THE LORD CHANCELLORrose to call the attention of the House to the question of Appeal from the Queen's Courts in Great Britain and Ireland; and to present a Bill on the subject, and said: My Lords, I take the earliest opportunity of again calling your Lordships' attention—and I hope I am not too sanguine in saying for the last time—to the subject of a Tribunal for Final Appeal for the United Kingdom.
My Lords, I shall have to throw myself on your Lordships' indulgence for a short time while I explain the proposals of Her Majesty's Government; but, my Lords, before I bring that explanation before you I shall have to make a short prefatory statement personal to myself. My Lords, I have never attempted on the discussion of the question now before the House to mix up anything of a personal nature; and as I I have a few words to say of that character now, I think it better to say them at the beginning, in order that they may be entirely disconnected from anything that is to follow.
My Lords, I heard and saw during the last Session of Parliament various statements—and, indeed, observations were made in this House bearing in the same direction—which implied, on the one hand, that although I might have been responsible for the course taken from time to time on this question by Her Majesty's Government, yet that the course they had taken had not always had my cordial co-operation; and, further, that in any assent I had given to that course I had not been myself consistent. I know there are persons to whom it gives pleasure to think that there are questions on which the Members of a Cabinet are divided in opinion. Now, in this instance, I have to baulk the expectations of such persons, because I think it better at once to say that not only am I technically responsible for the course which the Government have from time to time adopted with reference to the subject of a Tribunal of Final Appeal, but that in every instance the course so taken has had my cordial approbation. My Lords, as regards my own consistency, I venture to think that it is a very small 204 matter. It is a matter of opinion; and my opinion is that I have not been inconsistent. I shall venture to express very shortly the grounds on which I make that assertion. In the year 1856, when a proposition was made in this House by the late Lord Derby for the appointment of a Committee to inquire into the practice of the House in the hearing of Appeals, some observations fell from him which impressed me very much, and which express so entirely what I should myself wish to express, that I shall ask your Lordships to allow me to read them. He said—
My Lords, I shall somewhat shock some of your Lordships by saying that, highly as I value this privilege, I do not consider its maintenance to be so absolutely essential as some noble Lords may think to the fitting discharge of the other functions of your Lordships. I consider it undoubtedly to be a very high privilege, and a most important privilege; and as regards the legal Members of your Lordships' House, it undoubtedly does vest in them, as being such Members, a very high and a very important and responsible jurisdiction; and even with regard to the House at large, I am not prepared to say, though substantially the authority is not practically invested in them, that the apparent semblance of that authority is not in itself a real source of power of which I should be sorry to see your Lordships deprived. But of this I am quite certain, that if it were necessary to take the alternative between the maintenance of any privilege of your Lordships' House, however important or however valuable, and on the other hand the better administration of justice, there is not one of your Lordships who would hesitate in regard to that alternative, and who would not say, lot justice be fairly and impartially administered whatever privileges this House may be compelled to forego."—[See 3 Hansard, cxl. 1448.]Now, my Lords, in the year 1856 nothing was done in consequence of the proposals then made by the late Lord Derby towards improving the Appellate Jurisdiction of this House. In 1872 it certainly did appear to me that on the one hand it was impossible that the jurisdiction should continue to be exercised unless accompanied by some improvement; while, on the other hand, up to that time nothing in the direction of improvement had been effected. Therefore, it was that when, in 1872, my noble and learned Friend who was then Lord Chancellor (Lord Hatherley), as the organ of the late Government, proposed in this House a Bill for the transfer of the Appellate Jurisdiction of this House to another tribunal, I refused to accede to that proposal; and your 205 Lordships, instead of reading the Bill a second time, assented to a Resolution I then moved, substituting an inquiry by a Select Committee, as to whether changes and improvements could not be effected in the administration of the Appellate Jurisdiction of this House. A Committee charged with that inquiry sat—I refer to this as a matter of history—and in the Committee I ventured to make proposals which it appeared to me would have effected the improvements which the administration of the Appellate Jurisdiction of this House required. My proposals had very great support. My noble and learned Friend who was then Lord Chancellor (Lord Hatherley), although he preferred his own plan, yet when he found that the House was not prepared to accede to it, frankly gave me his support. Lord Ripon, then Lord President of the Council, who represented the Government on the Committee, also supported me, as did also the majority of the Committee. But there was a division in the Committee. Of several Members of great authority, some differed as to the details of my plan, and some dissented from the scheme altogether. The result was that the Report of the Committee came down to the House with a divided authority. It did not, I think, obtain very much support in the House, and I know that out-of-doors strong opinions were expressed adversely to it. I am, perhaps, partial to the proposals I then made. I thought then and I still think that they were good; but I was not so blind as not to see that, though the proposals were recommended by a Committee, they could not, perhaps, be carried through this House, and certainly could not be carried through the other House of Parliament. It appeared to me, then, that improvements were required in the administration of the Appellate Jurisdiction of the House, and that it was not likely that those improvements would be approved by Parliament. Such was the state of things when, in 1873 my noble and learned Friend (Lord Selborne), who then filled the position which I have now the honour to occupy proposed his measure carrying into effect the recommendations of the Judicature Commission, and I gave him my support. I was keenly anxious that the part of that great scheme which did not affect this House should pass into law. As re- 206 garded the improvement of the Appellate Jurisdiction of