§ * LORD ESHER
, in rising to call attention to alleged defects in the administration of the law, and to ask Her Majesty's Government whether they will issue a Royal Commission to inquire into such alleged defects, and to propose remedies for such as are found to exist, with a view to immediate legislation, said: My Lords, with as little pleasure in doing it, as your Lordships will have in hearing it, I have undertaken to talk law for some quarter of an hour. Some 15 years ago the administration of the law was much altered by the passing of the Judicature 33 Acts; that the Judicature Acts have done much to ameliorate the administration of the law I think cannot be doubted, but some defects are alleged still to continue, and some defects are said to be even increased by the working of the Judicature Act. These alleged defects are put forward by people of weight and consequence, and I think ought to be carefully considered. I propose to name several alleged defects and to examine into them shortly, and to say that, as far as I am concerned, I think some of them will be found not to be established, but that some of them, and those very important defects, are established. Still, I cannot propose to act upon my own opinion, from which other people may differ; and what I ask, therefore, is that those allegations should be inquired into. Now, one great defect which it is said exists is the delay of the trials of disputes between parties, and that there is a considerable delay in some parts of the administration of the law I think is clearly made out. I am happy to say that in the Court to which I belong there really is at present no delay and no arrear. I think that in the Appeal Court there is no case; coming from the Queen's Bench Division which is more than four months old, and the number of appeals yet untried are not more than 24. From the Chancery Division the number of appeals yet untried are not more than 16. I think that, considering some years ago the arrears from the Queen's Bench Division were some 260 appeals, and that some of them were more than two years old, the way in which they have been worked down cannot be held to be otherwise than satisfactory; but with regard to the Chancery Division and the Queen's Bench Division the case does not stand so well. In the Queen's Bench Division itself, taking the cases before the Divisional Courts, I do not think there is any considerable arrear; but with regard to the cases to be tried by Judges with juries, or by Judges alone, there is, most unfortunately, a very great arrear. There are arrears in London and Middlesex of trials by special juries at the present time 280 cases, and of Common Juries 176 cases, and of non-jury cases, that is cases to be tried by a Judge with- 34 out a jury, 440. So that the total arrear of causes at present in the Queen's Bench Division amounts to 896. But it should be recollected that in the Queen's Bench Division the number of Judges who would have had to try these causes has, for the last year or more, unfortunately been very much diminished. There were two Judges taken off for nearly a year for a Commission, which is now famous, and there have been, unfortunately, since that time two more of the Judges absolutely disabled for a time during illness. Still, that is a great arrear. Then, in the Chancery Division, there are at the present time to be tried, that is for the purpose of the trial which is to fix the rights of the parties, 456 witness actions and 101 other actions, making 557 yet untried. The oldest of those causes was entered in January of this year, and many of them date back as far as June of this year. I think that is a painful arrear, and that matter, I think, therefore, should be inquired into. Now, one great allegation against the administration of the law is that appeals are too numerous, and, therefore, oppressive. It is very popularly said there are four appeals. The instance always given is, that you first take a case before a Master, then before a Judge, then before a Divisional Court, then before the Court of Appeal, and then to the House of Lords. It is generally so stated, as if that were the case in almost every instance of an appeal. Now, I have had a Return made of a number of summonses in Chambers, which is the first step, during a year, and I take the year 1888–89. In the Queen's Bench Division there were before the Masters in that year 37,400 summonses heard. Of those there was that which is hardly an appeal—that is to say, a reference to a Judge in Chambers—in only 3,636 cases. Going from the Master to the Judge in Chambers is not an expensive thing; we never call that an appeal, and really it is not expensive at all. Now, of those 3,636 cases heard by the Judge in Chambers 634 only went to the Divisional Court, and of those 634 which were taken to the Divisional Court only 85 came to the Court of Appeal. Therefore, so far from it being a common tiling that every summons before 35 the Master—or nearly everyone—goes from the Master to the Judge, and from the Judge to the Divisional Court, and from the Divisional Court to the Court of Appeal, the truth is that out of 37,400 summonses in one year—and in almost every year it is about the same—heard before the Master only 85 go to the Court of Appeal. With regard to going on to the House of Lords, I believe the fact is that there has been only one such case in five years which went to the House of Lords, and in that case the House of Lords overruled the decision of all the other Courts. Therefore, as it seems to me, the case alleged of too numerous appeals is hardly made out. Then there is another matter to which I must refer, that is, that in those 83 cases, out of the 37,400 which have come to the Court of Appeal the appeal was by no means frivolous; although upon some point of practice it was very often a point of very great importance. It might involve the construction of the Rules, which are not always easy to construe, but it very often concerns a matter of the greatest importance. Suppose that an Order has been made for a Commision to go to China or Japan or India. If that Commission goes out it costs hundreds of pounds, and causes a delay of months; and if the Order has been inadvertently passed by the Master and the Court of Appeal is applied to, and reverses the Order for the Commission, there is an end of it, and the Court of Appeal has saved the parties some hundreds of pounds and a delay of months. So much with regard to the practice appeals. Now with regard to appeals from trials, there were in one year in London and Middlesex 1,179 cases tried by the Judge or the Judge and jury, and 844 on the Circuits; that is to say, there are 2,023 causes tried in the year. With regard to those causes which have been tried to the extent of 2,000, some of them are tried by a Judge without a jury, and some of them are tried by a Judge with a jury. With regard to those tried by a Judge without a jury, the appeal has been and is direct to the Court of Appeal. It does not go to a Divisional Court, and then to the Court of Appeal; it goes straight to the Court of Appeal. Those tried by a Judge and jury, up to this time, have gone to the Divisional Court, and from the Divisional Court 36 there has been a second appeal to the Court of Appeal. In the year in regard to these 2,000 causes, there were appeals direct to the Court of Appeal in 137 cases; that is to say, there were 137 appeals direct to the Court of Appeal where the case had been tried by a Judge without a jury, and of those tried by a Judge and jury, there were 11.8 motions for a new trial of them in the Queen's Bench Division. Of those causes, 63 were appealed from the Divisional Court to the Court of Appeal. So that the appeals out of those 2,000 causes that have been heard in both Courts together are 255, and of those, up to the present time, there has been a double appeal in only 63 cases. Now by the Bill which is before your Lordships' House, which was brought in the House of Commons by Mr. Finlay, those 118 appeals in regard to new trials which went to the Divisional Court would come straight to the Court of Appeal. So that out of the 2,000 cases which are tried in the course of a year, there will be 255 appeals direct to the Court of Appeal, and, therefore, only one appeal, unless they go on to the House of Lords. How many cases come to the House of Lords I am not prepared to say; many noble Lords here will know that much better than I do; but I apprehend myself there are not more than about 20 in the course of the year. So that I cannot think the allegation of too numerous appeals is really made out. And