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Supreme Court Of Judicature Bill—Lords—Bill 154

Volume 217: debated on Monday 14 July 1873

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( Mr. Attorney General.)

COMMITTEE. [ Progress 11th July.]

Bill considered in Committee.

(In the Committee.)

moved the insertion, after Clause 12, of the following new clause—

(Pension of Lord Chancellor.)
"No Pension shall be granted on retirement to any Lord Chancellor to be hereafter for the first time appointed to that office unless he shall signify in writing his willingness to serve as an additional Judge of the Court of Appeal: Provided always, That this section shall not apply to any Lord Chancellor who shall retire by reason of his being disabled by permanent infirmity from performing the duties of his office, or who shall have served for ten years as Lord Chancellor, or who shall have served for a period of fifteen years in the whole in all or any of the following offices, namely: Lord Chancellor, a Judge of the Courts of Chancery, Queen's Bench, Common Pleas, Exchequer, Probate, the High Court of justice, or the Court of Appeal.
Subject to the provisions in this Act contained, Her Majesty may grant to any Lord Chancellor on retirement such pension as is allowed to be granted by the Act of the Session of the second and third years of His late Majesty King William the First, chapter one hundred and eleven."
New Clause brought up, and read the first and second time.

On Question, That the clause be added to the Bill?

said, the clause was not expected to have come on so early, and he was taken by surprise when the Question was put for reading it a second time. The clause would require very careful consideration, because it introduced an entirely new principle. It was most important that the Lord Chancellor should always be a most eminent and learned man in his profession; but if the office was to be clogged with a condition such as that proposed, the most eminent members of the profession were not likely to be attracted to the office. At present the retiring pension was £5,000 per annum unclogged with any condition, and. he asked the hon. and learned. Attorney General for an explanation of the clause.

said, the reasons which induced the Government to propose this clause were shortly as follows:—Before the time of Lord Brougham the Lord Chancellor had a pension of £4,000 a-year. In the time of Lord Brougham, however, the salary was altered, on the ground that that particular Lord Chancellor gave up appointments to many sinecure offices which were usually regarded as a means of providing for the families of Lord Chancellors. Therefore, as a sort of make-weight, there was inserted in the Act abolishing Sinecures a clause providing that every future Lord Chancellor should have a pension of £5,000 a-year. At that time the Lord Chancellors were practically the Appellate Judges of the House of Lords, although there was nothing like a contract between them and the country that they should discharge that duty. Within his own recollection, a Lord Chancellor, if not in office, always felt it his duty to render assistance as far as he could to the House of Lords in the adjudication of the Appeals which were brought before that tribunal. During the life of Lord Eldon the legal Peers were few, but he received valuable assistance from Lords Redesdale and Tenterden in the Court of Appeal; and since that period Lords Lyndhurst, Cottenham, and other noble and learned Lords had, as a matter of fact, always discharged the duties of Appeal Judges when out of office, although there was no contract between the country on one side and themselves on the other that they should render such assistance in return for their pensions of £5,000 a-year. Parliament had now thought fit to remove the greatest part of the Appellate business from the House of Lords; and although it would be open to Parliament to grant this pension of £5,000 a-year to the Lord Chancellor without requiring any services in return, yet, inasmuch as the condition of things was altered, and as it was extremely desirable that the highest judicial authority should be procured for the Supreme Court, it seemed right to the Government to turn that into an actual obligation which had hitherto not been such. He thought there was nothing unreasonable in saying that if a noble and learned Lord held the high position of Lord Chancellor for a short time, he should, as a matter of obligation, be bound to discharge the duties of Judge of Appeal on consideration of receiving this pension. He did not believe there was any distinguished Lord who would for a moment hesitate to accept the office of Lord Chancellor, because after he had ceased to hold that office he would be bound to do that by law which he had hitherto felt himself bound to do in honour—namely, to give the best services he could to his country. If an ex-Lord Chancellor chose to take £5,000 a-year and not discharge any legal functions for it, he could at present do so, or he might take private arbitration cases and give to private suitors that judicial knowledge which the country would be only too glad to secure for itself. Those noble and learned Lords were the sole judges of their own honour, and if they chose to undertake that business, they had a perfect right to do so. The House of Commons, on the other hand, had a right to its opinion, not so much with regard to the advisability of the course taken in these two instances as to the probability of the practice becoming common. It was therefore, he thought, extremely proper to provide for the future that those who took the office of Lord Chancellor should, as a condition of receiving that pension, if still in good health and fit for duty, act as Judges in the Court of Appeal, and that was what this section of the Bill would provide.

