§ LORD WESTBURY
, in rising to call the attention of the House to the state of the Appellate Jurisdiction of the Privy Council, said, that on the last occasion when he brought this subject forward the manner in which the great functions of the Privy Council as a Court of High Appeal were discharged was fully entered into. The great importance of the subject, both in a legal and constitutional point of view, was fully admitted; and there was, he believed, but one opinion expressed—that it was the absolute duty of the Government to remove the evil-which was admitted on all hands to be a, disgrace to the administration of justice. At that time not fewer than 370 appeals from India and our colonial possessions had accumulated, and to that number were to be added others not then lodged, but which were in course of transmission to this country. Upon inquiring the time that would be required for the dispatch of these appeals, it was found that if the Court sat continuously, de die in diem, for the same period of time that the Courts of Chancery and Common Law were in the habit of sitting, at least two whole years would be re- 54 quired for the proper dispatch of the accumulated amount of judicial business. But during those two years there would be a fresh supply of appeals, and probably 200 new appeals would be lodged while the accumulated business was being disposed of. They all knew the amount of business that was constantly arriving from the Courts of India, and the importance which was attached by India and the colonies to the connection with this country as securing a satisfactory determination of litigation. If, then, the Court took two years to dispatch the 370 appeals before it, and there was a nearly equal accumulation of fresh appeals during that time, it was hopeless to expect to arrive at a speedy and satisfactory administration of justice. Therefore it was impossible to see that anything could be done except to apply ourselves promptly to the constitution of a tribunal which would first dispose of the arrears and then deal satisfactorily with the appeals from India and our colonial possessions as they arose. On that occasion some difficulty was raised by the noble and learned Lord on the Woolsack, not to the evils he (Lord Westbury) had pointed out, but to the remedy he proposed should be applied; but as he distinctly stated that he would divide the House unless he received from the Government something like a positive pledge of action in the matter, that pledge was given, and he withdrew his Motion. Notwithstanding all this, absolutely nothing had been done, and for reasons which no man could tell. There was no division of opinion—there was no hesitation as to what should be done; and though it was to his mind a poor expedient, he was willing to accept it, such as it was, because he despaired of obtaining anything better. It was agreed that there should be added to the Judicial Committee two of the Puisne Judges, who should be encouraged to accept retiring pensions, such pensions being augmented by an addition of £1,000 a-year, so as to make up salaries similar in amount to those they were receiving at the time of their retirement, on condition that they devoted themselves continuously to the duties of the Judicial Committee. In addition to this it was proposed to secure the services, by a similar process, of at least one member who had filled the office of Judge in one of the High 55 Courts of Judicature in India; and these three Judges, with Sir James Colvile and Sir Lawrence Peel, who would receive similar allowances, would constitute the permanent Committee. He should have been very glad if a more comprehensive scheme had been adopted, but he was afraid that in this day they Mere all too desirous of merely patching up and resorting to miserable expedients instead of fulfilling great and imperative duties in a manner correspondent with their importance. The Judicial Committee of the Privy Council was the final Court of Appeal for doing justice to many millions of people who were increasing in wealth and commercial relations, all giving rise to a variety of judicial questions calling for settlement. These people were provided with Judges of First Instance; but they could not in the colonies get the quality of justice they required, and there was a great deficiency in regard to Judges who should exercise the highest appellate jurisdiction, and a feeling of disappointment resulted. It was characteristic of most men that they were content with the administration of justice when they drew it from the highest and most important sources, but were not content to receive it through subordinate channels. In one of the leading Australian papers—The Melbourne Argus—there appeared the following expression of feeling, which conveyed what he wished to impress on the House—But there is no doubt Dint a strong feeling of dissatisfaction with the present machinery for finally disposing of colonial appeals is rapidly growing in this country. It is too bad that the most important cases should be left untouched for two, for three, or even for four years. When at length the time for hearing arrives, there is no security that a Court will be formed such as the colonies have a right to expect.Then followed some discouraging observations, which, though not far from being just, he should abstain from reading. The article then proceeded to say—We earnestly trust that neither pains nor cost will be spared to provide a fitting organ for the greatest appellate jurisdiction in the world. We look, therefore, with the deepest interest for the news of the promised Jaw reforms of the Lord Chancellor. All that we ask is that our suits shall be decided by a fully organized English Court, and not by some stray legal casuals. We think that the colonies are worth the salaries of three or four Judges, even if the expenses of the Court should mount up to £20,000 or £25,000 56 a-year. Such a sum does not seem unreasonable for the dignity and efficiency of the oldest jurisdiction in the kingdom, and, we may fairly add, the greatest; and if England is so poor as to be unable to provide for the due