Sitting of 3 July 1873

MINUTES.
PUBLIC BILLS—Ordered—First Reading—Extradition Act (1870) Amendment* [220].
Second Reading—Highland Schools (Scotland)* [202]; Militia (Service, &c.)* [216] Public Records (Ireland) Act (1867) Amendment* [217].
Committee—Supreme Court of Judicature [154]—R.P.; Turnpike Acts Continuance, &c. [199], debate adjourned.
Committee—Report—Consolidated Fund, &c. (Permanent Charges Redemption)* [204]; Blackwater Bridge (Composition of Debt)* [177]; Tramways Provisional Orders Confirmation (re-comm.)* [218].
Third Reading—Blackwater Bridge* [213], and passed.
Withdrawn— Harbour Dues (Isle of Man)* [175].

POOR LAW—LABOURERS' UNIONS.

  QUESTION.
  LORD EDMOND FITZMAURICE(for Mr. T. HUGHES) asked the President of the Local Government Board, Whether his attention has been drawn to the fact that in the Eastern Counties boards of guardians have refused medical relief to the wives and families of labourers on the ground that such labourers had become members of the Labourers' Union; and, whether such refusal is not contrary to the well understood principles of the Poor Law; and, if so, whether he will take steps, by minute or otherwise, to instruct boards of guardians as to the principles upon which such relief ought to be administered?
  MR. STANSFELD,in reply, said, that it was not within the knowledge of the Local Government Board that relief had been refused to any persons on the ground of their being members of Labourers' Unions. Such a proceeding would be contrary to the principles of the Poor Law, which laid down destitution as the only test and ground for the receipt of relief. There were no doubt certain rules and regulations under which the guardians administered the law throughout the country; but they were so well understood that the Board saw no necessity for issuing any fresh instructions.

LABOURERS' DWELLINGS (IRELAND).

  QUESTION.
  MR. BRUENasked the Chief Secretary for Ireland, Whether his attention has been directed to the Reports of the Irish Poor Law Inspectors on the subject of Labourers' Dwellings, in the Blue Book lately placed upon the Table of the House, in which one of the Inspectors, Dr. Roughan, states that he "has no practical knowledge of the working of the regulations under which loans are obtained for the building of labourers' dwellings," and that "he is not aware of any instance in which a proprietor in his district has availed himself of the privileges of the Labourers' Dwellings Act, 1860;" whereas it appears from the Report of the Commissioners of Public Works, 1870–71, that at least one loan has been issued and expended for that purpose in Dr. Roughan's district; and, whether
  1706
  he will obtain from the Local Inspectors of the Commissioners of Works, who are in a position to possess practical knowledge of the improvement of labourers' dwellings, answers to those queries which have been submitted to the Poor Law Inspectors on this subject?
  THE MARQUESS OF HARTINGTON,in reply, said, his attention had been called to the matter referred to. He believed the facts were such as were stated in the Question. He was informed by the Board of Works in Ireland that they were willing to take steps in connection with the matter.

  POST OFFICE PACKET VOTE—CLAIM OF MR. CHURCHWARD.—QUESTION.
  MR. BOWRINGasked Mr. Attorney General, with reference to his recent statement on the subject of Mr. Church-ward and the Vote for the Post Office Packet Service, Whether it is in the power of a subject to keep alive for an indefinite number of years, without taking any action thereon, proceedings against the Crown in the Common Law Courts (unlike the practice which prevails in Courts of Equity), the Crown meanwhile remaining entirely helpless in the matter?
  THE ATTORNEY GENERALwas understood to say, referring to the subject of Mr. Churchward and the Post Office Packet Vote, that it was doubtful whether the Crown was bound by the Common Law Procedure Act, and whether, therefore, proceedings against the Crown could be kept alive for an indefinite time in the Common Law Courts. The Judicature Bill would prevent an unreasonable delay in proceedings of this nature.

ARMY RE-ORGANIZATION—DEPOT CENTRES—LINCOLN—GRANTHAM.

  QUESTIONS.
  MR. WELBYasked the Secretary of State for War, Whether a site for the new depôt centre at Lincoln has been purchased other than that hitherto used by the Militia, and offered for sale to the Government by the county authorities; and, whether ample space, together with the other most important requirements for a depôt centre, might not have been obtained by the purchase of the county Militia buildings and adjoining land at Grantham; and also,

  1707
  whether the Government will recommend that, by a Grant out of the Consolidated Fund or otherwise, some compensation shall be given to counties which, having been forced during the last few years into very heavy expenditure upon buildings for the protection of arms and other national property, will now have them thrown upon their hands, and incur serious loss in disposing of them for purposes for which they were not originally intended?
  MR. CARDWELL: Sir, the engagement into which Her Majesty's Government entered on this subject was this. We said that in any district where the county buildings were suitable for the purpose we would purchase them, if they could be obtained at a reasonable price; and that in districts where they were not suitable we should place them at the disposal of the county, to sell them for their own advantage, and build for ourselves the local centre necessary for the scheme. In the case of Lincolnshire, it is reported that the buildings are not suitable, and that the price asked is out of proportion to their value to the Department. Arrangements are in progress for the purchase of land at Lincoln. I have no intention of proposing any payment to the county out of the Consolidated Fund.

PRIVILEGE—PUBLIC PETITIONS COMMITTEE—INFORMAL PETITIONS.

  QUESTION.
  COLONEL NORTHasked the First Lord of the Treasury, Whether it is intended to take any notice of the Special Report made to the House by the Select Committee on Public Petitions, that in the case of the Petition 14,619, the heading was inserted by one W. H. Cornish of Stroud, after the signatures had been appended to the Petition?
  MR. GLADSTONE,in reply, said, it would be a serious matter for the consideration of the Government whether they should interfere on behalf of the House, provided the case appeared to those who had been officially intrusted with the duty of examining it to be one calling for such interference. But he did not learn that, in the opinion of these authorities, it would be wise to take any steps in the matter. Under these circumstances, he did not think the Government would interfere.
  MR. C. FORSTER,as Chairman of the Committee, said the junior Member for Stroud (Mr. Winterbotham) attended before the Committee and gave such explanations as were possible, in addition to which he had received a letter from a person implicated, expressing regret at what he had done while labouring under a misapprehension. The Committee had reported the matter to the House as an illustration of the way in which Petitions were sometimes got up; but, under the circumstances, he should not make any Motion on the subject.

  THE ORDNANCE SURVEY—SUTHER-LANDSHIRE.—QUESTION.
  MR. BROGDENasked the First Commissioner of Works, If it is true that he has removed the men engaged upon the six-inch Ordnance Survey from South Wales to Sutherlandshire; and if so, and the removal is caused by an insufficient staff, if he will state to the House the reason why he does not ask for an increased Vote, in order to complete the survey as soon as possible?
  MR. AYRTON,in reply, said, that his hon. Friend was under a misapprehension. The men engaged in the survey had been employed in Wales during the winter months, and in the summer, when the weather in Sutherlandshire was favourable for the purpose, some of them were removed thither to complete work which had been left undone. When the weather in the North of Scotland ceased to be favourable to the conduct of the surveying operations, the men would go back to Wales to complete the survey of the mining districts.

  COURT OF PROBATE—DISTRICT REGISTRY CLERKS.—QUESTIONS.
  VISCOUNT MAHONasked Mr. Chancellor of the Exchequer, Whether he will be willing to consider the propriety of granting a scale of salary and superannuation allowances to the District Registry Clerks of Her Majesty's Court of Probate, on the same footing as enjoyed by the clerks of the principal Registry Office?
  THE CHANCELLOR OF THE EXCHEQUER,in reply, said, that by recent legislation district registry clerks of Her Majesty's Court of Probate were not Civil servants at all. They were em-

  1709
  ployed by the Registrars in the conduct of their private practice. The business in the District Registry offices was very different from that in the Metropolitan Offices, the first-named officials being only empowered to grant probate where it was unopposed. He therefore could not hold out any hope that the positions of the two classes of clerks would be assimilated in the manner suggested by the noble Lord's Question.
  VISCOUNT MAHONsaid, he wished to know what position the district registry clerks held if they were not Civil servants?
  THE CHANCELLOR OF THE EXCHEQUER: They hold no position at all which can entitle them to the same terms as those enjoyed by Civil servants.

  ARMY—HONORARY COLONELS OF CAVALRY REGIMENTS.—QUESTION.
  SIR LAWRENCE PALKasked the Secretary of State for War, Whether the alterations in the pay of the honorary Colonels of Cavalry Regiments recently appointed under the Royal Warrant of 27th December 1870 is legal, no Royal Warrant having since been issued authorizing the change?
  MR. CARDWELL: I need, Sir, scarcely say that, if I had any reason to suppose the course illegal, I should not have proposed to take it. I have always understood that when any reduction is contemplated it is the rule only to permit an appointment to be made on condition that it is accepted subject to the new arrangement, if it shall be carried into effect.

ELEMENTARY EDUCATION ACT—SCHOOL FEES OF PAUPER CHILDREN.

  QUESTION.
  SIR MICHAEL HICKS BEACHasked the President of the Local Government Board, Whether he can state in how many cases the school fees for children of out-door paupers were paid out of the poor rate by the guardians, under "Denison's Act," during the year ending Lady Day 1872; or by how many boards of guardians the provisions of that Act were adopted during the same year?
  MR. STANSFELD,in reply, said, the Department over which he presided had not in their possession sufficient information to enable them to answer the Question at that time.

TURKEY AND GREECE—BRIGANDAGE.

  QUESTION.
  MR. ION HAMILTONasked the Under Secretary of State for Foreign Affairs, Whether any Reports have been received from Her Majesty's Agents in Greece relative to recent acts of brigandage in that country; and, whether the Correspondence with the Greek Government relative to the assassination of Mr. Herbert and others is finally closed?
  VISCOUNT ENFIELD: Sir, reports have been at various times received during the present year from Her Majesty's Consuls at Salonica and Corfu reporting the appearance of brigands and acts of brigandage in Salonica, Macedonia, and Thessaly, and Albania. Major Stuart, lately Consul at Janina, reported the murder of a boy by brigands, in a despatch received a few days ago. Her Majesty's Ministers at Athens reported recently that the brigand chief Spanos, on the Ottoman side of the frontier, has lately killed two other brigands from motives of revenge. The Correspondence with the Greek Government relative to the assassination of Mr. Herbert and others is, to all intents and purposes, closed.

  TEIGNMOUTH AND DAWLISH TURNPIKE TRUST.—QUESTION.
  SIR STAFFORD NORTHCOTEasked the noble Lord the Member for North Derbyshire, On what principle the arrangements recommended with regard to the Teignmouth and Dawlish Turnpike Trust are founded?
  LORD GEORGE CAVENDISH,in reply, said, the principle on which the arrangements recommended had been founded was that which the Committee had endeavoured to apply in all cases of insolvent trusts—namely, the doing of justice to all by making equitable arrangements between the public, the ratepayers, and the creditors. The first Act of Parliament was granted to the Teignmouth and Dawlish Trust 50 years ago. Their last Act dated back six years, and the trust had since been continued from year to year. They had 24 miles of road, and in that distance there were 22 gates and bars, seven of which formed a network round the town of Teignmouth. Their ordinary bonded debt was over £24,000, in addition to

  1711
  which they had a preference debt, with which the Committee could not interfere, of £700. The tolls averaged about £1,100 a-year, and the trustees had applied the income to paying the interest on their debt. They had not paid off any part of the corpus, nor had they repaired the roads. The Local Board of Teignmouth had therefore applied that the trust be at once discontinued.

UNION RATING (IRELAND) BILL.

  QUESTION.
  MR. BRUENasked the honourable Member for New Ross, What course he intends to pursue with regard to the Union Rating (Ireland) Bill?
  MR. M'MAHON,in reply, said, he wished to proceed with the Bill; but he feared he should not be able to do so in the present stage of the Session. There was only one substantial Amendment proposed, and if the Government would only take up the measure it could be passed in a very short space of time. The Bill was a very short one, and its object was simply to assimilate the law of Ireland. ["Order."]
  MR. SPEAKERsaid, he must remind the hon. Member that he was quite out of order in explaining the provisions of his Bill on the question now put to him.
  MR. M'MAHONsaid, he proposed to give Her Majesty's Government a space of a week or ten days in which to consider whether they would take up the Bill and carry it through this Session, because if they did not take this course, the Session would have been utterly barren of useful measures for Ireland.

IRELAND—NATIONAL EDUCATION COMMISSIONERS—THE CALLAN

  SCHOOLS—DISMISSAL OF REV. ROBERT O'KEEFFE.—QUESTION.
  MR. BOUVERIEsaid, that as, looking at the state of business, he was not likely to be able to bring forward his Motion in reference to the Callan Schools to-morrow, he wished to know whether his right hon. Friend at the head of the Government could state at once, or on the next day, when he could grant a day for the consideration of the question?
  MR. GLADSTONEcheerfully acknowledged the considerate manner in which his right hon. Friend met the Government with regard to the important
  1712
  Motion he had on the Paper, and said that he would endeavour to state in the course of to-morrow's sitting when he could fix a day for the question. He was very anxious that it should not be supposed there had been any wilful delay in reference to the matter. The Commissioners of Education in Ireland were a body governed by strict rules, and it was impossible at that moment to say when the communications between the Government and the Commissioners would be in such a state of forwardness as to admit a discussion of the Committee's Report. As soon as possible he would fix a day, and he hoped it would be an early one.

  SUPREME COURT OF JUDICATURE BILL—(Lords).
  (Mr. Attorney General.)
  COMMITTEE. [Progress 1st July]
  Bill considered in Committee.
  (In the Committee.)