said, he very much regretted that the hon. and learned Attorney General should have lent himself to reflect upon the course taken by two noble and learned Lords, not for taking private business, but for having undertaken under an Act of Parliament certain duties while in receipt of pensions as ex-Lord Chancellors, which one, at least, refused to undertake unless called upon by Parliament. In the first case—the Albert Assurance Association—he was Chairman of the Select Committee which was appointed to consider the subject. The Courts having failed to meet the difficulties of that case, it was thought advisable to obtain high judicial assistance. There were at that time about 40 causes in different parts of the Court of Chancery, and no decision could be taken which governed the whole of those cases. A Bill was therefore brought in, and it was a little unreasonable in the hon. and learned Gentleman who, as a Member of Parliament, was to a certain extent a party to that Bill and responsible for it, to throw discredit upon the noble and learned Lord who accepted the office imposed upon him by the Act. In the case of the Albert Assurance Society—the noble and learned Lord (Lord Cairns) who undertook that arbitration was, he believed, in no instance kept from the performance of his duties in the House of Lords by it. It was the Parliament of the country that called upon these noble and learned Lords to discharge these duties, and if they had not done so the sufferings and expense to individuals would have been out of all proportion to the results. Instead of enormous sums being wasted in legislation, tens of thousands were saved by the decisions of these noble and learned Lords. With respect to the clause before the House, the proposal was that every future Lord Chancellor, on laying down his office, should as a condition of receiving his pension of £5,000 a-year, signify in writing his contentment to sink into the position of an ordinary Judge, work like other Judges under a Chief—and, in short, after having filled the highest office of the State, be content to become a Puisne Judge. It might well be that a Barrister of the highest reputation, and earning a large income, and already holding the highest position at the Bar—such a man as was regarded as the natural successor of the Lord Chancellor of the day—would refuse to accept the office when he knew that after perhaps a brief tenure of office he would be reduced to the rank of a Puisue Judge, with such a salary. Some of those who had actually been Lord Chancellors had refused the appointment of Lord Justice, although accompanied by high rank and larger salaries; yet it was now proposed that these great officers should be compelled to accept positions much lower and with salaries much less. He objected to introducing for the sake of a very small economy a system which would not procure the best men for the higher offices in the country, and he thought that the ex-Lord Chancellors, if called upon to serve, ought at least to he placed in positions of pre-eminence.

said, he could not see that his hon. and learned Friend the Attorney General had laid himself open to the criticism of the right hon. Gentleman. The question of the pensions of ex-Lord Chancellors was a remarkable one. In no country in the world were Judges in the position of Lord Chancellors pensioned to the extent of £25,000 a-year—a sum which the right hon. Gentleman described as a very small question of economy. The views of the right hon. Gentleman in regard to the subject were magnificent; but those of the Government were more humble and prosaic; and he hoped the right hon. Gentleman would learn to regard with more consideration even such insignificant questions as those of public economy. That was, however, only a particle of the whole question. The point was, whether the present scale of pensions was too large, and whether the House was about to see another great legal change by the assumption of lucrative employment in the discharge of the judicial office by those who received pensions for having filled the office of Lord Chancellor. With respect to ex-Lord Chancellors accepting other duties, he denied that his hon. and learned Friend the Attorney General had, as the right hon. Gentleman opposite suggested, passed any censure on those noble and learned Lords. They had a perfect right to undertake such duties if they thought fit; but it was a matter for the country to consider whether, if that practice should prevail, that magnificent scale of pensions should continue on the same footing as hitherto. The right hon. Gentleman also appeared to propound the theory that because the Attorney General was a Member of Parliament at the time the Act or Acts of Parliament referred to was or were passed, he was responsible for having induced or called upon those noble and learned Lords to undertake those duties. That practically amounted to saying that every Member was personally responsible for every clause in every Act of Parliament which was passed while he had a seat in the House. A more startling doctrine than that he had never heard, and it was the more extravagant when it was under- stood as proceeding from the mouth of one who had occupied so eminent a. position as had the right hon. Gentleman himself. A difference of opinion existed among noble and learned Lords themselves with regard not to the propriety, but to the expediency of their undertaking duties of the kind referred to, and he had been informed that one noble and learned Lord had distinctly declined to serve as an arbitrator in one of these cases, because he received a pension which, in his opinion, prevented him from undertaking any such duty. As regarded the first of the two noble and learned Lords (Lord Cairns) who had been referred to as having been called upon by Act of Parliament to undertake the duties in question, he (Mr. Gladstone) was a Member of the House at the time; but he disclaimed any individual responsibility for that Act, for he had been totally ignorant of the provisions of it; but the right hon. Gentleman, who was, of course, according to the doctrine he had laid down, perfectly aware of everything contained in private Bills, would, no doubt, be ready to accept his share of the responsibility. With regard to the second of these cases, that of Lord Westbury, it was made matter of mention in that House. A Notice was placed on the Paper, and there was a great expectation that general objection would be taken to the proposed provision; but the Notice was withdrawn because, as explained at the time, it was anticipated that some general legislative provision would be made on the subject. The measure, however, passed without further attention being drawn to it. Now, he did not in the slightest degree question the title of these noble and learned Lords, legally or morally, as matters stood at present, to do as they liked with respect to accepting other duties while in receipt of their pensions; but the state of matters would be altered by that Bill. That House, when it enacted the magnificent pensions given to those who had served the office of Lord Chancellor, knew that they were to remain Members of the House of Lords, and the country expected that they would do their duty in the House according to their capacity and accomplishments. As judicial personages of great skill and knowledge, it was expected—and the expectation had been fulfilled—that they would discharge the very weighty, important, and responsible duty of sitting in appeal cases in the House of Lords. Parliament, however, was now going to remove the larger part of the appellate jurisdiction from that House, and whether it might be this year or next, it was probable that they might see the removal of the whole of the appellate jurisdiction from the House of Lords. Was not that a matter which the House of Commons ought to consider when that endowment of £25,000 a-year for providing a sufficient judicial staff was to remain while the whole of the judicial business was going to be removed? The right hon. Gentleman anticipated that the office of Lord Chancellor, with its splendid position, power, patronage, distinction, and opportunities of serving the country, would not be sufficient to attract the best members of the legal profession if those who were invited to take it were told that the condition of their receiving a pension of £5,000 a-year was that they should serve as members of the Court of Appeal, in the position of what the right lion. Gentleman called a subordinate Judgeship. The Government, however, did not regard the position as that of an inferior Judge—it was one of dignity, and no immoderate amount of work; and he had no doubt that the judicial duties devolving upon ex-Lord Chancellors in the House of Lords had been regarded by those persons as equivalent for the pensions they received. It was true, moreover, that ex-Lord Chancellors had declined to accept other judicial positions, and for what seemed to him to be very sufficient reasons. Lord Cairns declined to accept a Lord Justiceship, and for the reason that he regarded his judicial duties in the House of Lords in the light of the duty which the country had a right to demand of him in consideration of his pension. If the system of pension was continued, he thought the performance of a moderate amount of duty ought to be annexed to the receipt of it. When the Bill was introduced into the House of Lords, it was proposed that the pension of the Lord Chancellor should be reduced to £4,000 and increased to £5,000 in case a retiring Chancellor chose to accept a position as one of the Appellate Judges. That, however, did not meet with approval in the House of Lords, and it was now proposed that instead of there being a double scale of pension the ex-Lord Chancellor should be called upon in consideration of his large pension to undertake the dignified and important, but, at the same time, not too laborious duties of one of the Judgeships of Appeal. He believed it to be altogether visionary that the result of the proposal would be difficulty in obtaining the service of distinguished lawyers as Lord Chancellors. No such difficulty had ever arisen up to the present, and he had no fear of such a result in the future. Should, however, any such case arise hereafter, it would be quite time enough then to consider whether some better arrangement could not be made.

