Lords Sitting of 16 March 1876

MINUTES.
PUBLIC BILL—First Reading—Supreme Court of Judicature (Ireland) (31).
JUDICATURE OF IRELAND.—SUPREME COURT OF JUDICATURE (IRELAND).

  BILL PRESENTED. FIRST READING.
  THE LORD CHANCELLOR: My Lords, I beg to ask your Lordships to give a first reading to a Bill to amend the Judicature of Ireland. It may be recollected that in the year 1874 I introduced in this House, on behalf of the Government, a Bill having a similar object. That Bill, with some Amendments, passed though

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  your Lordships' House and went down to the other House of Parliament, but owing to the period of the Session and the state of Public Business, there was no opportunity of carrying it through that House. Last Session Her Majesty's Government thought it better to postpone any measure on the subject till the legislation for the Judicature of England had assumed a more settled shape. The Bill I now lay on the Table is to a certain extent the same as the Bill of 1874. So far as regards all questions relating to the practice and procedure of the Courts, the Bill is almost entirely the same Bill as that of 1874; in fact, it provides in the case of the Irish Courts the changes made by the English Judicature Act in the practice of the different Courts; the procedure is assimilated also; and where the doctrines of the different Courts are different those doctrines are assimilated. Such, in substance, are the provisions of the First Part of the Bill. Passing from that, I come to another part of the Bill which will excite in some quarters quite as great an interest as that to which the first will give rise. This Second Part deals with the question of the officers of the various Courts which are affected by the Bill, and I think it may be convenient that I should state the changes which I propose to make. I begin by saying that, taking a comprehensive view of the Judicial Staff in Ireland, it may be said to consist of 23 officers. Two of these are mainly Appellate Judges, and 21 are primary Judges. There are, in what are called the Courts of Equity, the Lord Chancellor, the Lord Justice of Appeal, the Master of the Rolls, and the Vice Chancellor—four in all. In the Common Law Courts—the Court of Queen's Bench, the Court of Common Pleas, and the Court of Exchequer—there were until very recently one Chief and three Puisne Judges in each—12 in all, which brings up the number of Judges in the Superior Courts of Law and Equity to 16. But, besides these learned personages, there is a further Judicial Staff to which I must refer—namely, a Judge of the Probate and Matrimonial Court, two Judges of the Landed Estates Court, two Judges of the Bankruptcy Court, a Judge of the Admiralty Court, and a Receiver Master—all of these seven exercising very considerable judicial functions which I shall afterwards describe. So that your
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  Lordships will see that the Judicial Staff in the Courts of Dublin numbers 23 in all. I will state in detail what changes I propose to make in that Staff. First, as to the Common Law Courts. In the Queen's Bench we propose to make no change. This Court transacts not only very important civil business, but has its attention occupied by Crown or criminal business also, so that it may be said to be overweighted as compared with the other Common Law Courts. The Court of Common Pleas, like the other two Common Law Courts, had until lately four Judges, including the Chief; but that Court is at present in this position—a vacancy has occurred which has not been filled up by the appointment of a new Judge; and now that Court has only three Judges—the Chief and two Puisne Judges. My Lords, we propose to introduce in the Court of Common Pleas the Judge of the Probate and Matrimonial Court, and not otherwise fill up the vacancy in the Common Pleas. The jurisdiction of the Probate and Matrimonial Court will be transferred with the Judge to the Court of Common Pleas, and the Judge who is to be transferred to it will continue to transact there the routine and unopposed business of the Probate Court. He will also try Probate causes in contentious cases, and will sit with the other Judges of the Court of Common Pleas in banco. The present Probate Judge will also, on his own consent, be competent to go circuit; but any successor to him will be obliged to go circuit as a part of his duty. Then as to the Court of Exchequer—we propose that when a vacancy occurs among the Puisne Judges that vacancy shall not be filled up; but we propose that powers shall be taken which, in the event of certain changes being made hereafter in the Bankruptcy Court, will lead to the introduction of this latter Court into the Court of Exchequer. There are, as I have already stated, two Bankruptcy Judges; but the transaction of Bankruptcy business in Ireland is very different from what it is in England. In England you have the great Bankruptcy Court in London, which deals with London business; and in addition you have a local Bankruptcy jurisdiction vested in the various County Courts throughout the country. It is not so in Ireland. There the whole of the Bankruptcy business is transacted in

