lord Chancellor) had borne testimony to the learned Judges, and his noble and learned Friend asked him was he prepared to repeat it? He was prepared in the most unqualified way to repeat that testimony, and he took the opportunity of bearing witness to what he called before, and called now, not only the loyalty, but the generous and most efficient manner in which the learned Judges had combined to put into operation the very large changes inaugurated by the Judicature Act. He believed they had done that not merely in obedience to the law, which they would have obeyed; he could go farther than that—he could say from his personal knowledge that the majority of the members of the Judicial Bench were not only prepared to obey the law, but were of opinion that the changes made by the Judicature Act were most beneficial and desirable changes. The other day there was an occurrence which had been the subject of remark, and there was a difference of opinion as to whether a particular action should be tried at a particular place before a jury. He did not disguise that he had an opinion as to what the law in that particular case 959 was, but he was not going to state now what that opinion was; but it was clear that this was a matter in which the Judges might differ in opinion as to what the law was. Whatever their opinion, they did not evince the slightest disposition on their part to fail to comply loyally and properly with the enactments of the Judicature Act. His noble and learned Friend referred to some criticisms made upon the arrangements for Circuit. He knew it was stated that a larger time was allotted for Circuits than was absolutely necessary. He knew the learned Judges were in a difficulty on this subject. Some persons thought the business would not be increased, others held a different opinion; but the learned Judges had no data by which they could tell how that might be. He must add one other observation, and that was to bear testimony to the way in which the learned Judges discharged their duties under great difficulties as to the accommodation in the places in which they discharged the Nisi Prius cases. He was sorry to say the accommodation was not sufficient. They were put into garrets and corners utterly unfit for them to sit in, and there they had to discharge labours under difficulties which other public servants would not submit to.
said, that as the 6th clause contained an Amendment in fixing the salary of the new Judges(which went out either with blanks or red letters), he was justified in moving an Amendment to it, he believed that two new Vice Chancellors, with power to sit as Judges of Chancery Appeal with the Lords Justices on the plan of the Exchequer Chamber, would be far more useful than the two Judges contemplated by the Bill, and hoped that retired Chancellors and Judges and those already Peers, whilst continuing to be Judges in England, Scotland, and Ireland, would not cease to give the weight of their authority and experience in cases when the House of Lords might be sitting on Appeals in vacation, or between a Dissolution and a New Parliament.
§ Commons Amendments considered.
§ Commons Amendments up to Clause 12 agreed to.
THE LORD CHANCELLOR
said, he had now to ask their Lordships to agree 960 to the two Amendments which had been commented on by his noble and learned Friend opposite (Lord Coleridge). As regarded the first, which dealt with the Intermediate Court, with the exception of what had been said by his noble and learned Friend, whatever differences of opinion might have presented themselves to the minds of the learned Judges of the Supreme Court on the subject, he was happy to say he had received no unfavourable representations from them concerning it. The necessity for it was obvious, and his noble and learned Friend had himself admitted that the Court did not come up to his expectations. There was an Intermediate Court of Appeal, to which only three regular Judges were attached. For assistance they had to depend on the casual attendance of other Judges who might be able to spare some time from the business of their own Courts. There was another Amendment that that Intermediate Court of Appeal should sit in two divisions. Now, how was it possible for two divisions of that Court to sit in proper strength with only three regular Judges to transact the business? Of course, an addition to the number of Judges was required. Well, last year he proposed that, except at Circuit time, three of the primary Judges should be required to attend in the Intermediate Court of Appeal. That arrangement had not been found so satisfactory in practice as might have been expected, and the House of Commons therefore said that three of the primary Judges should be altogether transferred to the Court of Appeal, except during times of Circuit as before—in other words, that, except with the obligation of going Circuit, three primary Judges should be made regular members of the Court of Appeal. That was the Amendment he had now to propose. It was, it seemed to him, one more of form than of substance, and he apprehended that there would be no objection to it.
§ Amendment agreed to.
THE LORD CHANCELLOR
said, he now came to the second Amendment which related to the procedure in the primary Courts. His noble and learned Friend opposite (Lord Coleridge) had remarked that it was a very large and serious change to propose at so late a period of the Session. For his own 961 part, he must say that the change proposed was certainly not a novelty, inasmuch as it had been discussed over and over again both in and out of their Lordships' House, and it was difficult to imagine the procedure of the Courts being upon a proper footing so long as there were three Divisions of the High Court in which the procedure was entirely different from what it was in another Division. It was impossible to justify having in one Division only one Judge to dispose of precisely the same kind of business as in the other Divisions was disposed of before three Judges. He was glad that public opinion had ripened so rapidly as it had done upon this question, as was shown by the fact that in the House of Commons the Amendment was agreed to almost unanimously, and there was no division upon it. His noble and learned Friend had spoken of the violence of the change, but what had been done with regard to the different Divisions of the High Court of Justice? All the Divisions were now branches of one Court, and although certain distinctive names had been kept up, a person might commence a case in any one of the different Divisions he liked. Could his noble and learned Friend give any possible reason why a case presented for trial in the Exchequer Division of the High Court and disposed of by one Judge should, if brought on in the Court of Common Pleas, require three Judges? The Chancery arrangement might be wrong; if so, let it be altered. But there could not be for one Court a rule which would not apply to another. With regard to juries, no difficulty could arise; there might be a jury in the Court of Chancery as much as in the Court of Queen's Bench. As a consequence of the new system of Judicature, the Court of Chancery was absorbing Common Law cases. The Court of Chancery, indeed, was actually becoming blocked from the number of Common Law cases which came before it, suitors being attracted to it by the greater convenience it presented. Taking the suits commenced in town during the first year of the Judicature Act, and comparing them with the Returns for the year previous, he found that the increase in the Chancery Division was no less than 33 per cent—a fact which could not be accounted for except in the way he had 962 said. There had been a great deal of discussion about appeals. It might now be taken as settled that there should be two appeals—intermediate and final—but if his noble and learned Friend's view were carried out there would be three appeals. There would be first the decision at Nisi Prius, then an appeal to the Court in Banco, next an appeal to the Intermediate Court, and lastly an appeal to the Final Court. Now, did his noble and learned Friend really mean to say that that was his view of a perfect system? He very much doubted whether there would be a great multiplication of appeals, and was disposed to think that when a single Judge disposed of the law of the case, he was almost as likely to be right as where there were more Judges, at least for primary jurisdiction. But even supposing there were more appeals, the Intermediate Court would have to decide more, which would be a much better thing than having three Courts of co-ordinate authority, and would, he thought, have a much more steady effect on the law. It was not meant that where facts had to be decided they were to be decided by the Judge, but by the jury, as heretofore; and the law would be applied by the Judge who had heard those facts. Had the Court in Banco been such a sacred institution, and had it had such a great effect in settling the law? The Court in Banco had sat four in number; but it might now be constituted by two Judges, and even by one. So that great palladium of justice had dwindled down very much, as it might be composed of two Judges, and sometimes only of one. It would be etter to get rid of that which was little more than a phantom, and have a single Judge to apply the law to the facts which had been tried by a jury. All that the Amendment, therefore, did, was to say that as a general rule so far as convenient and practicable the one Judge who began the case should hear it to the end and apply the law to the facts when they had been ascertained by the jury. The clause was, however, very elastic, and would enable the Judges to make rules which would leave very important matters to be decided by the Courts in Banco. He did not think that the Amendment would interfere with the practice of the Courts. In his opinion it was a most valuable one—what he had said was the substance of the 963 whole of it, and he was surprised that his noble and learned Friend thought it so serious a departure from present practice.
§ Amendment agreed to.