I may say this, that I do not think an appeal to the Court of Appeal is a very expensive matter. I have inquired into it carefully, from practitioners in London and elsewhere, and I do not find that is the expensive part of litigation; other people may have different opinions; I have given mine, that neither as to practice cases, nor as to other trials, are the appeals frivolous, and I do not think, after that statement which I have made to your Lordships, they can be said to be exceedingly numerous. Now, the next and most important allegation in regard to the administration of the Civil Law seems to me this: that the expense of actions is far too great, and it is further said that the expense of actions has been increased since the Judicature Act came in to operation instead of being diminished. I have come to the conclusion myself that that allegation is true, and that the expense of actions is far greater than it 37 ought to be. When I come to consider what the cause of it is, the very first fact is the fact that I have mentioned, namely, that amongst the summonses, of which there are 37,400, before the Master, I cannot help thinking that there must be a great many more summonses that there ought to be. Opportunities for summonses are given in the hope that those summonses may do good; but we find in practice that wherever parties have an Opportunity of making any movement in a Court they are sure to make it, and the numerous opportunities for summonses which were instituted under the Judicature Act, in the hope of shortening cases, have been invariably used to their full extent, and have lengthened causes, and caused great expense and delay. The chief cause of expense in summonses has been the constant use in Common Law actions of summonses for discovery, and the use of summonses for the purpose of interrogating parties. The truth is the in the Court of Chancery a great of their administrative system was carried out by discovery and inspection of documents and by interrogatories, and when the Judicature Act was passed a person of great influence, that is to say, the late Master of the Rolls, Sir George Jessel, was strong enough to carry into the new rules the Chancery system, not merely the Chancery principles, but the Chancery procedure in Common Law actions. In my opinion that system is not fit for Common Law fictions, and I think it causes great oppression. It is just this. Take the case of a dispute between two merchants in the City of London about the construction of a contract, or about the delivery of goods or the non-acceptance of goods. The parties begin on both sides by asking for discovery, the meaning of which is that each party asks the other, "What books do you keep, and how many books did you keep with regard to this matter," and then, having obtained an answer to that from the other party, you are obliged to go to the merchant and get an affidavit as to that. Then the next thing is to say, "We want to inspect the merchant's books," and then the attorney or the attorney's clerk goes to the merchant's office and ransacks his ledgers and letter books, and I do not know what, not only to the 38 expense, but to the disgust of the merchant, who does not like to have his books gone into in that way, and very little good ever comes of it, for in almost every case it comes to nothing. Then, as to the administration of interrogatories. The system of administering interrogatories in an ordinary case is a system of the most oppressive kind. It is almost invariably used, because it can be used, and, therefore, if your baker brings an action against you he first asks you whether you keep a diary, and then if you do he asks to see it, and then he asks to see his own bills which he has given you, and then he interrogates you upon them, and the interrogatories go sometimes really to matters which would not be allowed to be asked even at the trial. In the City of London I am told this is a great cause of the increased expense of causes, and it is a cause of the greatest possible irritation; that instead of the dispute between two merchants being managed until it comes to trial by their solicitors, the merchants themselves are tormented by having to make discovery and make affidavits and answer interrogatories, which they generally have to answer by saying they know nothing about it. But then if they say that, there is at once an application made for what is called a further and better answer. Why for that purpose the Chancery practice is to be used in ordinary common law or mercantile causes I cannot understand, although I say again other people may be of a different opinion. It is considered to be expensive, oppressive, and to cause infinite delay. I think that is a grievance which ought to be inquired into and, if possible, met. Then the next complaint is in regard to the delay in trials. I have shown your Lordships already that there is a delay in trials both in the Common Law Courts and in the Chancery Division. That delay, of course, is the result of many causes, but one of the very first causes is this multitude of summonses, because if you have a multitude of summonses one after another, and more particularly these summonses as to discovery and interrogatories, until after all that has been got rid of and passed through at great expense and with great delay of course the trial cannot go on. Those summonses, therefore, are the 39 cause of a great part of the delay. Well, another thing which causes delay in London and Middlesex is said to be the want of a sufficient attendance of Judges in London. The want of a sufficient attendance of Judges in London has been the result up to the present time, first, as I have said, of the illness of some of them; and, secondly, of the employment of some of them upon other matters. But there are other reasons. The Judges are bound to go circuit. The number of circuits have been increased, and therefore every time you increase the number of circuits you, of course, increase the time during which a certain number of Judges are absent from London. Can this part of the cause of the delay be cured? I have already suggested that the quantity of summonses can be cured, because I think, after looking into the matter carefully, that a vast number of them can be got rid of altogether. With regard to these interrogatories and summonses for discovery they must be bridled and limited by some rule or other, so that they shall only be used in cases where they are really wanted. But with regard to the absence of Judges on account of going circuit, I cannot help thinking that it is worth while to consider whether at the present time there are not too many circuits. There are three or four circuits now—I forget which at the moment—for the trial of prisoners. The Judges are obliged to go to every county for the trial of civil causes. In many of the counties the number of civil causes has become very small indeed, and yet the Judges are obliged to go there to be ready to try them. One mode of obviating the necessity of Judges having to go to each county for the trial of a very small number of civil causes would be this: The railway system has brought the Assize towns practically much closer to each other than they were in former times; and many of those who have had to, consider this matter (as far as I know, all of them) have come to the conclusion that one mode of saving time would be to, what has been called, "group" the trials of civil causes on Assizes, or, in other words, to take the central towns as representative of those immediately round, and to decide all the civil cases 40 there, taking care that the parties to them and their witnesses are not brought too far; that is to say, instead of trying civil causes in each town, to try them in some representative or district town. I think there was a resolution of the Judges that it was advisable that it should be carried out, but it has not been acted upon, and I should like that point to be further considered. Then as to the number of Criminal Assizes. It has been proposed that there should be a less number of Criminal Assizes, while, to meet the difficulty that would be presented of keeping prisoners too long in prison waiting for trial, if there were only a few of them, it was suggested by many of the Judges at one time that in each county the Quarter Sessions should be held halfway between the Assizes. We should thus have got rid of many of the criminals, who many of the Judges think ought all to be tried at the Assizes whenever there are any in prison at the time. It was objected on behalf of the counties, and I think it was a weighty