  PART I.
  Constitution and Judges of Supreme Court.
  Clause 6 (Constitution of Court of Appeal).
  Motion made, and Question proposed, "That the Clause be postponed."—(Mr. Spencer Walpole.)
  MR. DISRAELI: I have hitherto refrained from troubling the Committee with remarks on this Bill for two reasons. The first is that I am favourable to the policy of Her Majesty's Government on this subject—that is to say, I am favourable to a reform in the Judicature of this country, and that our Judicature should consist of a Court of Primary Decision and of a Court of Conclusive Appeal, and that both of these Courts should be formed of the most efficient elements. Sir, the second reason why I have refrained from making any remarks in the course of this Bill has been that I was myself once called upon to consider the subject, and I am well aware of the difficulties connected with it. I therefore refrained from any observations which might, perhaps, have increased those difficulties. So far as I myself am concerned, my frame of mind may be fairly described as that of one who watched the mode in which Her Majesty's Government sought to solve

  1713
  those difficulties in a spirit of respectful curiosity. But what has happened with regard to this measure? Within the last 48 hours so many remarkable circumstances have occurred, and Her Majesty's Government has taken so unexpected a line—unexpected not only by the House and by their own supporters, but I should imagine, from the expression of their own countenances, by themselves—that I do not consider it consistent with my duty to continue silent when I believe that the Committee has in an inconsiderate manner placed themselves in a position of considerable peril to the public interests. Now, it is just as well, when we are dealing with matters of this kind, that we should have a just conception of what it is we are undertaking to grapple with. We are dealing with a subject very dear to the people of this country—namely, the administration of justice. I do not think there is any subject in which the people of England take so profound and so keen an interest. They have a stronger feeling with regard to the administration of justice than they have even with respect to the incidence of taxation, because, in fact, its influence is more extensive. Very few people are discontented, as far as taxation is concerned, unless they are touched by a direct tax which is only contributed to the Treasury, after all, by a minority of the people; but the whole country is interested in the administration of justice. It is highly desirable, therefore, that in any step which we take we should have a clear conception of what we are attempting to accomplish, and that we should really have from the Government a precise statement of what they wish to achieve. At present I confess I am somewhat at a loss upon those two heads, and the only object which I have in making these remarks is that before we pass any further clauses I may be able to obtain a clearer idea of what is the object of the Government, what is the course by which they really propose to effect that object, and what may be the consequences if that object be attained.
  It may be well for a moment, and only for a moment, to consider how it is that we are dealing with this subject—namely, the reform of the Judicature of this country. We should be in error if we supposed that Her Majesty's Go-
  1714
  vernment had taken up this question as a matter of choice, or in a spirit of caprice, or that, in proposing to reform the Judicature of this country, they were only bringing forward a subject which might excite the interest of the constituencies. The circumstances which have led to the necessity of legislating upon this head are not of a trivial or temporary character. It is now half a century since the question was raised whether the system of Judicature prevailing in this country which had long been so vaunted was altogether a system which secured to the subject a satisfactory administration of justice. Its purity and its impartiality have never been impugned; but its efficiency was years ago questioned—first by scholars in their study; then it was canvassed by eminent lawyers and statesmen; then that criticism led to the institution of Commissions; then the subject was discussed in the public Press, in all the forms of that Press, from daily journals to Quarterly Reviews, until at last a body of public opinion, ripe and strong upon the subject, had been created, the influence of which could no longer be resisted by any Government, and in due time the Judicature Commission was appointed. The Judicature Commission recommended, generally speaking changes in harmony with those which had long been accepted by persons of great authority and influence, and which had been advocated by the Press universally. I mention these things to show that it was quite impossible for any Government to leave this question of Judicature untouched and believing that reform of the Judicature was necessary, I should have been glad to have seen a measure brought forward by any Government which would effect this object. Well, Her Majesty's Government brought forward a measure which certainly might have done this. There might be controversy as to the preferable mode by which those results might be obtained; but no one can deny that in the Bill sent down to this House there were elements which under the influence of the criticism of the Committee might have been moulded and matured successfully, so as to establish two great Courts, the one of Primary Decision and the other of Conclusive Appeal, thereby accomplishing those two objects which practical men and philosophers, the Press, and learned

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  Committees and Commissions of Inquiry had all agreed to recommend, and which now, after a considerable number of years, have been generally accepted by all those leading men who have given their minds to the subject as most desirable objects to accomplish. Now, I will address the Committee strictly with reference to the Motion before it for postponing Clause 6. In effecting the object I have described Her Majesty's Government had called upon the House of Lords and the other Courts of Appeal in this country to surrender their Jurisdiction, and the House of Lords, as all know by the Bill now before us, made no difficulty on that head. If it was necessary to have one sole Court of Appeal it was, of course, necessary, unless you concentrated all its duties in the House of Lords, to devise a new Court in which all other Courts of Appeal and all other tribunals of that character should be absorbed. And here I would mention the regret which I feel that there should have been some misapprehension as to the conduct of the House of Lords, as I have collected in the course of the various discussions on the subject. The question is always treated as if the House of Lords had relinquished their duties because they felt that they were unable any longer to fulfil them. But that is an error. The House of Lords did not for a moment acknowledge that they were unable to fulfil those duties which the Constitution of this country at present delegates to them. On the contrary, we have it in evidence—evidence before the Committee of the House of Lords on the subject—evidence adduced by the Lord Chancellor and the late Lord Chancellor (Lord Hatherley)—that the duties of the House of Lords as a Court of Appeal were never performed in a more satisfactory manner than in this generation, and especially during the last few years. Evidence to that effect is abundant. Indeed the House of Lords, we know as a Court of Appeal was a popular tribunal, particularly in Ireland and in Scotland. We have complete evidence on that subject taken before the Lords themselves, and it is acknowledged in the Report of the Committee, many Members of which were Members of Her Majesty's Government. On that point, therefore, there can be no doubt. How did it then become inevitable—and I dwell on this
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  topic because I know some dissatisfaction exists among my Friends around me on the subject—how did it become inevitable that the House of Lords, whilst they were performing in the most satisfactory manner their duties as a Court of Appeal, should have consented to relinquish that jurisdiction? It arose in this manner. So long as you had an intermediary appeal in England—and you had more than one—the number of appeals, which are considerable in the country, were sifted by the Intermediary Courts, and the only issues that went to the House of Lords were of that gravity, either as regards the amount of property or the possession of precious privileges, which those interested would not consent to have decided by one appeal. Therefore, the business of the House of Lords might be accurately described by these figures. The appeals that came up were from 50 to 60 per annum, and the House of Lords dealt with them in the most satisfactory manner. The very appeals to them upon matters of such commanding interest showed the confidence of the country, and that the decisions at which they arrived were satisfactory to the suitors. Nor should it be omitted that so prompt was the transaction of their business that there were no arrears; so that if there had been no change the House of Lords were capable of perfectly fulfilling those duties which the present constitution of the country devolves on them as a Court of Appeal. But the moment you terminated the Intermediary Courts of Appeal, the Exchequer Chamber, the Committee of the Privy Council, and others, the appeals, which are now 50 or 60, would be described by a very different figure—they would be 500 or 600; and the House of Lords felt that by their constitution they would be quite inadequate to transact business of that amount; and they felt also the unsuitableness and incongruity that a Senate like the House of Lords should be called on to decide on a point of procedure in a Court of Law, on some interlocutory motion and such like, but which, if there was only one tribunal of ultimate appeal, must all go to the House of Lords. It was therefore perfectly clear that if the Government adopted this new principle—if you had only one tribunal of appeal in this country—unless very much more compli-

  1717
  cated and different changes than those proposed in this Bill were adopted, it would be impossible that the House of Lords could grapple with the business you proposed to call on them to transact. That was the reason why the House of of Lords willingly relinquished their jurisdiction of appeal; but that jurisdiction the House of Lords, in relinquishing, were conscious they had performed in an unexceptionable manner, and one which has never been for a moment seriously impugned.
  So far as to the position of the House of Lords; but Her Majesty's Government in dealing with this question on the lines upon which they were building, and in the Bill they have consequently placed before us, dealt with it with prudence and sagacity. Their conduct was prudent, but it was inevitable. They refrained from dealing with the ultimate appeal of Ireland and Scotland to the House of Lords. I was therefore very much astonished when the other night, to my great surprise, the right hon. Gentleman opposite announced to the House that, without discussion and without debate, he was going to accede to the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie). I wish, therefore to know whether the right hon. Gentleman and the Committee have duly considered what must be the consequences of our adopting that course; because I cannot, from the Amendments which have been placed on the Table by Her Majesty's Ministers, assure myself that these consequences have been foreseen. I certainly do not find that there are any remedial arrangements proposed to prevent the ill consequences which seem inevitable. Now, Sir, the appeals which are brought up to Westminster from Ireland and Scotland are not very numerous. They are much more numerous from Scotland than from Ireland; but I suppose if I take them in the course of the year at from 30 to 40 I should not be making an inaccurate statement. Well, now, I want to know from Her Majesty's Government whether they are going to treat, or why they do not treat Ireland and Scotland in respect to the institution of this Court of Appeal on the same conditions as they did England. In England, we are told, the subject is to enjoy what, according to the results of all enlightened inquiries
  1718
  on the matter, is a great privilege—he is to enjoy in the administration of justice the privilege of being free in the decision of his issue from continued and repeated appeals; he is to have a single Appellate Tribunal. As I collect from Her Majesty's Government, that is not a privilege that is to be accorded to Scotchmen and Irishmen, and I cannot understand why. It appears to me utterly impossible that we can legislate with any prospect of arriving at a satisfactory termination if we avoid this difficulty. Suppose we agree to the suggestion which I collect from the Amendments which are to modify this 6th clause as proposed by the Government—suppose we arrive at the arrangement which the Government in the first instance recommends, what happens? The Irishman and the Scotchman alike possess Courts of Intermediate Appeal in their own countries; but they are also to have an Ultimate Court of Appeal in England. In order to effect this object we are to have Irish and Scotch Judges appointed. Well, now, with the two ex officio Irish and Scotch Judges, and two Judges appointed in a different manner, the business they would have to decide according to the average time required for Scotch and Irish appeals will probably occupy from Scotland two or three months, and from Ireland two or three weeks. You will therefore have the Irish and Scotch Judges so appointed kicking their heels about London, doing nothing, and they will be called in to decide English appeals; and what effect will that have on the constitution and character of the single Court of Appeal which you have engaged to secure for the people of England. The right hon. Gentleman has applied this Bill to Ireland and Scotland; suppose as the result of discussion the right hon. Gentleman advances in his opinions another step—suppose he abolishes the intermediate Courts of Appeal in Ireland and Scotland, and puts the three countries on exactly the same footing; then there will be ample business for both the Irish and Scotch Judges. It is possible that, as the result of discussion, he may be driven to that logical and reasonable conclusion, but in what position may we find ourselves? The Scotch and Irish appeals, which may be now 30 or 40, would become 300 or 400; you would have appeals on points of prac-

  1719
  tice, on the most insignificant subjects on interlocutory questions from Ireland and Scotland, argued here at considerable expense, which I need not dilate upon; and you would have solicitors and perhaps barristers brought from Edinburgh to discuss these matters. Can a more retrograde movement be conceived? We have now been for a century, more or less, mitigating and abolishing the centralized judicature which the Normans established in this country. The boast of this generation is the institution of County Courts. Every Session we are developing the attributes of the County Courts, increasing their power and extending their sphere, and in every way raising their influence upon the people. Now you would institute a system which would call upon the people in Ireland and Scotland, upon every insignificant subject upon which the laws of this country allow of an appeal, to travel to Westminster at an immense expense, bringing counsel, solicitors, and agents to argue these points. Do you think you can do that without creating a great mass of discontent? It is the question which at the end of the last century caused so much feeling in Ireland, when the question arose whether a writ of error in the Court of Queen's Bench in Ireland should run to the Court of Queen's Bench in Westminster, upon which Mr. Grattan made such passionate appeals to his country and created such a feeling that England was obliged to yield. You are actually on the eve of reviving the very legislation which was then so odious, and which, if you had persisted in maintaining it, might have led to serious consequences. Upon these topics we ought to have a clear intimation of the intentions of the Government. We ought not to be told that something is to be done on another occasion to complete this plan—that, no doubt, something further is intended, and will in due time be proposed. This is a system the parts of which must all hang together. If you really believe, as I am prepared to agree, that it is a high privilege gained for any subject in the administration of justice that there shall be only a single and conclusive Court of Appeal, you have no right to deprive an Irishman and a Scotchman of the same privilege. If you do not legislate in this instance with regard to Ire-
  1720
  land and Scotland the same as for England, you are leaving the Irish and the Scotch to make an inevitable demand, and that will be—Let us have only one Court of Appeal, and let us have it in Dublin for Ireland, and in Edinburgh for Scotland. That may or may not be a desirable course; but it is the inevitable consequence of the course you are now pursuing.
  We have heard a great deal lately about a sudden change of feeling in Scotland and in Ireland on this matter. It was understood at the beginning of the debates that Ireland and Scotland were perfectly content with the appeal which they now enjoy to the House of Lords; it was mentioned on the authority of the Prime Minister, who even dilated on the subject, and that was the triumphant defence which the right hon. Gentleman had against expanding the provisions of this Bill to Ireland and Scotland. Now all this has been suddenly changed; but what evidence have we of the change of feeling? It is said the Lord Advocate has held a meeting of Scotch Members. I am no great admirer of the way in which Scotch business is conducted in this House, or rather out of this House. It appears to me a somewhat strange, scarcely constitutional course that the Lord Advocate should have it in his power to call a meeting of Scotch Members upon a subject of public gravity like the present and communicate to us their opinions without our being favoured with them in debate. I entirely object to that mode of conducting Scotch business; and if it is continued, how are we to remedy our unfortunate ignorance of Scotch business and above all master the mystery of Scotch law? The Lord Advocate gives a dinner party to some Scotch Members, not more numerous than an ordinary dinner party; and then he informs us that he met some 20 Scotch Members and extracted from them the opinion that the feeling of Scotland, which for 200 years has been strongly in favour of carrying their appeals to the House of Lords, has entirely and suddenly changed. I say that evidence is not sufficient. In Dublin we have a most extraordinary meeting of lawyers who pass resolutions the result of which is that they want to keep their own Intermediary Court of Appeal, which furnishes them with plenty

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  of business, and to enjoy the privilege of having a couple of their members nominated Judges of the Court of Appeal in England. On such conditions, that they are to have a local Court of Appeal and an Imperial Court of Appeal, too, they are very much in favour of the arrangement proposed by the Government.
  We have always been led to believes that the great object of a Court of Appeal of the character we desire—recommended by all these Commissions and Committees and learned legists who have devoted themselves to the study of the subject—that the great object is to secure harmony and uniformity of decision. A Court of Appeal should steady the law, and to effect such a purpose it must consist of homogeneous elements. How are you dealing with it in this Bill in regard to attaining such objects, and especially this Bill as modified by the Amendments placed on the Table with respect to the 6th clause? Whether you retain the local intermediate Courts of Appeal in Scotland or not—and I think you will find it impossible—it will be expected, for the very reason that you have selected Scotch Judges, that they should give their minds to Scotch appeals, and that Irish Judges shall give their attention to Irish appeals. You have already decided that India Judges shall give their special attention to Indian causes, and, of course, the English Judges will attend to English causes. Thus you will have four Courts, instead of the great desideratum of a single Final Court of Appeal; and, instead of harmony and unanimity of decision and a steady law, you will have four Courts acting on different grooves, all giving, for aught I know, different decisions. What a position is this, that instead of a single Court of Appeal, consisting of first-rate men, you will have, perhaps, on the very same day different portions of it—those portions all being tribunals of equal and supreme authority—giving absolutely contradictory judgments.
  There is another point with reference to these changes which I must bring before the consideration of the Committee, that is the great importance that has always been attached—if you are to have a single Court of Appeal——to this, that that Court of Appeal should consist of first-rate men; that those who
  1722
  construct and select the Court should have the power and privilege of selecting men for their merits, and for their merits alone; and that nothing but the possession of transcendent qualities as to learning, experience, sagacity and character should sway the decision. Look at what a position you will be placed in by the new propositions of the Government on this head. There are to be two Scotch and two Irish members of this tribunal. I do not wish to make an invidious remark. Both the Bench and the Bar of these countries at present furnish men quite adequate to this position; but this has not always been the case; for there have been times when neither the Bench nor the Bar of Scotland or Ireland could furnish such men. There may have been times when you have found it very difficult, even in England, with its larger area to find adequate men. But by this new change in the Bill you are no longer to appoint only such men, because so far as four of the Judges are concerned you will select them not for excellence, but for nationality. When these four men, have transacted their special business—their Scotch and their Irish business—they will then be deciding upon English business; and, therefore, instead of securing for your Court of Appeal those only who have been appointed for excellence, it is quite possible that you may have your appeals from England decided by Scotch and Irish Judges, who have not been appointed for excellence but for nationality. I think that these are grave considerations, and ought to occupy the attention of the Government. If I could obtain from the Government an admission that they had considered these points I should be the less disheartened. But the Amendments on the Paper do not warrant me in arriving at any such conclusion. What we want is, a complete and coherent tribunal. As regards the Irish and Scotch Judges, we ought to know what the Government intends to do in respect to the Intermediary Courts of Appeal in the sister countries. If those Courts are to remain there is no necessity for appointing Irish and Scotch Judges—the Scotch appeals really occupying only 10 weeks in the Session, and the Irish appeals only about 10 days. If there is to be one sole tribunal of appeal in the country, everybody must agree that both Ireland and