said, he still retained the opinion he expressed before, and thought there should be some limit as to the age beyond which a Lord Chancellor should not be called upon to serve before becoming entitled to his pension. Supposing a distinguished lawyer accepted the Great Seal at the age of 65, it would surely be hard upon him to say that he should serve as an Appellate Judge until he had reached the age of 80 before he was entitled to receive a pension. He would suggest 70 as a more reasonable limit.

said, he very much doubted the wisdom of the proposal which had been made on the part of the Government, and which would make an entire alteration in the conditions under which a distinguished advocate now accepted the office of Lord Chancellor. All that was said by the Prime Minister and the hon. and learned Attorney General in reference to private practice accepted by ex-Lord Chancellors had nothing to do with the main question, because the Bill did not propose to deal with ex-Lord Chancellors now in receipt of pensions. If it was held that ex-Lord Chancellors should not take private practice in addition to their pensions, a Bill should be introduced prohibiting the taking of such a course. Owing to the peculiar political constitution of Parliament, its highest legal Member was a political as well as a legal official, holding office frequently for a short period only; and what was required, therefore, in the interest of the public was, that a course should be followed whereby the highest legal ability in the State could be commanded for the office of Keeper of the Great Seal. He feared that if the clause was passed in its present form, and ex-Lord Chancellors were called upon to fill, as Appellate Judges, positions inferior to those occupied by the Judges who were below them in rank and emolument during their occupation of the office of Lord Chancellor, men of dignity and spirit would decline to accept the Great Seal. To pass the clause would be to degrade the office of Lord. Chancellor. He felt certain that the view he was expressing was that originally entertained by the Government, because, as the Prime Minister had stated, it was first intended to reduce the pension of a retiring Lord. Chancellor, and then to give him an additional £1,000 on condition of his serving as an Appellate Judge. That was unacceptable to the House of Lords, and. it was now proposed to effect the same object by giving to a retiring Chancellor what was nominally a pension, but really a salary for service in an inferior position. The effect of such a proposal would be either to deter lawyers of the highest ability from accepting the office of Lord Chancellor, or cause them, if they took office, to make things particularly uncomfortable for the other Judges with whom they would afterwards serve in the Court of Appeal. If a division was taken he should think it his duty to vote against the clause.

said, he did not agree with the view that the proposal now made would have the effect of degrading the office of Lord Chancellor. No doubt when the noble and learned Lord ceased to be Lord Chancellor he could not exactly have the same dignity as he had before; but they had already carried a clause by which the Queen could bestow upon any of the additional Judges any precedence that she thought proper. It was, therefore, quite in Her Majesty's power to place an ex-Lord Chancellor in a position in which he would suffer no diminution of his dignity. The right hon. Gentleman spoke as if all Lord Chancellors were appointed from successful barristers engaged in practice. But Lord Chancellors were constantly appointed from Judges, of whom Lord Cottenham, Lord Truro, Lord Campbell, Lord Hatherley, Lord Lyndhurst, and Lord Eldon were instances. The Lord Chancellor on his retirement received £5,000 a-year for discharging his legal duties as a Peer of Parliament, which he was always prepared to do, and he thus gave the country some return for his pension. But what was now proposed was that a retired Lord Chancellor should receive £5,000 a-year and give no services in return, however willing he might be to do so. That was a proposal simply intolerable, and so anomalous that he hoped it would not be pressed upon the attention of the Committee.

said, he was unable to see that a Lord Chancellor, if raised from one of the Chief Judgeships, would, under the proposal of the Government, be in a better position than before. Suppose a very distinguished person elevated to the office of Master of the Rolls, and the Minister selected him for the office of Lord Chancellor. As Master of the Rolls he would receive £6,000 a-year; but the moment he ceased to be Lord Chancellor—which might be in a few months —he would then have only£5,000 a-year for doing work as laborious and far more responsible; for the trouble and labour in an Appellate Court was far greater than in subordinate Courts. Again, the salary of a Chief Justice of the Queen's Bench was £8,000 a-year; but if his great attainments should recommend him for the post of Lord Chancellor, he would have only £5,000 a-year on his retirement for far more laborious duties. Sitting at Nisi Prius, owing to the frequent interest of the transactions in controversy was not half so laborious. He could not concur in that arrangement as one likely to get the best men either for the Courts of First Instance or the Supreme Court of Appeal, as he thought one of its consequences would be that men would take the lesser offices at an earlier period of life, rather than wait for the greater ones. There was a great deal in what had fallen from the right hon. Gentleman the Member for Oxfordshire (Mr. Henley); surely, they were not prepared to require an aged man to serve for 15 years.