objection, that that would call the Justices together at Quarter Sessions at inconvenient times when not necessary for the county business; but at the present time the Justices have been relieved of many of their duties in reference to the county business by the County Councils, and there would be nothing unfair to them in such a proposition in regard to the criminal business; and I think we could now get the country gentlemen to take the Criminal Sessions half-way between the Assizes. One or two of the Justices would, I think, be willing to act for that purpose. If that were done, you would have in most counties only two or three Criminal Assizes, and you would consequently have the Judges kept out of London for a much shorter time. Then there is another thing as to criminal procedure which might well be done now. A man is put into prison and kept there before trial. In certain cases he might be let out, but people will not go bail for him, and he cannot get bail. In the old condition of things in England if a criminal were not imprisoned until trial, he might get out of the way and you might never see him again; but I cannot help thinking that in the present condition of England that 41 is next door to impossible; and I think a great number of prisoners might be let out on small bail, or without bail, on condition that if he moved away from his ordinary residence or left the district without giving notice to the police he might be re-apprehended and put into prison. That would secure their appearance if they attempted to get out of the way. By those means you could diminish the number of Criminal Assizes, and you would have the Judges kept out of town a less time for the purpose of trying prisoners at them. Of course, the more you succeed in doing that the in more you would obtain the services of the Judges in London. Those are methods which I think in the Common Law Division you would be able to keep the Common Law Judges longer in London than they are now, and they would, of course, be able to deal with the cases to be tried in a more satisfactory manner. Now, it has been suggested that there should be an increase in the number of Judges in the Queen's Bench Division. I have considered that matter also. Everybody must be of opinion, I -should think, that it is not well to have too many Judges; and I have come to the opinion myself that if these other arrangements were made, there is no occasion in the Common Law Division to increase the number of Judges. There is another grievance as to the mode in which the civil cases are dealt with in the Queen's Bench Division. It is difficult to make out where a case will be really tried when there are a good many Judges trying causes, and there are now a great many more than there used to be. Of course, there is but one Judge trying each list of cases before him. Those cases are put down for trial before that particular Judge in their order. But if the Judge who has those cases in his paper on one day does not try them all, they are not left to be tried before him, or even in the same Court, but they are very likely transferred on the next day into another Court for trial before another Judge. The result is, that your case may be put into the list in Court I. It is at the bottom of that list. All the cases before yours are tried. If your case remained in that Court it would be the first in the next day's list; but that is not the way at is done. It is taken into another 42 Court, and, instead of being first in the list and tried at once, you may be kept there all day, because perhaps it is the last in the list in the next Court. That has been the cause of a great deal of irritation; and I think it might be cured by some arrangement for consultation as to the mode in which the lists of cases are to be managed. As to the mercantile cases, it has been said by people of considerable weight in the City that they are driven out of the Queen's Courts and into arbitration, or forced to settle their cases because they cannot get them satisfactorily tried in the Queen's Courts. There was a great grievance felt about that. Their cases were put into the general list. You might, therefore, have a mercantile case between merchants placed in the list in one Court, but, as I have stated, not reached, and the parties would be brought from the City into another Court on another day, and, considering the nature of their business, and what a burden it is for them to be present for two days in Court with their witnesses, that was recognised to be a great hardship and inconvenience; but by arrangement with the Lord Chief Justice, having regard to the practice in the City, this grievance has almost vanished; the City causes are put into a list by themselves, and they are called on one after another; but in the City these formal applications which I have mentioned as oppressive upon mercantile men, with regard to inspection of books, answering interrogatories, making affidavits, and so on, affect them very much, and for these reasons they have a disinclination to go to law. Now, I come to the Chancery Division. There are grievances with regard to the Chancery Division. That matter was inquired into in 1875 by a Committee over which I presided, not composed of Judges or lawyers alone, but of Judges, lawyers, and some merchants. That Committee reported to the Lord Chancellor that there were grievances as to the mode in which the business of the Courts of Chancery was conducted. The defects there are said to be these: In the Chancery Division cases are now tried with witnesses instead of an affidavit. They are called witness-causes, and they may be taken before any of the Chancery Judges. A case is not transferred except under particular 43 circumstances from the Judge in whose Court it is. If, therefore, he has witness-causes to try, he can only give a certain number of days in the week to the trial of witness-causes. The result is, that he may be trying a cause with witnesses on the two days in the week that he may give to hearing such causes. He has not then finished the cause, but he does not go on the next day until he finishes it; he postpones it until the next week, and the parties who may have come from a distance must go away with their witnesses, and come up again the following week. That system has caused very great inconvenience, and constantly causes very great expense. There is one Judge in the Chancery Division who tries witness-causes only, and the hearing of the causes put down for trial before him goes on one day after another until they are finished; but causes of that description may be put down before the other Judges, and, if so, they are taken in that way. Another cause of complaint in the Chancery Division is this: When the case after the decree is pronounced has to be worked out, that has to be done in the Judge's Chambers before the chief clerk, and the way they proceed, necessitated, I suppose, by the magnitude of their business, is this: The chief clerk generally gives an appointment to the parties for an hour only, and when the matter goes before him, therefore, the hour is up before much has been done, or, at all events, before the matter is finished, and he stops that case in order to go on with another. He is then asked by the parties when they are to come again; and he tells them they must go down to the bottom of his appointments. So that after having been before the chief clerk with their witnesses for an hour, the matter, so far from being finished, has hardly been begun, and the parties are sent away. But they do not go on the next day; they have to take an appointment at the bottom of his list, which may throw them over a month. They then have to come up again with their witnesses for another hour; they cannot finish then, and they are sent away again. That seems to me to be a matter which ought to be cured, and which can be cured. I will say no more than that. An elaborate Report was made by that Committee upon the subject, and when you look at the large business 44 that is done in the Chancery Division, notwithstanding the Judges have worked extremely hard, as it is well known they have, your Lordships will not be surprised when you see the arrears as compared with those which I read at first. At the present moment there are 557 cases in the Chancery Division which are not heard, and they are practically 9 or 10 months in arrear. We came to the conclusion then that we ought to have another Judge added to the Chancery Division, and I should like to have that well considered now; not adding one to the Queen's Bench or taking away any, for there is not one too many, but