§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, I have to move the Second Reading of this Bill. The 219 greater part of the Bill was contained in a Bill which passed this House in the years 1923 and 1924, and with those parts of the Bill I therefore do not think it necessary to deal. They effect important changes in practice, but they are familiar to your Lordships and I will not repeat the arguments upon them which I addressed to your Lordships two years ago and which were put forward by the noble Viscount the Leader of the Opposition last year. I propose only to refer in detail to two clauses of this Bill.
The first is Clause 3, which deals with trial by jury. On that point I want to make the position quite clear. From 1873 to 1918 the right to trial by jury was regulated by Rules of Court, under which it was the duty of a Judge to order trial by jury upon the application of either party to an action, with certain exceptions, such as trials in the Chancery Division, or trials requiring long investigation of accounts or involving scientific investigation. That was the rule before 1918 and it appeared, upon the whole, to give general satisfaction. In 1918 the paucity of men available to serve on juries had, of course, become great, and accordingly an Act was passed which was to last for the duration of the war and six months afterwards. The effect of that was to reverse the position under the previous Rules of Court, so that while the right to trial by jury was preserved in a certain category of cases, such as cases of slander and libel, and so on, it became the rule in other cases that they should be tried without a jury unless the Judge was satisfied that they were more fitted to be tried by jury than without. That remained the law for about eighteen months after the end of the war.
Then came, in 1920, an Act which somewhat altered the position. It restored to some extent the right to trial by jury, but it still gave power to a Judge to dispense with a jury if he were satisfied that the case could not be as conveniently tried with a jury as without. That word "conveniently" gave rise to a great deal of discussion and different Judges placed different interpretations upon it, and it was felt that the effect of the Act of 1920 was to take away the ancient right to have a case tried by a jury. Accordingly, in 1923, I introduced a Bill in this House by which we proposed to 220 restore the right to a jury unless the Judge thought that the case was more fitted to be tried by a Judge than by a jury. That, of course, made it the general rule for a case to be tried by jury, but it gave to a Judge a judicial discretion to order trial by a Judge where having regard to the nature of the case he thought that a more suitable manner of trial. The same provision was in the Bill of 1924. Both those Bills met with criticism in another place. There was a strong feeling among Members of Parliament that they would prefer to have the pre-war position entirely restored and an Amendment was passed in another place, I think by general consent, restoring entirely the pre-war position. We propose in this Bill to accept that decision, and the effect of Clause 3 of the present Bill is that we repeal and do away with the provisions of the Act of 1920 and bring the matter again back to the position where it was before 1918, so that the matter will be regulated as before by Rules of Court. I hope that position will be generally approved by your Lordships.
The only other clause which I wish to mention is Clause 5, the principal effect of which is to give His Majesty power to appoint an additional puisne Judge of the Probate, Divorce and Admiralty Division. Those who are familiar with these things know that this Division is deficient in man-power, and that for years it has been not only the occasional but the general practice for that Division to borrow a Judge from time to time from the King's Bench Division. That was not quite satisfactory, because obviously the needs of the King's Bench Division were bound to come first when a question of lending arose and the President of the Probate, Divorce and Admiralty Division was not always able to foresee where he would stand and make his arrangements accordingly. When I came into my present office two months ago I found that the condition of things in the Division was very serious. The President of the Division had been ill in the summer. Mr. Justice Hill, who is the only other Judge of that Division, was seriously ill last autumn and I am sorry to say has not fully recovered his health. I am satisfied that, to some extent, that condition of things was due to overwork and that it is really impossible for the Judges of that Division, while they remain only two in number, to keep abreast of the work 221 without serious peril to their health and a grave strain upon the whole of the staff.
The reason for that is not difficult to tell. There has been a great increase in two sides of the work of that Division. The number of divorce petitions, which from 1874 to 1878 was an average of 560 in each year, rose in the period from 1909 to 1913 to an average of 1,078 in each year, and the number in 1919 was as high as 5,763. Since that time, which was immediately after the war, the number has substantially decreased, so that in 1923 the number was 3,212. There appears to be no real doubt that we may now consider that it has attained something like the normal number and that the Division, which in 1873 dealt with only 560 such cases a year and which before the war dealt with rather more than 1,000, must now expect to deal with 3,000 divorce petitions in every year. That is, of course, a very large increase.
The Admiralty cases have also increased, but not in the same degree. The number of those cases in 1914, before the war began, was 432 in each year, and it has risen now to about 900 in every year, or something more than twice the number before the war. But the interests involved in cases in the Admiralty Courts are, of course, very great. The modern ship is worth many times more than the ship of previous days. Vessels are worth many thousands of pounds and large sums are at issue in the cases of collision, salvage, and so on, which come before the Admiralty Court for decision.