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  Dublin—and I believe very well transacted by very competent men; but there has sprung up a great desire in the commercial cities of Belfast and Cork to have a local Bankruptcy jurisdiction, and Her Majesty's Government will be very glad if that can be arranged; but they have been obliged to say that in the existing state of Public Business they cannot at present propose it. But they hope such a measure may hereafter be proposed, and if Parliament should think fit to sanction such an arrangement that will very much reduce the Bankruptcy business in Dublin. Consequently power is taken in the Bill to transfer the Bankruptcy business of the metropolis to the Court of Exchequer, and to transfer to that Court one of the Bankruptcy Judges, relieving from office the other Judge, or, at all events, not replacing him. But, I repeat, that is a power taken by this Bill the exercise of which is subject to the contingencies to which I have just referred. In the meantime one provision of the Bill is that when a vacancy occurs in the Court of Exchequer it is not to be filled up. With regard to the Admiralty Judge, we do not propose to interfere with him at present; but we propose that no successor to him shall be appointed, and that when a vacancy occurs in that office the Admiralty business shall be transferred to one of the Divisions of the Superior Court. I now come to the Receiver Master. He occupies a peculiar position and transacts different business from that which has been transacted by any Master in this country. He has a salary of £2,500 a-year, and has the duty assigned to him of attending to all estates in Ireland which are under the hands of receivers. It was thought in Ireland that in place of various Masters dealing with these different estates, they should be all under one Receiver Master. He has also certain duties in respect of auditing the accounts of the treasurers of counties, which occupy a good deal of his time. The present holder of the office—Master Fitzgibbon—who has been in public life a great many years, is now of advanced years. We propose that the office should come to an end. There is to be no successor to Master Fitzgibbon, and we propose that it shall be in his power, if he think fit, to relieve himself of the office. His duties are to be handed over to the two Judges of the
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  Landed Estates Court—because his duties are cognate in a certain degree to the duties at present performed by that Court with regard to estates. My Lords, I now pass to the Court of Chancery. There are, as I have stated, two Judges connected with that Court, one of whom is almost entirely, and the other of whom is entirely, an Appellate Judge. The Lord Justice is entirely an Appellate Judge; the Lord Chancellor exercises a primary jurisdiction in regard of Lunacy and Minors, but he has comparatively little jurisdiction as to causes in the first instance. It is proposed by the Bill, that, with the exception of Lunacy jurisdiction, the Lord Chancellor should be entirely an Appellate Judge. With regard to the two Landed Estate Court Judges we propose that they should both be Judges of the Court of Chancery—each retaining the peculiar jurisdiction of the Landed Estates Court, retaining a separate existence for that purpose and for the transaction of the duties now discharged by the Receiver Master. The Chancery Division of the High Court of Justice will, therefore, consist of the Master of the Rolls, a Judge of Chancery, in the room of the Vice Chancellor, and two Common Law Judges. They are to discharge the ordinary duties of the Court of Chancery; but the Bill provides that when a vacancy occurs in the case of either of the Judges of the Landed Estates Court it is not to be filled up till after a Royal Commission is appointed to inquire into the state of business in that Court and the Report of that Commission has been received. I now come to the Court of Appeal. With regard to that we propose, as we proposed in 1874, that a new Judge of Appeal should be appointed, and that the Court should consist of the Lord Chancellor, the present Lord Justice of Appeal, a new Lord Justice of Appeal and the three Chiefs of the Queen's Bench, Common Pleas, and Exchequer Divisions—the three Chiefs to be ex officio Members of the Court. I have often pointed out how desirable it is that there should be a strong Intermediate Court of Appeal in this country; but if it is desirable in England, it is still more important in Ireland, where there are many cases which will not bear the expense of an appeal to this House. At present the number of Judges in the Court of Appeal in Chancery is, to say the least, extremely