adding; another Judge in the Chancery Division with a proper staff. We might then have-two Judges in the Chancery Division trying what they call witness cases. There is another matter in regard to the Chancery. Division. A great many of the cases, which are now brought in the Court of Chancery are really Common Law cases—real pure Common Law cases. It is, said, but I cannot vouch for the fact, that costs are more liberally allowed in the Chancery Division than in the Common Law Division, and that that induces some people to take a case into' the Chancery Division. If that be true, the matter ought to be looked into. We ought to look into the costs of both Divisions, and see whether with regard to the very same kind of action the costs ought not to be the same, so that that, temptation may be taken away, and then the cases should be sent where they ought to go, that is to say, to the Common Law Division. Now, so far, I have; gone into the question of the administration, of the law in civil actions. I do not pretend that I have exhausted it, but I have: shown heads which I think justify inquiry, and which ought to have speedy treatment. But now I come to one off the most important things in my view that is, the criminal administration, and I cannot help thinking that the burning question with regard to that is the question whether there ought not to be a Court of Criminal Appeal. If there is to be a Court of Criminal Appeal what ought to be considered about it with regard to the extent to which the appeal ought to be allowed? There has arisen a state of things which I cannot help thinking inmost dangerous with regard to the administration of the Criminal Law. 45 Now-a-days, the moment a prisoner is condemned to death or to any severe punishment, that is done which never was done before, the attorney for the prisoner endeavours to get it set aside. Up to a very late date, according to my recollection, and as far as I have ever known, the two people who could not interfere after the trial of a prisoner either on his behalf or against him were his counsel and his attorney. But now the constant practice is that the moment a prisoner is convicted and sentenced to a heavy punishment his or her attorney immediately begins to set about to get up petitions in favour of his client. It must be and is well known that he gets the petitions signed by people who cannot possibly know anything about the case. Multitudes of people sign a petition which is drawn up by a prisoner's attorney before they see it—without seeing what the petition states they sign their names. Then the next point is to get a Member of Parliament to ask a question of the Home Secretary in the House of Commons, and pressure is then put upon the Home Secretary. If that is allowed to go on it will practically produce an appeal to the House of Commons in each case. The Home Secretary used hardly ever to be invoked unless for the purpose of mere mercy; but now he is invoked on almost every occasion, and asked to consider whether the verdict of the jury and the sentence of the Court were both right. It has become a question of an appeal to the Home Secretary, it is nothing else. It is not the exercise of the prerogative of mercy now, it is an appeal to the Home Secretary to revise and overlook the verdicts of juries and the sentences of Judges. In my opinion it is in many cases necessary, and it is well recognised, I think, that the verdicts of juries in criminal cases ought to be re-considered, and that the sentences of Judges ought to be re-considered; but I say that to leave those two things or either of them to be done by one man is throwing a greater weight upon that one man, however high his character or great his ability, than he is able to bear. I, therefore, for one, suggest that there should be a Court of Criminal Appeal created, and that it should be empowered to deal to the same extent as the Home Secretary is able to deal now with 46 criminal verdicts and sentences, that is to say, that they should re-consider them carefully and investigate with the utmost patience, in order to see whether the verdict may not unhappily have gone wrong, and that they should have the power of advising that sentences should be altered and to what extent. Of course, that there should ever be a new trial of a prisoner who has been acquitted is contrary to the law of England. In my opinion, the Court of Appeal might absolutely set aside a conviction if satisfied that there had been a wrong conviction; but to try a prisoner over again would be contrary to every principle of English law. It is also contrary, in my opinion, to every idea and principle of English law, that a sentence which has been passed by a Judge should be increased. But a sentence which is too severe may be diminished. I cannot see how that can injure anybody, and it is no more than justice to the prisoner. My suggestion for a Court of Criminal Appeal is not that it should be a changing Court as in our present Courts, with the Judges changing from day to day, but that there should be a permanent Court of experienced Judges nominated by the Crown, and that that Court of Criminal Appeal should have the power of setting aside a conviction when they came to a clear conclusion that it had been wrong, instead of the matter going before the Home Secretary, upon whom the burden cast is too great, and also that they should have the power of diminishing sentences when they thought those sentences had been too severe; and that for the purpose of doing either they should not be confined to the strict laws of evidence, or to any other strict law, but that they should be allowed to take into consideration, as the Home Secretary now does, any circumstance, either before or after the trial. They should take into consideration any circumstance which might be brought before them. But, nevertheless, the institution of a Court of Criminal Appeal should in no way interfere with the exercise of the prerogative of the Crown in dispensing mercy, either before or after an inquiry by the Court of Appeal, but such mercy should not be extended on the ground of either a wrong conviction or a wrong sentence, those being questions left for 47 the determination of the Court. That prerogative should be exercised by the Crown just as it is now. Then it may be said there might be a difficulty in getting this Court of Criminal Appeal to meet. My suggestion is, that the Judges nominated on that Court should undertake—it will be a fresh burden upon them, but they must under take it—to hear any criminal appeal within, say, three weeks, or such other time as might be limited, but a very short time after the trial, when it was desired to revise the sentence. At any time of the year they must be ready to attend the Court, for promptitude in these cases is a matter of essential importance. My Lords, these are matters in the administration of the law which I cannot help thinking of great importance all of them. They are defects which it may be made out—they are all alleged defects—which ought to be inquired into, and if they are found to exist they ought to have a remedy applied to them. I have thought that the best way of getting people to consent to be convinced that some of them were, perhaps, not well founded, and as to those which might be found to be existing, the best way to consult upon their remedy, and to suggest a remedy, was to have a Royal Commission, a Commission not of Judges alone, not of lawyers alone, but of persons of experience in business, in country life, and in London life; and then, if they come to an accord, I have thought myself that any legislation would be greatly facilitated if brought forward by the Lord Chancellor. As has been said by a noble and learned Lord (Lord Bramwell) to-day of himself as a young Parliamentary hand, I do not pretend to have any experience as to Parliamentary procedure. I find myself generally wrong if I attempt to do anything in the Parliamentary way, and if my noble and learned Friend on the Woolsack thinks there is any other mode of getting at the facts and carrying out this inquiry, of suggesting a remedy and getting that remedy carried out in any better way than by a Royal Commission, I am quite ready to accede to that. But this I will say, that having brought my mind that at all events some of these things would be for the benefit of the law, as far as I am concerned, I will never stay my hand until I have had the matter fully inquired 48 into, and until I have either through a Royal Commission or in some other way secured a suggestion for remedies which I think may be carried out by the Legislative.