There is this further consideration that while it is important for all litigants to have their cases promptly dealt with it is far more important for litigants in this Division than in others, and for this reason: that in these Admiralty cases most of the witnesses are men who follow the sea and they cannot be kept waiting for a case to be reached in which their evidence is to be given. They have to go off on other voyages, and once they leave these shores it takes a long time, and costs a good deal of money, to get them back again. Therefore, it is of the utmost importance, as any one who is cognisant with the work of that Court will know, that Admiralty cases, above' all others, should be heard as quickly as possible, and also that when a day is fixed for their appearance that day should be kept and there should be no postponement from day 222 to day. That can only be done if the staff of the Division is sufficient to take such cases as and when they become ready for trial.
I received only a few days ago a very strong deputation representing the Chamber of Shipping of the United Kingdom, Lloyds, the United Kingdom Chamber of Commerce, the Law Society and other societies of great influence and weight. What they had to say was listened to not only by myself but by the Lord Chief Justice, the learned President, of the Probate Division and the Attorney-General, and we were all satisfied that a strong case had been made for the petition which they put forward, that the sanction of Parliament should be asked for the appointment of another judge of this Division. I think it must be recognised that there is a real permanent need for a third Judge in that Division and I hope Parliament will sanction the provision which we have proposed.
I will only add that most of us are proud of the reputation of our Admiralty Court. It is known all over the world. It keeps the law of the sea from end to end of the world, and so great is its reputation that I believe it is the fact that it is the desire of all those who have quarrels about sea affairs to have those disputes brought before our Admiralty Court rather than before other tribunals. There was a case, which was mentioned the other day, of two foreign ships which were in collision off the coast of South America. Neither the vessels themselves nor the place where the accident occurred were in any way connected with our country. Yet, somehow, it was arranged between them that they should immediately proceed to Great Britain to have their differences settled in the Admiralty Court. That is a tribute to the reputation of our Courts which is due to a long line of eminent Judges from the days of Lord Stowell down to the days of Sir Samuel Evans and Lord Sterndale and which I am sure is and will be fully maintained by the present and future Judges.
I ought to make one other observation. In asking the House, before Christmas, to agree to an Address for the appointment of two additional Judges of the King's Bench Division, I used as one of the arguments in favour of that course the fact that the Division had lent Judges 223 to the Probate, Divorce and Admiralty Division. It may be said: "Having used that argument for the appointment of two Judges of the King's Bench you are debarred from now asking for a further Judge for the Admiralty Division." No doubt that will be said. But the answer is clear to me, and it is that even with those two extra Judges we shall not overtake the arrears of work in the King's Bench Division within less than twelve months from the present time. If by that time we do succeed in overtaking, or nearly overtaking, the work and if then I, or some successor of mine come to the House asking leave to fill a vacancy in the King's Bench Division, the House will, I am sure, expect to be fully satisfied that there is then a need for the additional Judge.
I will only mention one other provision of the Bill which is related to the matter to which I have just referred. When, under the present law, the two Houses present an Address to the Crown asking for the appointment of an additional Judge of the King's Bench Division that only operates until a vacancy occurs; so that if, to-morrow, a Judge of the King's Bench Division were to resign it would not be possible for a successor to that Judge to be appointed without the consent of both Houses. Plainly that is a very inconvenient and absurd arrangement. The need for the extra Judge is certain to last at all events for a time, and I indicated then to the House that I intended to make some such proposal as that which is contained in the present Bill. It is that if, during the twelve months following the passing of an Address, the temporary Judge appointed or some other Judge should resign, or there should otherwise occur a vacancy in the Division, that vacancy can be filled up without a further reference, to Parliament, but that provision will not operate beyond the period of twelve months. I think that is a reasonable and moderate proposal, and I hope the House will agree, to it.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ VISCOUNT HALDANE
My Lords, I have read this Bill attentively, and I think it is a Bill which, to the best of my judgment, we ought to pass. I say so the more because, except in two material points, it does not differ from the Bill 224 which the late Government carried through this House, and which was before that carried through this House by my noble and learned friend on the Woolsack. Of the two serious points on which the Bill differs one relates to trial by jury, which is, on the whole I think properly, left to be dealt with, not by individual Judges, but by Rules made under the Judicature Act, as it was before and as it will be in the future.