this House, I found there was perfect apathy; and, looking at the substance rather than the form, I gave my support to the Bill of my noble and learned Friend, though I did not approve that portion of the measure which suppressed intermediate appeal and gave a final appeal instead of it. When Her Majesty's present Government came into Office they found the measure of my noble and learned Friend the law of the land; and it appeared to us that as a Government we had only one course to pursue—namely, with the view of accepting what had been done in the case of final appeals in England, to propose a similar rule in the case of such appeals from Scotland and from Ireland, and to make an addition to the scheme of 1873 by the constitution of an Intermediate Tribunal of Appeal, which appeared to me to be necessary. Your Lordships will remember that the Bill to effect those objects passed your Lordships' House and went down to the other House of Parliament, where the Business of the Session before that House did not allow of the Bill being passed into law. We now come to last year. In 1875 the Government took the only course which, as it appears to me, was open to them. They re-introduced the Bill which passed this House in 1874; and then it became evident that a very great change had arrived—a change of opinion not merely in this House, but out of this House. The Government were made aware of that—not only in one way, but in scores of ways. The change of opinion was manifest; and the Government became aware that it would be utterly impossible to pass the measure in the form it had been passed in this House the previous year. But that was not all. So obvious was the change of public opinion that Her Majesty's Government considered it to be their duty to re-consider the question now that a new element had entered into it, and that could have been done in no other way than by the withdrawal of the Bill. My Lords, at the time it was being withdrawn, I stated that I looked on its withdrawal with very great regret. And I did so, for this reason—because it was my opinion at the time that the withdrawal of the Bill must result in the whole scheme for the amendment of our system of Judicature being deferred. It 207 had already been postponed for two years, and it appeared to me that a postponement for a third year was inevitable. But subsequently I was glad, and the Government were glad, to see our way to a Bill which Parliament approved, and which, while addressing itself to the other portions of our system of Judicature, postponed for a year only the question of the Tribunal of Final Appeal. That Bill became law. The great change in our system of Judicature came into operation on the 1st of November last; and I am bound to say that every day makes me more satisfied of the wisdom of Parliament in at once introducing that great change by itself, and relegating to another occasion the question of Final Appeal. Now, my Lords, I have done as far as regards myself. I hold the opinion which I have held from first to last, and I think the course I have taken has been a perfectly consistent one; my desire has always been to secure the best Tribunal of Final Appeal that it is possible to obtain—I never had, and I have not, any other desire in the matter than that.Before I proceed to explain our proposals for the future, let me, my Lords, say a word as to the results of the Judicature Act now in operation. I am not going to trespass on your Lordships with elaborate statistics—indeed, the length of time during which the Act has been in operation does not admit of the production of such statistics;—but I feel the deepest gratification in saying—and I am sure my noble and learned Friend by whose exertions this great measure was set on foot will feel the deepest gratification in hearing—that so far as I can observe, the working of the Judicature Act has been in the highest degree satisfactory. The working of the Act has been characterized by flexibility, simplicity, uniformity, and economy of judicial time. These have ensured the happiest results already, and these results afford hopeful augury for the future of the measure. And, my Lords, I cannot refer to this subject without bearing my testimony—my grateful testimony—to the frank and generous exertions made by every Division of the Court in giving effect to the Act. My Lords, one can well understand that those who have had long experience of an old system and practice, and are thoroughly conversant with it, might be 208 expected to be somewhat coy in giving their assistance to the working of a new one. But on the part of the Judges there has been none of that feeling. They have shown not energy merely, but ardour, in giving effect to the new legislation, and I believe that it is owing to this spirit on the part of the Judges that the happy results of the measure are in a large degree to be attributed. Though, as I said, I am not going to quote elaborate statistics, I shall mention one or two circumstances by which your Lordships may be enabled to form an opinion as to the advantages which have already resulted from the change. On the 1st of November last there were in the three Common Law Courts—The Queen's Bench, Common Pleas, and the Exchequer, which are now three Divisions of the High Court of Justice—380 Nisi Prius cases, which had been made remanets, and were waiting for trial. That was a very serious amount of arrears; and I am afraid to say how long a time must have elapsed, according to the former practice, before those remanets could have been disposed of. But from the 1st of November last six Nisi Prius Courts sat—first at Westminster and afterwards at Guildhall—and before Christmas the whole of these 380 cases had been, I will not say heard, but called on, so that the suitors in every one of them were afforded an opportunity of having their case heard if they themselves were prepared to have it disposed of. Of course, several cases were called on and subsequently deferred at the instance of the parties because it suited their convenience; but the suitors in all those cases had, I believe, an opportunity of having their cases heard. My Lords, there is another fact. On the same date—the 1st of November last—there were standing for hearing from the three Divisions—the Queen's Bench, the Common Pleas, and the Exchequer—27 appeals, which, according to the former practice, would have been heard by the Court of Exchequer Chamber. I cannot say what time would have elapsed before these Appeals in Error would have been disposed of, but I think the Court of Exchequer Chamber was not in the habit of disposing of more than 27 cases in a year. However, the whole of those 27 Appeals were heard and judgment given in them before Christmas. I believe that judg- 209 ment on one point only was held over, but, with that exception, the whole of them were heard and disposed of. I think I may say, therefore, that the working of the Act has led to the best possible results in respect of economy of judicial time.
