to my regret ས CHAPTER II. The Judicature Bill-Speech of Lord Selborne in introducing the Bill-Protest of THE Judicature Bill, originated in the House of Lords, was the By this Bill the Lord Chancellor at last succeeded in effecting the change which had been projected by Lord Cairns' Commission. The unsuccessful attempts of former Chancellors, and especially of Lord Hatherley, had not been wasted as illustrations of the truth that a complete scheme was more likely to win support than a partial experiment; and they had prepared public opinion within and without the House of Lords for comprehensive changes. The Lord Chancellor (Lord Selborne) introduced the measure in a speech at once singularly clear and comprehensive, on the day of the introduction of the ill-fated Irish University Bill into the House of Commons. Having pointed out the anomalies of the existing system, and described the gradual step of the advance of 'public opinion upon the matter, Lord Selborne proceeded to deal with the details of his measure. "Taking stock," he said, "by the light which we have acquired during the last six years, I think I may say there are four points which have become settled points in the minds of those who best understand the subject, as well as in the mind of the public. The first relates to the artificial separation of legal and equitable jurisdictions, such as never did exist and does not exist in any other country in the world except our own and those which have borrowed our system. This artificial distinction is not only unsatisfactory in itself, but is productive of the greatest possible inconvenience and obstruction to the administration of justice in its actual results. There has been a conviction that, whatever else may be done, we ought to put the finishing stroke to measures of a more partial character which have already been adopted in the same direction, by bringing law and equity-two ideas not artificial but real-into one single administration in the Superior Courts of this realm. The second point is, that we must bring together our many divided Courts and divided jurisdictions by erecting or rather re-erecting-for, after all, there was in the beginning of our constitutional system one supreme Court of Justice-a Supreme Court which, operating under conve nient arrangements, and with a sufficient number of Judges, shall exercise one single undivided jurisdiction, and shall unite within itself all the jurisdictions of all the separate Superior Courts of Law and Equity now in existence. The third point is, that it is desirable to provide as far as possible for cheapness, simplicity, and uniformity of procedure. The fourth, that it is necessary to improve the constitution of the Courts of Appeal. My Lords, I approach the subject with the advantage of all these conclusions, which I venture to say have received your Lordships' approbation and the approbation of the public; and I am fortunate in being able to profit by the criticisms that have been brought to bear upon them, and so to avoid-or at least to endeavour to avoid-the defects which were thought to exist in the former attempts at legislation on this great subject. "I propose, then, to ask your Lordships to unite in one Supreme Court of Judicature all the present Superior Courts of Common Law and Equity, and also the Probate and Divorce Court, the Admiralty Court, and the London or Central Court of Bankruptcy. All these Courts I propose to have united in one Supreme Court; which is to be divided into two permanent branches or Divisions: the one consisting of a High Court of Justice to exercise original jurisdiction, and also to hear appeals from Inferior Courts: the other being a Court of Appellate Jurisdiction, to be called the Court of Appeal. I will deal with the Court of original jurisdiction in the first place, and afterwards with the Court of Appeal. I ought to have mentioned that I do not mean to elevate any Inferior Courts so as to unite them to the Superior Courts; but it is proposed to abolish two Common Law jurisdictions, the Courts of Pleas of the Counties Palatine of Lancaster and Durham: -they will be merged in the jurisdiction of the High Court. This High Court will consist of twenty-one Judges. Those Judges will be the present Judges of the Superior Courts of Common Law, the present Vice-Chancellors, the present Master of the Rolls, the present Judge of Probate and Divorce, and the present Judge of Admiralty, with the exception of such three of them as her Majesty may think fit to remove to the Court of Appeal. The number of the Judges whom I have enumerated is twenty-four; but three of the Puisne Judges are proposed to be taken to the Court of Appeal, to remain there permanently-so that twenty-one Judges will be left for the High Court. The President of the High Court of Justice will be the Lord Chief Justice of England, and-this is a concession to sentiment-the old historic titles of the present Chiefs of the Common Law Courts will remain to them as Presidents of Divisions of the High Court. The Lord Chief Justice of England will, of course, retain his present title; the Lord Chief Justice of the Common Pleas and the Lord Chief Baron will be chiefs of Divisions with their present titles; but all the remaining Judges will be called 'Judges of the High Court of Justice,' and are to be addressed as the Judges of the Courts of Common Law at Westminster are now addressed, without any other distinction. So far as the measure to be laid on your Lordships' table goes, it is, as I have said, proposed that twenty-one shall be the number of the Judges of the High Court; but, of course, if in the working of the measure that number is found to admit of diminution, that might be made a subject of future legislation. At present, it would be premature to assume that such will be the case, and I do not propose to deal with such a contingency at present. "Passing from the constitution of the Court, I have now to mention the next important point-namely, the jurisdiction which it is to possess, and the manner in which that jurisdiction is to be exercised. This High Court will unite the jurisdictions of all the present Courts except the Courts of Appeal-namely, the jurisdiction of the Court of Chancery, of the Courts of Common Law, of the Probate and Divorce Court, of the Admiralty, and of the London or Central Court of Bankruptcy, of the existing Courts of Pleas of the Counties Palatine of Lancaster and Durham, and of the Courts created by Commissions of Assize; and I hope the measure which I shall lay on the table will contain what your Lordships will consider sufficiently clear and precise directions as to the general way in which the legal and equitable jurisdiction, so conferred, is to be exercised. "Those directions are given under seven heads. First, the Court in all its branches will give effect to the equitable rights and remedies of plaintiffs; secondly, it will do the same with respect to equitable defences by defendants; thirdly, it will give effect to counter claims of defendants; fourthly, it will take notice of all equitable rights and liabilities of any persons, appearing incidentally in the course of any proceeding; fifthly, it will stay proceedings, when necessary, by the authority of the Judges before whom an action is pending, and not by injunctions to be obtained from other Judges; sixthly, it