The other point is that of the additional Judge. I am always reluctant to rush quickly into the plausible path of appointing more Judges because work has grown. Work grows and then it diminishes, and sometimes you find the Judges left with very little to do, but upon the present occasion I do not think that is so. In addition to the reasons which the Lord Chancellor referred to, there is another reason why we require full judicial strength. The habit has grown, and is steadily increasing, of the Government asking a Judge to preside over some inquiry into a matter of policy. It may be said, on the one hand, that it is not the business of a Judge to do that. On the other hand, there are certain classes of questions which can be dealt with better with a Judge of impartial mind as Chairman than by almost anybody else, and the custom has arisen to approach the Lord Chancellor to put pressure to operate on a Judge. I was always very unwilling to do it, and I think the present occupant of the Woolsack is very unwilling also, but there are some occasions on which you must do it. The public evil of refusing is greater than the evil of consenting. At the present moment, with Judges away—and there probably will be still more Judges away—that weakens the Bench and causes arrears.
It is not proposed to appoint a Judge at large, but to appoint another Judge of the Probate, Divorce and Admiralty Division. There is a very good case for strengthening the Admiralty Court. It is not only popular, as the Lord Chancellor has said, but it is a Court the operations of which are of vast and increasing importance. I have often wondered why we stick so long to the tradition of mixing up Probate, Divorce and Admiralty. They are very different things. The knots which the Judge of the Divorce Court has to untie are very different from the knots with which the Judge of the Admiralty Court deals. Nor 225 is the jurisdiction extended by consent in the same way. We are very strict about divorce in keeping the jurisdiction of cases where the domicile defines the jurisdiction as English, and why we should remain with probate super-added I do not know.
There is a whole series of questions relating to patronage in the Probate Division that are ripe for being dealt with, and I hope that my noble and learned friend Lord Merrivale will bring his acute intellect and great experience to bear in assisting the Lord Chancellor to get that proposition put upon a proper basis. Speaking from personal experience, I can say that it gives rise to great confusion and difficulty, and the sooner we get a uniform system the better. You may always rely on the Lord Chancellor not interfering unduly with the desires of the particular President. He is always very willing to consult him, but the confusion which arises from having different Rules is often very great. That only shows that, this Bill does not cover the whole field which will have to be covered if the law is to be put on a completely satisfactory footing. The Administration of Justice Bill does deal with a number of things which have long been demanding settlement and it is satisfactory that in the Third Session in which the Bill has been considered we should be brought face to face with what looks like an opportunity of passing it into law.
§ LORD BUCKMASTER
My Lords, I think the Lord Chancellor exercised a wise discretion in confining his exposition of the Bill to the two points on which he dwelt. The other parts of the Bill are matters upon which agreement had been already reached. I propose in the few remarks which I wish to make to confine myself in the same way. Let me deal first with the question of juries. I have often thought that this general public demand for a jury is over-estimated in amount and has really very little foundation in good sense. There is not the least doubt that trial by jury is a serious obstacle to the swift expedition of business, and I certainly should be prepared to support the Lord Chancellor had he elected to attempt to limit the opportunities for having cases tried by juries to the extent to which they formerly were limited, but in truth I have no doubt that people have got a notion into their heads that juries 226 are in some way a safeguard of their liberties. If that be superstition, it is a venerable and, after all, a worthy superstition, and I will not attempt to interfere with it. I am sure we shall find that business in the King's Bench Division will always be liable to be blocked if you have an unrestricted right of trial by jury, but there it is and I shall say no more about it.
The matter that the Lord Chancellor raises in asking for the appointment of a new Judge of the Probate, Divorce and Admiralty Division is a much more serious thing. In the first place, it is not many weeks—I was going to say many days—ago that this House was asked to approve the appointment of two additional Judges of the King's Bench Division, and I then pointed out that the mischief of assenting without demur to proposals such as that is that the real reason why the Judges are wanted is never investigated at all. You never look to see whether by better arrangement of the business, or by some change of method or system, you might not avoid the necessity for the additional appointment. I raised no further objection then, being assured and knowing of my own knowledge that, whether for good or evil, the system—and I think it needs a great remedy—had undoubtedly produced a block in the King's Bench Division which urgently needed the further Judges in order to secure its removal. But at that time the Lord Chancellor did not suggest that he would be coming down almost directly to ask for a third Judge. If, in fact, the conditions were so grave as they appear to have been they surely ought to have been represented to the Lord Chancellor at that time. I am sure had that been done he would not have agreed to take proceedings like this in piecemeal, and appoint two Judges to-day, and another one to-morrow.
§ THE LORD CHANCELLOR
The only way in which this matter could be dealt with was by dealing with it piecemeal, because the two Judges who were appointed had to be appointed by means of an Address, while this appointment requires an Act of Parliament. I dropped a pretty broad hint at the time that I was considering the whole matter and might have to come again to the House.