performance of the Queen's primary duty, it will be well worth our while to contribute towards a Court which shall be fit to advice the Queen how to do right towards all her subjects who dwell beyond the limits of the British Isles.The "promised law reforms of the Lord Chancellor," referred to in the extract he had quoted, had unfortunately passed into that limbo of the past which was peopled with the ghosts of many other "promised reforms," and if he were called upon to give a motto descriptive of the policy of the Government in reference to legal reforms, he should inscribe, in large characters, the words—Quærenda pecunia primum est,Virtus post nummos."Virtus," in this case the duty of providing for the proper administration of justice, was by Her Majesty's Government placed post nummos. A great Commission had sat and reported upon this subject as to the proper course to be taken, and nothing was wanted but the money in order to enable the administration of justice to proceed in a proper manner. The same motto would apply to the scheme for building the Law Courts, and there were other schemes for which nothing but nummos was wanting, and yet they were postponed. It was very painful to him to say anything against Her Majesty's Government; in fact, he frequently abstained from speaking in order that he might not fall into this, and it was only when goaded beyond the power of endurance that such remarks escaped from him. As to the appeals, nothing had been done since last year, and the present state of things was worse than it was then. In the year 1870 there were 370 appeals in arrear, and on the 10th of the present month the registrar reported the number set down for hearing as 86; the number in the office and under prosecution being as nearly as possible 300 more—making 386, foreign and colonial, in all. This number did not include the appeals relating to patents, the Ecclesiastical and Admiralty cases, the interlocutory motions and petitions, and the Indian appeals, which might be estimated at not less than 100 more, or 486 in all. For various reasons some of those appeals might not come on for 57 hearing, and he would therefore strike off the 86, leaving in arrear 400 appeals of great importance to be dealt with. The appeals were also of great importance, for no appeal was brought before the Judicial Committee which involved a stake of less than £1,000, and many related to estates valued at hundreds of thousands of pounds, and sometimes the interests of a whole Province. What an enormous amount of anxiety was produced by the ownership of this property remaining undecided! Such a state of things was a premium to a litigious and obstinate man to persevere in litigation which was almost hopeless, because he might perhaps compel the opposite party to consent to some kind of compromise. It would be useless for him to dilate on the disappointment of nations that were forced to submit to our yoke, and who asked in return that they should enjoy the advantage of having justice properly administered. What, then, could we do in this matter? We might establish a great tribunal, presided over by some man of great eminence and reputation as a lawyer, and having other able Judges associated with him. Such a tribunal would discharge its duties in as satisfactory a manner as his noble and learned Friend on the Woolsack and the great Courts of Westminster Hall discharged theirs. It was vain, however, to ask for the establishment of such a tribunal; and therefore he asked for something which was more in accordance with the will of the Government, and which was a sort of expedient for the present, although it was neither consistent with their Lordships' dignity, nor at all adequate to attain the great object in view. He asked the Government to give a pledge that within ten days from the present time a Bill should be introduced into that House for the purpose of constituting a tribunal in the manner which his noble and learned Friend on the Woolsack proposed last year—namely, by adding to the Judicial Committee two Judges from Westminster Hall, and by so constituting what he might call the Indian Chamber of the Committee that it might sit constantly until the great heap of business before it had been diminished to such an extent as to be manageable for the future in the ordinary way. For some reason, which he could not at present 58 discover, the appeals from Bengal were far more numerous than those from the other Presidencies of India. Out of the 386 appeals at present awaiting a hearing there were from Bengal 274, from Madras five, and from Bombay only two. How was this enormous disproportion to be accounted for? Surely there must be in the constitution of the Court of Bengal and in the arrangements something which made it impossible that the cases should be satisfactorily decided in the first instance. If the noble Duke the Secretary of State for India would determine what was to be done in India, and if the noble and learned Lord on the Woolsack would consider the constitution of this tribunal, we might sweep away the opprobrious arrears of appeals, and fairly expect that they would not be augmented in the future. He said in the most determined and explicit manner that if he could not obtain from the Government that which they promised him at the end of June, 1869, he would, like the widow in Scripture, try to got it by importunity. If a Bill were not brought in within the time he had named, he pledged himself to move an Address to the Crown, and take their Lordships' opinion on the subject. It would be useless for his noble and learned Friend on the Woolsack to answer that there was in the House of Commons, a Bill which, in fact, was but a second edition of that which failed on a previous occasion to receive any approbation in their Lordships' House. The Bill in question had not, he believed, yet been read a first time in the House of Commons, and it would be a mockery to say it was likely to pass and come into immediate operation. Unless their Lordships came to the rescue and demanded that what was right should be done, he should be left to renew the present appeal in June, 1872.