Question put, "That the Clause be added to the Bill."

The Committee divided:—Ayes 174; Noes 129: Majority 45.

Motion agreed to; Clause added to the Bill.


Amcotts, Col. W. C.Goschen, rt. hon. G. J.
Anderson, G.Gourley, E. T.
Ayrton, rt. hon. A. S.Gower, Lord R.
Backhouse, E.Graham, W.
Baines, E.Greville, hon. Captain
Baker, R. B. W.Grieve, J. J.
Balfour, Sir G.Grosvenor, Capt. R. W.
Barclay, A. C.Hamilton, J. G. C.
Bassett, F.Harcourt, W.G.G.V.V.
Baxter, rt. hon. W. E.Hardcastle, J. A.
Bazley, Sir T.Henderson, J.
Beaumont, H. F.Hibbert, J. T.
Beaumont, Major F.Hodgson, K. D.
Bentall, E. H.Holms, J.
Bolckow, H. W. F.Hoskyns, C. Wren-
Bowring, E. A.Howard, hon. C. W. G
Brassey, T.Hughes, W. B.
Brewer, Dr.Hurst, R. H.
Bright, rt. hon. J.James, H.
Brinckman, CaptainJardine, R.
Brocklehurst, W. C.Jessel, Sir G.
Brogden, A.Johnston, A.
Bruce, Lord C.Kensington, Lord
Bruce, rt. hon. Lord E.Kinnaird, hon. A. F.
Bruce, rt. hon. H. A.Knatchbull-Hugessen,
Buckley, N.right hon. E.
Campbell-Bannerman,Lambert, N. G.
H.Lancaster, J.
Candlish, J.Lawson, Sir W.
Cardwell, rt. hon. E.Leatham, E. A.
Carington, hn. Col. W.Lefevre, G. J. S.
Carter, R. M.Leith, J. F.
Cavendish, Lord F. C.Lewis, J. D.
Chambers, Sir T.Lloyd, Sir T. D.
Childers, rt. hon. H.Lorne, Marquess of
Cholmeley, CaptainLowe, rt. hon. R.
Cholmeley, Sir M.Lubbock, Sir J.
Clifford, C. C.Macfie, R. A.
Cogan, rt. hon. W. H. F.Mackintosh, E. W.
Colebrook, Sir T. E.M'Arthur, W.
Coleridge, Sir J. D.M'Clure, T.
Corrigan, Sir D.M'Lagan, P.
Cowen, Sir J.M'Laren, D.
Cowper, hon. H. F.Magniac, C.
Cowper-Temple, rightMassey, rt. hon. W. N.
hon. W.Matheson, A.
Cunliffe, Sir R. A.Maxwell, W. H.
Dalway, M. R.Mellor, T. W.
Davie, Sir H. R. F.Melly, G.
Davies, R.Merry, J.
Dickinson, S. S.Miall, E.
Dillwyn, L. L.Milbank, F. A.
Dixon, G.Miller, J.
Duff, M. E. G.Miller, W.
Dundas, J. C.Monk, C. J.
Edwards. H.Monsell, rt. hon. W.
Enfield, ViscountMorgan, G. O.
Erskine, Admiral J. E.Morley, S.
Eykyn, R.Morrison, W.
Finnie, W.O'Conor, D. M.
Fitzmaurice, Lord E.O'Conor Don, The
Fitzwilliam, hon. H. W.Ogilvy, Sir J.
Fletcher, I.Palmer, J. H.
Forster, rt. hon. W. E.Parker, C. S.
Fortescue, rt. hon. C. P.Parry, L. Jones-
Fortescue, hon. D. F.Peel, A. W.
Fowler, W.Pender, J.
Gavin, MajorPhilips, R. N.
Gladstone, rt. hn. W. E.Playfair, L.
Gladstone, W. H.Potter, E.
Goldsmid, Sir F.Potter, T. B.

Power, J. T.Torrens, Sir R. R.
Rathbone, W.Trevelyan, G. O.
Ronayne, J. P.Verney, Sir H.
Rothschild, N. M. deVivian, A. P.
Russell, Lord A.Vivian, H. H.
Rylands, P.Wells, E.
St. Aubyn, Sir J.West, H. W.
Samuda, J. D'.A.Whatman, J.
Samuelson, H. B.White, J.
Seymour, A.Whitwell, J.
Shaw, R.Williams, W.
Sherlock, D.Wingfield, Sir C.
Sherriff, A. C.Winterbotham, H. S. P.
Stapleton, J.Woods, H.
Storks, rt. hn. Sir H. K.Young, rt. hon. G.
Strutt, hon. H.
Stuart, ColonelTELLERS.
Stuart, hon. H. W. V.Adam, W. P.
Talbot, C. R. M.Glyn, hon. G. G.
Torr, J.