  1723
  Scotland should be represented. But if those Intermediary Courts are to be retained, you will deprive the English subject of the security promised in the fact of the Prime Minister exercising an unlimited choice in the selection of Judges, and being bound by the responsibility of selecting men of transcendent ability. Instead of that to meet with a result such as I have indicated would be most unsatisfactory. I will not presume to give any advice to Her Majesty's Government, because that is always subject to misapprehension; but if I were to advise them on this occasion it would be as sincere and honest advice as was ever given in this House. Her Majesty's Government have boldly, and to their honour, dealt with a subject of great difficulty. The House has read the Bill a second time. Therefore, the House has sanctioned their policy. But the House, I am sure, cannot be insensible to the imperfect manner in which the Bill carries out that policy, and especially to the manner in which the principles of the Bill have been altered in a sort of haphazard manner without notice and without discussion. Under such circumstances, I think the Government would do well if they took some more time to consider the details, especially as they have been much modified by the enormous concession of the other night; and that when the House shall meet again the Government might give us a Bill which will not only be satisfactory to the House, but will give confidence to the people of this country.
  MR. GLADSTONE: This is the period for agreeable surprises. On Tuesday the late Lord Advocate of Scotland disclosed an idea in recommending the Government to withdraw the Appellate Clauses of this Bill. But the right hon. Gentleman opposite (Mr. Disraeli) has improved on that suggestion in recommending the withdrawal of the whole Bill. He does this in a manner that is bland and genial, and with many compliments to Her Majesty's Government as to the difficulties they have had to encounter and the courage with which they have met them. I am not convinced in the slightest degree by the reasons which the right hon. Gentleman has urged. Those reasons must be viewed in the light of day. I want to know whether the speech of the right hon. Gentleman has really left a clear and
  1724
  distinct impression on the mind of the House as to the grounds on which, at this time of day, he recommends us to stop short in the labour in which the other House of Parliament and we ourselves have been engaged. Here is a Bill which is the production in the first instance of a Royal Commission. This Bill, in a House where the influence of the right hon. Gentleman predominates, has received, as to its main parts, unanimous approval. It has now come to this House after a long discussion on the second reading, and the opinion of the House has not been challenged by those who are adverse to the Bill, and a unanimous vote has been recorded in its favour. The slender foundation upon which the right hon. Gentleman has contrived to construct the broad recommendations he makes, is the change that has been adopted in compliance with the spirit of the motion of my right hon. Friend the Member for Kilmarnock (Mr. Bouverie). Upon that point he has founded the inverted pyramid he has now presented to the House. Is the right hon. Gentleman right in thinking that it would be for the credit—I do not say of the Government, but of the House of Lords or of the House of Commons—that the resolution he proposes should be adopted? My belief is that if Her Majesty's Government, lured by the complimentary expressions of the right hon. Gentleman, and possibly influenced by the infirmities of human nature at this period of the year, were to adopt the fatal decision of abandoning this work, of which we are about to reap the fruit, we should cover ourselves with ridicule and with the deserved contempt of the country. The right hon. Gentleman has put together a number of ingenious arguments, some of which appear to me to go to the very root of the Bill. The right hon. Gentleman committed himself to this opinion—that if we abolish intermediate jurisdiction in Ireland and in Scotland the consequence of that will be that, instead of having one great Court of Appeal for the three countries, we shall be compelled, in deference to the demand of Ireland and Scotland, to have three Courts of Appeal, and that opinion was founded upon a prior argument, which was this—that as, according to the principles of this Bill, it is of great advantage to the people of this country that intermediate appeals should be abolished,

  1725
  we should not be justified in withholding that advantage from the people of Ireland and Scotland. If the argument of the right hon. Gentleman be sound, I venture to say we shall not be more fit next year or in any coming Session to deal with the question of a Tribunal of Final Appeal, and a great deal of time has been wasted, and we had better have left things alone. The right hon. Gentleman was rather severe upon the subject. He contemplates the arrival of periods when it will be necessary for the Prime Minister of the day to fill up the vacancies in the Courts of Appeal with inferior men from Ireland and Scotland. This doctrine as to the inferiority of Irishmen and Scotchmen is an awkward doctrine. The right hon. Gentleman is at the head of a party constructed of Members belonging to the three nations respectively. I do not understand what experience has led him to lay down this despairing doctrine. Is it in the choice of the Lord Advocates of his Government that the right hon. Gentleman feels himself entitled to anticipate those unfortunate results? I wish I could offer some consolation to the right hon. Gentleman. It appears to me that his Lord Advocates, including the last one, have been abler and more learned men than the right hon. Gentleman thinks. I see no signs of hopeless and incurable inequality of intellect as regards the Scotch Judges. Nay, more; we have had the idea that the Scotch, besides having a sufficiency of intellect for themselves, were what may be called an exporting nation, used to provide a certain amount of intellect, over and above what the home market required, for the use of their neighbours in the South and elsewhere. I will not push the argument so far as to wound the feelings of Englishmen; but I think I am justified in putting aside so much of the argument of the right hon. Gentleman as depends upon his unhappy anticipation as to the difficulty of finding competent men in Ireland and Scotland to bring into the Court of Appeal. On the contrary, my hope is that a little free trade and free contact between Irish and English Judges, and still more between Irish and English and Scotch Judges, with the new views and lights of law which will come to us here from a legal system so different from our own as that of Scotland, will be highly beneficial to
  1726
  all three. My pulse, therefore, is not lowered, my anticipations are not darkened. I take rather a cheerful than a gloomy view of this portion of the subject. But then the right hon. Gentleman objects to a declaration of opinion by the Scotch Members. He says it is highly unconstitutional that the opinion of Scotch Members should be gathered by the Lord Advocate at a meeting of the size of an average dinner party. Now, the size of an average dinner party is a small matter; but the hospitality of the right hon. Gentleman must be boundless if he looks upon a meeting of some five-and-thirty Members in this light. If that be the size of the average dinner party which is to govern our domestic arrangements, some of us must provide additional length and breadth in our dining rooms. But the right hon. Gentleman objects on principle to this collection of Scotch Members and seems to think it a bad thing. I will not enter into any general argument upon the question of consultations between Members connected with particular interests or districts; but I think it is a good thing, and that the management of Scotch business in this Parliament, so far from being open to adverse criticism, is an example which we should be glad to follow and extend as far as we can do so. I fear it is not practicable to extend it greatly; but having had some cognizance of the effect of this custom upon the despatch of Scotch business in this House, I differ from the right hon. Gentleman, and think the practice not a bad, but a good one. I am astonished, however, that if the right hon. Gentleman is right in thinking it a bad thing, it should have been the constant habit of his Government to hold these meetings. I am told that my right hon. and learned Friend the Lord Advocate has held but few of these meetings, and is regarded by some Scotch Members as being on that account a degenerate successor of the late Lord Advocate.
  MR. GORDON: I am not aware that when I was Lord Advocate I held any such meeting, except in one case, when I was not in Parliament, and the Scotch Members were called together to receive an explanation of the provisions of the Public Health Bill.
  MR. GLADSTONE: That explananation reveals, I must say, a rather unconstitutional act. That the Lord Ad-

  1727
  vocate, being a Member of the House of Commons, should invite some brother Members to consider a certain subject seems to me quite justifiable; but that the Lord Advocate, being a servant of the Crown and no Member of Parliament at all, should convene such meeting is an extension of a usual and established practice as to which I had rather reserve my judgment. But I am told that when it was not convenient for the Lord Advocate to call the Scotch Members together they were called by another person. The objection of the right hon. Gentleman is that they should be called by the Lord Advocate. Apparently he is not a personage of sufficient dignity for that purpose; but I am informed that during the existence of the late Government when the Scotch Members were not summoned by the Lord Advocate, they were called together by a Lord of the Treasury. These points were only the wadding or the padding of the right hon. Gentleman's speech, and I may pass from them with rapidity. He has made one or two other points, of which I hope I can dispose without possessing special or professional knowledge. The right hon. Gentleman is afraid that the Appellate Court by meeting in two Divisions will be in danger of coming to opposite decisions, so that there will be a conflict of law within the bosom of the Court itself. Here, again, I make this comment upon his argument—that if one Court of Appeal be constituted for the three kingdoms, it will still not be possible that all its members should act together upon precisely the same business. The right hon. Gentleman, therefore, proves too much; but if I am correctly informed his apprehension is entirely groundless. He fears that the Divisions of the Court of Appeal will proceed in culpable disregard—at any rate, in occasional disregard—of the judgments of one another, thereby insuring a conflict of decisions. But the difficulty raised is one of which we may say—solvitur ambulando. We have in Scotland a case exactly in point. The judicial body in Scotland is divided into two Houses for the purposes of appeal, and appeals are made from the decision of a single Judge to one or the other of these Houses. When, however, there is the slightest apprehension that variance will be the result of sole action, the two Houses are in the habit of meet-
  1728
  ing together; and the 50th clause of the Bill enables the Divisional Court of Appeal, under like circumstances, to enlarge itself and include a greater number of Judges. It will thus be in the power of the Court of Appeal to make perfect provision for unity of decision. Then the right hon. Gentleman also fears that the Court of Appeal will be overwhelmed with the multitude of appeals from the County Courts; but the Bill contains no proposal on that head.
  MR. DISRAELI: The right hon. Gentleman is mistaken. What I wished to show the Committee was that if we abolished intermediary tribunals in Scotland and Ireland, and forced suitors to come to Westminster in order to appeal in comparatively insignificant cases, we should be reviving the Norman system of centralization.
  MR. GLADSTONE: I quite apprehend the argument of the right hon. Gentleman, and it is one which must be weighed and examined when we come to consider the question whether intermediary appeals shall be abolished in Scotland and Ireland. But on this point I think there is a double error in the speech of the right hon. Gentleman. First he assumes that it is necessary to proceed now with regard to these intermediary appeals. I do not admit the necessity. It is perfectly possible to make the requisite provisions with regard to the Court of Appeal before considering the question whether we shall or shall not abolish the power of intermediate appeal in Ireland and Scotland. But it is quite obvious, also, that the question of intermediate appeal is not the same in the three countries, and for the very reason which the right hon. Gentleman has urged—namely, that we should prefer the local, where we can do so, to the central principle, and because while it might be perfectly right to abolish intermediate appeals in London, it might not be expedient to do so in Dublin or Edinburgh. I do not know whether the Lord Advocate would be prepared to give a positive opinion as to intermediate appeals in Scotland; but I think he would hesitate to affirm at this moment the absolute necessity of abolishing intermediate appeals there—[The LORD ADVOCATE: Hear, hear.];—and I am told that is the opinion at which the Irish Bar has arrived.
  MR. DISRAELI: It is a very natural opinion for the Bar to form, and I quoted it.
  MR. GLADSTONE: It also appears to be a decision sound in principle; that is to say, we must keep the administration of justice local as far as we can do so, subject to the further principle that there must be perfect unity in the matter of appeals. In truth, therefore, the question is very simple. If the right hon. Gentleman thinks, as he is entitled to think, that we are wrong in endeavouring to extend the scope of this Bill so as to include Scotch and Irish Appeals, he will have, in consequence of the mode of procedure we propose, the most convenient opportunity of raising that question; because nothing done in the Committee will in the slightest degree commit the right hon. Gentleman, who will be free to exercise his judgment on the partial re-committal of the Bill which we mean to propose. If, on the other hand, as we believe, it is perfectly practicable to introduce those limited changes into the Bill which this extension will require, there is no reason for refusing to go forward with the Bill as it stands, the House being in full possession of the intentions of the Government. In saying that the House is in full possession of the intentions of the Government, I must point out an unfortunate error in a single word of the printed Amendment to be proposed upon re-committal. On a former occasion I intimated that we were engaged in considering whether it would, in our judgment, be necessary to ask the House to give us the power of adding one more Judgeship to the Court of Appeal, thereby increasing the number of other persons to be appointed from three to four. Upon consideration we have come to the conclusion that it is not necessary to ask for such an addition. If, however, upon more careful consideration during the Recess we find it necessary to ask the House for additional judicial strength, it will be our duty to make that demand without fear that the House will decline to meet it. Under these circumstances, the last line of one of the pages of Amendments should read, "such other persons not exceeding three," instead of four, as printed, "as Her Majesty by letters patent may be pleased to appoint." The assumption of the right hon. Gentleman was that
  1730
  the Court of Appeal would be overburdened with business in consequence of the abolition of the intermediate system in Dublin and Edinburgh. My answer to that is perfectly distinct. First, I do not know it does follow that there would be a very large addition, for I am told that the Appeal business in Scotland is not very large; but whether that be so or not, is a matter which we shall be able to consider with far greater advantage when we come to deal with this intermediate jurisdiction. Meanwhile, the provisions now before us are enough to enable us to constitute the High Court of Judicature in a satisfactory manner as a Court of First Instance for England alone, and as a Court of Appeal for the three kingdoms.
  MR. GREGORYthought that the Government had done right in adopting the proposition of the right hon. Gentleman (Mr. Bouverie); but it necessarily led to a re-consideration of the constitution of the Court of Appeal. He (Mr. Gregory) would admit there were great anomalies in the constitution of the House of Lords as a Court of Appeal; but he thought its jurisdiction might have been preserved if the Chief Justices and other eminent lawyers had been associated with the Law Lords. As, however, the Lords themselves had not thought fit to adopt such a course, this House could only accept the Bill in the shape in which it had been sent down by them. The question resolved itself into one of the Court as now proposed. It was quite evident that we must preserve the intermediate Courts of Appeal in Scotland and Ireland, whereas they were to be abolished in this country, and surely this would be a great anomaly. How would it be possible to work the Court of Appeal as constituted by this Bill? There were to be nine ordinary and certain ex officio Judges, but he doubted whether the latter could be relied upon to attend the sittings of the Court, particularly as some of them were to be taken from Scotland and Ireland. Some, again, would have to preside over the Divisional Courts, and consequently could not be relied upon to sit in the Court of Appeal. All therefore that they could calculate upon were the nine ordinary Judges. These nine Judges were empowered to subdivide themselves into Divisions of not fewer than