§ LORD BUCKMASTER
I thoroughly understood from the Lord Chancellor that it was the congestion of business in this very Division, and the borrowing of Judges from the King's Bench Division for the purpose of easing it, that was one of the reasons why the new Judges should be appointed. But let us assume that this new urgency has arisen: I come back to the proposition I have just laid down. If you are always going to meet the demand occasioned by a congestion of business by the appointment of new Judges whenever it is asked, you will never put right the condition of affairs which has given rise to that congestion. Remember, you are being asked now to appoint a Judge to a, named Division. What the noble and learned Viscount, Lord Haldane, has said is perfectly true. Can you imagine a more miscellaneous and incongruous selection of cases to be tried by a Division of the High Court of Justice than Admiralty, Divorce and Probate? And why are they mixed together? It looks as if you had assigned all the other business to proper Divisions and then had a waste paper basket into which you poured all the other cases which had not been so assigned. It may be that in history you would find some ground for the association of Divorce and Probate. Probably they both came out of the Ecclesiastical Jurisdiction; but Admiralty certainly did not.
If the Lord Chancellor would say: "I recognise that the whole of this matter wants rearranging, and if you will appoint another Judge, which we really need for the King's Bench Division, I will rearrange the whole of this work," he would have my assistance to the utmost of my power. But nothing of the kind is promised us. Is there anything connected with divorce that requires an additional Judge? At the present moment, owing to the way in which our laws stand, practically every divorce case involves one question only—the question of adultery. Formerly there were, no doubt, other cases which involved questions, such as cruelty, which gave rise to more difficult and delicate consideration; but these cases are now exceedingly rare. The simple fact of adultery cannot surely want a Division associated with Admiralty and Probate for the purpose of its determination. Why not put these cases to be tried by other Judges? It would be much 228 better. There is no reason why they should be kept together. And why not simplify the procedure in these cases in order to make it more intelligible and more consistent with what I regard as common justice? At the present moment you do not proceed to obtain relief by way of divorce in the same way as you do in other cases. It may be news to your Lordships, but if a woman files a petition against her husband for divorce and charges him with adultery with a named woman, the Courts do not think it necessary that the proceedings should be served on that woman at all, or that the woman should be brought before the Court.
§ LORD MERRIVALE
May I interrupt the noble and learned Lord for a moment? By Rules which came into operation some months ago that defect in the old procedure has been remedied in the manner in which the noble and learned Lord has always desired.
§ LORD BUCKMASTER
I did not know it had been remedied. Am I to understand that the woman is now made a party to the petition?
§ LORD MERRIVALE
The woman who is charged with adultery must have notice of the petition and she has the right thereupon to intervene and be heard. And since the new Rules have been passed numerous women have intervened in cases of that kind.
§ LORD BUCKMASTER
I am not surprised that they have intervened. I am surprised, however, that they are not put on the same footing as men. Why cannot they be made parties to the proceedings from the first? The charge is the gravest one which can be made against a woman and she has a right to appear before the Court in the first instance. I am glad there has been a modification which gives her the right to intervene. But the real object now is not to alter that. The arrangements and adjustments of the business of this Division are all matters which require consideration; and if the business were properly rearranged I should not be surprised if it were found that we could get along without the appointment of this new Judge. If you are going to leave things as they are, if you are going to allow this block 229 to remain, then you must have this new Judge; and as there is no immediate prospect of getting an alteration, there is no choice left me but to support the appointment of the new Judge.
I have only two other things to say. The noble and learned Viscount has referred to the fact that the Government is in the habit of calling upon Judges for the purpose of presiding over public Commissions. That is true, and I do not agree with him in regarding it with approval. I think it is very often a most disastrous thing. You ought not to call a Judge away from his business in order to be associated with any inquiry which may involve him in the turmoil of a political dispute; and many arc so called. My own feeling is that the demands made on Judges for this purpose ought to be most jealously safeguarded and watched, and I have no doubt that in the hands of the present Lord Chancellor they will be.
The only other word is with regard to the new clause which provides that if a vacancy occurs within twelve months of passing an Address it may be filled up without the need for a second Address. It is true the Lord Chancellor did indicate that he was going to do something of the kind, but I am relieved to find that he has provided that it shall only be for twelve months. I rather gathered that he was going to make it permanent and remove from Parliament altogether the power of saying whether these appointments should be made or not. I am thankful to find that it is only for twelve months. But I do not see the necessity for it. Supposing the difficulties were removed and a vacancy occurred owing to the death of a learned Judge, or suppose a Judge retires, why should you fill up the vacancy? There would be no reason for it. You have appointed new Judges; and at least I think this matter should be, left to the Houses of Parliament. I cannot see why it should be assumed that Parliament would act unreasonably or that any time would be wasted in laying the matter before it. If anything occurs in the twelve months it will be easy to see what the position is and fill up the vacancy. I do not suppose it is possible to prevent the operation of this provision, but I feel strongly inclined to put down an Amendment to it in Committee. 230 I dislike powers of this kind being taken out of the hands of Parliament, even for a period of twelve months.