I now, my Lords, come to the question of the Tribunal of Final Appeal. In the course of last Session I took the liberty of saying that there were certain points which the Government would consider essential in any proposal on this subject that they might make to the House, and these, I think, were four in number. First, that the Tribunal should be the same for England, Scotland, and Ireland; secondly, that security should be taken that every case heard before that Tribunal should be hoard before an adequate number of the most highly trained and experienced judicial minds that the country could supply; thirdly, that the sitting of the Tribunal, whatever it might be, should be continuous throughout the judicial year; and fourthly, that care should be taken that the expense of appealing before the Tribunal should be kept within as moderate bounds as the nature of the case would allow. My Lords, I took the liberty of saying that in my opinion if those conditions could be secured, the question where or in what form that Tribunal should be found was, I would not say unimportant, but comparatively unimportant, as compared with the securing of those conditions. It might be a question of sentiment, prestige, or of traditionary honour and dignity, and if its solution could be accomplished while these greater objects were secured, that, of course, would be the most desirable result at which we could arrive. My Lords, I would now venture to those essentials which I enumerated last Session to add another. Perhaps I should not say it is an essential; but, at least, it would be very desirable. My Lords, I venture to think it would be very desirable if it could be accomplished, that a point of contact should be obtained from the Tribunal of Final Appeal for the United Kingdom and the tribunal which now disposes of appeals from the colonies and dependencies of the Crown. I mean, of course, the Judicial Committee of the Privy Council.
I do not propose to ask your Lordships to accompany me in an investigation of antiquarian law, but I think 210 your Lordships will hold me justified in asking you for a moment to consider what is the origin of the Appellate Jurisdiction of this House in which we sit. My Lords, we are in the habit of saying and recognizing as one of the maxims of Constitutional law on which we set the greatest store that the source and fountain of all justice in this country is the Sovereign. My Lords, let us look at the Courts. The Court of Queen's Bench—what does it mean? Justice is there administered, according to our idea of the Constitution, before the Sovereign through the medium of her Justices. Then the Court of Common Pleas—justice is there administered by the Justices of the Queen. Then the Court of Exchequer—justice is there administered by the Barons of the Queen. In the Court of Chancery justice is administered as in the Queen's Court, and when I turn to the Judicial Committee of the Privy Council, the source of its authority is even more marked, because there the Sovereign directly refers the case to be considered to the Judicial Committee, that Committee reports its decision to the Sovereign, and the Sovereign gives it effect by an Order in Council. My Lords, whence is the jurisdiction of this House? Is it the case that this House overrules by its own authority the judgment given by the Queen, through her Judges in the Court of Queen's Bench and other Courts? Now, my Lords, this appears to me to be a matter of no small importance, and I ask your Lordships' attention to it for a few moments. My Lords, there is no doubt as to the history of the jurisdiction of this House. I ask you to bear in mind the distinction between two parts of its jurisdiction which are essentially different. No doubt your Lordships are aware of the technical difference in this House between Writs of Error and Appeals. Writs of Error related to the Common Law Courts—the Queen's Bench, Common Pleas, and the Exchequer. The judgments of those Courts are subjects of Writs of Error. My Lords, what is a Writ of Error? It is a writ issuing from the Sovereign and in the name of the Sovereign. It is a writ directed to the Chief of the Court—the Lord Chief Justice, the Lord Chief Justice of the Common Pleas, or the Lord Chief Baron—and it commands him to bring to the Bar of your Lordships' House the record of action as to 211 which complaint has been made, and to hand it in, in order that it may be considered by the Queen in the presence of, and with the assistance of, the Lords Spiritual and Temporal. That is the source of the jurisdiction of this House. The source is not a claim by this House to overrule the decision of the Courts—it is the Sovereign of the country asking the advice of this Court as to whether what has been done by the inferior Courts has been done rightly or wrongly. Let me read the words of the form—though forms may be dry things—yet I am anxious to get at the root of the matter, and forms give a great deal of information. I hold in my hand the form of a Writ of Error, which, though it was abolished two years ago, is good for the purpose of showing the source of the jurisdiction of this House. It is addressed to the Chief of the Court, and it commands him—
That you do distinctly and openly send under your seal a transcript of the record and proceedings thereon, with all things touching the same, to us in our present Parliament [or if Parliament he not then sitting, in our Parliament at the next Session thereof, to wit, on the day of next ensuing, to he holden], and this writ, that the record and proceedings thereon being reviewed, we may further cause to he done thereupon, with the assent of the lords spiritual and temporal in the game Parliament, for correcting the error, what of right and according to the law and custom of England ought to be done.Formerly the Chief of the Court came to the Bar of the House and handed in the record: now that is done by an officer of the Court. The form then proceeds:—Afterwards"—that is to say, after the transcript of the record had reached the House of Lords—" on the day of before our said Lady the Queen and the Peers of this Realm in the present Parliament at Westminster, in the county of Middlesex, assembled, comes the said C. D. by G. H. his attorney, and says that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error, &c., and the said C. D. thereupon prays that the judgment may he reversed, &c.Then the duty of the defendant is pointed out—Defendant comes, and by his attorney says—that there is no error cither in the record and proceedings aforesaid or in giving the judgment aforesaid, and he prays that the Court of Our Lady the Queen, in her Parliament here, may