  1731
  three each. Now, it appeared from a Return before the House that the number of appeals to the Lord Chancellor and the Lords Justices in one year were 215, to the Exchequer Chamber 107. Adding to these 25 Scotch and 10 Irish Appeals, they had a total of 357 in the course of the year, which would have to be disposed of by the three Divisions he had just referred to. Now, four of the Judges were taken from the Privy Council for the purpose of forming the Divisions, and how, in their absence, would the business of the Privy Council, which was sufficient to occupy them all the year round, be carried on? Indeed, he was not sure that the Indian business of the Privy Council, relating to Mahomedan law, was not of itself sufficient to occupy the time of one of the Divisions, independently of the ordinary Appeals from the Colonies. He felt convinced that unless there was an intermediate Court appointed to consider and adjudicate upon minor matters the appellate scheme proposed in the Bill would not work in a satisfactory manner. He hoped that in this respect the Government would modify their Bill.
  MR. MACFIEsaid, in reference to the transferring the jurisdiction of the House of Lords in Scotch appeals to the new Appellate Court, he had put himself in communication with his constituents, and in order to get a guide to their views, he had distributed about 30 copies of the Bill; but up to that hour he had not been able to get any reply to his question, and he was not likely to obtain their views for some few days, because it was only that morning that the Amendment which brought Scotland within the scope of the Bill had been put upon the Paper, and it would be next week before his fellow-countrymen in Scotland would have an opportunity of considering the subject. Taking those circumstances into consideration, he submitted it would be well to confine the Bill to England, and in the intermediate months that would elapse between the present discussion and the next Session, let the question be well ventilated and discussed, and canvassed in Scotland, and then no doubt a very sound and tangible conclusion would be arrived at. He thought that the Government might be content with the exaltation which would accrue to them from the glory of having settled this
  1732
  question so far as England was concerned. By the adoption of the course which he proposed, they would be enabled to go to the country some weeks earlier, which would be a very great comfort to them all. He implored Her Majesty's Government to adopt that alternative. He was sorry to say that, in his opinion, there prevailed on this subject in Scotland the most complete ignorance—an ignorance so great as to entirely mislead. That morning there reached him from the capital of Scotland one of those liberal and popular papers, The Daily Review, and in that paper was a leading article which he would read if it were not against the rule of the House, but as it was he would content himself with describing it. The scope of that article was that with respect to the present state of the appellate jurisdiction of the House of Lords, as regarded Scotch appeals, not only was it not unsatisfactory, but that it ought to be maintained, and that his right hon. Friend the Member for Kilmarnock (Mr. Bouverie) had rendered Scotland infinite service by helping to maintain it. Therefore, not only was it that the people of Scotland were ignorant of the provisions of the Bill, but they misunderstood altogether what it was that Her Majesty's Government aimed at. Now, that was one reason why he thought that it would be better that this part of the Bill should be postponed. He did not think the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) was altogether wrong when he said that substantially Scotland was to be put on a different footing from England. It would in reality, he contended, be an appeal from the Supreme Scotch Court to an English Court, and the result would be injurious, as the people would consider that justice would not be done. By the plan proposed the rich would have an undue advantage over the poor. If the Bill was passed through the House without the knowledge of the people of Scotland, and transferred the discussion of appeals from the House of Lords to this Appellate Tribunal, the Scotch people would most indubitably charge the Scotch Members with having forgotten or having become a party to a breach of the Treaty of Union in submitting to review the discussion of a Court in Scotland to a Court in England ejusdem generis, and in point of fact in

  1733
  over-riding the judgment of a superior by that of an inferior Court, and thus interfering with the proper flow of justice. He was content with the decisions of the Courts of Session, and thought that if high salaries were given to the Judges there would be very few cases of appeal.
  MR. AMPHLETTsaid, the Government had come to a wise conclusion in yielding to the general wish of the House that appeals from Scotland and Ireland should come to the highest Appellate Court. He had hoped that when the appellate jurisdiction of the House of Lords was abolished one great Court of Appeal, comprising men of the highest legal reputation in the country, would have been established. He agreed with the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) in thinking that great inconvenience and conflict of decisions would arise from having the Supreme Court of Appeal sitting in Divisions, and thus constituting two or more ultimate Courts of Appeal, each of whose decisions should be final. The right hon. Gentleman at the head of the Government had urged that in Scotland there was a precedent for a Court of Ultimate Appeal sitting in Divisions without causing inconvenience; but he seemed to forget that there was in the case of Scotland a further and final appeal to the House of Lords. What he intended to propose in another part of the Bill was that there should be an Appeal Court of five or seven Judges, whose decisions should be final, but also that interlocutory and other matters of that kind should be heard by a Division consisting of three Judges, whose decisions should only be final if they approved the judgment of the Court below. If the interlocutory matters, and all the cases in which there was an agreement between the Divisional Court and the Court below were taken from the Court of Appeal, the residue of the business would be quite manageable, and the Court would be more likely to give a greater amount of satisfaction to the country than it would if divided into sections.
  THE SOLICITOR GENERALsaid, that the Government were not at all wedded to the number three, and aware as he was that the suggestions of the hon. and learned Member (Mr. Amphlett) were always made for the purpose of
  1734
  advancing measures, when the House came to discuss the clause for the number of the presiding Judges, the Government would consider the proposal very carefully. With respect to the question of "Divisions," the difficulties were obvious. The right hon. Member for Buckinghamshire (Mr. Disraeli) had pointed them out; but the fact was they could not get through the appeals without Divisions. As to conflicts arising between those Divisions, there was no reason to be apprehensive on the point. We had at present no theoretical security against conflicts between the two ultimate Courts of Appeal—the Privy Council and the House of Lords—and therefore the difficulty which the right hon. Gentleman pointed out might occur at present. But the answer to his objection was that it never did occur. The fact was the Court which was the stronger prevailed, so that conflict between the Courts was imaginary and not real. If the Judicial Committee were constituted as it was at the time when Lord Kingsdown lent his eminent services to it the House of Lords would pause a long time before deciding a case otherwise than in accordance with the previous decision of the Privy Council. If, on the other hand, the House of Lords was strongly constituted, the House of Lords would prevail. He was very much in favour of a practice followed with great success by the Court of Cassation in Paris and the Court of Appeal in Scotland, and that was, that when any difference of opinion occurred between the Judges to call in the other Judges to consider it. Now, that course could be adopted in the case of a subdivision of the proposed Court of Appeal under the Bill; for in cases where a difference of opinion existed in one, the other could be called in to assist in the consideration of the point. In that way a satisfactory conclusion would at once be arrived at. In his opinion, it was very doubtful whether two Divisions would be sufficient to get through the business; but at present the Judicial Committee of the Privy Council was rapidly getting rid of its arrears, and so might have more time than they required for the disposal of cases coming from India and the Colonies. It was the same with the arrears in the House of Lords, so that he and his hon. and learned Friend the Attorney General were in

  1735
  hopes that a subdivision of the Court into two branches would be generally enough. The appeals from India oftentimes involved not only English but Hindoo and Mahomedan law; and those from the Colonies not only Common Law and Equity, but French, Roman, and Dutch law. He believed himself it would be desirable to send a Scotch Judge sometimes into the Colonial Division, where questions arising out of laws founded on Roman law sometimes arose, as Scotch law was in a great measure founded upon the principles of Roman law. In his opinion, if there were one Division of the Court of Appeal for cases of Equity and another for those of Common Law no conflict could occur between them. He thought he had shown that it was perfectly practicable to accomplish what they all desired—a substantially numerous, and satisfactorily constituted Appellate Court. With regard to the question of intermediate Courts in Scotland and Ireland, they had only a choice of difficulties. If they abolished Scotch and Irish intermediate Courts of Appeal, Scotch and Irish suitors would be compelled to come to London to obtain justice, which in cases of urgency—injunctions for instance—would amount to a denial of justice; while, on the other hand, if intermediate Courts of Appeal were kept up, there would be the expense of a double appeal, from which England was free. He thought the Government had adopted the lesser evil by allowing for the present the intermediate Courts to remain. But that was open to re-consideration when the judicature of Scotland and Ireland should be dealt with in a future Session.
  MR. BOURKEsaid, in reference to what had fallen from the hon. and learned Solicitor General as to no conflict having arisen between the Judicial Committee of the Privy Council and the House of Lords, that the Privy Council always held itself bound by the decisions of the House of Lords.
  THE SOLICITOR GENERAL: That is not so. In the last case I was in before them they said they were not bound by any decision of the House of Lords.
  MR. BOURKEsaid, the hon. and learned Gentleman must of course be right in the particular case to which he had alluded; but it was undoubtedly the law and practice of the Privy Coun-
  1736
  cil to hold themselves bound by the decision of the House of Lords. With regard to intermediate Courts of Appeal, it had often been said that this Bill was founded upon the recommendations of the Judicature Commission; but the Report of the Commission showed that they merely contemplated this great Court of Appeal as an intermediate Court, and that in certain cases a final appeal should be open to the House of Lords. Now with respect to the Lord Advocate of Scotland, he confessed he was surprised to find him in favour of this Bill, because in his evidence given last Session before a Committee his views were entirely opposed to it.
  MR. OSBORNE MORGANsaid, he heard with surprise the suggestion thrown out by the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) when he recommended the Government to withdraw the Bill, and bring in another next year, more maturely considered. But where would the Government be next year? Where would any of those now present be? One thing was perfectly certain—if they dropped the Bill this year they would never have it again, and if they went on at the present rate of progress they would have to sit there till Christmas. He would suggest that the Committee should at once dispose of the Motion, and address itself to the consideration of the clauses of the Bill.
  MR. WHALLEYasked the Lord Advocate whether he still held the views which he expressed before the Committee of the House of Lords last Session in favour of the appellate jurisdiction of the Upper House?
  THE LORD ADVOCATEsaid, he had read the Report of the evidence which he gave before the Committee of the House of Lords last Session, he thought for the first time, not many days ago, and no doubt the views which he there found expressed were those he entertained at the time, and he had no hesitation whatever in informing the hon. Member for Peterborough (Mr. Whalley) that they quite tallied with and represented the opinions that he entertained now. He had not in any respect changed his opinions. If the question was as to maintaining the appellate jurisdiction of the House of Lords for the three kingdoms, he, speaking his own sentiments, and chiefly from a Scotch point of view,

  1737
  repeated the opinion which he expressed before the Committee of the House of Lords. But it must be manifest that the question to which he was now referring was not that which they had to consider there. The House of Lords by passing this Bill had determined so far as they were concerned that their House should no longer remain a Court of Appeal for the three kingdoms. They had resolved that they should no longer exercise appellate jurisdiction with reference to this country of England. It had been announced to them on authorities which he did not for a moment think of questioning, that the opinion of the Irish Bench and Irish Bar, and, so far as could be ascertained, the opinion of the people of Ireland, was, that if the House of Lords should cease to exercise appellate jurisdiction with reference to England, it was no longer desirable that appeals from Ireland should be sent to that House. Now, considering the matter had thus so entirely changed, the confessed that, for his own part, he was of opinion—and he thought that opinion was entirely consistent with what he said before the Committee of the House of Lords—that it was not desirable to retain the appellate jurisdiction of the House of Lords for Scotland only. There were many reasons which might be assigned for the change of opinion, or rather, he should say, for the different conclusions one arrived at, in consequence of the very material change in the circumstances. In the first place, it was very manifest that if they withdrew the appellate jurisdiction of the House of Lords with reference to England, they altered the character of the House in its judicial capacity very materially indeed, not only in the estimate of the country—although that was a great deal—but in truth and in reality. In the second place, it had always appeared to him to be of very great importance that they should have one Imperial Court of Appeal, to entertain in the last resort causes not from Scotland alone, which would be the case if English and Irish appeals were withdrawn from the House of Lords—not for Ireland alone, not for Scotland and Ireland together; not for England alone; but an Imperial Court exercising the supreme jurisdiction in the last resort for the three kingdoms and the colonies.
  DR. BALLsaid, the difficulties found in constituting the new Court went far to support the wisdom of the view originally entertained by the Lord Advocate. If we had retained the House of Lords as the ultimate tribunal of appeal—which he believed the Irish legal Members wished to do—these difficulties would not have arisen. For his own part, he would never abandon the opinion he had expressed from the commencement, that the Appellate Tribunal would have been most efficiently re-constituted by a re-construction and reformation of the Lords themselves as a final Court of Appeal.
  MR. GORDONsaid, it was not always that the Lord Advocate and he concurred in the same views; but they certainly did concur last year in holding that the very best Appellate Court for Scotland would be the House of Lords. He quite admitted that the right hon. and learned Gentleman was entitled to say that the circumstances had been changed, and that he might now come to a different conclusion. But, at the same time, he (Mr. Gordon) ventured still to think that it was desirable to retain the House of Lords as the ultimate appellate jurisdiction for the three kingdoms, and he did not give up the hope that the Committee might yet come to that conclusion. It was admitted that the question of the appellate jurisdiction as constituted, or intended to be constituted, under this Bill, was attended with very great difficulties indeed, and it was certainly from no unwillingness that this measure should pass that he threw out the suggestion that it would be well to excise from this Bill all the different clauses which related to the appellate jurisdiction, leaving that matter for further consideration; because, so far as regarded Scotland, for instance, it was only that day that the proposed changes had been placed upon the Notice Paper. Speaking as a Scotchman, he still entertained the opinion he expressed in 1872. He did not know what was the opinion of the profession of which he had the honour to be a representative, nor did he know the opinion of the Bench with reference to the proposed change, and he would not press the point further, because he understood that these changes would not be moved in this Committee, and that the Bill would afterwards be re-committed for that purpose. If there was one prin-

  1739
  ciple more dangerous than another in the constitution of a Court of Appeal, it was to have three or two concurrent Courts of Appeal sitting, which might lead to different decisions. His hon. and learned Friend the Solicitor General said they should have a sufficiently numerous Court of Appeal. But the greater the number the greater weight it gave to his objection. What he objected to was that the body being so numerous they could not expect it to be a select body. A great advantage in the House of Lords was that they got the highest legal intellects sitting there as a Court of ultimate resort. Another great advantage was that they had not only the highest intellect sitting on the judicial Bench, but they had also the highest legal and forensic ability applied to the arguments submitted to that Bench. He ventured to say that it was an advantage to have the highest forensic opinion addressed to the pleading of a case, and that it was better it should be removed out of the groove into which too often the junior members of the Bar—those who did not occupy the highest position—were apt to lead it. Because, observe what was now proposed to be done. They were obliged to have a numerous Court of Appeal—18 Judges or more. For what purpose? In order to dispose of some 300 or 400 appeals. The Judges would therefore be employed in the adjudication of points which would not be of great legal importance; whereas in the case of an ultimate appeal to the House of Lords, the appeal related only to a limited number of cases—limited as regarded generally the importance of the interest at stake, or with reference to the general interests involved in the point of law which came before the Court. It was of importance not only to the individual concerned that they should have but one Court of final decision; but it was of importance to the law, and if it was important to the law, it must be of importance to the litigants. Therefore, he ventured to think that the Government was not adopting a right course in making what were now called those intermediate appeals final appeals, and thereby shutting out the final decision of the supreme appeal Court, which had hitherto discharged its duties with satisfaction.
  MR. VERNON HARCOURTsaid, the Committee were now discussing what was discussed on the second reading—namely, the propriety of abolishing the appellate jurisdiction of the House of Lords. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), who often gave the House new reasons, had given that night this as a new reason for the abolition of the appellate jurisdiction of the House of Lords—that as intermediate appeals were to be abolished the number of appeals to the Appellate Tribunal would thereby be greatly increased and the House of Lords could not undertake to deal with that increase of Appeals. As the Committee had agreed that in the case of England the House of Lords' jurisdiction should be transferred to a new Tribunal, and it was agreed that that new Tribunal should also deal with appeals from Ireland and Scotland, it was idle now to ask for the postponement of the Bill in order that the question about Scotch appeals might be further considered.
  MR. WHALLEYappealed to the Government to yield to the arguments which had been advanced in favour of postponing the clause so as to give time, even if it were until next Session of Parliament, for calm and careful consideration of a subject which contemplated such important changes in the present system of administering justice.
  MR. SPENCER WALPOLEsaid, he would withdraw his Motion for the postponement of the clause.
  Motion, by leave, withdrawn.
  MR. BOURKEmoved, in page 3, line 5, to leave out "five ex officio Judges thereof, and also." He did so upon the authority of Lord Campbell, who had said it was wholly incompatible with the duties of the Chiefs of the various Courts to render any assistance in hearing appeals
  THE ATTORNEY GENERALopposed the Amendment, and said, with respect to one of those Judges—the Lord Chancellor—it would be impossible to strike him out as one of the ex officio Judges, he having been always accustomed to hear appeals. [Mr. BOURKE: Then I except the Lord Chancellor.] He (the Attorney General) did not understand why the heads of thevarious Courts should not sit in the Court of Appeal