THE LORD CHANCELLOR
said, that no pain which his noble and learned Friend could give to himself and the members of the Government could be equal to the pain they all felt at the existence of the grievance which he had described. They had been quite as sensitive to it as he had been, and he was perfectly aware it was a grievance of which India and the colonies had occasion justly to complain, that there was no well-organized Court to hear appeals from them, and finally to decide their 59 litigation. Without for one moment palliating or justifying the grievance which existed, he wished to describe its nature and character. He only wished it were possible within ten days to effect the salutary change desired by his noble and learned Friend; and, although he could not give a solemn pledge that the change should be effected in any given time, he would say that the Government would do their best to remedy the grievance arising from the present state of this Appeal Court. It was hardly just to say that nothing had been done—that a pledge had been given and broken; for a Bill was introduced into this House, and, although it did not meet with the approbation of the noble and learned Lord, their Lordships passed it, and it was sent to the other House, where the progress of measures of law reform had been impeded, and was likely to be impeded, by measures of more popular interest. Certainly the present Government had not been slow in endeavouring to effect law reforms. That which was most pressing when he came into office was the reform of the Bankruptcy Law, which preceding Governments had attempted, and the great need of which was shown by the fact that in the course of the year there were not less than 80,000 bankruptcy cases, in 5,000 or 6,000 of which alone a dividend was paid; whereas, he was glad to learn, from the learned Judges who presided over the Bankrupt Courts in the North of England, that the result of legislation was that there were very few cases in which no dividend was paid, that in the majority of cases a dividend of 10s. in the pound was paid, and there were very few in which the dividend was as low as 5s. in the pound. The Bankruptcy Bill was passed notwithstanding the engrossing demand upon the attention of Parliament caused by the legislation with regard to the Irish Church. In the next Session he was anxious to carry through a Bill for the reform of our legal tribunals; but the pressure of those two important measures, the Irish Land Bill and the Education Bill, fully occupied the House of Commons, and the Bills which he had introduced with reference to the Appellate Court, and the reform of judicature generally, made no progress in the other House. This Session a Bill, which some learned Judges considered a great im- 60 provement upon those of last year, had been circulated for comment and suggestion, and for some time it had been in the hands of a Member of the other House, with a view to its introduction there, in fulfilment of a promise he had given when the regular course of business there would permit. The present grievance with reference to the hearing of appeals before the Privy Council was in no way due to the present Government, but it had arisen from two circumstances, to one of which the noble and learned Lord had adverted. The appeals from India had increased with enormous rapidity during the last few years, and of course the Government could not be held responsible for that. Further, the constitution of the Appellate Court, which had well answered its purpose for 30 odd years, had wholly broken down. Five of its most able members and continuous attendants, although all living, had been rendered unable, from age or infirmity, to attend its sittings; and for this untoward circumstance the Government could not be held responsible. They would, however, be responsible if they did not attempt to provide a remedy for the state of things which had fallen somewhat suddenly upon us in this respect. With reference to the delay in the hearing of Indian appeals, he held in his hand a report of a discussion which took place at a meeting of a society that took an interest in these matters, and in that discussion there was read a letter from a gentleman who had a most perfect knowledge of the subject (Mr. Forsyth), who said that one cause of the delay was the want in India of qualified transcribers to prepare the evidence for transmission to this country. From this cause it took ordinarily from four to five years to prepare a case, and that accounted for the number of appeals that were "hung up." But the number that was actually set down for hearing was comparatively small. There were now 80 Indian appeals set down for hearing, but the remaining 200 or 300 were causes which could not be heard if the Privy Council were reconstituted to-morrow.
§ LORD WESTBURY
said, that all the papers had been transmitted and were now in the office; but the appeals were not put down for hearing, owing to the expense and inconvenience of entering them before they could be heard.