Agnew, R. V.Greene, E.
Amphlett, R. P.Grey do Wilton, Visc.
Annesley, hon. Col. H.Guest, A. E.
Arbuthnot, Major G.Hamilton, Lord C. J.
Assheton, R.Hamilton, Lord G.
Baggallay, Sir R.Hamilton, I. T.
Bagge, Sir W.Hardy, rt. hon. G.
Ball, rt. hon. J. T.Hardy, J.
Barrington, ViscountHardy, J. S.
Barttelot, ColonelHay, Sir J. C. D.
Bates, E.Henley, rt. hon. J. W.
Beach, Sir M. Hicks-Heygate, Sir F. W.
Beach, W. W. B.Hick, J.
Bentinck, G. C.Hildyard, T. B. T.
Benyon, R.Hodgson, W. N.
Booth, Sir R. G.Hogg, J. M.
Bright, R.Holford, J. P. G.
Brise, Colonel R.Holmesdale, Viscount
Brooks, W. C.Holt, J. M.
Bruce, Sir H. H.Hood, Captain hon. A.
Bruen, H.W. A. N.
Butt, I.Hope, A. J. B. B.
Cave, rt. hon. S.Hunt, rt. hon. O. W.
Cawley, C. E.Kennaway, Sir J. H.
Cecil, Lord E. H. B. G.Laird, J.
Clive, Col. hon. G. W.Laslett, W.
Cobbett. J. M.Learmonth, A.
Cochrane, A.D.W.R.B.Leslie, J.
Corry, hon. H. W. L.Lewis, C. E.
Craufurd, E. H. J.Liddell, hon. H. G.
Cross, R. A.Lindsay, hon. Col. C.
Dawson, Colonel R. P.Lindsay, Col. R. L.
Dick, F.Lowther, J.
Dickson, Major A. G.Lowther, hon. W.
Dimsdale, R.Mahon, Viscount
Disraeli, rt. hon. B.Manners, rt. hn. Lord J.
Dyke, W. H.Manners, Lord G. J.
Dyott, Col. R.March, Earl of
Ewing, A. Orr-Matthews, H.
Feilden, H. M.Milles, hon. G. W.
Fellowes, E.Mills, Sir C. H.
Figgins, J.Monckton, hon. G.
Forester, rt. hon. Gen.Montgomery, Sir G. G.
Fowler, R. N.Morgan, C. O.
Goldsmid, J.North, Colonel
Gordon, E. S.Northcote, rt. hon. Sir
Gore, J. R. O.S. H.
Gore, W. R. O.Paget, R. H.
Grant, Col. hon. J.Parker, Lieut.-Col. W.
Gray, ColonelPatten, rt. hon. Col. W.

Phipps, C. P.Tipping, W.
Pim, J.Tollemache, Maj. W. F.
Plunket, hon. D. R.Trench, hn. Maj. W. le P.
Raikes, H. C.Trevor, Lord A. E. Hill-
Read, C. S.Turnor, E.
Rothschild, Brn. L.N.deWait, W. K.
Round, J.Walpole, hon. F.
Sackville, S. G. S.Walpole, rt. hon. S. H.
Salt, T.Waterhouse, S.
Sandon, ViscountWatney, J.
Sclater-Booth, G.Wheelhouse, W. S. J.
Scourfield, J. H.Wyndham, hon. P.
Smith, R.Wynn, C. W. W.
Stanhope, W. T. W. S.
Stanley, hon. F.TELLERS.
Straight, D.Bouverie, rt. hon. E. P.
Talbot, J. G.Gregory, G. B.
Taylor, rt. hon. Col.

New Clause,—

(Salaries of future judges.)

(Subject to the provisions in this Act contained, with respect to existing judges, there shall be paid the following salaries, which shall in each case include any pension granted in respect of any public office previously filled by him, to which the judge may be entitled:—

To the Lord Chancellor, the sums hitherto payable to him;

To the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, the same annual sums which the holders of those offices now respectively receive;

To each of the ordinary judges of the Court of Appeal;

To each of the other judges of the High Court of Justice, the stun of five thousand pounds a year.

No salary shall be payable to any additional judge of the Court of Appeal appointed under this Act; but nothing in this Act shall in any way prejudice the right of any such additional judge except a Lord Chancellor to be hereafter for the first time appointed for that office, to any pension to which he may be by law entitled,) —( Mr. Attorney General.)

brought up, and read the first and second time.

moved the omission in line 6 of the words—

"The. Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer."
He could understand why the Lord Chancellor and the Lord Chief Justice of England should have £7,000 a-year; but he could not understand on what ground the future Chief Justice of the Common Pleas and the future Chief Baron of the Exchequer should have more than £6,000, while the Master of the Rolls received no more than that sum. He wished to know distinctly on what principle the Government vindicated such a difference in the salaries of those Judges, and thought some expla- nation was due from the hon. and learned Attorney General on the point. If the Amendment were carried, he should propose to give the three Heads of the Divisions £6,000 a-year each. Amendment proposed, in line 6, to leave out the words from "England," to the words "the same," in line 8.— (Mr. Vernon Harcourt.)

said, that in regard to a salary it was very difficult to argue the question on any principle at all; but he wished to argue it on principles of fairness. He did know why the Chief Justice of England should have £8,000 and the Chief Justice of the Common Pleas only'.£7,000 except that it was not a desirable thing to have rigid uniformity; and, upon the whole, £1,000 a-year would be well spent to get a first-rate man. If the clause was regarded as a whole, it would be found that the Government had framed a scale of salaries which was not au exaggerated scale, and yet one which would secure the services of eminent men. In his opinion, it was better that there should not be a rigid uniformity, but that some places should be rather better than others. A further consideration in regard to the matter was, that the Lord Chief Justice of the Common Pleas and the Lord Chief Baron had to go on circuit, and the Master of the Rolls had not.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided:—Ayes 205; Noes 62: Majority 143.