  1741
  when they had the opportunity of doing so. Almost invariably one of the Chiefs presided in the Court of Exchequer Chamber, and the present Lord Chief Baron attended occasionally in the Privy Council and had this week been present at the sittings of the House of Lords. These distinguished functionaries ought certainly not to be extruded by statute from the Appeal Court, to which, when they could attend it, they would contribute both dignity and weight. He hoped the hon. Member would not press his Amendment.
  MR. STAVELEY HILLsupported the Amendment. The argument that the Chiefs sit in the Exchequer Chamber did not apply in this case. The constitution of the Exchequer Chamber was the Judges of two Courts sitting on the judgments of the third Court. It was necessary in that case that the judicial strength should be as great as possible. Without mentioning personal instances, or the present Chiefs, it was well known that the heads of the respective Courts, though quite able to keep their own Courts in order, were often selected for political quite as much as for legal eminence, and were not the best fitted to serve in the Court of Appeal. It was also better to keep that Court distinct from the Court below, so that a case on appeal might be res integra presented to new minds.
  MR. OSBORNE MORGANsaid, he could not concur with the hon. Member who had moved the Amendment, nor with the hon. and learned Member who supported it. In his opinion, the Chief Judges of the Common Law Courts, and the Judges of the Equity Courts named in the Bill, would be a great source of strength to the High Court of Appeal.
  DR. BALL,while appealing to his hon. and learned Friend (Mr. Bourke) to withdraw the Amendment, expressed great doubt in regard to the attendance of these ex officio Judges, and hoped the hon. and learned Attorney General might see fit to strengthen that part of the Appeal Court which was composed of the Ordinary Judges.
  MR. BOURKE,yielding to the reasons given against his proposal, said, he would not put the Committee to the trouble of dividing, and, with the permission of the Committee he would withdraw his Amendment.
  Amendment, by leave, withdrawn.
  MR. RAIKESsaid, he had an Amendment upon the Paper in reference to the number of the Judges which it was proposed should constitute the High Court of Appeal; but as his hon. and learned Friend (Mr. Matthews) had a similar Amendment, he would give way to him, and would not press his own Amendment on the consideration of the Committee.
  MR. MATTHEWSmoved, in page 3, line 6, to leave out "nine," and insert "six" Judges, of whom to constitute the High Court of Appeal. What was wanted was a Court sufficiently numerous to sit in two Divisions, and not too numerous to sit as one Court. He was not committed to any particular number, but thought that nine, as fixed in the Bill, was too many. Further, he could not see any advantage or strength to be gained by selecting paid members of the Judicial Committee of the Privy Council to form part of the Judicial Bench of the High Court of Appeal. Did the Government think it would be satisfactory to the country to take away the ex-Indian Judges, who thoroughly understood the difficulties of Indian law, to act as Judges in the High Court of Appeal? He deprecated the addition of four paid members of the Judicial Committee of Privy Council to the Appellate Tribunal. An effect of such appointments would be to lower the salaries of the other Judges. What they wanted was to get Equity and Common Law Judges in the composition of the tribunal.
  Amendment negatived.
  MR. MATTHEWSmoved, in line 12, after "Chancery," to leave out to "1871" in line 14, the object being to exclude the salaried Judges of the Judicial Committee of the Privy Council from being members of the new Court of Appeal.
  Amendment proposed, in page 3, line 12, to leave out from the words "the existing Judges," to "1871,"in line 14.—(Mr. Matthews.)
  Question put, "That the words proposed to be left out stand part of the Clause."
  The Committee divided:—Ayes 62; Noes 12: Majority 50.
  MR. OSBORNE MORGANsaid, he had given Notice of an Amendment which he did not mean to press; but he must express his deep disappointment at

  1743
  the course pursued by the Government in regard to the Equity element in the new Appellate Tribunal and in the Court of First Instance, and also his belief that their niggardly and penurious mode of starting a great scheme would cause it very soon to break down.
  THE SOLICITOR GENERAL(for the ATTORNEY GENERAL) moved in page 3, line 14, to leave out from after "three" and insert
  "other persons as Her Majesty may be pleased to appoint by letters patent, such appointment may be made either before or after the time appointed for the commencement of this Act, but if made before shall take effect at the commencement of this Act."
  Amendment agreed to.
  MR. MATTHEWSmoved the omission of the words from line 21 to 35 enabling the Queen to appoint as additional Judges of the Court of Appeal persons qualified by statute to be members of the Judicial Committee of the Privy Council, or who having acted in Scotland as Lord Justice General or Lord Justice Clerk, or in Ireland as Lord Chancellor or Lord Justice of Appeal, should signify their willingness to serve.
  THE SOLICITOR GENERALopposed the Amendment. There were, no doubt, Judges in Scotland and Ireland who would follow the example of a very distinguished ex-Lord Chancellor of Ireland—Sir Joseph Napier—who constantly served as a member of the Privy Council.
  MR. GORDONregarded the terms upon which the English and Irish Judges were empowered to give their gratuitous services in the Court of Appeal—namely, that they should not thereby prejudice their right to receive a pension as being one of the coolest conditions ever inserted in a Bill.
  Amendment negatived.
  THE SOLICITOR GENERALproposed the addition to the clause of the following words—
  "Every such additional Judge who shall have been a Lord Chancellor hereafter for the first time appointed to that office, shall be deemed to have undertaken the duty to serve as such additional Judge until he shall have served as Judge for the period of fifteen years in the whole in all or any of the following offices (that is to say): Lord Chancellor, a Judge of any of the Courts of Chancery, Queen's Bench, Common Pleas, Exchequer, Probate, High Court of Justice or Court of Appeal."
  1744
  The object of the Amendment was to place future Lord Chancellors on the same footing in respect of pension as the Common Law Judges. This was important, as, if a time arrived when changes of Ministry were frequent, they might have several comparatively young ex-Lord Chancellors, and under the Bill as he sought to amend it, the country would not lose the benefit of their services. He trusted that this Amendment would receive the favourable consideration of the Committee.
  MR. JAMESconfessed he did not understand the Amendment. He presumed, in the first place, that no present or ex-Lord Chancellor would be affected by it. [The SOLICITOR GENERAL assented.] He agreed with the principle that a Lord Chancellor, who was usually appointed for only a short time, ought to give his services to the country; but the clause seemed to be hastily drawn. "Until" seemed to refer to the future; but ought it not to read "unless he shall have served?"
  THE SOLICITOR GENERALsaid, he was quite willing that the words should be "unless and until." If any other words could be suggested on the Report he should be quite ready to consider them.
  SIR RICHARD BAGGALLAYtrusted that the Committee would not adopt an Amendment which would put an indignity upon the person called upon to fill one of the highest—if not the highest—office in the State. The effect of this Amendment and a subsequent clause would be to make it imperative upon every Lord Chancellor to bind himself when he went out of office to serve as a junior Judge in the Court of Appeal, over which he formerly presided, until he had made up the period of 15 years, or else to forfeit his pension. Now, the position of Lord Chancellor was very different from that of an ordinary Judge, and the effect of the Amendment would be that it would be no longer sought after, as hitherto, by men of the highest eminence at the Bar.
  MR. HENLEYasked whether there ought not to be some limit as to age. A Lord Chancellor might be appointed at 65, and was he to undertake to act as Judge of Appeal until he was 80? He doubted whether that would be a wise provision, because he could answer for it that people "wore out." ["No!"]

  1745
  There ought to be some age at which a man might retire from a duty for which he was incompetent.
  THE SOLICITOR GENERALsaid, it had not been the practice in England to fix any age at which the Judge should retire. They performed their duties until they were disabled by infirmity. In the case put by the right hon. Gentleman the obligation would be upon the Judge to complete his term of 15 years unless he was prevented from sitting by "any reasonable impediment." If he were 80 years of age and his powers were failing, that would be a "reasonable impediment."
  MR. CAWLEYobserved, that as long as the Lord Chancellor was a political officer there was a marked difference between him and the other officers. He thought that the present proposal would be an indignity to the Lord Chancellor, and prevent the best men seeking that office.
  MR. JAMEStrusted that the Solicitor General would postpone the consideration of the Amendment.
  MR. HINDE PALMERdid not think it was desirable to make a bargain with a high officer like the Lord Chancellor; but he thought they should rather trust to his good feeling to voluntarily undertake the duties. He thought the suggestion to postpone the Amendment until Clause A. was reached was a valuable one.
  THE ATTORNEY GENERALsaid, that at present £5,000 a-year was granted to a Lord Chancellor on his retirement from office without any contract being made between him and the country. Therefore, there was no use in speaking of enforcing a contract where no contract existed. But it should be remembered that a Lord Chancellor was often appointed in the prime of life, and what the Government wished was that it should become a matter of positive obligation that upon his retirement from office he should give the country the benefit of his, perhaps, very valuable services. If therefore the Bill passed in its present shape, it would become a matter of contract that a Lord Chancellor, on his retirement, should serve on the Court of Appeal, and he did not see that there was any indignity whatever, or anything hurtful to the feelings of any eminent person in such a proposal.
  MR. DISRAELIsaid, he thought the hon. and learned Gentleman had misunderstood the point before the Committee. The argument was not as to the feelings of certain eminent persons; what the Committee had to consider was the interest of the country. He (Mr. Disraeli) thought that it was not for the interest of the country that such an arrangement as the hon. and learned Gentleman described should take place. We called upon a man who was making a very largo income at his profession to renounce it and take office, with all its responsibilities. That office might not last long, and he would have to calculate in what position he would find himself at the close of that career. Now, £5,000 a-year was not an extravagant estimate of what such a man was entitled to, or what he would have to lose by accepting office. If the State made hard bargains, men of commanding ability would refuse to take office, and it would have to be offered to men of secondary capacity, who would eagerly accept it. Before the Act introduced by Lord Brougham, Lord Chancellors on their retirement had £4,000 a-year, without any restriction or condition whatever, and when Lord Brougham increased the pension there was really no condition laid down, though in introducing the Bill he gave utterance to some vague and indefinite observations. What they ought to do was to give a Lord Chancellor retiring upon a pension the right if he chose to become a member of this Court; but to make his pension dependent upon his future services would be a most unwise step. There might be physical, mental, or moral circumstances which would make it undesirable that a person leaving a high political office should enter at all into professional service, and this proposition would make it a matter of necessity. He hoped the Committee would not sanction the Amendment.
  MR. JAMESsaid, that the argument of the right hon. Gentleman furnished a strong reason for postponing the consideration of the present subject.
  MR. GLADSTONEsaid, he thought it would be convenient to postpone this discussion till they came to Clause A, when the whole subject might be considered on its merits. The right hon. Gentleman (Mr. Disraeli) seemed to think that every retiring Chancellor if he had served a day in the office was entitled

  1747
  to receive a pension of £5,000 a-year, without the obligation to perform any other judicial duty; and that at the time when they proposed to strip the House of Lords of all judicial duties. He entertained a very different opinion, and would contend that it was desirable to apply to Lord Chancellors the condition of this Amendment. In the meantime, however, it was desirable to postpone the Question.
  Amendment, by leave, withdrawn.
  Clause ordered to stand part of the Bill.
  Clause 7 (Vacancies by resignations of Judges and effect of vacancies generally) agreed to.
  Clause 8 (Qualifications of Judges. Not required to be Serjeants-at-Law).
  Amendment proposed, in page 4, line 14, to leave out from the word "Provided" to the end of the Clause.—(Mr. Matthews.)
  Question proposed, "That the words proposed to be left out stand part of the Clause."
  THE ATTORNEY GENERALsaid, he could not agree to the omission of the words. There was no reason for maintaining Serjeant's Inn. In reply to remarks which had been made, he would say that Judges were not "visitors" of the Inns in the ordinary sense of the word; they had no original or initial jurisdiction, they had an appellate jurisdiction in the matter of discipline only. In respect to finances they were perfectly powerless, and had no control. In the single instance of the discipline committed to the benchers over the members of the Bar, there was an appeal to the Common Law Judges, and to them only. He did not apprehend any inconvenience from Judges having to sit in appeals upon the conduct of different Inns of Court. Of course, a gentleman belonging to any one Inn would not sit as Judge in an appeal upon the conduct of that Inn.
  MR. SERJEANT SIMON,as a member of the ancient and honourable order which was attacked by the Proviso before the Committee, protested against the proposal contained in the clause. A Serjeant-at-Law could take a brief from any person; whereas a Queen's Counsel could not, unless he had the licence
  1748
  of the Crown to do so. The Serjeants were the ancient and legitimate leaders of the Bar, the persons who were essentially the people's counsel, and whose creation was quite independent of anything like political or party influence. He strongly objected to the certain extinction of the order, which would be effected by an enactment to the effect that in future it should not be necessary for barristers to become members of Serjeant's Inn before ascending the Bench.
  Question put.
  The Committee divided:—Ayes 85; Noes 39: Majority 46.
  Clause agreed to.
  Clauses 9 to 11, inclusive, agreed to.
  Clause 12 (Provisions for extraordinary duties of Judges of the former Courts).
  MR. MATTHEWSmoved in page 6, line 12, after "year," to insert—
  "Provided always, That the expenses of the Judges who may be commissioned to go circuits as hereinafter provided shall be borne and paid in like manner as the expenses of the Judges who go the winter circuit are now borne and paid."
  By the Bill all the members of the High Court of Justice were put on the same footing at £5,000 a-year; but while the Common Law Judges had to go on circuit at considerable expense, the existing Vice Chancellors did not; he thought that they ought to have their expenses allowed them the same as the Judges who went on winter circuit.
  THE CHAIRMANruled that the Amendment related to a red letter clause, which was to be moved as a new clause.
  Clause agreed to.