THE LORD CHANCELLOR
said, no doubt, expense was incurred by setting them down for hearing, because in that case counsel must attend, but causes could be entered without being set down for hearing; and if these 300 causes were ready to be heard there was no reason why they should not be set down. When he came into office there were two years' arrears of appeals in their Lordships' House; but now, notwithstanding that two causes had occupied eight weeks of judicial time—those of the Wicklow peerage and Miss Shcdden—the House was hearing appeals of the present Session. That being so, great encouragement was afforded to hope that, by providing Judges who could sit for a few weeks consecutively, the appeals that were set down could be disposed of. The existing grievance, therefore, was not one which had been long foreseen, and which could have been provided against; but, on the contrary, it had come on suddenly, and it had increased very much since the noble and learned Lord occupied the Woolsack, and the accumulation of appeals had arisen from five Judges being placed unexpectedly hors de combat with reference to their ability to sit and hear them. Having last year introduced a Bill for remedying the grievance—a Bill which passed their Lordships' House and was stopped in the other House only by the great accumulation of business—he thought the Government could not fairly be considered callous or insensible to the evils which had been described by his noble and learned Friend. With reference to Australia, he did not know what the statistics were as to appeals waiting for hearing; but there were only two appeals from that colony down on the paper. It was quite right, however, to take care that there should not hereafter be the same grievance to complain of as in India. What he deprecated was, that his noble and learned Friend should take up a tone which seemed to indicate that he was subjected to a personal injury in having had promises made to him and then broken, when he trusted he had satisfied their Lordships that he did not hesitate one moment longer than was necessary in passing a Bill through that House which was only stopped in the other House by the pressure of business. He was quite ready to say that, without confining himself within the rather 62 peremptory limits prescribed by his noble and learned Friend, he trusted they would be able so to arrange matters that, until a Bill, to be commenced in the other House—if they worn fortunate enough to receive it in any reasonable time—should pass, the sittings of the Court should be continuous, so as to take up the arrears. But he could not sit down without saying that the appellate jurisdiction of their Lordships' House had not given entire satisfaction, and he trusted the remedy hereafter would be by a general and comprehensive measure. There was one evil which ought speedily to be remedied—he meant the co-ordinate jurisdiction of their Lordships and of the Privy Council in the construction of English law. That House determined English law in the last resort. An appeal came from Australia which was governed by English law. That appeal went to another tribunal whose decisions were final on all questions of colonial law; and there might therefore be a clashing between their Lordships' House and the Privy Council on the construction of an English statute or some doctrine of English law. That was an unsatisfactory state of things, and he hoped when there was an opportunity of bringing forward the larger measure of which he had spoken something would be done to remedy it. He trusted he should be able to propound some means by which these two great Courts of Appeal might be able to render mutual assistance on all questions of English law, so as to act together in concert and harmony with each, other, so that there might be uniformity of law; and some measure which, he believed, would be found to contribute very largely to having a continually sitting Court in the Privy Council, and, so far as it was wanted, a continually sitting Court by means of a Committee of their Lordships' House for hearing appeals. Undoubtedly a very considerable reform was wanted in this direction. He had not gone into his noble and learned Friend's statistics. That was not necessary. He quite admitted the evil. But the immediate pressure, he thought, must be measured by the printed list; for there was, in fact, nothing more which was ready to be disposed of. If there were other appeals ready for hearing, he did not understand why they should not be set down. By means of the temporary 63 measure which he had suggested—namely, continuing the present sittings and sitting during the legal session, the present arrears would in all probability be disposed of.
§ LORD CAIRNS
said, he wished to make a single observation on the two measures to which his noble and learned Friend had referred. It was quite true that when the Bankruptcy Act became law the year before last, he hoped that some improvement would be effected in the law on that subject; but if his noble and learned Friend persuaded himself that in the opinion of the public that measure was working well and giving satisfaction, he was labouring under an entire mistake. It was very difficult to say whether there was not at this moment greater dissatisfaction occasioned by the working of that measure than there ever had been before. Then, as to the Judicature Bills presented last year, he thought their Lordships had great reason to complain of the course which had been taken. When brought before their Lordships' House they were mere skeletons of what a measure ought to be—skeletons without life, flesh, or blood. Everything of importance was to be filled up by rules to be made under the authority of those measures. He protested very much against the course which had been taken; but he was appealed to to allow the Bills to pass in order to allow the rules to be prepared, and a compromise was effected that the Bills should not come into operation until the rules, which were to supply the life-blood to the Bills, had been laid before Parliament. Now, what had been done? The Bills had gone down to the House of Commons, where they were not even proposed for discussion. He did not think that a Government with a large majority at their back were justified in laying these Bills aside without attempting to pass them through the other House. What was the consequence? Having arrived near the end of the Session, his noble and learned Friend (the Lord Chancellor) told them he had prepared and circulated some Bills on the subject. All he know was, they had never been presented to Parliament.