§ THE LORD CHANCELLOR
I do not suppose there is any one of your Lordships who will deny the importance of the several topics to which the noble and learned Lord has called attention. The difficulty one has in following him is that the topics are so wide and so important, and have been spread over such a considerable field, that, with regard to some of them, it is impossible to suppose they are proper subjects of inquiry. They are subjects of high State policy, upon which we are quite prepared to consider any legislation which my noble and learned Friend may think proper to bring forward. I shall have a word or two presently to say upon the other points in his speech; but upon the subject of his last observations in regard to a Court of Criminal Appeal, I have only to point out to him, that an increase would be necessary in the number of Judges. He says there is already considerable arrear in the performance of their duties by Judges of first instance in the Queen's Bench Division, and the creation of a Court of Criminal Appeal, would involve the necessity of adding other Judges, increasing their labours by the necessity of sitting within three weeks of the conviction appealed from. A prisoner could not be worse off, and might be better off, by an appeal, and it would not be unnatural, therefore, to suppose that everybody who is convicted would like to take his chance of getting off rather than he would remain under the sentence of the Judge who convicted him. I only point that out to my noble and learned Friend as showing the difficulty which arises from spreading over so wide a field matters, some of which might need inquiry, and others might be made the subject of legislation, if my noble and learned Friend thinks proper to bring it forward. I cannot help thinking that in the latter part of his speech, he, to some extent, filled the character of Balaam; because, having begun by showing defects in the administration of the law—
§ THE LORD CHANCELLOR
I am not quite certain that one gets rid of an observation by introducing a qualification of that sort. I am at a loss to know what is meant by an alleged defect, which is not a defect, for which a remedy is desired. He has at all events suggested to your Lordships that, so far as the Court of Appeal is concerned, it gets through its work extremely well, and is in a highly satisfactory condition. Of course one is glad to hear that thus there is a sort of favourable contrast with other Courts. But there was one factor in that problem which he omitted to notice. The Judges of the Court of Appeal are supposed to have undertaken to go circuit if necessary, but they have been relieved from that necessity; and they have thus escaped duties which have now to be discharged exclusively by Judges of the Queen's Bench Division. It is not unnatural, under those circumstances, that the Judges of the Queen's Bench Division have not been able to get through their work. Therefore, it is not a full statement of the case to say that the Judges of the Queen's Bench have not been able to get through all their work, while the Judges of the Court of Appeal have done so, because there has been a transference of work from one set of Judges to the other. Now, with reference to the alleged defect by reason of delay, I think my noble and learned Friend has hardly done justice to the course of legislation as affecting our administration of the law in later years. For very sufficient reasons I think the Legislature has determined that parties should be admissible witnesses, and also that in the Courts of Chancery oral testimony should be substituted for written proceedings in the trial of causes. The inevitable effect of these two changes has been that causes last a great deal longer than they used to do. What is known as a "short cause" has almost disappeared; wherever there is a question in dispute plaintiff and defendant and their witnesses have to be called to contradict each other, and the natural consequence is that the hearing of causes is prolonged. In spite of these changes, however, the work of the Courts is done more quickly, and judgments are arrived at more rapidly, than they used to be in times past. My principal objection to the 50 suggestion that we should institute an inquiry as regards many of the matters mentioned by my noble and learned Friend is that, if the defects exist as he states them, the facts are susceptible of being ascertained by the Rule Committee, of which the noble and learned Lord, like myself, is a member. If there are these great defects, two of them to which he gave the adherence of his own weighty opinion, namely, the abuse of the system of interrogatories, and of the inspection of documents, summonses, and so forth, are defects which would be manifest upon very short inquiry by himself and the other members of that Committee, and they are susceptible of being removed by the Committee. They have complete jurisdiction, and the Rule Committee was intended by the Judicature Acts to have complete jurisdiction in order to get rid of any defects in the administration of justice which might be found to exist. During the last five years, I can answer for it, my noble and learned Friend has not brought before the Rule Committee or suggested any rule or order with the object of remedying any of these alleged defects. I can assure him, as far as I am concerned, and I think I can answer for the other members of the Rule Committee, that the Committee will now gladly receive and consider any suggestion he may make for the purpose of removing these defects. Then my noble and learned Friend referred to the Committee over which he presided; but he does not seem to be aware that out of 41 suggestions that have been reported by that Committee, it has been my pleasure and privilege to carry 21 of them into effect, and that the whole of them would have been, at all events, attempted—I do not say successfully—to be carried into effect but for the difficulty of procuring the assent of Parliament to the appointment of a sixth Judge in Chancery, as he recommends. That is also a question capable of being brought before the House. Are we to suppose that the inquiry already made before my noble and learned Friend and his Committee is to be thrown away, and that we are to begin again de novo to inquire into the subject as if there had been no such inquiry? I have here the Report of the Committee, which extends over 108 pages. A great many witnesses 51 were examined, and the Committee came to the conclusion I have referred to. All that the Committee recommended which could be carried into effect has been done. I may remind the noble and learned Lord that he was himself a party, a short time since, to making a new rule or order that would have a considerable effect in saving costs, and which was made for the purpose of rendering the costs in the different divisions of the Courts the same. That has not been so long ago as that one can safely say yet that it has failed. Then, with regard to the only complaint as to our usual administration of justice, which my noble and learned Friend put forward as being a necessary subject for inquiry, I think it will be found that the noble and learned Lord has, on more than one occasion, admitted that, according to his judgment, from the inquiries he has made, many of the complaints that have been made against the administration of justice are unfounded. I think if, with his experience and his knowledge of the subject, he thinks they are unfounded, and says so, it cannot be said to be desirable that a Royal Commission should be appointed to inquire into them when we have his own authoritative statement that they are not so well-founded as some people imagine. Then, as to the Circuits, the noble and learned Lord thinks that the Circuits ought to be diminished, but except in particular counties where the number of the population has been supposed to render it necessary to maintain them, he must be aware that the number of the Circuits has been diminished. That change was made not so very long ago. A Bill was passed last year with the object of relieving her Majesty's Judges when on circuit from the trial of certain classes of heavy cases which had hitherto almost exclusively occupied their time, and which had occupied them longer on circuit than they need be. At this moment I have not the number of criminal cases which they have been relieved from, but it has been not inconsiderable, but the Bill passed last year has been a relief in the same direction. Then, with reference to the suggested relief which my noble and learned Friend mentions as to the sittings of the Courts of Quarter Sessions, I am not aware that any inconvenience is felt in 52 the present condition of things after the passing of that Bill which it is not now perfectly easy to remove without any legislation and without any inquiry. If inconveniences are supposed to exist nothing can be easier than to call attention to them and to endeavour to remove them. My noble and learned Friend has also said that I attempted to carry into effect a resolution of the Judges, to which he has referred, passed with the view of better apportioning the work of the circuits, that is, with reference to the grouping of certain centres of population, and not sending the Judges of Assize to each county in turn. Why, I was met by protests from every county in England, and the opposition to my proposal was headed by the Lord Chief Justice, who is particularly conversant with those matters, and who thought it his duty to publicly protest against the carrying out of the resolution of the Judges. Of course, in the face of such opposition, both by the counties and the head of the Common Law Division, it was impossible for me to attempt to carry that resolution of the Judges into effect by legislation. In such circumstances what possible good could further inquiry do? What further inquiry is wanted on the subject?