  PART II.
  Jurisdiction and Law.
  Clause 13 (Jurisdiction of High Court of Justice).
  MR. OSBORNE MORGANmoved in line 30, after "Commissioners," to insert—
  "13. The Court of Chancery of the County Palatine of Lancaster.
  "14. The Court of Chancery of the County Palatine of Durham."
  THE SOLICITOR GENERALsaid, the hon. and learned Member was not in his place when the matter was dis-

  1749
  cussed previously, and explained that his object would be attained by an Amendment of Clause 22, from which would be eliminated words that restricted the changes to be made in the administration of the law to the newly-constituted Courts. By striking out the names of those Courts the administration of the law would extend to the two Chancery Courts of the Counties Palatine. They had not the remotest intention of abolishing the Court of Chancery of the County Palatine of Lancaster—a very good Court, and one they could not attempt to take away without having the people of Lancashire fairly up in arms against them.
  MR. ASSHETON CROSSsaid, he was glad to hear the Solicitor General's admission as to the character of the Court of Chancery of the County Palatine, which was one of the very best possible tribunals in the whole kingdom. He might add that the Court of Common Pleas of the County Palatine had become just as popular as the Court of Chancery; and the same argument applied to both of those tribunals.
  MR. OSBORNE MORGANsaid, he would withdraw his Amendment.
  Amendment, by leave, withdrawn.
  MR. ASSHETON CROSSthen proposed to omit in line 26 the words "The Court of Common Pleas of the County Palatine of Lancaster," observing that the popularity of the Government in Lancashire was not great, and it certainly would not be increased if they destroyed the Court of Common Pleas there. There was a great desire in Lancashire to know whether, under the Bill, the Assizes would be held there more frequently.
  Amendment proposed, in page 7, line 26, to leave out the words "the Court of Common Pleas at Lancaster."—(Mr. Cross.)
  Question proposed, "That the words proposed to be left out stand part of the Clause."
  MR. WESTsaid, he could not support the Amendment, because he believed that Bill not only continued the benefits conferred by the Court of Common Pleas in the County Palatine of Lancaster, but would extend them to all
  1750
  the other great and populous parts of the country.
  MR. SERJEANT SIMONopposed the Amendment, and said, the existence of the Court of Common Pleas at Lancaster did not in any way benefit the suitors. It ought not to be withdrawn from the operation of the Bill.
  MR. ASSHETON CROSSobserved that the question was not one for lawyers but for suitors, and they were in favour of the retention of the Courts. Every case tried in the Court of Common Pleas cost the suitor £10 or £12 less than the cases tried in the other superior Courts.
  MR. HINDE PALMERsaid, he could not support the Amendment, as the Court was merely a nominal one, and the machinery which was the valuable part of it, would be continued under other provisions of the Bill.
  MR. CAWLEYsaid, that he would agree to the clause if it were shown that the advantages which Lancashire derived from the existence of this Court would not be taken away, but really extended to other parts of the kingdom.
  THE ATTORNEY GENERALagreed with the hon. Gentleman opposite (Mr. Cross), that the question was one rather for suitors than lawyers. There was no intention on the part of the framers of the Bill to interfere in the slightest degree with the benefits which this Court conferred. The whole jurisdiction of the Court would be exercised as it was at present, except that it would be exercised by Judges of the High Court sent as Commissioners of Assize. All the local advantages arising from the machinery of the Court would be preserved by other clauses in the Bill.
  MR. ASSHETON CROSSsaid, the Judges did not try causes in the Court of Common Pleas at Lancaster as Judges of the Court, but by virtue of the Commission under which the Assizes were held. The position of the attorneys practising in the Court was peculiar, and, if the Court were abolished they would be entitled to compensation. Had that question been considered? He did not want to leave the case of Lancaster dependent on the chance of passing provisions, which would confer on other counties advantages corresponding to those which Lancaster derived from its local Court, because such provisions would threaten the agency business of the

  1751
  London attorneys, and therefore might be successfully opposed by them.
  THE ATTORNEY GENERALsaid, the case of the attorneys practising in the Court of Lancaster was worthy of consideration and should have it.
  Question put.
  The Committee divided:—Ayes 129; Noes 95: Majority 34.
  Clause ordered to stand part of the Bill.
  Clauses 14 to 16, inclusive, agreed to.
  Clause 17 (No appeal from High Court or Court of Appeal to House of Lords, or Judicial Committee).
  SIR RICHARD BAGGALLAYmoved to postpone the consideration of the clause. The question whether the jurisdiction of the House of Lords should be immediately abolished must, he argued, mainly depend on the constitution of the new Court of Appeal, and the way in which its functions were to be exercised. He had on the Notice Paper a Motion for the omission of the clause altogether, and he had three reasons for giving that Notice; his first and chief reason was that the jurisdiction of the House of Lords as a Court of Final Appeal for English causes ought not to be abolished whilst it was retained for Scotch and Irish causes. As originally constituted, the Bill applied only to England; but the Government had since accepted the proposal of the right hon. Member for Kilmarnock (Mr. Bouverie), making it applicable to Scotland and Ireland also; his first objection to the clause was consequently removed. His second reason was that, in many cases it was desirable to have the means of rehearing an appeal. The Bill at present contained no provision for a rehearing, but there were several Notices on the Paper of Amendments to effect that purpose; should no such provision be inserted in the Bill it would be undesirable to part with the existing right of rehearing by the House of Lords. His third reason for objecting to the clause was that it was expedient to retain the present jurisdiction of the House of Lords until there was a reasonable certainty that the proposed Court of Appeal would work well. For the present, however, he would content himself with moving the postponement of the consideration of the clause.
  Motion made, and Question proposed, "That Clause 17 be postponed."—(Sir Richard Baggallay.)
  THE ATTORNEY GENERALsaid, he understood the hon. and learned Gentleman wished this clause to be postponed upon three grounds. With the first ground for postponement he need not trouble himself, because it was admitted that it had disappeared, it having been admitted on the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) that the three kingdoms should have the same Court to which their final appeals should be presented. The second ground which the hon. and learned Gentleman urged for postponement he could not help thinking was peculiar. The hon. and learned Gentleman wished to preserve the means of having an appeal, before the final Court was applied to; but one of the objects of the Bill was to prevent any appeal to an intermediate tribunal. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) had admitted that it was desirable to abolish the Intermediate Courts of Appeal. The third ground upon which the hon. and learned Gentleman asked for a postponement of this clause was still more curious—namely, that it should be postponed until it was seen how, by the later clauses, this jurisdiction was to be exercised. He (the Attorney General) should have thought it was plain that the Committee should make up their mind in the first instance whether or not they would transfer en bloc this jurisdiction, and that the next question they should deal with was the question how that jurisdiction should be exercised in various circumstances. For some 100 years there had been two co-ordinate Courts of Appeal in this country, yet there had been no conflicting decisions; and, therefore, though there was a metaphysical possibility of such a conflict, as practical men the objection was hardly worth considering. He would urge upon the hon. and learned Gentleman to act upon the principle of common sense, and be guided by experience. The question of maintaining the jurisdiction of the House of Lords had already been discussed, and he hoped that, for the saving of public time, the decision already given by the House would be accepted.
  MR. NEWDEGATE: As the hon. and learned Gentleman the Attorney General has made an appeal to men of common sense, perhaps I may be allowed, as one not learned in the law, to make a few remarks. The hon. and learned Gentleman says, that inasmuch as this House has passed the second reading of the Bill, we are not at liberty again to consider the propriety of abolishing the appellate jurisdiction of the House of Lords. But when the House agreed to the second reading of the Bill, it constituted a Court of Appeal for England only, and since the House passed the second reading it has been decided that the final Court of Appeal this Bill would create, shall extend its jurisdiction to Ireland and Scotland, and-include Scotch and Irish Judges. Now, although Englishmen may have such confidence in their own Bar and their own Judges as to be perfectly content with the Court of Appeal first constituted, however much they may regret to see the appellate jurisdiction of the House of Lords abandoned, the Court of Appeal which we are now considering is an indefinite quantity, inasmuch as we do not know exactly what additions are to be made to that Court. With respect to the addition of the Scotch Judges, much as I respect their learning and judgment, when they are concerned in the administration of the law of their own country, I have always heard that the Scotch law is different from the law of England; and although Scotch Judges have sometimes, when Peers attended in the House of Lords to adjudicate upon English appeals, I have heard grave complaints of English causes being judged by Scotch Judges. Then, with regard to the Irish Judges, it is idle to attempt to conceal the fact that influences are operative in the appointment to the highest judicial offices in that country, which, happily, are not operative in England. We know that scenes have occurred in the Court of Chancery in Ireland such as have never been known to occur in the Court of Chancery in England; and the addition of Irish Judges if made to the new Court, will tend to shake the public confidence in that Court, which confidence, if it exists at all, is a confidence of wonderfully recent growth. There is another moot point. The only argument which has been used for the abolition of
  1754
  the jurisdiction of the House of Lords is, that the House of Lords itself has upon the application of Her Majesty's Government given it up. I have asked several Peers whether they knew the real reasons adduced in favour of the appellate jurisdiction being abandoned. No one single Peer has been able to give me a satisfactory reason in answer to that question. I was told that when the Bill got into Committee the jurisdiction was given up; but no Peer to whom I have spoken on the subject has been able to inform me why it was given up. I entertain the greatest objection to this proposal, which appears to have been carried by misfeasance, and for this reason. I have the highest respect for the Judicial Bench; but the historical examples in this country of Courts of Final Jurisdiction not amenable to Parliament, and not connected with the House of Lords, are not favourable. Judges are excellent persons, no doubt; but they are all the better where they have that increased sense of responsibity which connection with one of the Houses of Parliament entails. There is historical evidence of the abuses which are recorded against the Court of High Commission in the times of the Stuarts, and that although there were from 26 to 42 Judges in the Star Chamber, it likewise closed its career in disgrace. Such are the examples that we have of Final Courts of Appeal separated from the House of Lords! I hold another, and it may be an erroneous, opinion; but I hold this—that the Courts connected with such a body as the House of Lords gain, from daily association, an amount of practical knowledge, and a sense of the responsibility constantly incumbent upon them, that are not possessed in the same degree by any Court which is separated altogether from the Upper House of the Legislature. It may be said that this is an old-fashioned objection. Nevertheless, it is a practical one, and comes home to the common sense of the people of this country. Although this House seems inclined to proceed so jauntily with the Bill, I am convinced that the country is not prepared for the great change which is now proposed. I am confident that the country looked forward to another alternative, and it was this—that the learned persons who are to constitute the Court of Appeal, as now proposed, should be made life Peers. That

  1755
  measure was proposed by Lord Russell. It was sanctioned by the late Lord Derby, and has the highest authority in its favour. ["No, no!"] Yes, I say that it was sanctioned by the late Lord Derby, for, although he voted against the creation of life Peerages, not limited to Judges, his speech stands on record, and uncontradicted by himself, that, had the limitation to Judges, who should assist the appellate jurisdiction of the House of Lords, been proposed, that proposal would have received the cordial assent of the late Lord Derby, as it had the advocacy of Lord Russell, the recommendation of Lord Granville, and the assent of a largo proportion of the House of Lords. All such considerations as these may seem slight to lawyers entirely occupied with the technical procedure of the Courts, and who do not trouble themselves to regard the constitutional questions which are involved; but we, who represent those, who are to be the suitors and the subjects of the jurisdiction of this new Court, whose fortunes and whose fate are to be finally decided by this Court of Appeal, look more gravely into these questions; and I am grateful to the hon. and learned Gentleman (Sir Richard Baggallay) who has proposed the further consideration of this subject, and should he divide the House, either in favour of the postponement or the rejection of this clause, he shall have my hearty support.
  Question put.
  The Committee divided:—Ayes 107; Noes 145: Majority 38.
  Question proposed, "That the Clause stand part of the Bill."
  MR. CAVENDISH BENTINCKmoved to report Progress.
  Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Cavendish Bentinck.)
  The Committee divided:—Ayes 98; Noes 149: Majority 51.
  MR. CHARLEYmoved that the Chairman do now leave the Chair.
  MR. GATHORNE HARDYsaid, he hoped his hon. and learned Friend would not press the Motion. The Committee had already divided, and the clause was now in such a position that the Govern-
  1756
  ment might fairly ask that they come to a decision upon it.
  MR. CAVENDISH BENTINCKexplained that had he known the opinion of his right hon. Friend he would not have put the Committee to the trouble of dividing, and he begged to apologize for having done so.
  Motion, by leave, withdrawn.
  Question put, "That the Clause stand part of the Bill."
  The Committee divided:—Ayes 154; Noes 93: Majority 61.
  Clause ordered to stand part of the Bill.
  THE ATTORNEY GENERALmoved that the Chairman do report Progress.
  Motion agreed to.
  Committee report Progress; to sit again To-morrow, at Two of the clock.

  TURNPIKE ACTS CONTINUANCE, &c., BILL— [BILL 199.]
  (Mr. Hibbert, Mr. Stansfeld.)

  COMMITTEE.
  Order for Committee read.
  LORD GEORGE CAVENDISHmoved an Instruction for rendering compulsory in England and Wales the Highway Acts of 1862 and 1864. He might inform the House that turnpike trusts were falling in every day, and it was therefore a proper time to remove the injustice that now existed and place the charge for the repair of highways on a larger area; and, at all events, he hoped the Chancellor of the Exchequer would appropriate the carriage and licence duty to defray the repairs of the public roads.
  Motion made, and Question proposed,
  "That it be an Instruction to the Committee to make provision for rendering compulsory in England and Wales the Highway Acts 1862 and 1864."—(Lord George Cavendish.)
  SIR MICHAEL HICKS-BEACHsaid, he had always objected on principle to permissive legislation of the kind contained in the Highway Act, for by such legislation the House shirked its own responsibility and placed an unpopular duty on the shoulders of others. At the same time, he was not prepared to support the Motion of the noble Lord to make the Highway Act compulsory, for that Act had not worked so satisfactorily as it was

  1757
  at first hoped it would, and it ought not to be made compulsory throughout the country without any attempt being made to remedy its acknowledged defects. He understood the Government were about to assent to the proposal; but he was certain that such an attempt to force an imperfect Highway Act upon those numerous places which had not yet adopted it would be most unpopular.
  MR. COLLINSremarked that the whole of our highway legislation had been completely changed by throwing the maintenance of turnpikes on the parishes. Now that hon. Members had the opportunity, they ought to make turnpike roads, which were not parochial roads, a charge upon the district. He hoped the House would accept the Instruction of the noble Lord the Member for North Derbyshire.
  COLONEL BARTTELOTprotested against a measure of this importance being proceeded with at so late an hour in the morning. If the Government were going to assent to this Instruction, he would use every means in his power to resist the progress of this Bill, and he now begged to move the adjournment of the debate.
  VISCOUNT GALWAYopposed the Instruction to the Committee, and seconded the Motion for adjournment.
  MR. HIBBERTsaid, the position in which parishes were placed by the discontinuance of turnpikes rendered it necessary that some better arrangement should be made. It was the intention of the Local Government Board to have dealt with the subject of turnpikes and highways this Session, but they had not had the opportunity of doing so; and therefore they would, as a step in the right direction, support the Instruction of the noble Lord the Member for North Derbyshire. He would not, however, oppose the adjournment of the debate. The time had come when it was impossible to continue the roads under parish management.
  SIR GEORGE JENKINSONexpressed his regret at the Government having consented to an adjournment of the debate, which he regarded as tantamount to throwing over the noble Lord's proposition altogether for the present Session. There was no necessity for such a course, as all that was asked was that that should be made compulsory which should never have been made per-
  1758
  missive. All permissive legislation was unsatisfactory, and led to confusion.
  LORD GEORGE CAVENDISHsaid, he had not the least wish to press the proposal against the feeling of the House, or to snatch a division upon it. He thought that if there was to be an adjournment it had better take place at once.
  SIR MICHAEL HICKS-BEACHwas sure the noble Lord lead no desire to steal a march upon the House.
  MR. ASSHETON CROSSsaid, he thought that this was a matter of which the country ought to have full notice, and he would suggest that the Government should embody the propositions of the noble Lord in a Bill with any Amendments of their own.
  MR. BRUCEsaid, he could not undertake that the Government would introduce a measure of their own for that purpose.
  Motion agreed to.
  Debate adjourned till Monday next.

  EXTRADITION ACT (1870) AMENDMENT BILL.
  On Motion of Mr. ATTORNEY GENERAL, Bill to amend "The Extradition Act, 1870," ordered to be brought in by Mr. ATTORNEY GENERAL and Mr. SOLICITOR GENERAL.
  Bill presented, and read the first time. [Bill 220.]
  House adjourned at half after One o'clock.

MINUTES.
PUBLIC BILLS—First Reading—National Debt Commissioners (Annuities)* (191); Prison Officers Superannuation (Ireland)* (192); Public Works Loan Commissioners (School and Sanitary Loans)* (193).
Second Reading—Conveyancing (Scotland) (141).
Report of Select Committee—Tithe Commutation Acts Amendment* (171–190).
Committee— Shrewsbury and Harrow Schools Property* (140).
Report—Thames Embankment (Land)* (179).
Third Reading—Canonries* (169); Crown Private Estates* (175), and passed.