§ LORD CAIRNS
said, he must remind his noble and learned Friend that it was not the duty of the Judges, but of Parliament, to legislate on this subject, and it was not enough at nearly the end of the Session to tell them that Bills had been circulated among the Judges which had been referred to in the Queen's Most Gracious Speech from the Throne. Now, a late stage of another Session had been reached, and the measures which had been again referred to in the Speech from the Throne were in about the same position. With reference to the Privy Council, although the printed list of appeals waiting for hearing amounted to only 86, he did not think, judging from his own experience, it was too much to say if the Judicial Committee sat consecutively during the whole judicial year they would be unable to dispose of that arrear; and there would then be another arrear. The delay which occurred was attended with great inconvenience to suitors. Appeals to the Privy Council required a considerable expenditure of money. Printed cases must be prepared before they were sot down, and no solicitor would incur that expense, which would be out of his own pocket, while the arrear was such that he saw there was no chance of his case being reached within 12 months. Looking to the time that was occupied by the Privy Council in hearing cases, the wonder was that so many as 86 had been put down. It was no answer to say that the business of their Lordships' House was not now very much in arrear; but even if there was a great arrear he doubted whether it would so imperatively call for the interposition of their Lordships at this particular moment, because the business before this House related to England, Scotland, and Ireland, where people knew what was going on, and could interfere and agitate if they found that their interests were being neglected. Their Lordships, however, were now asked to protect the colonists and the people of India, who were not able to make their complaints known except through the newspapers, and were, therefore, driven to agitate in their own countries for the establishment of a Court of Final Appeal in each particular colony—a step which would destroy one of the most valuable links that connected this country and her colonies—namely, the drawing their sources of law from 65 the Courts of England. He did not say that the Government were to blame for there being so much litigation from the colonies to be disposed of here; but they were exposed to blame for not being at least in a better condition to remedy existing grievances than they were last year. Another complaint that he had to make against the Government was with regard to the Bill that they introduced last year to improve the Judicial Committee of the Privy Council. He thought its provisions inadequate, and that they would rather deteriorate the tribunal; but, giving way to the urgency of his noble and learned Friend on the Woolsack, he abstained from doing anything more than proposing that the Bill should be for one year only. In a division on that point all the Members of the Government voted against him, and his Amendment was negatived by a majority of 11; but when the Bill went down to the House of Commons the Home Secretary, before a word of criticism had been offered, recommended that the Bill should be only a temporary one. That was not encouraging. If his noble and learned Friend (Lord Westbury) had asked for complete legislation within ten days he would have been unreasonable, but he only asked that the proposed Bill should be introduced within that time. There was not the least reason why that should not be done; and to be unable to promise to bring forward within ten days a Bill that was mentioned in the Royal Speech was tantamount to saying that the Government were in difficulties and did not care to meddle with the matter.
§ LORD ROMILLY
said, he had always understood that the remedy for the existing evil was to be a temporary one only; but if the reform of the Judicial Committee was to be postponed until the passing of a general measure as to the whole appellate jurisdiction of this country, he would venture to say that the subject would outlive many of their Lordships. He understood the noble and learned Lord on the Woolsack to promise that he would alter the judicial tribunal itself, so as to enable it to sit continuously. It was idle to refer so constantly to the late Lord Kingsdown, who liked sitting in a judicial capacity, and constantly did so, without receiving any reward. By him the Court was kept always sitting; but that could not 66 now be done unless proper persons were employed at a sufficient salary. Some temporary measure was required for enabling the Judicial Committee to dispose of that business which was essential for the administration of justice over a large part of the world. He therefore hoped his noble and learned Friend would not wait until these Bills came from the other House, but would at once introduce a measure to remedy a grievance which was universally felt.
§ LORD WESTBURY
, in reference to the Indian Appeals, said he hoped that the promise of the Lord Chancellor would be put on record.
THE LORD CHANCELLOR
said, there was no necessity for any record. The Government would take care to propose some arrangement by which a competent Court might be constituted to hear Indian Appeals without delay. How the Court should be constituted was a matter that would require consideration.
§ LORD WESTBURY
gave notice that if some measure were not soon taken he would move an Address to the Crown on the subject.
§ House adjourned at Eight o'clock, till To-morrow, half past Ten o'clock.