proceed to examine as well the record and proceedings aforesaid as the matters aforesaid above assigned for error, and that the judgment aforesaid may he in all things affirmed,' &c.212 Then what does the House when it comes to a decision—Whereupon all and singular the promises being seen, and by the Court of Parliament then and there fully understood, and as well the record and proceedings aforesaid, and the judgment aforesaid given in form aforesaid, as also the causes and matters aforesaid by the said C. D. as above for error assigned being by the said Court diligently examined, reviewed, and fully understood, and mature deliberation being thereupon had, it seemed to the Court of Parliament now here that there is manifest error in the record and proceedings aforesaid, and in giving and affirming the judgment aforesaid. Therefore it is considered by the said Court of our said Lady the Queen in her Parliament here that the judgment aforesaid in form aforesaid given by the said Court of our said Lady the Queen before the Queen herself at Westminster in form aforesaid for the errors aforesaid and other errors therein being, be reversed, annulled, and altogether holden for nothing, and that the said A. B. &c. be restored to all things which he hath lost by occasion of the said several judgments, and thereupon the record aforesaid remitted from the Court of Parliament aforesaid to the Court of our said Lady the Queen before the Queen herself, to the end that execution may be had thereupon, and the same now remain in the said Court, to wit, at Westminster, in the county of Middlesex.It will be seen from, this form, my Lords, that so far from the old jurisdiction of this House being such as would imply that the House interfered with the action of the Courts of the Sovereign, it is the Sovereign here acting in concert and consultation with this House who reviews the judgments of her Courts, and does away with any error which those Courts may have committed. That is the case as regards Writs of Error. And when was the origin of Writs of Error? My Lords, it is a very ancient jurisdiction. We know that Writs of Error were in use as early as the reign of Edward I., and I believe that we stop there, because there are no records to carry us further back. I believe they are coeval with the Magnum Concilium of the Sovereign, and that it was to this Great Council that the Sovereign applied in the last resort for assistance in dealing with the cases presented for his decision. But at what time did the jurisdiction of this House in respect of appeals arise? As compared with the jurisdiction in Writs of Error, it is a thing of yesterday. It was utterly unknown until the middle of the 17th century. Then it was that for the first time appeals were brought here from the Court of Chancery. Your Lordships are aware that the jurisdiction claimed 213 for this House in the case of appeals gave rise to great debate and great controversies. I am not, however, referring to it for that purpose, but for a very different one. It happened that the first time your Lordships' House exercised the jurisdiction of hearing appeals from the Court of Chancery, the appeal brought up was unfortunately not couched in the form of a Writ of Error, but in that of a Petition addressed to your Lordships as the Peers Spiritual and Temporal in Parliament assembled. I believe that was little more than an oversight, but the appeal took the form I have described and has continued it; and it is my opinion that a great deal that has been said against the jurisdiction of this House has been advanced under the objection which fairly lay against this novel hearing of appeals, and is by no manner of means applicable to the early and original jurisdiction of this House and the early and truthful way in which that jurisdiction was exercised. There is an essay of Lord Halo's on this subject, and, though in the early part of it there is a good deal that is technical, very broad views are laid down in this tract. Lord Hale was no enemy to the jurisdiction of this House, but he made various suggestions which are worthy of attention, and there are one or two sentences of his which I should like to quote. He says—All jurisdiction in this realm, whether ecclesiastical or civil, is derived from the Crown; and the exercise thereof in the Ministers or Judges, to whom it is so delegated by the Crown, is in right of the Crown and by virtue of a delegation from it. And it were a thing scarce consistent with the Monarchical Government that those sentences, judgments, or decrees, which are pronounced and given by the King's authority and commission, should be examined by an original jurisdiction lodged in the House of Lords without especial authority given by the King by writ, commission, or endorsement. This were to make the basis of the Government aristocratical, since the last devolution of appeals would be from the King, and the judgments given by his authority unto the Lords.… As the decrees are passed by the King's authority, so by the same authority they are avoided, if there be cause; and not by a kind of primitive, superintendent, inherent jurisdiction in the Lords' House, which some may possibly think savours too much of an aristocracy, giving an appeal from the King to the Lords by an inherent right of a dernier resort, which seems not agreeable to the constitution of the English Government.My Lords, I am very anxious to lay before your Lordships fully the distinc- 214 tion which I have endeavoured to explain, and I am so for two reasons. If any alteration in the jurisdiction of this House is made, and if that jurisdiction is continued with regard to appeals, I hold it to be a matter of paramount importance that the true basis of the jurisdiction should be exactly understood and recognized.My Lords, Her Majesty's Government are about to propose a measure for the improvement of the jurisdiction of this House; and the first alteration they propose is that in all cases in which there are appeals to this House there should be a recognition of this principle—that this House in judicial matters sits here as the adviser of the Sovereign; that it is the Court of Parliament advising the Sovereign. We propose that this shall appear by the form of Petition. We desire that this should be done before any other change is made. It is not a matter of form—it is to my mind a matter of substance. It is all important that it should be done now because, by reason of changes brought about by the Judicature Act, we have put an end to the formality of Error; and therefore those proceedings in Error which before now were a test of jurisdiction in this House, will cease to have any existence.