§ LORD MERRIVALE
My Lords, I ask your Lordships' indulgence in offering you a very few observations upon this question, of which, obviously, if I have knowledge, I ought to communicate that knowledge to the House. My noble friend who has just spoken referred to some questions of policy which, if they had to be decided before this Bill were passed into law, would postpone the possible operation of the Bill for a very long period of time. I do not propose to enter into those questions in detail. The noble and learned Lord referred to the policies of dealing with divorce and of having a special tribunal for divorce, or, on the other hand of scattering divorce among the civil or criminal business of the Judges and making each Court in the High Court of Justice a centre in which matters relating to divorce ought to be discussed. Upon a proper occasion I should be very glad to offer some observations to the House upon the advisability of mixing up divorce with the ordinary civil business of the country. There is a very great deal to be said against it. I thought so years ago, and more than five years' experience of this subject in a most difficult period has greatly strengthened the, view that I held. There is a demoralising influence about facilities for divorce with which the noble Lord has not, perhaps, had the experience which would lead him to take the view which I might express on that matter. But I pass from that point.
Then comes the question of the administration of the Divisions. The noble Lord has said, as it seems to me with weight, if I may say so, that in the administration of the Divisions it is very desirable, if there is a surplus of judicial strength in a Division, that it should be at once available in whatever quarter it is desired to make it available. So far as I am concerned I may say this: If it should be found—as I fear is not likely—that the appointment of a new Judge in the Division in question gives any margin of judicial time, my services will be available wherever they can be used. The judicial office is not a retreat from work. It involves much hard work, but I am sure that for all my colleagues who have 231 had part in the administration of justice I might make the same promise which I make with regard to myself. I should be very glad to see some words in the Bill which would secure this, but I may remind my noble and learned friend that at present, if the Lord Chancellor and the President of either of the Divisions together with the Judge concerned agree upon this subject, a Judge is available for work in either Division, and it is only by recourse to that means that the Probate, Divorce and Admiralty Division have been able to carry on with a reasonable approach to the necessities of the time during the whole of the five years in which I have held office. That point can be dealt with.
The noble Lord next dealt with the necessity of this appointment. I may say to the House now, though I should not otherwise have mentioned it, that for upwards of four years I had been a petitioner for help to carry on the public business of the Division, but I have since abandoned the attitude of petition, and I have notified my noble and learned friend upon the Woolsack that I have ceased to make application, and that I decline to be a suppliant in a matter of that sort. What has happened is that the commercial community, which is profoundly interested in the manner in which Admiralty business is carried on, has combined in a protest to which there was no answer.
In view of that which has been said, I think that I ought to give the House in a very few words some idea of the existing state of things. My own learned colleague is now, as has been said, seriously ill, and was for a long time in imminent peril of death, because during the whole of last year he was systematically overworked. I knew, as many men knew, that his work extended over seven days of the week. The public does not bargain for work of that kind, and I do not believe that it desires it. I am sure that it is not in the interests of the administration of justice, but that has been the characteristic of the work. Admiralty jurisdiction is a trying and difficult jurisdiction to administer. I came back to it, as has been said, after a period of illness. I have been administering it, and I hope to administer it, but I am doing so at the present moment single-handed, with the result that, two 232 weeks ago, there was a case which attracted some public attention where the suitors in a matter of great pecuniary moment submitted themselves from three sovereign States to the jurisdiction of the British Court, and when they were ready to appear their case could not come on, and when their case came on other cases had to be postponed. I am assured, and I have no reason to doubt it, that the postponement of an Admiralty case with seafaring witnesses—"ships' witnesses" as they are called—waiting to be heard involves, on the average, a loss of £150 a day. I contrast that with the expense of providing facilities for trial.
The present situation with regard to the trial of Admiralty cases is an impossible situation. A Judge who is linked with one other Judge cannot do the business to his own satisfaction. He may succeed in keeping down the cases, but they have to be tried, and they ought to be tried with deliberation, and the judgment ought not to be the judgment of a man who is working six or seven days a week. That is not what suitors come to a British Court for. I say no more as to the urgency of this matter. I have already said that I declined to be a suppliant in a matter which affected public interest. I have made my representations from time to time. His Majesty's Government have now recognised this necessity, and recognised it in these terms:… the great congestion of Admiralty business which ha6 become increasingly serious of late years and is now causing great inconvenience to litigants.That does not overstate the matter by a jot. It is causing, and it will cause, inconvenience to litigants. It is in the power of the Legislature to refuse any remedy for this difficulty. That is the responsibility of the Legislature. One result must be that suitors who desire the trial of their case by a Judge will refer it to arbitration. My own view is that the State ought not to compel them to go to arbitration. Relief will be found in some manner, but this necessity has been pressed upon His Majesty's Government, and notwithstanding the difficulties which my noble and learned friend on the Front Bench pointed out as preventing ready acquiescence in this proposal, the proposal is made, and I wish to say only one more word about it.