CONVEYANCING (SCOTLAND) BLL.
(The Lord Chancellor.)
(NO. 141.) SECOND READING.
Order of the Day for the Second Reading, read.
THE LORD CHANCELLOR,in moving that the Bill be now read the second time, said, he took it for granted that for those of their Lordships who had land in Scotland, it was not necessary for him to go into minute particulars respecting the existing law of land rights and conveyancing in Scotland. He felt bound, however, to snake some observations in respect to those peculiarities for the information of those of their Lordships who might have had no opportunity of becoming practically acquainted with the subject. The clauses most likely to excite difference of opinion affected the relations between superiors and vassals with respect to feus. A large extent of property in Scotland was held under this tenure, and the Bill proposed to abolish expensive and unnecessary forms now attending every change of feuar, whether by death or sale—namely, renewal of investiture and charters and writs by progress. It also reduced the period within which the rights of any person to succession as heir might be challenged from 40 to 20 years; it provided for the commutation of existing casualties; and it prohibited the creation in future of casualties in feus. The Bill likewise abolished the distinction between fees of heritage and fees of conquest, and provided simpler forms of conveyance, as to the clauses providing which he thought there might be also possibly some difference of opinion. Whatever objections might, however, be raised to the details of the measure, he did not know that there could be any question as to the objects of the Bill. He did not suppose any of their Lordships who had had a practical acquaintance with the subject would deny that there was a great need in Scotland for facilitating the transfer of land and for making changes in the law relating to land rights and conveyancing. This was the main object of the Bill. The measure was based upon the recommendations of the Royal Commission which sat upon the subject some years ago, so that the proposed changes in the law

1687
had been before the country for several years. It had been said that some of the proposals in the Bill if passed into law would not work well, and that some difficulties would arise. Under the present law, there were many similar difficulties, and he was convinced that these difficulties would be diminished, and not increased by the changes which the Bill proposed. The Bill had been a long time under consideration, and it had been very carefully prepared; and if there were faults in the measure they could be easily remedied in Committee. On the whole, he thought he could safely recommend the Bill to the favourable consideration of their Lordships.
Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
LORD COLONSAYsaid, he fully agreed in the propriety of making certain changes in the existing law. He approved generally of what his noble and learned Friend on the Woolsack stated to be the two leading objects of this measure—namely, to dispense with what were called charters by progress, and to enable persons holding property by feu tenure to redeem what were called the casualties of superiority. So far, the measure would be in accordance with the Report of the Royal Commission in 1838, and would, he believed, meet with general approval in Scotland. He expressed general approval also of certain other provisions in the Bill. But as to the clauses by which it was proposed to carry out these objects, considerable amendment might be necessary. The Bill, however, went far beyond the objects to which he had referred. It contained provisions calculated to subvert the relations of superior and vassal—to unsettle the whole system of land tenure in Scotland, and to introduce confusion and uncertainty as to titles. The existing system was well understood—conveyancers were familiar with it; but if the whole system of land tenure in the country was to be suddenly uprooted, confusion would be inevitable. The Royal Commission referred to, comprehended men of great eminence and qualifications for the task, and they reported very decidedly against what was now proposed to be done, and pointed out some
1688
of the serious evils to which it would lead. The bodies in Scotland whose members were most conversant with the subject, and best qualified to judge, were decidedly opposed to it. He had presented Petitions from several of these bodies and from other bodies and parties, some of whom were largely interested, praying that no such interference with the tenure of land should be sanctioned, or, at least, not without full inquiry by a Royal Commission. Several deputations from various parts of Scotland had waited on him, urging the same views. One of the results of this interference with tenure would be the substitution of leases for fens. That was pointed out by the Royal Commission, and was confirmed by the recently expressed opinions of those most conversant with feuing transactions; and it was well known that those who desired to acquire small portions of land for building purposes in Scotland, greatly preferred feus, which gave a perpetual right of property, to leases which gave only a temporary right. Feu duties were themselves valuable property, and a convenient and favourite investment, especially for educational or religious endowments. One of the Petitions he had presented was from an endowment society holding feu duties to the extent of nearly £20,000 per annum. He had also presented Petitions from banks, insurance companies, and other holders of feu duties, as investments or securities. Some of these Petitions stated, and he had been informed from other sources, that since the scheme of this Bill had been ventilated, that valuable class of property had fallen greatly in the market. He hoped the Government would not, without inquiry, persevere in a course of legislation so unnecessary and unpalatable, already condemned by a Royal Commission, and also by those best qualified to form an opinion on the subject, and not asked for or desired by any class of the community. The Royal Commission had recommended various improvements on conveyancing to be introduced gradually. He had when Lord Advocate introduced measures for effecting some of these improvements. His successors in office had followed the same course. Nothing now remained necessary to be done but to carry into effect the other two recommendations of

1689
the Commissioners already mentioned. If this Bill were confined to these objects and some of the minor points of which he had expressed approval, it would be a beneficial measure and would give general satisfaction in Scotland, instead of being as it now presented itself most obnoxious. Another part of the Bill to which he strongly objected, was that which had for its object to do away with the system of service of heirs. It might effect some saving of expense on succession, but in cases of transfer and mortgage it would necessitate an investigation of title at every transaction, which would on the whole cause greater expense. It would introduce uncertainty and insecurity as to title, and diminish the value of property.
THE DUKE OF ARGYLLsaid, that notwithstanding the extreme technicality of the measure to unlearned persons, he hoped their Lordships would allow him, a layman interested in property in Scotland, to say a few words in favour of the Bill. He believed there was not a layman in that House who could not, with a lawyer at his elbow, master the provisions of the Bill in an hour. He entirely concurred with his noble and learned Friend (Lord Colonsay) as to the mischief and danger of damaging in any respect the feudal tenure in Scotland, which was one of the most popular tenures in the country. It was a valuable security and a valuable investment, and cautious men like Scotchmen rather rebelled against the shorter tenures which were common in England. Many of their Lordships had no doubt heard the story of the Scotchman who was offered a 999 years' lease, and made an urgent appeal that it might be extended to 1,000, and on being laughed at, shook his head and said—"Time soon slips awa'."No doubt, there was a reluctance on the part of Scotchmen to build houses or invest money on anything short of a perpetual tenure, and therefore it was by no means only in the interest of superiors that the House ought to guard this tenure. Most of their Lordships were in the position of superiors; many were in the position of feudals; and if it were really true that a Bill of that kind would materially injure the rights of superiors, it would undoubtedly act upon the value of land in Scotland, because it would be unpopular
1690
with proprietors to give that particular form of tenure. He entirely agreed that they ought to preserve, as far as they could consistently with the object which they all had in view—namely, to simplify tenures and cheapen processes—all the essential securities of the feu tenure. The objections which his noble and learned Friend had brought against the Bill seemed all to be objections that could be dealt with in Committee; but even on the second reading, it might be well to point out the weakness of his objection to the 3rd clause. That clause purported to give a new and short definition of feu tenure, and he (the Duke of Argyll) admitted at once that any attempt to give abstract definitions of property must always involve some risk; but after reading the clause over and over again in the interest of superiors, and knowing that that was one of the points chiefly objected to by the legal profession in Scotland, it appeared to him to take in every service and every duty, for it said—
"From and after the passing of this Act an estate of superiority shall consist of the right to the feu-duties, services, and casualties, which are by law or covenant incident to a feu."
The objection of the noble and learned Lord was that it did not include all duties; but if it did not, words could easily be inserted in Committee to remedy the defect, and if the noble and learned Lord chose to propose an addition to the clause, the Government would have no objection. He knew of cases of persons who held estates under his family, where the superiors were entitled to many rights which had become absolutely obsolete—as, for instance, a number of gentlemen were bound by the feu to keep six-oared boats to enable the Earl of Argyll to cross certain ferries. Again, one of the rights of superiors which would be interfered with by the Bill was that of defending the feu against the invasion of third persons. Was that a valuable right to preserve? He was involved once in litigation of that kind, and so far from being regarded by hint as a privilege to be coveted, he looked upon it as a damnosa hœreditas. Again, it was the right of the superior to make roads, fences, drains, and so on for the feuar, but he had never heard of such a right being

1691
claimed. If the superior reserved to himself to do those things, of course he would have to do them; but under ordinary conditions, the superior had no more right to enter upon his vassal's land than to enter upon that of any other proprietor, and he had never heard an instance of a superior attempting to enforce a right to construct roads, drains, or fences, even where it would be greatly to his interest to do so. Those were matters mentioned by the noble and learned Lord as rights which would not be covered by the Bill; but if they were valuable rights, he maintained that they would be covered by the words of the 3rd clause. He could not say that he, as a superior, was in the least alarmed by any instances which his noble and learned Friend had given, where the rights of superiors would be liable to be invaded if the Bill passed. There were other portions of the Bill to which the noble and learned Lord had referred that were obviously mere questions of detail, and of those, the question of the recovery of duties and services was one. He could only say that he had looked very closely at the Bill, and having heard what the noble and learned Lord had to say, he was wholly unable to see the dangers which had been pointed out by his noble and learned Friend as involved in any one of the clauses to which he had drawn attention. It appeared to him that if the Bill were allowed to go into Committee, whatever objections were entertained to particular parts of the Bill by the noble and learned Lord might be there dealt with, and if it were thought necessary, a remedy might be applied. He trusted therefore that the House would not object to the second reading of the Bill—especially as there was so much in it which the noble and learned Lord had admitted to be valuable, and if any alterations were really required the House could make them in Committee.
LORD CAIRNSsaid, the noble Duke (the Duke of Argyll) had not answered any of the objections which had been pointed out by his noble and learned Friend behind him (Lord Colonsay), and he would suggest that the clauses which were objected to should, in Committee, be omitted from the Bill.
THE LORD CHANCELLORadmitted that his noble and learned Friend (Lord Colonsay) was entitled to speak with
1692
great authority on that subject, and whatever fell from him on such a question would have due weight with their Lordship's House. He thought, however, that the noble and learned Lord had misapprehended the object of the Bill in regard to certain points on which he had offered objections. Nothing could be more foreign to the intention of the Bill than to discourage feus, or the system of holdings that was now in existence. On the contrary, he was of opinion that it would tend much to their encouragement. With regard to the 3rd clause, he thought it was amply guarded by the Proviso, that a lawful reservation of any right, other than feu duties, services, and casualties, contained in a grant or conveyance of land shall import an estate of property to the extent of the right reserved. If, with respect to that portion of the Proviso in which the words "an estate of property" occurred, it should be thought by their Lordships that those words were not happily conceived, nothing could be more easy than to modify them in Committee. In Clauses 5, 23, and 24, most ample provision was made in respect of all feu-duties created after the passing of the Bill, for placing on record every species of covenant or condition which in any respect qualified the feu. The noble and learned Lord had referred to the section which enabled a superior to merge his estate of superiority in the estate of property, by a process like that which in England was called enfranchisement; but it struck him (the Lord Chancellor) that the objection was one that applied to the substance more than to the form of the clause. The question seemed to be in reality whether it was best when the superior acquired a title to the property of the land, and so united his interest with that of the feuar, the title of superiority should remain, or whether it should be merged in the property and extinguished. As regarded the 15th clause, it was only carrying out the great object of the Bill, which was to afford greater facilities than at present to the feuar, and to relieve him from inconvenient burdens. If the right to enter was given to the superior, he had not only the same right as every landlord had in the case of his tenant, but the same right which existed in England when land was sold, reserving a perpetual rent. This was a very com-

1693
mon form of contract at the present time especially in Lancashire. With respect to the objection taken by his noble and learned Friend to the 37th clause of the Bill, it was that it gave the powers mentioned therein to an individual Judge, and not to the Court of Session. Of course, if it were thought better that the powers should not be given to any particular Judge, the alteration was one that might easily be made, but the powers themselves were closely analogous to those which were given in England by the Leases and Sales of Settled Estates Act; where, however, they were always exercised by a single Judge. He was much gratified when he heard the noble and learned Lord speak of the great importance of the Bill, and he had no doubt it would be found when the Bill got into Committee, that those portions of the measure that were objected to bore but a small proportion to the other parts which would be regarded by their Lordships as highly valuable. Whatever objections there were to the Bill could be readily considered and dealt with in Committee, and he trusted therefore that their Lordships would consent to read the Bill a second time.
Motion agreed to.
Bill read 2a accordingly; and committed to a Committee of the Whole House on Tuesday the 15 th instant.

SOUTH SEA ISLANDERS.

  QUESTION.
  THE EARL OF BELMOREsaid, that he rose to put a Question in the terms of the Notice that he had given, to the noble Earl the Secretary of State for the Colonies, with reference to the South Sea Island Papers lately distributed, As to whether any further communications of importance have been received by Her Majesty's Government upon the subject, particularly as relates to the disposal of the prisoners convicted at Sydney of murder on board the brig Carl; and, if so, whether he has any objection to lay the Papers on the Table of the House? With regard to the latter part of the Question, he thought their Lordships would consider that he was right in asking for the Papers, subject to their being no objection to producing them. Pro-
  1694
  bably some of them might consist of Minutes of the Executive Council of New South Wales, and sometimes it was objectionable that such Papers, when relating to capital cases, should be laid before Parliament, because their publication might tend to produce embarrassment in the colony. With regard to the Papers lately distributed, he wished to make a few remarks. The first part of them repeated some of the information which he had sent home before he left New South Wales, and to which he drew attention last Session. In another part was contained the reports of naval officers who were ordered to inquire into the statements made after the murder of Bishop Patterson. It appeared that in accordance with a suggestion which he (the Earl of Belmore) made to Commodore Stirling, that officer had written to the Admiral in China, who had sent a ship of war down to the islands near the line. This ship—the Barrosa—was met by the Blanche, which had been sent up from Sydney, and there were interesting Reports from the officers commanding them—Captains Moore and Simpson—upon the labour trade and skull-hunting. With regard to Captain Hayes, the notorious pirate, whose name had been before mentioned in connection with this matter, it appeared that the Barrosa had only missed capturing him by a single day, having left Mulgrave Island one day whilst he arrived there the next. He had been in the custody of the captain of an American man-of-war—the Narraganset—but was released. In one part of the Papers, the reason given was, that the British Consul at Samoa had failed to bring charges against him which would hold water, although in another place that gentleman expressed great surprise at his having been released. With regard to skull-hunting, although it was admitted that it prevailed amongst the natives of the Solomon Islands, yet there seemed reason to think that no white man had taken part in it. Captain Moresby, of H.M.S. Basilisk, it was true, heard from a native pupil of the Melanesian Mission at Norfolk Island, the same story which the Rev. Mr. Brooke told the year before last, at the time of Bishop Patterson's murder; but, on the other hand, Captain Simpson could find no trace of white men having been engaged in it. The reasons he gave for his belief were,