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  inconvenient. There are only two Judges, and if there is a difference of opinion no decision can be arrived at. I think it better that the Court of Appeal to be constituted under the Bill should have to decide not only the cases coming from the Court of Chancery, but the cases coming from all the Courts. We can thus get rid of the Exchequer Chamber in Ireland as we have in England. We propose then the appointment of an additional Judge of Appeal; but we propose to take away the separate office of Judge of the Probate and Matrimonial Court, and the separate office of Admiralty Judge, and separate office of Receiver Master. I turn to another question connected with the subject—the question of salaries. From various reasons—the difference of money which formerly prevailed in Ireland and other causes—the salaries of the Judicial Staff in Ireland are at present arranged in such a manner that it would have been impossible for human ingenuity to have devised any scheme which would have better secured that no two of them should be equal. The Master of the Rolls has £3,969 4s. 8d. a-year; the Vice Chancellor, £4,000; the Chief Justice of the Queen's Bench, £5,074 9s. 4d.;the Chief Justice of the Common Pleas and the Chief Baron, each £4,612 18 s. 8d.; one Puisne Judge of the Queen's Bench, £3,725 19 s. 4d.; each of the two others, £3,688 12 s. 4d.; the Judge of the Court of Probate, £3,500; the Judge of Admiralty, £1,200; the Receiver Master, £2,500; each of the two Judges of the Landed Estates Court, £3,000. There is a great variety in these salaries, and we propose to establish a scale of greater uniformity, without, of course, altering the salary of any existing Judge. We propose that hereafter the salaries should stand thus—Chief Justice of the Queen's Bench, £5,000; the Chief Justice of the Common Pleas, £4,600;the Chief Baron of the Exchequer, £4,600; all the Puisne Judges, the Master of the Rolls, the Vice Chancellor, and the future Judges of the Landed Estates Court, £3,500 each—but with this qualification, that all the Judges who go circuit shall have a fixed and definite allowance for going circuit of £150 for each circuit, or £300 for the two circuits of each year. Now, as to consolidation, we propose to consolidate the three Taxing Offices of Chancery, Common
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  Law, and Landed Estates Court into one Taxing Office; the Chancery Record and Writ Office with the Common Law Writ Office; the Office of the Accountant General in Chancery with that of the Landed Estates Court; and of the Chancery Notice Office with the Notice Office of the Landed Estates Court, and it enables the consolidation of other offices that can conveniently be so dealt with. We also take powers for the abolition of unnecessary offices—those powers to be exercised by the Lord Chancellor and the three Common Law Chiefs, or any two of them, of which the Lord Chancellor must be one. That disposes of all the statements I have to make to your Lordships in reference to this Bill; and I might stop here, but that there are other matters to which I think it necessary to allude, because there has been much misapprehension concerning them out-of-doors. Comparisons have been made as to the number of Judges of Equity and of Common Law in Ireland and in England and to the amount of business to be discharged by those Judges in each country respectively. In one of those comparisons which came lately from an eminent authority, it was stated that while, on the one hand, there were in England for the transaction of Equity business four primary Judges, there were in Ireland, on the other hand, no fewer than seven. Now, my Lords, I have never shrunk from stating frankly my opinion as to the number of the Judicial Staff in Ireland, nor from making a comparison between the business done in each country with the view of showing where there was an excess of judicial strength; but I hold that statements such as the one to which I am now referring are not calculated to lead to a calm and well-founded consideration of the question. Anything more inaccurate than this statement I cannot imagine. The way in which it is made out that there are seven primary Judges of Equity is this—The Lord Chancellor, the Master of the Rolls, and the Vice Chancellor, three; the two Judges in Bankruptcy, five; and the two Judges of the Landed Estates Court, seven; and all the business disposed of by them is, compared with the Equity business discharged in England by the four primary Judges. Now, let me point out to your Lordships how inaccurate that is. The Lord Chan-