233 This is an omnibus Bill which includes the question of trial by jury, the question of centralisation of the administration of various divisions and the question of the organisation of probate registries, which will evoke protest from twenty or thirty cities and areas in this country where it is proposed that amalgamation shall take place. Having regard to the fact that this Bill has spent two years in the Houses of Parliament without becoming an Act, I am a little anxious as to whether the relief, the necessity for which I feel so urgently, is likely to be given at a time when it will procure its best effect. To procure its best effect it ought to be made while suitors are clamouring for their cases to be heard in the Admiralty jurisdiction, and in order that their cases may be heard. Postponement of it will diminish its good effect.
I venture to say further that, with regard to the other most important questions which my noble and learned friend on the Front Bench adumbrated in his speech, I regard them as very important questions, and I do not think that it is essential that the state of things which made Lord Stowell a great Judge in Admiralty cases and a great Judge in Ecclesiastical causes shall be supposed to be necessarily capable of reproduction to-day. Those are matters which cannot be dealt with without trouble and difficulty, but I do sincerely trust, upon public grounds, and if I may say so to some extent upon my personal responsibility in this Division, that this Bill may speedily become an Act of Parliament, or, if its passage be long postponed, that His Majesty's Government will consider whether it is not possible, to separate the non-contentious from the contentious clauses, and give the commercial community the advantage for which it cries aloud in asking for this Bill.
§ LORD PHILLIMORE
My Lords, I desire to support the appointment of an additional Judge for the Admiralty Division, and I desire also to support what has been said by my noble and learned friends, Lord Haldane and Lord Buckmaster, with regard to my great desire that the Government should take this, or some early, opportunity of severing that absurd alliance of Probate, Divorce and Admiralty. I have been familiar with the working of this Division from its very beginning. I was a practising 234 barrister when the Judicature Act became law, and I have never shrunk from the conclusion that the union of these three jurisdictions in one Division was absurd and mischievous. I cannot, I think, give you a better illustration than by telling you what happened when it was originally intended to fit the Law Reports to the new arrangement of the Courts of Justice. It was agreed that there should be a separate volume for the Queen's Bench Division to be called, for short, Q.B.D., a separate volume for the Chancery Division and for the Exchequer and Common Pleas—Divisions which have now ceased to exist. Then it was agreed that there should be a separate volume for the others, and some wag, I suppose it was, suggested that that volume should be entitled "The Miscellaneous Division," and I believe that in some of the earlier Law Reports you will actually find reference to "1 Mis." It is a miscellaneous Division.
Well-trained English lawyers can undertake almost any branch of legal jurisdiction. They come to it, if it is not their old class of work, somewhat awkwardly, and probably, for a time, somewhat slowly, but I do not deny that after a time they can do even the most specialised kind of work; but to take a man specialised in one subject and make him the Judge for another specialised subject is really a very extravagant proposition. It is true that among the great and admirable Judges who have sat in that Division we have had some remarkable people who might be called good all-round Judges, but there have been instances in my experience of Judges, admirable for Divorce and Probate, who have not made the best Judges for Admiralty work, and I think I am right in saying that we have had good Admiralty Judges who have not made the best Judges for Probate and Divorce.
I think myself that the right thing to do would be to redistribute this Division. It represents a mixture of compromise and a desire for symmetry. They started by saying that they would have all the different Courts fused into one. Then they got afraid of doing as much as that and said that nevertheless they would keep all the old Courts as Divisions of the one great supreme Court. Then they came to two single Judges, the Judge who had the Probate and Divorce work, and 235 the Judge who had the Admiralty work, and having got so far in the spirit of compromise the spirit of symmetry prevailed, and they said: "We cannot have all these people as isolated people, and we will put them into one Division." The result has been what I have said.