will give effect, subject to all equities, to legal rights and remedies; and lastly, it will deal, as far as possible, with all questions in controversy in one and the same suit, so as to do complete justice between the parties, and prevent a multiplicity of proceedings." After pointing out certain exceptions it was thought necessary to make to the rule of fusion between law and equity, and proposing that it should depend on the circumstances of each particular case whether existing business should be wound up under the old system or at once transferred to the new, Lord Selborne proceeded, "Then as to the distribution of business. Here, my Lords, I follow, I believe, closely and accurately the intentions and recommendations of the Judicature Commission. It stands to reason and common sense that some internal division of labour must be made in so great a machine as that necessary for the administration of justice, and that such a division ought to be made in accordance with intelligible rules. Some cases can be conveniently classified and brought together and dealt with by the same Judges; while others may not admit of such classification, and require to be dealt with in a different manner. It is proposed to divide the High Court into four Divisions of five Judges each; and that will leave one Judge not attached to any Division. But, though the Judges will be thus attached to different Divisions, it would be a mistake to suppose that this involves any return to the old system of divided jurisdiction, because every Judge is to be made available for any part of the business of the entire Court, in which his services may be required. The division of the Court into four Divisions is merely for convenience in the arrangement and distribution of business. It is proposed that these Divisions should correspond as nearly as may be with the divisions of the existing Courts; and in the first classification of business any convenient classification now in use may wisely be adopted as an element. I will read to your Lordships an opinion of the Associated Committee of Law Societies, given in February, 1868, and also a passage, bearing on the same point, which I find in the first Report of the Judicature Commission. The Associated Committee said, "The division of legal business ought to be by judicial regulation, and not by general law. The general division of legal business effected by the present system is very convenient; and in giving to every Court entire jurisdiction over any matter which may come before it, and in dividing the business of the law by regulation, it is desirable that the work of the Courts shall as much as possible continue to pass through its present channels.' "Other gentlemen, of great knowledge and experience, made similar recommendations, and the Commission reported thus: "Between the several chambers or divisions of the Supreme Court it would be necessary to make such a classification of business as might seem desirable with reference to the nature of the suit and the relief to be sought or administered therein; and the ordinary distribution of business among the different chambers or divisions should be regulated according to such classification. For the same reason which induces us to recommend the retention for the present of the distinctive titles of the different Courts in their new character, as so many divisions of the Supreme Court, we think that such classification should in the first instance be made on the principle of assigning as nearly as practicable to those chambers or divisions such suits as would now be commenced in the respective Courts as at present constituted; with power, however, to the Supreme Court to vary or alter the classification in such manner as may from time to time be deemed expedient.' "My Lords, that recommendation rests on reasonable principles, and what I propose to do in conformity with it is this :-The first Division of the High Court will consist of the present Judges of the Court of Queen's Bench, subject to the necessary arrangements for taking three Judges from the aggregate of the present Courts of First Instance permanently to the Court of Appeal. The second Division will be composed of the existing Judges of the Court of Chancery; the third, of the existing Judges of the Court of Common Pleas; the fourth, of the existing Judges of the Court of Exchequer. The existing Judge of the Court of Admiralty will be a member of the second or Chancery Division of the High Court, and the chief of this Division will be the existing Master of the Rolls. The distribution of business proposed to be made between these Divisions and the unattached Judge is proposed as one to start with, and not as a stereotyped one. It will be subject to alteration, to the power of transfer, and to other safeguards. In the first place, with the exception of the second or Chancery Division, all the Divisions will have those classes of business which are now within the exclusive cognizance of the Courts of which the future Judges of those Divisions are members. Thus, Criminal and Crown business will be in a Division composed of the Judges of the Queen's Bench, Common Pleas business will be in that of the Judges of the Court of Common Pleas, and Revenue business will be in that of the Judges of the Exchequer. As to the second Division, we could not go that length, because if we did so we should be going too far towards the re-establishment of the distinction between the administration of law and equity which we do not want to be acted on longer, except so far as it may in the nature of things be coincident with a convenient distribution of the business. The second Division will hear Admiralty cases, as the present Admiralty Judge will be there, and Bankruptcy cases, as the present Bankruptcy Judge will be there, and also that class of cases for which the Court of Chancery has at present the only or the best available machinery; being all causes, matters, and proceedings for any of the following purposes: -The administration of the estates of deceased persons; the dissolution of partnerships or the taking of partnership and other accounts; the redemption or foreclosure of mortgages; the raising of portions, or other charges on land; the sale and distribution of the proceeds of property subject to any lien or charge; the execution of trusts, charitable or private; the rectification, or setting aside, or cancellation of deeds or other written instruments; the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases; the partition or sale of real estates; the wardship of infants and the care of infants' estates. Your Lordships will see that the business to be so assigned to the second Division may be summed up in the words 'administrative business,' which requires administrative machinery. Such business should remain where it is, but not without a power to move it elsewhere when there are reasons to make its removal desirable. I mentioned that there will be one Judge not attached to any Division. He is the present Judge of Probate and Divorce, and, of course, he will hear such cases as are now heard in his Court. This distribution of business, alterable by rules, is subject to the additional safeguard that, in cases not expressly provided for, any suitor will have the right to choose where he will bring his action; in what Division, |