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  cellor in Ireland, though nominally a primary Judge, is not so in reality. The Lord Chancellor in England was, until lately, a primary Judge in name, but not so actually. The Lord Chancellor in Ireland disposes of primary business in regard of lunatics and infants, but beyond that he does not sit generally for hearing causes. But when we come to Bankruptcy, how does the case stand? The primary Bankruptcy business in England is not transacted by the Equity Judges at all, but in London by five Registrars, and throughout the country by 51 County Court Judges who have local jurisdiction; so that the comparison as to bankruptcy is not to be made between the seven primary Judges in Equity and the four, but between the seven primary Judges on one side and five Registrars and 51 County Court Judges on the other. Then, as regards the business of the Landed Estates Court, that business cannot be compared with any done by the primary Equity Judges in this country. The Judges of the Landed Estates Court in Ireland do business which no Equity Judge in England does, or would consent to do. They inquire into the titles of estates and examine as to whether they are good or bad. If you proposed to an Equity Judge in England that he should do that, he would say—"It is no business of mine. I was appointed to hear causes." You must strike out the Lord Chancellor, the two Judges of Bankruptcy, and the two Judges of the Landed Estates Court, and then you will have the true comparison as one between two primary Judges of Equity in Ireland and four in England. I am not, however, prepared to say that the primary Equity Judges in Ireland have not much lighter business than the primary Equity Judges in England. On the contrary, I think they have; because I do not believe that there is half the Equity business in Ireland that there is here; but I protest against the comparison of seven to four as one which is not accurate, and which, therefore, is likely to mislead. There is another inaccurate statement which I think I ought to bring before your Lordships in its true aspect. It is said that since the Bill of 1874 was introduced the Government have appointed a second Judge to the Landed Estates Court, and have done so after their own admission that a second Judge was not required;
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  and moreover it is said that the Government did that without informing Parliament of their intention. Both these statements are founded on a misapprehension. I will give your Lordships an exact narrative of the facts, because they are much misunderstood out-of-doors. In 1873 the late Government in a Bill before Parliament made a proposition in respect of the Landed Estates Court. They proposed that a vacancy which had occurred should not be filled up, but that the salary of the existing Judge should be raised from £3,000 to £3,500 a-year. When the present Government came into office we acted on that view, and I remember reading to the House a letter from the learned person who was then the sole Judge of the Landed Estates Court, referring to the business which was to be transacted, and suggesting that there should be only one Judge. Well, as soon as that proposal was made public the strongest feeling was manifested against it—I do not say on the part of the Bar, because it might be supposed that on the part of the Bar there would be a wish to retain as many legal offices as possible—but on the part of those who had business to transact in the Court. They represented in the most emphatic manner the inconvenience which they were suffering from the circumstance of there being only one Judge, and pointed out that when he was prevented from attending no judicial business could be done. I believe that in one instance the progress of business was suspended because the learned Judge himself was interested in the matter as a trustee. Even under such circumstances the Government would have been very unwilling to appoint a second Judge, only that it was evident the office of Receiver Master must come to an end, and that the duties performed by him must be transferred to other hands. This, and the state of things I have just mentioned to your Lordships, made the Government think it was their duty to appoint a second Judge to the Landed Estates Court. But was Parliament kept in ignorance of the matter, and was the appointment not made until just on the eve of the meeting of Parliament? I do not like to refer to statements made in Parliament, but not in this House. I think, however, that in order to remove misapprehension it is necessary for me

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  to allude to a conversation held "elsewhere," on the 9th of July, 1875. I find the following in the pages of Hansard with reference to that conversation:—
  "(8). £9,481, to complete the sum for the Landed Estates Court, Ireland.
  "Mr. Meldon complained of the insufficiency of the staff. He maintained that one Judge for the Court was insufficient.
  "Mr. Mitchell Henry mentioned that the Judge of the Court had himself expressed the opinion that no additional Judge was necessary.
  "Sir Patrick O'Brien said, it was within the knowledge of every professional man in Ireland that the working power in the Landed Estates Court was quite inadequate; the delay to suitors being in many cases intolerable. His hon. and learned Friend was quite justified in stating that the staff of the Landed Estates Court was not sufficient to effectually discharge the heavy and important duties of that Court.
  "Mr. Butt said, that the Act of Parliament appeared to require that there should be two Judges of this Court. The last Government thought they could dispense with the second Judge, but the general opinion of the profession was that the work was too much for one Judge. He had to investigate the titles, and all other matters connected with the estates and the sale of them. He considered that the work was too great for any one man to discharge in a Court where mistakes were liable to occur, and from which there was no appeal.
  "Sir Michael Hicks-Beach admitted that there was a strong feeling among the Bench, the Bar, and the solicitors of Ireland in favour of the appointment of a second Judge. The facts stated by hon. Members showed, however, that there were great difficulties connected with the subject. The hon. and learned Member for Kildare was perfectly justified in the course he had taken; and in any change that might be deemed necessary in the Judicature system of Ireland the state of the Landed Estates Court would not be lost sight of with a view to improvement.
  "Mr. Whitwell hoped that in any change that might be made in reference to the business of the Landed Estates Court, the Court would be made a self-sustaining Court.
  "Mr. Mitchell Henry said, he did not object to the appointment of a second Judge, but only wished that he should not be appointed before the re-arrangement of the Irish Judicature system.
  "Vote agreed to."—[3 Hansard, ccxxv. 1314.]
  Again, my Lords, I find that in the same place this conversation was held on the 11th of August, 1875—
  "Mr. Kavanagh asked the Chief Secretary for Ireland, Whether, having regard to the representations addressed to the Government by persons interested in the sale and purchase of land, as well as by both branches of the legal profession in Ireland, in favour of appointing a
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  second Judge to the Landed Estates Court, he will now state whether it is the intention of the Government to fill up the vacant Judgeship?
  "Sir Michael Hicks-Beach: Sir, the Government have decided to advise Her Majesty to fill up at an early date the Judgeship, now vacant, of the Irish Landed Estates Court. It is intended, as soon as arrangements can be made for the purpose, and legislation on this subject will be proposed to Parliament early next Session, that the Judge to be appointed, in addition to his share of the present work of the Landed Estates Court, shall perform other important duties connected with the same subject which are at present performed by another high legal official, whose office it will, consequently, be proposed to abolish."—[3 Hansard, ccxxvi. 854.]
  My Lords, after that I do not think it can be alleged with any degree of accuracy or fairness that there was any surprise in the matter of the appointment of a second Judge of the Landed Estates Court. I have now done, my Lords, and it only remains for me to ask your Lordships to read the Bill a first time.
  A Bill for the constitution of a Supreme Court of Judicature, and for other purposes relating to the better administration of justice in Ireland, presented by the Lord Chancellor.
  LORD O'HAGANsaid, he thought it necessary only to observe at present that there were many provisions in the Bill on which there would be no difference of opinion, while others would, certainly, be open to objection. It would not be convenient to discuss the Bill till it was printed and in their Lordships' hands; but he felt it was the duty of every one who had interest in the subject to give his noble and learned Friend assistance in passing a satisfactory measure. As the proposals in the Bill would affect a good many interests in Ireland, he hoped his noble and learned Friend, with the view of giving full opportunity for the consideration of it, would put off the second reading for a reasonable length of time.
  THE LORD CHANCELLORproposed to take the second reading on that day three weeks. Of course; there would be ample time after that for a discussion of details.
  Bill read 1a; to be printed; and to be read 2a on Thursday the 6th of April next. (No. 31.)