said, that it appeared to him that in any proposition made by the Government to increase the salaries of Judges they would obtain the support of nine-tenths of hon. Members opposite. The proposition he had now to make was of a different character from the last. He thought it was of all things desirable to have the Appellate Judges of the High Court of Justices well paid. He desired, therefore, to avoid unnecessary waste in small things, in order to be able to expend money well upon large things. The House of Lords had yielded their appellate jurisdiction to a Court composed of men who, as they thought, would be competent to fulfil the high functions which their Lordships were about to relinquish. A Committee of the other House investigated the subject last year, when Lord Hatherley, on the part of the Government, proposed that the salary of each Appellate Judge should be £6,000 per annum. That proposal received the support of Lord Cairns, but, on the other hand, a Motion was proposed by Lord Chelmsford, supported by the Earl of Derby, and the Marquess of Salisbury, and carried, that the salary should be £7,000. That year, however, the Bill had been accepted by the House of Lords, on the basis of £6,000 per annum, which might be regarded as the minimum sum they thought adequate. If the House of Commons made an alteration in the figures, the other House could not, in the event of their deeming the proposal inadequate, revert to the original amount, and consequently they would have no alternative but to reject the Bill. Indeed, the House would be offering to the other an inducement and almost a provocation to throw out the measure. He entreated the right hon. Gentleman at the head of the Government to consider what might be the result of pursuing such a course. They had diminished its numbers and reduced its dignity; and if with unwise parsimony the House reduced the salaries of the members of the Court of Appeal, the Lords would be well entitled to refuse to transfer their jurisdiction to such a tribunal. In conclusion, he moved to add to "each of the ordinary Judges of the Court of Appeal" the words "six thousand pounds a-year."

said, he believed that his Amendment had precedence. It was in form to leave out the word "ordinary," and insert in its place the word "other," but the point was this—If the word "ordinary" was retained, they would then have three different kinds of Judges receiving different salaries—namely, ex officio Judges, ordinary Judges, and additional Judges. It would be an injustice and a hardship, and derogatory to the high position of the ex-Lord Chancellors, if they were required to serve in the Appellate Court upon a less salary than was paid to the ordinary Judges. He thought something was due to the Common Law Judges in the matter.

Amendment moved, page 6, line 8, to leave out "ordinary," and insert "other." —( Mr. Raikes.)

appealed to the hon. and learned Gentleman to withdraw his Amendment, because, if carried, it would entirely defeat the object they had in view.

said, he would withdraw his Amendment, and raise it after the clause had been amended.

Amendment, by leave, withdrawn.


Amendment proposed, at the end of line 10, after the word "Appeal," to add the words "the sum of six thousand pounds per annum."—( Mr. Vernon Harcourt.)

said, the House had agreed to preserve the present salaries of the chiefs of the Common Law Courts, but the hon. and learned Gentleman now proposed to increase the salary of the 14 Puisne Judges by giving them an additional £1,000 a-year each. He seemed to be proceeding on the old superstition—a belief in which was occasionally discernible within the walls of that House, that you could create eminent men without number if you only gave them high salaries enough. The House had not got, to use a homely phrase, to "fish" for these eminent men; but the hon. and learned Gentleman proposed to improve their quality by giving them another £1,000 a-year each. He proposed to gild them, so to speak, with 1,000 additional sovereigns, as a proper mode of adding to their intellectual power in the discharge of their judicial functions. He protested against the way the House of Lords had been held over their heads, and, he might even say, flung in their face, by the hon. and learned Gentleman. "What would the House of Lords say?" "What would the House of Lords do?" There were not two sentences in the speech but contained some reference to questions of that kind; in fact, he had never known an instance in which they were so much threatened with the retributory action of the House of Lords. He would, however, maintain that it was not for the House of Lords, but for the House of Commons, to fix the amount of charge to be laid upon the public; and there could not be a more fatal precedent than to exhort that House to agree to a certain scale of salaries for fear that if they did not do so, the House of Lords would reject this Bill. Coming to the merits of the question, upon which he hoped the subject would be discussed, the question of expense was not a very small matter. The increased cost which would be involved by adopting the proposal of his hon. and learned Friend would not be less than £14,000 a-year, and he said that that sum, and more, could have been saved if the Committee had only listened the other evening to his proposal to trim and clip and pare the allowance of clerks to the Judges. His hon. and learned Friend was vigorous and valiant in dealing with the salaries of little people, but chicken-hearted and slow when he looked at the great ones. He (Mr. Gladstone), however, did not think it desirable in an Assembly which had a much more close connection with Judgeships than with clerkships to take any such course. That was not a desirable course for the Government to take, and it was one they would not be justified in adopting. He considered that the present Judges of the Court below were handsomely and largely paid at £5,000, and he believed that the arrangement of salaries was fair and equitable according to the position of these Judges and the amount of work they would have to discharge. He could not admit that the Judges of the High Court of Appeal wore placed in a position of disadvantage as compared with the Judges of the High Court of Judicature, because these latter, though nominally in receipt of equal salaries with the Judges of the Superior Court, would have to bear the expense and suffer the inconvenience of going circuit. The former, too would have the high. honour of being Members of the Privy Council—a dignity which was regarded more than salary. In addition to that, the work of the Appellate Court would be less in bulk and in difficulty, from the fact that it would have undergone the utmost preliminary sifting. Under the circumstances, he hoped the House of Commons, which was assembled for the purpose of imposing only necessary taxes upon the people, would not take upon itself the perilous task of forcing upon the country an expenditure which the Government, acting on the best ability they possessed to judge with regard to it, emphatically declared to be totally unnecessary.

said, he had brought forward the Motion in order to avoid the scene which followed upon the fixing of the salaries to be paid to the new Members of the Judicial Committee of the Privy Council at £5.000 a-year. On that occasion the appointments went begging in Westminster Hall, on account of the salaries fixed, and it was only after a very singular interpretation had been put upon au Act of Parliament that a Judge was found to accept office. As surely as such a scene was repeated in respect to the present Bill, so surely would the country conclude that Parliament had lowered and degraded the last Court of Appeal in the country. He had not threatened the House of Commons by flourishing the House of Lords in its face—at any rate, he had not intended to do so. He had merely maintained that if the House of Lords was to surrender its jurisdiction, it had a right to consider whether the Court they were substituting in their place was a sufficient one. It was not, moreover, the fact that he was proposing to add the cost of five ex-Lord Chancellors. The hon. and learned Solicitor General, in a tone which was not respectful to those unfortunate octogenarians, had said that of the five only one was fit for service; and if this was so, it would only involve an addition of £1,000 to the cost.

explained that what he had said was not that those legal Lords were not fit to serve, but that you could not expect them to be fit in November, 1874, when this Bill would come into operation.

said, do what they would, increase the salaries of these Judges as they might, they could never raise the now Court of Appeal to the dignity of the House of Lords.