—because that seems to be the point of my noble Friend's observations. We know what the facts are. If you have only a certain number of Judges, with more for them to do than they can do, the causes must either be delayed or you must increase the number of Judges. My noble and learned Friend is against increasing the number of Judges, at all events in the Common Law Division, and for the purpose of diminishing the difficulties which consequently exist, as he says, at present, he proposes to cast new duties upon them. I do not think it would be quite desirable to proceed to examine the whole of our Common Law administration, either by Royal Commission or even by extending such observations as I am addressing to your Lordships to-night. Now, turning to the remarks that have fallen from the noble and learned Lord in reference to the adminstration of the Criminal Law, I think the observations made by my noble and learned Friend as to the desirability of bail being allowed, are perfectly well-founded; but the answer which I have 53 to make is this. I wish to point out that it lies entirely within the discretion of the Magistaates whether prisoners shall be let out on bail or not, and I confess that in these days, when railways and the electric telegraph make it so difficult for persons out on bail to escape from justice, I cannot understand the reluctance of Magistrates to allow prisoners out on bail. The Magistrates can do it if they like, and, as far as I am concerned, I have over and over again protested against the reluctance of some of the Magistrates in this country to admit people to bail, even on their own recognizances. They can do it if they please, and if they think it right to do so. It is only right to observe that at Common Law a misdemeanant is entitled to bail. For reasons which seemed good to the Legislature not so very long ago the law was altered, and it was left to the discretion of the Magistrates whether misdemeanants should be entitled to give bail or not. But that is a condition of things which no inquiry by a Royal Commission could alter. No alteration of the law is required in that respect. It depends upon the modes in which the Magistrates think it right to administer the law personally. I entirely agree with my noble and learned Friend that it is the idlest thing in the world in the present day, when it is so difficult for people to move from place to place without being detected, for Magistrates to manifest so much reluctance to admit to bail, but at present I cannot see why any Royal Commission should be appointed to make a difference in the law, the Magistrates having now full power in the matter. With regard to the creation of a Court of Criminal Appeal, I am afraid I cannot concur with my noble and learned Friend in the observations he has made. For instance, I cannot understand his objection on the ground of novelty to the solicitors of prisoners petitioning the Home Secretary in the interest of their clients. I do not think it is so entirely novel a proceeding that the solicitor of a person who has been convicted of a capital crime should interfere after the sentence and attempt to obtain mercy, as my noble and learned Friend supposes. I suspect that was always done; and why the solicitors or even the advocate for the prisoner should be prevented from doing that I have not 54 the least notion. Lord Esher says there was a rule rgainst it. I never heard of any such rule, nor do I think such a rule every prevailed. I can only say that I know a great many cases in which it has been done, and I doubt whether the practice of their doing so is much more common than it was formerly, although, no doubt, such cases are brought more prominently before the public now in consequencs of the increase of sensational literature. That has, no doubt, increased very much, and public attention has been of late years addressed to such topics much more than it used to be; but why the solicitor who has defended a convicted person should not be all owed to send in Petitions to the Home Secretary, if he pleases to do so, I cannot understand. Neither do I agree with the noble and learned Lord that it would be the duty of a Court of Criminal Appeal only to decrease, and not to increase, sentences, if deemed necessary. On the contrary, in my opinion, it would be the duty of such a Court to pronounce the sentence that the Court below ought in the first instance to have pronounced. I have no desire to make invidious distinctions, but I can remember one very remarkable instance in which, when, in consequence of a case having been tried in the Court of Queen's Bench, it was possible for a new trial to be had, a man, who had been indicted was tried before Sir Cresswell Cresswell, and sentenced' on his first trial to seven years' transportation. A new trial was ordered, though the Privy Council afterwards held that the Court had gone beyond its functions in doing so; but when the man was tried a second time and convicted, his sentence was not the same, for, instead of seven years' he was sentenced on the second occasion to tea years' penal servitude. That certainly does not show that it is contrary to the law of England that a sentence should be increased. I rather think my noble and learned Friend has been somewhat misled in this matter, having regard to the confirmation and increase of sentences in Ireland. It is quite true that according to the summary jurisdiction in. England you cannot increase sentences; but the Irish Act is differently framed, and there is a difference, therefore, with regard to dealing with the sentences of Magistrates in Ireland and England. 55 Now, on the whole, the only thing I can say to my noble and learned Friend is this: That a great many of the defects in the administration of the law to which he has referred, are, I think, susceptible of remedy, if they exist, under the existing law. Whether they exist or not must be within the knowledge of the learned Judges of the Court of which he is a member; and if the noble and learned Lord will bring forward these matters before the Rule Committee, and make any proposals for amending the administration of the law, I will undertake to say that they will receive the most thorough and careful consideration, with the utmost desire on the part of myself and the other members of that Committee to remedy, and then when we have done all we can, and exhausted that means of remedying the defects which he perceives, and it is found that legislation or inquiry is desirable in addition, in order to do more than we have been able to do by our existing powers, I think then the time will have come when my noble Friend will be entitled to say we have exhausted all our powers, and yet there are defects to be remedied in the English law, and that he calls for a Royal Commission. But until that time has arrived, until he has exhausted that very practical mode of operation, I think it is undesirable and unwise to tear up the Judicature Act of 1875 by the roots to see how the plant is growing. Until then I cannot give the noble and learned Lord any encouragement in the notion that the Government will consent to the appointment of the Commission he asks for.
§ * THE EARL OF SELBORNE