I shall now state the tribunal before which it is proposed those appeals shall be brought. We propose that there shall be in this House Lords of Appeal; and I will state to your Lordships of whom we propose this body shall be constituted. It will be constituted, in the first place, of those Members of the House of Lords who have filled certain "high judicial offices" in the State—these will include the Lord Chancellor, ex-Lord Chancellors, and others who have filled high judicial offices and have seats in this House. In addition, we propose that there should be appointed in the first instance two other Lords of Appeal in Ordinary, to be selected from persons of high qualifications at the Bar or on the Bench; and that while they hold their office as Lords of Appeal, they shall receive a writ of summons as Barons and shall sit and vote in this House like other Peers. We propose that they shall hold their rank for life, that they should have a salary of £6,000 a-year, which is £1,000 a-year more than the salary of the ordinary Judges, and, as I said, we propose that in the first 215 instance their number should be two. As to continuous sittings, we have to provide for the case of Prorogation and for the case of Dissolution. As to the case of Prorogation, there is no difficulty. In the Bill which passed your Lordships' House in 1856, went to the other House of Parliament, and was there laid aside, there was a clause providing that for the purposes of judicial business this House should sit during Prorogations at any times for such sitting which had been fixed before the Prorogation. We purpose that there should be a similar provision in the Bill which will embody the propositions which I am now submitting to your Lordships. I omitted to state, when speaking of the constitution of the Tribunal by Lords of Appeal, that Her Majesty's Government propose that no case should be heard in this House unless three Lords of Appeal are present. With regard to Dissolutions, there is, of course, the possibility of a Court of Pinal Appeal being required during that interregnum; but, in point of fact, I doubt whether it ever would be desirable to have an Appellate Court sitting at such a time—which under our present electoral arrangements is usually very short. Experience shows us that the people in this country are so much occupied in other matters at such a time that they are not disposed to prosecute with energy appeals before a Court of Ultimate Jurisdiction. We have, however, a precedent for what could be done. If it should be necessary to assemble the Tribunal at such a time, we have a precedent for the way of doing it in an old statute passed in the reign of Edward III., when the intervals between the dissolution of one Parliament and the summoning of another were much longer than they are now. That is a precedent for enabling the Sovereign to assemble the Lords of Appeal by issuing a Royal Commission, requiring them to meet for the dispatch of judicial business, and to exercise the same powers as if Parliament were sitting; and if so assembled they would have the same powers as at any ordinary sitting of the House, That disposes of the question of continuous sittings.
Now comes the other question—the desirability of obtaining a point of contact, if it can be done, with the Judicial Committee of the Privy Council. Your 216 Lordships are aware that there are at present in that Committee four Members who are called salaried Members of the Judicial Committee. They were constituted by an Act which passed a few years ago, and practically the disposing of appeals rests mainly with these learned persons. My Lords, the Judicial Committee of the Privy Council has before it the appeals which come from the colonies and the dependencies of the Crown: if the proposals of Her Majesty's Government are approved by Parliament, this House, sitting in the way I have described, would have before it the appeals coming from the United Kingdom—that is, the portion of the dominions of the Queen directly under the Parliamentary Government of the Imperial Parliament. Of course it would be very desirable that between those two bodies disposing of judicial business—the one disposing of business coming from within the ambit of the authority of Parliament, and the other of business coming from outside the ambit of that authority—there should be some legal point of contact. In the case of the four salaried Members of the Judicial Committee there can be no fresh appointment under the Act constituting them. If their offices became vacant, no person could be appointed to them without a fresh provision by Parliament. Now, what we propose is this. We do not propose to interfere in any way with those four Members acting on the Judicial Committee; but what we do propose is this—that, when there are two vacancies among those four salaried Members, there should be a power of appointing one other Lord of Appeal in this House; and so likewise, when two other vacancies of salaried Members occur, there should be a power of appointing one more Lord of Appeal—so as to make four salaried Lords of Appeal in this House. The result, therefore, will be that, when the four salaried Members of the Privy Council have come to an end of their office, there will be four Lords of Appeal in ordinary, and we propose that they, being Privy Councillors, should be charged with the duty of sitting in the Privy Council as well as of performing their duties in this House.