Question put, "That those words be there added."

The Committee divided: — Ayes 59; Noes 125: Majority 66.

said, the present Judge of the Court of Admiralty, who had important and onerous duties to discharge, held two or three other offices—the office of the Judge Advocate, the Dean of Arches, and the Mastership of Faculties—an office of considerable emolument. He proposed to insert a Proviso, that the Deanery of the Arches and Mastership of Faculties should not be tenable by any Judge of the High Court of Justice.

hoped his right hon. Friend would not insist on the Amendment. The arrangements of the Bill were prospective, all present holders being left unaffected in their position, and if it should be found that any inconvenience arose under it, steps would be taken to alter it in the direction of the right hon. Gentleman's Motion. The arrangement with reference to the office of Judge Advocate could not be defended as a permanent one. It was merely provisional, and was now under consideration.

Amendment, by leave, withdrawn.

moved, as an Amendment, in line 12, after "year," 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."

hoped the Amendment would not be pressed. Six or seven highly competent men had gladly taken the office of Puisne Judge at the present salary and prospective pension after 15 years' service; and he saw no reason why any addition should be made to the terms which had been so accepted with satisfaction to the public.

said, it was possible that in some instances the circuit expenses of a Judge would not come to £500 a-year. It was therefore objectionable in principle to pay a nominal salary subject to varying deductions. All fixed salaries ought to represent an absolute money payment, for indirect modes of payment were very bad, and for the most part we had got rid of them. Instead, therefore, of calling the salary £5,000 and making deductions, it would be more honest to make the salary £4,500 and to pay circuit expenses. The expenses of the winter circuits were paid for the Judges, and why should not the others be similarly paid for?

said, the payment of expenses in addition to salaries as suggested by the hon. Member for Bedford opened the door to abuse, as in the case of the Lunacy Commissioners, who charged at the rate of 1s. 6d. a mile, and received hundreds a-year more than they spent without the Treasury having power to interfere.

said, the abuse stated did not invalidate the principle he had advocated.

urged that it would be an unfortunate mistake to leave room for any inequality in the payment of the Judges of the High Court of Justice, who ought all to be placed on the same footing by making them pay these expenses of going circuit out of their own pockets. The result of inequality would he the acceptance of the office by inferior men, the unsatisfactory discharge of circuit duties in civil and criminal divisions, and the consequent increase of avoidable litigation in the High Court. The circuit expenses were not personal only, but included those of the staff which the Judge was obliged to take with him on circuit.

hoped the circuit expenses would not be considered stereotyped. Much of the present expense might be dispensed with—it was due to the observance of customs which had come down to us from remote antiquity. The Judges invited magistrates and grand jurors to dinner; and although he personally knew that Judges were good company, he did not see why they should be called upon to entertain magistrates and members of the Bar when they went circuit. The Judges had to carry round skilled cooks with assistants, and preparations were always made to entertain the grand jury and others. The facilities of locomotion were so great that it was often difficult to get a quorum of magistrates to stay to dine with the Judge; although, however, the company might be small, the contractors' bill might be great. It was a great tax upon the Judges, and he thought they might curtail these hospitalities without giving offence to anyone.

said, it was proposed as soon as the existing race of Judges was extinct, that all the Puisne Judges should be subject to exactly the same duties and receive the same salaries in the High Court of Justice. The Puisne Judgeships were undertaken upon the understanding that these expenses would have to be borne; but he trusted that in the advancement of time some of the charges entailed by profuse hospitality might be done away with.

Amendment negatived.

Clause added to the Bill.

On the Motion of Mr. ATTORNEY GENERAL, new clause in lieu of red ink Clause 13 (Retiring pensions of future Judges of High Court of Justice, and ordinary Judges of Court of Appeal); new clause (Power to Court of Chancery to direct action to be brought); new clause in lieu of red ink Clause D (Fees to be taken by District Registrars); new clause in lieu of red ink Clause E (Provisions as to officers paid out of fees)— brought up, and read the first and second time, and added to the Bill.

New Clause in lieu of red ink Clause F (Salaries and pensions of officers)— brought up, and read the first time.

On Motion, That the clause be read the second time,

said, he wished to make a proposal in the interests of the Chamber clerks of the Judges. They were officers who discharged useful functions and were attached to the persons of the Judges, and his Proviso was, that they should be put into the position of civil servants, without waiting until the Judge was promoted to the Appellate Court or otherwise. He begged to move to add at end of clause—

"Provided that any person who at the time of the passing of this Act shall be attached to the person of any judge, and who in the opinion of the person having the appointment is competent. to fill any office under this Act, the duties of which are analogous to those he has been up to that time discharging, shall be entitled according to seniority of appointment to be nominated to such office, and upon his retirement from such office, if he has served in it for a period of ten years, the Treasury may take into consideration in awarding him a pension for his services dining the time when he was attached to the person of such judge."

said, he had a previous Amendment, that every officer to be hereinafter appointed in pursuance of this part of this Act, "and whose whole time shall be devoted to the duties of his office," shall be deemed to be employed in the permanent civil service.