I have long thought, and I am glad to have an opportunity of faying again, that the right thing would be to give the Divorce work to the King's Bench Division. You do it at Assizes now. The issues to be tried are quite simple and are fitted to be tried by Judges who try ordinary actions of various kinds of torts between man and man, and criminal cases. Divorce cases are very much more like criminal cases than anything else. There are occasionally delicate questions, such as condonation or connivance, to be dealt with, but I think those questions might very well be trusted to Judges who have to exercise such discretion as the King's Bench Judges have to exercise, in postponing sentence upon prisoners or setting them free, and so forth. The Probate work should go to the Chancery Division. Questions of fact sometimes arise, and if necessary they could be tried by jury. Such questions as whether a man or a woman was insane, or whether undue influence had been exercised, are questions which a Court of Chancery has to try with regard to settlements, and it is perfectly capable of dealing with such questions. Probate work, except the administrative part of it, is so small that it would add no serious burden to the work of the Chancery Division.
Then I would leave the Admiralty Division by itself. I quite agree with what an Admiralty lawyer said the other day: "For Heaven's sake, do not get rid of that name. The Admiralty Court is what foreigners look to and it is that which has this great reputation." When I had the honour of sitting on the Commission at the Hague for framing the Permanent Court of International Justice I had almost to blush for the compliments which were paid by continental people, and by Mr. Elihu Root, the American, to our great English Judges. I am sure that when they have the opportunity foreigners are always glad to submit their cases to English Judges, and that those instances of which Lord Merrivale and the noble and learned 236 Viscount on the Woolsack have spoken will occur and recur, and that it is most desirable that they should.
I have heard people say: "Why do we want to bother about deciding cases between foreigners?" It is exactly what we do want to do. We want to make England and London the focus of the business of the world. We want the business of the world to be, as it is, largely handled here. It is part of our invisible exports, and part of the way we pay for the food that we must import into this country. I should like, if I may say so, to purify, to free, the Admiralty Division from its connection with Divorce and Probate, to leave it by itself, possibly adding the Commercial Division of the High Court of Justice. I have heard that suggestion made, and it may be a good one, but I should like to have the Admiralty Division sitting by itself, and instead of its Judge being condemned, like Proserpine, to spend six months of each year in Hades, every Judge of the King's Bench Division in turn should sit in Divorce.
§ LORD DARLING
My Lords, perhaps I may be pardoned, as one who has spent a good deal of time on circuit, if I say a word or two in favour of the poor little clause which no noble Lord has yet thought it worth while to mention. It is the first Clause of the Bill, which gives power to the Lord Chief Justice to do something to prevent Judges from being unnecessarily sent down into the country and diminishing the numbers required in the King's Bench Division when there really is no occasion for them to go into the country. I know that this is a thorny and difficult question. Royal Commissions have considered it and have made representations, and somebody or another, some day, will have the courage to take the whole of the circuit system in hand. This clause is the result of the deliberations of a Royal Commission which lately sat. It does not do much, but it provides that if there is so little business, whether civil or criminal or both, at some Assize town, that it is apparent that it is not worth while to send Judges there, the Lord Chief Justice, on considering all the circumstances, may decide that no Judge shall go there; but he may only do it—and this is the safeguard—if the Lord Chancellor agrees with him.
237 For a long time I went circuit and it is only for that reason that I venture to trouble your Lordships on this question. I remember when I went to Dolgelly in the last century there was one case for trial. It is a long way to Dolgelly and one does not enjoy oneself when one gets there. Having arrived there I found twenty-three grand jurors who had been summoned from all over the county. How they got to Dolgelly I do not know but there they were, and they found a true bill against a man. He was put up before me and charged with having attempted to steal a, penny from a till in a confectioner's shop. Of course, he was a criminal, but he had some decent feelings. He pleaded "guilty" and he at once apologised with many bows and genuflections, some to me and more to the Grand Jury, for giving us the trouble of coming there. He assured us that he repented of his crime, and I have no doubt he expected a terrible sentence because he was an old offender. He was old and he had served a long time in the Army, I remember. I passed sentence upon him and your Lordships may imagine how severe it was! I inquired why he had been sent to Assizes at all. Of course, I knew really that he had been sent there because, if a town goes for a long time without an Assize being held, there is a very strong case for taking the Assizes away altogether from the county whenever that question comes up for consideration. But that was not the reason that was given to me. I was told that he was sent there because it was a case that the magistrates did not feel they ought to deal with, for the reason that he had been previously convicted. I inquired about that and I was told that when he was twelve years of age he had been convicted of stealing a pair of boots. He had never done anything wrong that any one had discovered since then. I was asked to treat him as an old offender, a man with a previous conviction—and I assure your Lordships that I did!