I shall now state the amount of business which would have to be discharged by these two Tribunals. Without troubling your Lordships with too many details, I may state, taking an average, 217 that the judicial business which falls to this House in a year and that which falls to the Judicial Committee of the Privy Council in the same period is such as would require the sitting days to be not less than 200 and not more' than 300. In fact, the sitting days may be nearer to 200 than 300; 300 days at the most; and that would be sufficient for the discharge of the business of both Tribunals. Let me state to your Lordships that the judicial year may be said to comprise 200 days. Any tribunal which sits during the judicial year is said to sit for 200 days in the year. Therefore, as regards this House and the Judicial Committee you get this state of things—the business to be disposed of is rather more than could be done by one tribunal, and rather less than could be done by two tribunals, sitting throughout the judicial year. Therefore, if you get a tribunal which can sit in two divisions, you will have a tribunal which can easily dispose of the business of both this House and the Privy Council. There will be in this House the Lord Chancellor, and ultimately four Lords of Appeal in ordinary, and they will have the great assistance which I trust we shall long enjoy of the Peers who have filled the post of Lord Chancellor or other high judicial offices, and in the Privy Council there will be always several ex officio Members of the Judicial Committee; so that your Lordships will see that with the most perfect facility such a tribunal may dispose of the business both of the House of Lords and of the Judicial Committee of the Privy Council. In cases of such importance as to require the presence of five Lords of Appeal, we can have them; but when three are deemed to be sufficient—and, as a general rule, I think three is the best number for a Court of Appeal—the tribunal may be constituted for hearing by the presence of three Judges. It may be asked why the Government do not propose at once to constitute four Lords of Appeal, and why they only for the present purpose to appoint two. It is for this reason: The Judicial Committee of the Privy Council are doing their work with great care and diligence, and we think it better not to make any change in that Court until it shall come in the natural course of events. This House possesses in my noble and learned Friends an unusual number of Judges who have held high judicial 218 office and who are qualified to sit in Appeals; and this House is, therefore, in no immediate distress in point of numbers for a larger Court of Final Appeal than I have proposed. But above and before this there is another reason. It is undesirable at any one moment to make a great drain upon the Bar for the supply of new Judges. The Bar is like other professions, and cannot afford to give to the Bench more than a limited number of its highly trained members at any given time. The country gains by taking from time to time such members of the Bar as prove themselves fitted for judicial office; but, unless incase of absolute necessity, a proposal to take either from the Bench or the Bar any great number of their members is to be deprecated.
Let me now say a word upon another point—the question of expense. Some persons have said that this House is a very expensive tribunal. Now, there are three elements of expense connected with the judicial business of this House, and it ought to be distinctly understood what they are. One element is the fees of this House, which must be paid, of course, by the suitors. The second is the cost of printing the records and books which constitute the subject of the appeal. The third is the professional remuneration of the advisers of the parties. Now, with regard to the fees of this House I have made some inquiry, and I find that the fees which have to be paid by the appellant amount to about £20 and by the respondent to about £17. So far as I know of the expenses of other Courts, I have a great suspicion that the expenses of appeals to your Lordships' House will contrast not unfavourably but favourably with any other Court in the country. The printing of the books and records in the case no doubt occasions expense, and if it can be lessened it would be desirable that it should be diminished. But I am bound to say that wherever you may place your Court of Pinal Appeal it is important that every scrap of paper should be in print in orderly and proper form; for my experience convinces me that very often errors in the decisions of the Courts below have been discovered just as much from the orderly and clear way in which printed papers bring the case before the mind as from any superior knowledge of the law possessed by the higher tribunal. 219 With regard to the remuneration of the professional advisers, it is impossible for any tribunal to exercise any control over this element of expense. It may be assumed that cases which come before a Court of Final Appeal are always of considerable importance—the parties are naturally anxious to obtain the best professional advice that can be had—it is in the nature of things that the highest class of professional assistance should cost most money; and I am afraid we cannot prevent the parties from indulging themselves in the luxury of such assistance. It is quite true you may lay down some rules by which the unsuccessful party shall not have to pay costs except according to a fixed and regulated tariff of charges for professional assistance. What the Government propose on that head is that, if this scheme is adopted, there should be a Committee of Inquiry of your Lordships' House into this question of expense, in order that it may be brought down to the lowest point to which it can be brought with regard to the nature of the case.