  1695
  shortly, that it would not pay. Mr. Brooke had surmised that the captains of British ships had taken war parties in their vessels to procure the heads of their enemies, in return for being allowed to trade—tortoiseshell being the article of trade. But he (Captain Simpson) found that tortoiseshell could only be collected in small quantities at any one place—a few pieces at a time, as was shown by the case of a fine of two tons of tortoiseshell, which had been inflicted by Captain Montgomerie, of H.M.S. Blanche, on the inhabitants of an island who had murdered the crew of the Marion Renny, but which fine had never been collected, and which Captain Simpson altered to a punishment of a different sort. He (the Earl of Belmore) should not hesitate to accept this view, but for the reason that in the case of the Carl a naval officer had boarded her a few days after the massacre on board that ship had taken place, and could find nothing to excite suspicion, and had passed her as having all correct; and if one naval officer had been deceived in one case, so might a second be also in another. As regarded kidnapping, Captain Moresby, of H.M.S. Basilisk, thought that amongst the islands where his cruise had extended, it had entirely ceased, as far as procuring men by force went. He thought that men were still procured by fraud, but that the evil was gradually curing itself. Captain Simpson had found that it had ceased amongst the Caroline, Marshall, and Solomon groups, but that it still continued amongst the Gilbert group. On the whole, he (the Earl of Belmore) hoped that though it had not been entirely put down, yet that it had been checked. A right rev. Prelate (the Bishop of Lichfield) had mentioned to him that he had heard from his friends of the Melanesian Mission, that they had met but one labour ship during their last cruise for every ten the preceding year. There was one subject as to which he should like information to be given. As he had before stated, Captain Montgomerie, of H.M.S. Blanche, had inflicted a fine of a large quantity of tortoiseshell on the inhabitants of an island, as retribution for the murder of the crew of the Marion Renny. Captain Simpson, on arriving at the island three years afterwards, found that the fine had not been collected; and, instead of
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  it, he exacted from two of the chiefs a promise that they would execute a third chief, who was responsible for the murder of the crew. This, it appeared, had since been done. Commodore Stirling said that this was the only part of Captain Simpson's conduct of which he had not approved; and he (the Earl of Belmore) wished to know what opinion Her Majesty's Government had expressed on the subject. Without committing himself to an opinion, he was inclined to think that it was better to exact retribution from the man who was, there seemed little doubt, morally responsible for the murder of 22 white people rather than adopt the old plan of retribution by shelling a defenceless village. As regarded the case of the Carl, it appeared by the Papers that two men had been found guilty at Sydney of murder, on board that ship, and had been sentenced to death. This sentence had, it was known, been commuted; but the Correspondence contained in the Papers stopped short of giving any information on that point, and he should be glad if the Papers he had given Notice to move for could include the despatch giving the reasons for such commutation, and the reply of the noble Earl. Two other men, named Mount and Morris, had been found guilty of manslaughter at Melbourne, but the Papers likewise stopped short of giving any information as to the sentences passed upon them. There was only one other matter to which he need allude, and that was the position of the British Consul towards the Fijian Government. It might be premature to express an opinion at present, and he understood that the new Consul and the new Commodore had orders to inquire and report on the state of affairs. The noble Earl had stated on a former occasion that the ultimate recognition of the Government, at present recognized as a de facto one, would a good deal depend upon how it behaved with respect to the suppression of kidnapping. From what appeared in the Papers, he did not anticipate very much from its action, for if all that was stated in the despatches of the late Consul was true, it would appear that one at least of the Members of that Government was implicated in some of the irregularities of the labour traffic. He begged to put the Question of which he had given Notice.
  THE EARL OF KIMBERLEYsaid, he hoped the noble Earl would excuse him, if he abstained from following him into certain matters he had touched upon, and which were not included in his Notice. With regard to the proceedings in connection with the ship Carl, and the persons belonging to her who had been convicted of murder, it was quite true the Papers presented did not bring the intelligence down to that point at which they would give information of the sentences that had been passed upon the persons convicted. But at the same time, the only information in his possession on the subject of the commutation of the sentences passed on the persons found guilty of the atrocious proceedings referred to was contained in a despatch from Sir Hercules Robinson, the Governor of New South Wales, dated the 30th of December, 1872, in which he said—
  "The capital sentences passed upon Dowden and Armstrong, the two men convicted of murdering a large number of Polynesians on board the brig Carl, have been commuted to penal servitude for life—the first three years in irons. It was the opinion of the Executive Council—in which I concurred—that it would have born improper to have executed these men, seeing that they were in the service and acting under the orders of Dr. Murray, the owner of the brig; and that he, the instigator and most active perpetrator of the murders, had escaped all punishment by being accepted as Queen's evidence against his own employés."
  With respect to the prisoners Mount and Morris, who were convicted of manslaughter before the Supreme Court of Victoria, and sentenced to penal servitude for 15 years, some technical question had arisen which had been referred to the Law Officers in the Colony; and he would not object to lay Papers on that subject upon the Table when he received further information. He could assure his noble Friend that with regard to the labour traffic, measures had been taken to send back to their homes those islanders who had been induced to enter into engagements under false pretences, and he had reason to believe that the officers intrusted with that duty were doing their utmost to carry it out to a successful issue. At present the Papers were in a very incomplete state, and it was undesirable to add to them; but as soon as they were complete further Papers would be presented.
  THE EARL OF BELMORE,in reply, said, that after what had fallen from
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  the noble Earl, it would not be proper for him to press his Motion. Very likely an opportunity would occur next Session of renewing the discussion on this subject. As regarded Dr. Murray, who had been admitted as approver, the more that came out about him the worse he appeared to be. When he first told his story to the late Consul at Levuka (Mr. March), he of course made the best story for himself, and even at the trial at Sydney the whole truth did not come out about him. But at the trial of Mount and Morris at Melbourne, it appeared that Dr. Murray had, not in a moment of conflict, but after everything was quiet, deliberately fired several shots from his revolver through holes bored with an augur in a bulk-head in the hold of the ship amongst the natives confined within. Anything more cold-blooded had probably never been heard of since the world existed.

  THE MARRIAGE LAWS.—QUESTION.
  LORD CHELMSFORD,in rising to call attention to the Report of the Royal Commission on the Laws of Marriage presented to the House in the Session of 1868; and to ask the Lord Chancellor, Whether there is any probability of the introduction by Her Majesty's Government of any measure founded on that Report? said, their Lordships would recollect that some time ago a celebrated case occurred, known as the Yelverton case, which exhibited in a remarkable manner the difficulties which arose in ascertaining the legal status of an individual in consequence of the difference of the marriage laws existing in the United Kingdom. That case was tried in the Irish Courts and in the Scotch Courts, and ultimately it came to their Lordships' House for final decision. In the progress of the case, there was a great conflict of opinion upon questions involving the peculiarities of the Scotch marriage law, and also the statute law of mixed marriages in Ireland. The result of the controversy was, the expression of a very great desire that, if possible, an inquiry should be instituted with a view to ascertain whether the marriage laws of the different parts of the kingdom could not be brought into closer conformity. The Government of the day were pressed upon the subject in the House of Commons, and a Royal Commission was issued in 1865 for the pur-

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  pose to which he had referred. That Commission, of which he was appointed Chairman, consisted of men most of whom had attained to high judicial positions. England was represented by his noble and learned Friend on the Woolsack, Lord Cairns, Lord Lyveden, Lord Hatherley, Lord Penzance, Mr. Walpole, the Queen's Advocate, and himself; Ireland by Lord Mayo, the present Lord Chancellor of Ireland, and Mr. Monsell; and Scotland by the Lord Justice General, the Lord Advocate, and Mr. Dunlop. They began their labours by obtaining a summary of the marriage laws of the three different parts of the United Kingdom, and by the desire of the Commissioners he issued a Circular requesting, and which elicited, information on various heads, and which was addressed to all the Archbishops and Bishops in England, Ireland, and Scotland, Protestant and Roman Catholic; to the Moderators of the Scotch Church, Free Church, and United Presbyterian Church of Scotland; to the Roman Catholic clergy in Ireland; to persons connected with the Presbyterian Church in Ireland; to clergymen of the Established Church in England; to the President and Vice President of the Wesleyan Conference in England; to various persons, members of the Dissenting Bodies in England; to the Registrar General in England and to many of the Registrars throughout the country. In all no fewer than 97 persons gave evidence before the Commissioners, or valuable information in reply to the Circular. The inquiry extended over three years, but that arose from the fact of many of its members having judicial and other functions to perform, which made it difficult to appoint convenient times for our meetings. The present Lord Chancellor not only gave his assistance as a Member of that Commission, but undertook to prepare the Report of the Commission, and that able and carefully prepared document was entirely his work. The Report was signed by all the Commissioners, with one exception. The late Lord Mayo, who was then Chief Secretary for Ireland, had been unable, from the pressure of his official duties, to attend a sufficient number of the meetings of the Commission to justify him in signing the Report. The Lord Chancellor of Ireland and Mr. Monsell signed the Report, but dissented from the recom-
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  mendations affecting the Law of Divorce and the Jurisdiction of Divorce Courts, believing that the marriage tie was indissoluble, and that divorce a vinculo was contrary to the law of God. The Lord Justice General also signed the Report; but in a note he expressed his preference for the Scotch law of marriage. The Report of the Commissioners began by laying down the principles of a sound marriage law. It contained recommendations as to the capacity of persons to contract marriage; and as to the solemnities that should be required—as to the requirements preliminary to marriage, the requisite notice, residence, and declaration of the parties—with respect to the publication of bans it did not recommend their abolition, but that the publication of them should not be required as a condition of the lawfulness or regularity of a marriage. It recommended the abolition of canonical hours, and the solemnization of marriage in the presence of witnesses; it recommended the repeal of the law as to mixed marriages; it contained most important recommendations as to the notice of the intention to solemnize marriage, and as to the certificate of the minister or civil officer receiving the notice, and the Report suggested that this certificate would supersede the necessity for a licence, and recommended that the practice of granting common licences should cease. It contained most valuable recommendations for the registration of all marriages, and recommended the repeal of all existing statutes upon the subject of marriage, and the embodying the enactments necessary to give effect to the recommendations in a single statute. The Report was made five years ago, and it was matter of regret, if not of reproach, that nothing had been done since that period. Of course, a measure of so much importance could only be introduced under the authority of the Government, and he did not expect that at the present moment his noble and learned Friend on the Woolsack would be prepared to give any pledge on the subject. He trusted, however, that some assurance would be given that the matter would not pass altogether unnoticed, and that his noble and learned Friend, as the author of the Report, and more competent perhaps than any other person to address himself to the subject, would not allow the labours of the Commis-

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  sion to fall to the ground without bearing fruit, but that he would add to his high reputation by improving a law which affected the domestic relations of every family in the kingdom, from the highest to the lowest.
  THE LORD CHANCELLORsaid, it would not be possible for him to give a pledge as to the time or manner in which the Government would deal with this subject, if indeed during their tenure of office, it would be possible to deal with it at all. He was, however, grateful to his noble and learned Friend for calling their Lordships' attention to a question the importance of which was much greater than most of those which occupied the attention of Parliament, and which if not dealt with when it was attracting no public attention, would sooner or later require to be dealt with under less favourable circumstances. He was the more sensible of the importance of the subject, because every year more than one Act became necessary to set right some slip, mistake, or error arising from the state of the marriage law in one portion or other of the United Kingdom. In England and Ireland the faults of the marriage law lay in an opposite direction from those of the marriage law of Scotland, turning as they did on sectarian differences or formal observances. In Scotland, on the other hand, there was absolutely nothing to insure certainty as to the fact, or to preclude the most uncomfortable questions from subsequently occurring. What were called irregular marriages in Scotland, were however, rare exceptions; and the peculiarities of the Scotch marriage law, which rendered such marriages possible, could be easily got rid of without any hardship or inconvenience to the well-conducted portion of the community. The Commissioners recommended a system of registration which would tend to insure the facility and certainty of marriage, and, at the same time, to check improvident and hasty marriages. Their endeavour was to reconcile, as far as might be, the great and fundamental doctrine that matrimony was a civil contract, with the general belief that it was a contract which ought to receive, as far as might be, a religious sanction. With that view the Commissioners proposed that every authorized minister of religion ordinarily officiating in any place of public worship throughout the kingdom
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  might solemnize marriages for civil purposes. At the same time, marriages might be solemnized by civil registry alone if the parties desired it. This scheme was by no means a complicated one. It would be of uniform application throughout the three kingdoms, and it would put an end to the cases of uncertainty with which Scotland had furnished us with frequent examples, while, at the same time, it would get rid of every remnant of the sectarian system by which the validity of marriage could be affected. These proposals dealt equally with all churches and denominations, and he trusted they would one day be embodied in a law. Without pledging the Government in any way, if it should be his good fortune at some future time to be instrumental in submitting such a law to the House, it would not be the least of the services which he desired to be able to render to the country.

  INDIA—THE BANDA AND KIRWEE PRIZE MONEY.—QUESTION.
  THE EARL OF DERBYsaid, the subjects referred to in the Question he had placed on the Paper were familiarly known to the noble Duke (the Secretary of State for India), and indeed to all persons who of late years had taken any part in connection with Indian affairs. The claims had remained unsettled for 14 or 15 years, and in the course of that time they had given rise to a great deal of correspondence and discussion. He had been asked by parties who were interested in the settlement of these claims to put to the noble Duke the Question which stood in his name on the Paper, and under the circumstances, considering the lateness of the hour, he would do so without any further remarks. He would ask the noble Duke, Whether the complete accounts of the Banda and Kirwee Booty can be presented to Parliament in this Session; and, whether Her Majesty will be advised under the Act 3rd & 4th Vict. chap. 65. sect. 22. to refer for judicial decision the claim of the troops, which in 1871 was confirmed by the Secretary of State for India, to interest on a million and a half of old rupees taken at Kirwee, or other claims for valuable booty which are supported by the legal opinions of Her Majesty's Attorney General and other very eminent counsel?
  THE DUKE OF ARGYLLsaid, the final accounts of the Banda and Kirwee booty had not yet been received from India. They were extremely complicated, but as soon as they arrived from India they should be presented to Parliament. With regard to the second Question, he did not know whether his noble Friend was aware that the same Question was put to him last year by the noble Lord opposite, on which occasion he made an elaborate statement to the House of the whole circumstances of the case. He then stated that the claims were finally settled, and declined to refer the matter to a judicial tribunal. The only remaining question, even among the officers themselves, was whether interest ought to be allowed on a large quantity of bullion, old rupees, and jewels which were held by the Government for a certain period unrealized. He explained to the House the important principles which were involved in this question. The claim was made on the supposition that the Government were in the position of a prize agent, and were bound to make the best possible use of all the property which came into their possession. The whole of the money and the proceeds from the jewels had been given to the Army, with interest from the moment when the Government became the profitable owners of them, but for a part of the time during which they were in the hands of the Government they could not be turned to profitable use, and the Government could not admit the claim that they were bound to allow interest upon them during the period which they were not profitable. As to the jewels, they had been valued by native jewellers at a price which exceeded the sum realized by the sale, and some of the officers put forward a preposterous claim for the amount at which the jewels were valued. The Government had certainly not acted in a niggardly manner, for they had calculated the interest on the bullion from the time it was captured, and the interest on the jewels, &c., from the time they were actually sold. He repeated that the Government could not consent to bring the claims before a legal tribunal, as they deemed the question to be finally settled.
  THE EARL OF HARROWBYregretted that no more satisfactory explanation could be given, and stated that much
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  dissatisfaction prevailed in consequence of the manner in which the whole transaction had been dealt with.
  THE LORD CHANCELLORsaid, the question referred to the decision of Dr. Lushington was as follows:—The Crown having granted particular booty to be distributed among the troops, what troops were entitled to take the benefit of that grant? The legal foundation for the judgment was the actual grant by the Crown of certain things to certain troops, and the decisions given in former cases enabled the Judge to solve that rather difficult question. It was quite a mistake, however, to suppose that there was any legal principle on which the Judge could be asked to try the question whether the Crown ought to pay interest on the booty, or whether the Crown should let the troops have property not taken in the actual operations of the field. These were matters for the Crown and the Government to exercise their discretion upon, and, in his opinion, they ought not to be referred to the decision of a judicial tribunal. To do so would be to call in a judicial tribunal to arbitrate on the question, whether the Crown ought to give something which it had not given in fact, and which it was under no obligation to give.
  House adjourned at a quarter before Eight o'clock, till To-morrow, half past Ten o'clock.