My noble and learned Friend opposite has made an important, useful, and interesting speech, but I cannot help agreeing with the Lord Chancellor that he has not made out a case for the appointment of a Royal Commission, though I should be the last person to deny that there may be cases which are best met in that way. But when certain definite allegations are made upon the subjects of delay and of expense, I think it ought to be shown that there is reason to believe that those evils, as far as they really exist, are so connected with the general system of judicature established by law as not to be capable of having remedies applied to them, either by existing authority or by 56 new legislation, as experience may suggest, without taking a step, which, as it seems to me, might involve a general revision of the whole system for which there is no necessity. That, in my judgment, would be an evil, unless there were a necessity for it. I quite concur with my noble and learned Friend in thinking that such evils as unnecessary delay in trial, unnecessary details of procedure which contribute to delay and expense, and unnecessary expense generally, are evils to which the minds of everyone connected with the administration of justice ought to be addressed. But I must say that as to some things which my noble and learned Friend on the Woolsack has adverted, the Council of Judges, or, if necessary, a Departmental Commission such as my noble and learned Friend presided over, have quite adequate powers to obtain the needful information and to suggest the necessary remedies, and I should not feel confident that such a mixed Commission as has been suggested would, as to many things which are so very technical, have equal weight with the other modes of inquiry. Therefore, I cannot but hope that these matters will be dealt with without that elaborate and large machinery. I do not like travelling into the numerous and interesting topics to which my noble and learned Friend has adverted; but I am tempted to say a word or two as to his views of a Court of Criminal Appeal. I shall not say anything as to the abstract desirableness of having some more effective Court of Criminal Appeal than we have at present; but I do think it is necessary, when that matter is considered, that its consequences should be thoroughly considered too. If there were such a Court of Appeal as my noble and learned Friend has suggested, it seems to me there would be a great probability of the criminal work of the Courts being very largely increased, so as to make their existing strength for the trial of civil and criminal cases quite inadequate. If the conditions were such as my noble and learned Friend has suggested; if, as the Lord Chancellor has said, the prisoners may possibly gain, and could not possibly lose, I should imagine that, subject to the consideration of expense which might operate in some cases, it would be the almost 57 universal practice, in important cases, to make such an appeal. The mere delay entailed would, in cases of capital importance, be a sufficient inducement for an appeal, and would render the carrying out the sentence improbable; because, after a considerable delay, and one or more protracted investigations, there would be very little probability of the capital sentence being carried into effect in any case. But I must go a little further and say, if there is to be such a Court of Criminal Appeal, I think it would never do to give it both the functions of a Court of Law and the discretion of the Home Secretary. If I did not misunderstand my noble and learned Friend, he suggested that a Court of Criminal Appeal should not be bound by the rules of evidence. Now, I do think that is a departure from the principle of a Court of Appeal. The Court of Appeal may be very competent to determine whether there has been a satisfactory trial of a prisoner, or whether there has been a proper sentence passed upon him, and, if necessary, to direct a new trial, or, in some cases, even to reverse a sentence; but to do that as a Court of Appeal, not acting upon ordinary judicial rules, but by way of departure from them, seems to me to be a confusion of functions essentially discordant. And further. I do not believe that the applications to the Home Secretary when the appeal had been heard, and had failed, would be at all less numerous', or that the way of dealing with them would be at all different in its character from what it now is. There must always be a tribunal capable of advising the Crown as to the prerogative of mercy, as my noble and learned Friend himself said; and you cannot exclude, and ought not to exclude, from the consideration of that tribunal matters which are not to be judged by the strict rules of evidence, matters which go to mercy, and which do not go to the correctness or incorrectness of the verdict or sentence. The two processes must, in my judgment, be kept distinct; and I feel tolerably sure that those who imagine that the functions of the Home Secretary and his duties would be materially limited by the establishment of such a Court of Appeal are mistaken. It may be that the reasons for the estab- 58 lishment of such a Court are sufficient to justify all the delays, and all the inconveniences, which, I think, would inevitably arise from it. But, for my part, I am not dissatisfied, from all I can learn, with the way in which the functions of the Home Secretary have been exercised. I agree it is a very onerous duty, but it is a duty which must be discharged. I greatly doubt whether prisoners in general would gain anything by appealing if sentences could be increased; and I am not satisfied that if you had an appeal in criminal cases—I agree, of course, that a man who has been acquitted is not to be tried again—that there is any just or sound reason why, whatever ought to have been the sentence passed in the first instance, whether it be more or less than that actually given, should not be pronounced.
§ LORD HERSCHELL
My Lords, I should judge from the state of the Benches that this legal discussion has not proved very attractive or exhilerating to the Members of your Lordships' House. Nevertheless I feel it only right to add a few observations, even if it detain your Lordships somewhat longer. The sum and substance of the speech of the Lord Chancellor appears to be this—everything is in most perfect and satisfactory condition; inquiry is not wanted, because we are perfectly acquainted with all the facts; that as to most of the complaints made we have the Rule Committee, which could remedy them at once, eager and anxious to act; and that as to the remainder we have a Legislature prepared to deal with them with great readiness. But, unfortunately, some of these evils have been existing for a long time now, and the Rule Committee does not act, and Parliament does not legislate, and we are left where we were with these evils still unremedied and with the complaints still as serious as ever they were. Now, I quite sympathise with some of the objections which my noble and learned Friend on the Woolsack has urged against the inquiry asked for; but, on the other hand, I think he under-estimates one great advantage which would be derived from such an inquiry. It would bring to a definite point the complaints that are made and the allegations that are levelled against particular parts of our judicial procedure. There would be forth coming 59 an authoritative and definite statement as to the existence or non-existence of the alleged evils, and as to the remedies which are desirable or possible; and and that having been done, it would mot be so easy for those who have the power of dealing with the matter to hold their hands and do nothing. I am not making any complaint against either the Rule Committee or Parliament. We know the natural indisposition to inaugurate and start any considerable change. There is a certain amount of scepticism as to the existence of the evil and doubts as to whether alterations would be really likely to remove the complaints; and in the absence of something which points definitely to the evils and to the remedies those even who have the power to deal with the matter are indisposed to move. I cannot help thinking that some form of inquiry—it might be by a Departmental Committee—into these matters to ascertain the existence of the evils and to deal with the remedies would be of real value. On one point I cannot agree with my noble and learned Friend who has just sat down, as to the institution of a Departmental inquiry. I think that the addition to the Departmental Committee of one or two gentleman outside the body of the law would be of distinct advantage and would add to the probability of the recommendations being carried into effect. Departmental Committees have been appointed which have had upon them others than lawyers. Take one matter to which my noble and learned Friend opposite alluded, the question of increasing by one the number of the Chancery Division Judges. I think if we had a layman about whom no sort of suspicion could arise, it would be difficult to resist such a recommendation. It is true that was recommended by the Departmental Committee over which my noble and learned Friend presided, but I am afraid there is a little indisposition on the part of Parliament to accept the views of Judges upon the question of additions to their number. There is an idea—I believe it myself to be quite an unfounded idea—that they would be likely to urge additions to their number, with the view of lightening their work. My experience in the House of Commons has told me that that is certainly the impression entertained: and I cannot 60 help thinking that if such a recommendation came with the additional opinion of a layman, it would come with such a weight of authority as would be difficult to resist.
§ THE LORD CHANCELLOR
If I am right, that recommendation had the additional weight of a layman's opinion, the Member of the Committee representing the Treasury.