Amendment agreed to.

said, he could not agree to the Proviso moved by the right hon. Gentleman the Member for North Northamptonshire (Mr. Hunt), because its adoption would imply that the 16 Chamber clerks should have a kind of statutable right to a permanent civil service appointment. The position of the present Chamber clerks would not be affected by the Bill. Their tenure of office depended on the judicial life of the Judges who had appointed them, and the right hon. Gentleman proposed to make them permanent civil servants with a right to a pension. He objected to such a proposal, but doubtless on the appointment of the permanent Chamber clerks, the claims of such of the present clerks as were competent for the duties would be considered.

observed that some of the existing clerks would be prejudiced by the Bill, because their appointments would end upon their masters becoming members of the Court of Appeal; but if the clerks were to have favourable consideration in reference to appointments to analogous offices, he would withdraw his Amendment.

inquired whether it was contemplated that there should be three clerks to each Judge?

explained that the Chamber clerks would not be attached to the persons of the Judges, but would be permanent officers of the Courts. There would probably be not more than half the present number.

Amendment, by leave, withdrawn.

Clause agreed to; and added to the Bill.

moved a new clause, enabling Her Majesty by letters patent to increase the number of Judges in the High Court, on the Report of the Council of Judges declaring the addition to be required, and an Address to the House of Commons based on that Report.

said, that he could not accept the clause, especially as it proposed that an additional Judge should be appointed without any action on the part of the House of Lords.

Clause, by leave, withdrawn.


Section 1 (Form of action in High Court).

pointed out that the system of proceeding in the Court of Chancery, which put the plaintiff and defendant in exact possession of the position in which they stood, at a glance was much more operative and simple than the system of pleading in the Common Law Courts. There were at present three modes of commencing suits—that was, by bill in Chancery, by writ of summons, and by plaint in the County Court. The Bill proposed that all suits in the High Court should be commenced by writ of summons, but he thought that this would be an inconvenient course, and he should prefer that the proceeding should be something like that now adopted in the County Courts. To accomplish that, he would move, in page 46, line 16, after "a," to leave out "writ of summons" and insert "plaint."

objected to the Amendment and said, that by far the greatest number of cases under the Bill would be Common Law cases, and it was, therefore, thought with a view to simplicity, that the writ should be adopted for Chancery cases, so as to have but one system for Chancery and Common Law procedures. This mode of proceeding had been recommended by a number of Judges who had carefully considered the matter.

who had a similar Amendment on the Paper, strongly supported the principle involved, and recommended that the formal language in use on those writs—namely, "Victoria, by the grace of God," &c., "greeting," should be got rid of, and the nature of the action stated on the face of the writ, instead of on the back of it.

supported the Amendment, on the ground that the proceedings would be shortened in cases where judgment went by default. In the County Courts a similar procedure was found to conduce greatly to the speedy and the cheap administration of the law.

remarked that in a clause already passed, the proceedings in the district registries were to commence with a writ of summons. He thought it most essential to the working of this Act that simplicity should be introduced in the course of the procedure. The writ of summons seemed to him to be the best process to which they could resort in the first instance, and he therefore hoped his hon. Friend would not press his Amendment.

suggested the withdrawal of the Amendment, on the ground of the extensive alterations which it would necessitate in the Bill.

said, that it had been found in equity that people would not print nonsense. He thought, therefore, that the object the hon. Member had in view was a desirable one, and he hoped to attain it in another way, by moving that at the end of the clause words should be inserted giving to the plaintiff, if he thought fit, the power of inserting on the writ of summons such particulars of his claim as he chose to set forth, provided that those should not be added to the ordinary costs.

Amendment, by leave, withdrawn.

Section 2 (Action to be commenced by writ).

moved at end to insert the words—

"Provided, that a plaintiff, if he thinks fit, may commence his action by filing a printed statement with the writ, or a suitable endorsement in lieu of the writ; but any costs incurred thereby shall be borne by the plaintiff."

objected to this as calculated to increase expense unnecessarily.

remarked that if they were going to discuss the procedure in detail, on Amendments of which no Notice had been given, they never would get to an end.

Amendment, by leave, withdrawn.

Section 30 (Mode of trying actions); and Section 31 (Notice of mode of trial to be given).

said, he had Amendments to propose in those sections which provided for the mode of trial. As they stood in the Bill they appeared to strike at the very existence of trial by jury. The 30th section provided that actions should be tried and heard either before a Judge or Judges, or before a Judge sitting with assessors, to be selected by himself in each case, or before a Judge and jury, or before an official or special referee, with or without assessors. The 31st section provided that the plaintiff might give notice of trial by any of the modes of service, but that on application by the defendant the Court or the Judge should determine how the action was to be tried. He had the greatest reverence for the judicial Bench; but they had very peculiar feelings and opinions upon many points in the exercise of their discretionary jurisdiction, and as it was possible that the 15 Judges might differ one from the other upon a point of practice, it was desirable that the mode of trial should be defined. He would, I therefore, propose in page 52, line 7, to leave out "to be selected by himself in each case," in line 11, after "may" to insert "upon giving orders;" same line after "Court," insert "that he desires to have the action tried before a Judge and jury be entitled to have the same so tried."

Amendments agreed to.

said, he was afraid that although the Rules under the Schedule might be well fitted for Chancery appeals, they would be the means of introducing confusion into the Common Law procedure, as, for instance, in the case of the enactment that all appeals should be "by way of re-hearing." He thought it would be better to leave the matter to the Judges, who he considered had power otherwise to do all that was hero provided for. He proposed, therefore, that Sections 49 to 58, inclusive, be omitted from the Schedule.

Amendment negatived.

Schedule, as amended, agreed to.

Preamble agreed to.

House resumed.

Bill reported; Motion made, and Question proposed, "That the Bill, as amended, be taken into consideration upon Thursday."