We also propose that, although there is at present an Appeal Committee which meets at certain intervals, and before which matters of practice connected with appeals are brought, a more regular system should be adopted. We propose that an Appeal Committee should be constituted out of the Lords of Appeal, and that they should meet regularly once a week to dispose of all matters of practice now disposed of by the General Appeal Committee.
I have now gone through the proposal of the Government. With regard to the Pinal Court of Appeal, your Lordships will have observed that our proposals provide one Court of Final Appeal for every part of the United Kingdom. We provide that an adequate number of highly-trained judicial minds shall be present at every appeal—that the sitting of the tribunal should be continuous during the whole of the judicial year—and that the expense of the tribunal should be regulated as far as possible. We also establish a point of contact between the judicial proceedings of this House and of the Judicial Committee of the Privy Council, because in substance they will be the same tribunal, although acting with different forms and dealing with different business.
There are certain further proposals of 220 the Government which relate, not to the Court of Final Appeal, but to the Court of Intermediate Appeal. Last year there was established a new Court of Intermediate Appeal. That Court was constituted of three permanent Judges of Appeal and five ex officio Judges, who may sit as time and opportunity serve—namely, the Lord Chancellor, the Chief Justice of the Queen's Bench, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer—making in all eight members. In addition, the Court has the power to ask for the attendance of two of the Primary Judges at any time when they are required: so that you have got nominally 10 names on the roll of that Court. Last year great objections were made to this Intermediate Court of Appeal. It was said it was very weak, and would be the Exchequer Chamber over again. I certainly did not agree with those objections, and I agree still less with them now that we have had experience of the working of the Court. That Court has in it two very excellent elements—one, that you have a nucleus of permanent members who never change, and the other that you have the power of supplementing those members by the addition of two Primary Judges, and such of the Chiefs as the occasion may require. Another advantage is that we are always in this country very much embarrassed about the disposition of judicial time. The great strain upon the Judges is at the time of Circuits, and you want more Judges during that time than at any other period of the year. By the Bill of last year, when the Judges are not going on Circuit you are able to obtain the attendance of two of the Primary Judges in the Intermediate Appeal Court, and in that way their time is utilized to great advantage. I have seen this Court at work; and, so far as I can collect, public opinion is in favour of the working of the Court as constituted by the Act of last year. That is, therefore, a Court which may be continued to act as it has been doing. We do, however, propose with a view to the future to strengthen that Court, and in this way. I have referred to the four salaried Members of the Judicial Committee. We propose that when two of those offices become vacant, and when a Lord of Appeal is appointed, so also an addi- 221 tional member of the Intermediate Court of Appeal may be appointed; and likewise when the remaining two salaried Members of the Judicial Committee shall retire or die, another Member of the Intermediate Court of Appeal may be appointed. The result of that will be that when the whole system comes into operation you will have in this House, besides the Lord Chancellor, four Lords of Appeal in ordinary, bound to discharge the judicial business of this House, and of the Privy Council, and you will have in the Intermediate Court of Appeal five permanent Members of that Court, who, with the very slight additional assistance they will require from the Primary Judges, will be able to discharge the whole of the business of that Court in a manner that will be satisfactory to the country.
There is still one more change, which it will be convenient to mention here. The Judicature Act of 1873 proposed that there should be a reduction in the number of the Primary Judges, and that two of the number of Primary Judges should not be re-appointed. When the Act of last year passed the other House that provision was repealed, and the Primary Judges were restored to their former number. My Lords, looking at the arrears to be disposed of, I think that was a wise thing. But as soon as the propositions I have made have come into operation—as soon as the Intermediate Court of Appeal has been strengthened in the manner I have mentioned—the time will have arrived when, the arrears having been entirely worked off, we shall be able as I hope to dispense with two of the Primary Judges; and the more so because all the new Judges that may be appointed will be bound to go Circuit. I therefore think, that when that period arrives, two of the Primary Judges may be dispensed with. The result of the whole will be that you will then have, or the purposes of Appeal, the four Lords of Appeal in this House and five members of the Intermediate Court of Appeal. I may mention that is exactly the same number—not one more—than was proposed by the Judicature Act of 1873; and yet by the different arrangement of the same materials we shall have secured what I believe your Lordships will think, what certainly I think, an efficient Court of Intermediate as well as of Pinal Appeal. You will also have the same 222 reduction in the number of Primary Judges. My Lords, I refer to the number of Judges and their reduction, not because I think this country would grudge any expenditure that would really be necessary for the purpose, but because I think it is satisfactory that we should be able to keep these large proposals which I have now made within proper bounds and compass. I think that, while on the one hand a sufficient amount of judicial power is absolutely necessary, any superfluity of judicial power is a positive evil. No judicial body works so efficiently as when fully occupied. This consideration is not only important with regard to the money expended, but with regard to the efficiency of the service itself; and I believe it is above all things important that here in England, as distinguished from other parts of the dominion, we should set an example that we have not provided more judicial force than is required. We have to call on another part of the Empire to submit to a reduction, and certainly we ought to take care that our own staff is not greater than is requisite. I believe that under the proposal I have now made we shall have all we require. I believe we shall have the most efficient Court of Appeal which the country can desire, and I trust, on full consideration, the proposals I have made will have your Lordships' approval.