§ LORD HERSCHELL
I am aware it came with that additional weight of being a recommendation by a Member of the Treasury. I cannot help thinking that the addition upon the Committee of a man versed in public affairs would add considerably to the confidence felt in their Report, and consequently to the probability of the recommendations of the Committee being adopted. I am not going in detail into the matters to which my noble and learned Friend has called attention. I quite agree with him that these questions of discovery of documents and administration of interrogatories broadcast in every action demand serious and immediate attention. I am quite satisfied that with all the advantages which I believe have resulted from the Judicature Acts, they have brought with them, as was inevitable in a great change of that description, certain mischiefs which have been a drawback to the general advantage. But after a system has been in work for a considerable number of years, as this has, those drawbacks become manifest, and you have acquired sufficient experience to gauge their importance and to determine whether they should or not be grappled with. The expense attending ordinary Common Law actions has been very greatly increased, undoubtedly owing to the new system of procedure which has been adopted; and that is, of course, a very great evil. One matter to which I should like to call the attention of the Lord Chancellor is the large number of appeals from inferior Courts to the Divisional Courts. This is a great part of the work of the Queen's Bench Division, and a very important part. The tendency has been constantly—and I do not complain at all of it—to send more and more work to the inferior tribunals of this country, and appeals from their decisions are brought to the Queen's Bench. But those appeals are so numerous and often raise such impor- 61 tant questions, that the Court of Appeal in such cases should certainly be of a satisfactory character; and, except incases where there has been a further appeal, sufficient attention has not been paid to the importance of making that Court of Appeal one of a satisfactory character. At present a Divisional Court is formed on no particular principle; any two Judges available at the time may sit as an Appeal Court from the decisions of the inferior Courts—to-day these two Judges, to-morrow other two Judges—and very often matters of great importance are determined by them conclusively without appeal. I venture to suggest that this Court of Appeal from the inferior Courts ought to be a tribunal constituted for the purpose, and selected from among the Judges, with, of course, power to substitute one for another should occasion require it for this purpose; so that it should be understood to be the regular Court of Appeal from the inferior Courts, and selected of Judges whose decisions would command general satisfaction and reliance. If you were to do that, I believe you would greatly improve your judicial system; for I cannot help thinking that, while you are sending these cases more and more to the inferior Courts, it is necessary that you should have an Appeal Court that will be satisfactory. As matters stand at present, if a man has sufficient means, he may rely on getting his case thoroughly and satisfactorily tried; but I do not feel altogether the same amount of certainty in the case of a man who had not those means, and whose case may be dealt with in a different fashion. So that I think if cases are to be sent to the County Courts, it would be much more satisfactory that you should provide a really reliable Court of Appeal from those tribunals. It is not only a question of the County Courts, but there are the Justices' Courts, among others, from which the Crown cases come for determination. This work which has become important enough of late years requires to be specially dealt with. Then, with regard to the circuits, I do not think you would gain very much by the proposal to concentrate the circuit work in particular towns, when you weigh the inconvenience that would arise from witnesses having to be brought considerable distances, and the dissatis- 62 faction that would be produced by making the trials less local, against the possibility of a few days saved in the circuit. I will not pursue the inquiry into the further questions which my noble and learned Friend has touched upon except the last, as to the creation of a Court of Appeal, which is of so important a character that I think it would be wrong for me to be silent upon it, inasmuch as I agree very much with what my noble and learned Friend has said, and have the misfortune to differ very completely from both my noble and learned Friends who followed him. I have always felt it to be utterly discreditable to our jurisprudence that we should have no Court of Appeal in criminal cases. I cannot see how, on principle, this state of things can be justified. If there is a £10 note at issue in a case, the Legislature provides abundance of appeals to secure that neither shall a jury wrongfully fix a man's liability nor the law determine wrongly against him, yet in a matter of life and death there is no such provision. If a man's liberty for the rest of his days or for a lengthened period, or even his life is at stake, the decision of the jury and the sentence of the Judge are to be regarded as absolutely conclusive. That state of things has always appeared to me to be entirely unjustifiable, and only to be excused if the evils of introducing a system of appeal were shown to be so overwhelming as to render it undesirable to do so. It seems to me the burden is on those who opposed such a proposal to show that it is practically impossible to carry it into effect. My noble and learned Friend who has just spoken said that the way in which our Home Secretaries have from time to time discharged the onerous duties resting upon them is deserving of all praise, and I quite agree with him. It is a most distasteful task that the Home Secretary in such cases has to perform, and I believe that every Home Secretary has brought to bear upon it the greatest possible pains and care to do only that which is right and just in the discharge of the onerous duties connected with the exercise of the prerogative of mercy. Nevertheless, we cannot shut our eyes to the fact that the public are taking an increasing interest in the administration of justice, particularly in criminal cases; and in a 63 particular case recently the conduct of the Home Secretary was canvassed to an extent which never occurred before; and not only is that the case, but his determination is even felt to affect the Government of which he is a Member. It is quite conceivable that cases might arise—recent occurrences have shown, indeed, that it may actually so happen—where the position of a Government may be seriously affected by the decision of the Home Secretary in dealing with this question of prerogative in particular cases. I cannot help thinking that nothing could be more unfortunate than that that state of things should exist. The prerogative of mercy, of course, must remain in the Crown, and the intervention of the Home Secretary will have to be in some cases sought; but the unfortunate state of things which I have mentioned ought as far as possible to be remedied, and I cannot doubt that in many cases the trouble would be avoided altogether if there were a Court of Criminal Appeal. If you had some tribunal to which an appeal could legitimately be made, you would stop the kind of public agitation which now supervenes after sentence is pronounced and when the matter is brought before the Home Secretary for his consideration. Now, the objections that have been urged are: that if you were to allow this to be done, and if such a Court were in existence, you would be overwhelmed with these appeals, and your Judges would have more than they could do. That seems to me at the outset to be an objection which should not be considered for a moment. If this is a right thing to be done in the administration of justice, and if the present number of Judges is not enough for the work, then the country is bound to add sufficiently to the number of Judges to enable this important work to be done, and ought not to refuse to have right and justice done because the present number of Judges is not sufficient to compass the work. For myself, I very much doubt, however, whether the objection is not to a large extent imaginary. I doubt whether there would be anything like the number of appeals which are alleged as a reason for inducing us to refrain from making this change. I arrive at that conclusion for several reasons, and partly from analogy to civil cases. In civil matters 64 where people might appeal there are numberless cases where they do not do so, but submit to the judgments against them, in a certain number of cases, no doubt, partly on account of the expense, but in many cases, because they feel that an appeal would be hopeless; and I believe that which operates as a deterrent from appeals in civil cases would be practically found to be sufficient in criminal cases too. I do not think, therefore, you would have, as has been said, appeals in every case. A vast number of those appeals certainly might be easily and rapidly disposed of. In another country, I have myself seen a Court of Criminal Appeal at work; and except for two or three serious appeals, where there was really a question to be argued and fought out, the majority of the cases were disposed of in a few minutes, it being seen at once that there was nothing in them at all. I believe this fear is greatly exaggerated, and it does not seem to me to be a sufficient ground for refusing to do that which I think has long been felt by many to be needed in, at all events, some cases. I feel certain that if where necessary you had the matter after the verdict of the jury again calmly argued out before a Court of Appeal, these public agitations would subside. It would be seen that the matter had been re-considered by persons who were entirely independent and unaffected by the passing influences of the moment, which may be sometimes attributed to the Judge who presided at the trial and to the jury who tried the prisoner; and you would consequently find an absence of that agitation which now is manifested in particular cases. I think, also, that you may gain these advantages without suffering the inconveniences which some apprehend and deprecate. One thing further only I would say in reference to what my noble and learned Friend has said. I agree that this Court must be a Court of Appeal; but, at the same time, I do not think there would be anything unreasonable or inconsistent with sound principle in permitting that Court of Appeal to lend its ears to any information which had been derived since the date of the trial—any further facts which could be brought to their attention—anything, in short, which might be properly con- 65 sidered for the purpose of showing that the judgment arrived at should not have been arrived at, or would not have been arrived at, if all the circumstances had been known. My Lords, I have thought it right, although of course it can have no practical effect, as this matter has been broached to trouble your Lordships with my views upon it; because I have long been strongly of opinion that this is one of the reforms which is most urgently needed in our administration of justice.
§ House adjourned at twenty-five minutes past Seven o'clock, till To-morrow, a quarter past Ten o'clock.