UNITED PARISHES (SCOTLAND) BILL.

  QUESTION.
  THE EARL OF MINTOasked the Lord Steward, Whether, on moving the Second Reading of the United Parishes (Scotland) Bill, he would be prepared to state to the House the names of the united parishes (specifying the counties in which they are situated) in which there is more than one glebe forming part of the benefice, and the names of such united parishes having more than one glebe as may be affected by the provisions of the Bill; and also the annual value of each glebe in the united parishes with more than one glebe? The noble Lord said, that the Bill to which his Question referred had come to their Lordships' House from the House of Commons, having passed through its stages there sub silentio. Those Scotch Members of Parliament from whom he had desired to hear something about it had no knowledge of it. He believed the Bill was founded on a sound principle, but would be of very limited application. He thought it would not be right that it should be proceeded with in their Lordships' House in absolute ignorance of its scope and bearing. The position of quoad sacra parishes had become a question of great importance within the last week or two in consequence of a judgment recently pronounced by the Lord Chancellor upon an appeal from Scotland on that matter. He therefore made no apology in asking the Question.
  EARL BEAUCHAMPsaid, he did not complain of the remarks of the noble Earl, but it was an unusual course to make comments upon a Bill which stood for reading on a future day. As regarded the statement made by the noble Earl, that the Bill had passed through the House of Commons almost without discussion, he believed that it was by no means unusual that measures intended only for Scotland passed through the House of Commons without receiving at the hands either of the English or Irish Members those criticisms which Scotchmen often gave upon measures affecting other parts of the Kingdom. But the fact that Scotch legislation often passed through the House sub silentio contributed another proof of the singular sagacity of the Scotch Members, because by means of meeting together and
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  discussing their measures, they were enabled to carry them through the House of Commons without raising any very long discussion upon them. It had always been his custom, when introducing any Bill to their Lordships' consideration, to give them every possible information upon it, and also to address to them such arguments as he considered were necessary for the support of the Bill, and he saw no reason for supposing that he was about to depart from that custom in reference to the present Bill. The noble Earl had asked him whether he was prepared to give him the number of the united parishes having more than one glebe which would be affected by the Bill, and the assumed value of each glebe. He believed that full information would be given in respect to the number, but he wished to guard himself from stating the annual value of the united parishes where there was more than one glebe, because many of these glebes were very small, and he could not at present give any detailed information on them. But he assured the noble Earl that when the Bill came on for a second reading, all the information possible for him to give would be rendered, and he had no doubt that he should be able to persuade their Lordships to read it a second time.
  THE EARL OF MINTOsaid, he had not meant to charge the noble Earl with doing anything wrong; he merely wished to elicit information.
  House adjourned at Six o'clock, till To-morrow, half-past Ten o'clock.