Bill for amending the Law in respect of the Appellate Jurisdiction of the House of Lords; and for other purposes, presented (The Lord Chancellor).
§ LORD SELBORNEMy Lords, my noble and learned Friend has detailed, with his usual clearness, a series of most important proposals which your Lordships will deliberately consider—as I promise to do—with a sincere desire to do the best that can be done for the administration of justice in such a manner as may be final, at all events for many years to come. It would not be fitting or convenient that I should now discuss in detail any of those proposals. We must have the time and opportunity for deliberately considering them—which, no doubt, we shall have before the second reading of the Bill. There arc, however, some parts of the speech of my noble and learned Friend on which I think it right to make a very few observations. First of all, with respect to that part 223 which was personal to my noble and learned Friend himself. If there be anyone Member of your Lordships' House who is bound to express his assent to the vindication he offered of himself—if, indeed, vindication was necessary from the charge of inconsistency—if such a charge has been made anywhere against my noble and learned Friend—I am certainly bound to express my full and unqualified assent to what my noble and learned Friend has said on that subject. The course he has taken in this matter from first to last is before your Lordships and the country. I am bound always to acknowledge the patriotic and generous way in which my noble and learned Friend supported the proposals I had to make to Parliament in 1873—a course worthy of himself, and the only course I could have expected; because, so far as related to the other subjects of that measure, except what affected your Lordships' House and the Judicial Committee of the Privy Council, he himself had contributed in no small degree in the Judicature Commission to the maturing of the proposals I embodied in that measure. On the subject of the Appellate Jurisdiction of your Lordships' House, I am bound also to say that my noble and learned Friend at that time, being very frank as well as kind in his communications with myself, did not conceal the preference he would have felt for retaining—for certain purposes at all events—an ultimate recourse to your Lordships' House; and if he did not press that view as the measure passed through this House, it was only, I believe, because he did not attribute, in the then state of public feeling on the subject, sufficient importance to it to delay the passing of the measure. My Lords, I heard, with the greatest satisfaction, the testimony borne by my noble and learned Friend to the successful working of that measure during the short period, and that a most trying period of transition, while the Judicature Act has been in operation; and the importance of that testimony will be felt the more when you recollect what were the four great objects which that measure had in view, only one of which really could be adequately tested during the period that has now elapsed. The first object was the economizing of judicial power, and by that the prevention of delay as well as of cost to suitors.
224 That object has been tested, even in the short period which has elapsed; and I think the most sanguine supporters of the measure could hardly have expected a greater degree of success than that, to which my noble and learned Friend has borne his testimony. The other three objects were these—first of all, to unite, under one administration, the whole law of the country—Common Law and Equity—the result of which could only be obtained in the course of time: but I have heard nothing to shake my belief in the probable success—as well as the great importance—of that change. Then there was the simplification of procedure, which stands, to a great extent, on the same ground with the fusion of Law and Equity, sufficient time not having yet elapsed to test its entire success; but I am glad to hear from my noble and learned Friend that as far as experience has yet gone it has given satisfaction; and if satisfactory to him, with his opportunities of knowledge, it is likely, I am sure, to be satisfactory to the country. The fourth object of the Bill which I introduced was undoubtedly a very important one;—the re-constitution of the Appellate Jurisdiction. Undoubtedly, and I still think unfortunately, through the circumstances to which my noble and learned Friend has referred, the scheme of the measure of 1873 has in that respect been displaced. My noble and learned Friend has now proposed another elaborate scheme, as to which, all I can now say is, that, although not at present satisfied that it is equally advantageous with that of 1873, I shall consider it without the slightest personal feeling in the matter, and with every desire to secure the object, which must necessarily be common to myself and to my noble and learned Friend.
LORD DENMANsaid, that he considered the legal origin of appeals to the House of Lords to arise from the Act which the Lord Chancellor had quoted, as to the power of sitting in Vacation—namely, 14 Edward III., c. 5—in which delays in Chancery were specially included—Commons, Lords, and the Royal Assent—legalized the appointment of a Committee; (having the statute book before him) he referred to the terms of the Act. He had the same opinion that he held in 1856 as to the unconstitutional nature of the proposed appointments, and 225 being 70 years of age, he could only warn the House against evils which he foresaw, and to the possibility of which, in 1856 and 1873, this House had too readily assented. He would be happy if, before he was gathered to his Fathers, he could see a more constitutional measure adopted than those Acts or the Bill in its present shape.
§ Bill read 1a; to be printed. (No. 5.)
§ House adjourned at a quarter to Seven o'clock, to Monday next. Eleven o'clock.