To my mind this clause provides a very simple way of allowing the Lord Chief Justice and the Lord Chancellor to get rid of proceedings so farcical as those I have described. One does not feel that one is doing any credit to the system or oneself when one takes part in proceedings of that description. Your Lordships can be perfectly certain that the Lord Chief 238 Justice will not use this power too often. The temptation is not to interfere at all; but until this circuit business is thoroughly reformed, as I hope it may be, it seems to me that it would be useful and, indeed, necessary to vest this power in the Lord Chief Justice and the Lord Chancellor. It may be thought that I need not have said this; I probably preach to the converted. But this Bill cannot pass into law—I wish it could—without going to another place. When it gets to that House there will be nobody, from the nature of the case, who has ever attended an Assize—although many no doubt have been there—in exactly the capacity that I have done. Therefore no one can recommend this clause to another place after having exactly the experience which has fallen to my lot.
I would like to add a word or two upon the Admiralty Court. I am bound to say that I regret that the noble and learned Lord, Lord Buckmaster, showed so little imagination and treated that matter in a way which I thought hardly equal to the gravity and extent of the subject. The noble and learned Viscount opposite, as it seemed to me, took a view of the matter which showed how some notice should be taken of the magnitude of this matter, as something which would lead one to say that, seeing what is the subject, the question whether we should appoint another Judge shrinks into insignificance. Here is a Court held in such reverence by the people of other nations that, as the noble and learned President of that; Court said just now, the subjects of three separate sovereign States, who might have had their cases regarding shipping tried in their own Courts, voluntarily took a step which led to those cases being tried in this country. How was that done? I know for a fact that this is what they did. The ship being in a foreign port and liable to arrest in that foreign port and the matter to be judged in a foreign Court, these foreigners combined to have the ship sailed to England and arrested in an English port, so that the Court over which my noble and learned friend presides might have jurisdiction. I cannot imagine a higher compliment being paid to the judicature of this country, and it seems to me that we waste our time in eulogising such Courts as may sit at the Hague or at Geneva when we have a 239 Court at home of which foreigners show their opinion in the way in which they have shown it of the Admiralty Court.
The noble and learned Lord, Lord Buck-master, spoke of juries. I have had a large experience of juries. I think he has had little or none, and yet to some extent I agree with him. He said that the people of this country hold trial by jury—that is, by a jury with a Judge—in such reverence as to be what he called a superstitution. I think to some extent that is so. They were deprived of their juries during the war, but I do not think they were at all unhappy, nor were the Judges either. There is one great advantage about a jury that I have often felt myself, and I think it is the chief advantage. It is this, that it enables a Judge to get done by the rest of the tribunal that which he could not do himself, because, being a Judge, he would have to give his reasons for the decision to which he came. The jury give no reasons. If a Judge found a man "not guilty" he would find it very difficult indeed to explain why he found him "not guilty," and in a good many cases I do not think there is a Judge on the Bench who could do it. But any jury can acquit because they never have to defend their action afterwards. No one can go to the Lord Chancellor and say: "Let these people never try a case again." That is a great advantage of trial by jury, and that is a reason why I should not speak of it in quite that slighting, if not contemptuous, manner which my noble friend Lord Buckmaster was content to adopt.
§ THE LORD CHANCELLOR
My Lords, I will not trouble your Lordships with anything more than a short reply on two points. It was suggested by the noble Viscount, Lord Haldane, and by my noble friends Lord Buckmaster and Lord Phillimore, that there are wider questions to be considered with regard to the Probate Division. Lord Phillimore went so far as definitely to suggest that that Division should be broken up, and two thirds of its jurisdiction transferred to other Divisions. I do not deny that those points are worth consideration, but I have always considered, and I am sure my noble friend will not deny it, that there would be grave difficulties in the way. Indeed, I doubt whether any one would propose so great a change as that without having behind him an inquiry by a Royal 240 Commission, or some body of that kind, and a Report in favour of such action. The changes are so great, the interests affected are so serious, that it could not be done without careful preliminary inquiry. I think that is all I need say today, because it is obvious that the appointment of an additional Judge cannot wait until such an inquiry has taken place. I think it must be clear to all your Lordships that we must take this immediate action, leaving for the future such wider changes as the noble and learned Lords indicated in their speeches.
I will only refer to one other suggestion, that of my noble and learned friend Lord Merrivale, who stated that so great was the need for a new Judge that the particular clause dealing with his appointment might be taken out of this Bill and put into a separate one-clause Bill. He, of course, knows the difficulty in the way of such a course. The passage of two Bills instead of one in this House is not a very serious matter, but elsewhere two Bills give much more opportunity for discussion, and take a much longer time to pass than one Bill. It is, not unnaturally, my desire to see the whole of this Bill, subject to revision, become law, and I thought it right, at all events in the first instance, to put all the provisions into this one Bill. I will, however, say this. While I hold out no expectation of effect being given to the suggestion of my noble friend Lord Merrivale, his desire is one to which I am willing to give consideration.
§ On Question, Bill read 2a, and committed to a Committee of the whole House.