asked Mr. Attorney General, Whether it is in accord with or contrary to the duties incidental to the "powers, jurisdiction, and authority" conferred on the Court of Common Pleas by "The Parliamentary Elections Act, 1868," for a Judge of that honourable Court to canvass Electors, by letter or otherwise in the interest of any candidate whose Election or whose Petition on Non-election may be a subject-matter of judicial investigation before the Judge so acting, either as a Judge on the rota for the trial of Election Petitions or as a member of the Court of Common Pleas?
in reply, said, that he did not like to answer an abstract question without knowing some- thing of the facts on which it was founded; but, speaking simply in the abstract, and without being supposed to pass an opinion on the conduct of any learned Judge of which he was entirely ignorant, he should say that nothing could be more improper than for a Judge of the Court of Common Pleas to canvass electors in the interest of any candidate whose Petition might come before him as a Judge for the trial of Election Petitions.
Legislation—Turnpike Acts Continuance Bill—Question
said, that a few days previous the House had sat till Four o'clock in the morning, in consequence of the determined resistance of a considerable number of Members to the Instruction he had moved to the Committee on the Turnpike Acts Continuance Bill, while upwards of 100 Members remained to the last to support the Instruction. As the delay of the Bill would involve public inconvenience, he asked whether, if the proposed Instruction were withdrawn, the Government would undertake to bring in a Bill on the subject next Session?
in reply, said, he thought, after what had happened, the noble Lord would show a wise discretion if he would withdraw the proposed Instruction. The Local Government Board was quite prepared to have a measure drafted during the Recess, to be introduced early next Session.
Landed Estates Court (Ireland) Bill—Question
In reply to Colonel STUART KNOX,
said, the Government were quite aware that, in the face of the opposition offered to the Bill, there would be considerable difficulty in passing it through the House that Session in its present shape. The reason which originally induced the Government to think there was no necessity for the appointment of a second Judge, however, still remained in force. In the event of the Supreme Court of Judicature Bill passing, it would probably be necessary to introduce a measure dealing generally with Irish judicature, and such a measure would embrace the business of the Landed Estates Court. In considering it, it would be convenient to have to deal with one Judge only. To remove the opposition to the Bill, therefore, the Government proposed to make it a temporary measure, to suspend temporarily the appointment of a second Judge, and to make provision for the discharge of his duties during that period of suspension. It was proposed, therefore, to take the second reading of the measure that evening, and to give Notice of the Amendments which he would introduce in Committee.
Supreme Court Of Judicature Bill—Lords—Bill 154
( 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.
New Clause brought up, and read the first and second time.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."
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, Captain||Jardine, 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.|
|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, Captain||Lowe, 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, right||Massey, 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, Viscount||Morgan, 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, Major||Philips, 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. de||Vivian, 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, hon. H. W. V.||Adam, W. P.|
|Talbot, C. R. M.||Glyn, hon. G. G.|
|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, Viscount||Hardy, J. S.|
|Barttelot, Colonel||Hay, 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, Colonel||Patten, 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.de||Wait, W. K.|
|Round, J.||Walpole, hon. F.|
|Sackville, S. G. S.||Walpole, rt. hon. S. H.|
|Salt, T.||Waterhouse, S.|
|Sandon, Viscount||Watney, 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.|
(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—
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.)"The. Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer."
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.
expressed a similar opinion.
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.
hoped his hon. and learned Friend would divide the Committee.
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.
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."
said, he did not object to the Amendments.
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.
Schedule, as amended, agreed to.
Preamble agreed to.
Bill reported; Motion made, and Question proposed, "That the Bill, as amended, be taken into consideration upon Thursday."
Privilege—The Appellate Jurisdiction Of The House Of Lords—Supreme Court Of Judicature—Scotch And Irish Appeals
Before the House, Sir, fixes a day for the consideration of the Amendments I wish, with their permission, to make a few remarks on the question of Privilege which has been raised in the other House, and which is still pending, with respect to the application of the appellate part of this Bill to Scotland and Ireland, and on the proposal to re-commit the Bill, with a view to the insertion of clauses enabling their Lordships, if they think fit, to include Ireland and Scotland in its operation. Let me remind the House that that question has not been put forward by the House of Lords in any tangible or intelligible shape—in any form which would enable us to obtain what I may call official information with regard to it. Technically, the House of Commons has no knowledge of the claim put forward by their Lordships, and we could not even gather it from the proceedings of the other House, which are on our Table from day to day; we merely know something of the kind from the reports of speeches made in that House. Most of us have, no doubt, read a speech of a distinguished Member of the other House, in which he puts forward a certain claim of Privilege; but I believe the greater part, if not the whole, of this House—and I imagine everybody else who has attempted to investigate the case with candour and fairness—looks upon that claim as being utterly baseless and unsubstantial. But, Sir, I, for one, do not think it is desirable to embark upon a discussion of the question thus raised, particularly on a measure of this sort. The measure itself is one of such substantial public advantage, one so anxiously looked for by the country, and likely to lead to such great and important results, and to be so beneficial in the promotion of the administration of justice, that nothing could be more undesirable than that it should be lost in the midst of a contest between the two Houses of Parliament as to the Privileges of the one House or the other. I wish the House to bear in mind that not only is there nothing before us asserting this Privilege; but, so far as I am aware, there is nothing on record in the Journals and records of the other House to substantiate it. It is true, a statement has been quoted as made by a noble and learned Lord of very great judicial eminence some 20 or 30 years ago (Lord Lyndhurst); but we all know, if we know anything of that noble and learned Lord and his ability, that he was a masterly advocate, and that when he had a case to make he was not particularly scrupulous with regard to the weapons he made use of. And, therefore, a statement made by that noble and learned Lord—however eminent he may have been as an advocate, or however distinguished a Member of the House of Lords he may have been—is really no evidence at all of there being any foundation for this claim. And I cannot but imagine that if there had been any real and substantial foundation on the records of the House of Lords for such a claim as this, we should have heard of it long ago. It would have been introduced in the argument of the noble and learned Lord who put forward the claim, and therefore I say there is nothing on the Journals of the House of Lords to support or substantiate it, and there is nothing on the records of this House acknowledging or even referring to it. I must say, therefore, I think it would be most undesirable that there should be placed on our records any evidence at all of there having been such a preposterous demand made as that which was put forward by the noble and learned Lord. Well, now, I wish the House to remark, that if we take the course which was suggested the other evening in reference to this question by my right hon. Friend at the head of the Government, we shall practically upon our records, by sending up an imperfect Bill, be admitting this claim of the House of Lords, and we shall be giving them an opportunity of putting on their records a statement of their claim, and the fact that we have furnished them with incontrovertible evidence of the justice of such claim. Sir, I think it is most undesirable on both hands that that should be the case. -We know by surreptitious means—because reports of debates in the House of Lords are irregular—that some ambitious and able lawyer in that House, of great eminence and distinction, has in the course of a speech there put forward a claim of that kind. But as a body—as the House of Commons—we know nothing of that; and I own I think it would be taking a very unwise and imprudent course if we were to lose sight of our great object, and risk the loss of this great measure by entering into a contest with the other House on this subject. I think the House should take no notice of it whatever. The Motion for the re-committal of the Bill, of which Notice must be given in the course of the evening, has only one object—to extend to Irish and Scotch appeals the appellate jurisdiction of the new Court. That is a most important object to keep in view, and it is one which I ventured to suggest to this House. I think it is impossible for anybody with a grain of sense to contend that, when you have removed from the House of Lords their appellate jurisdiction in English cases, which form the great bulk of the appeal business, the Scotch and Irish cases should still be permanently submitted to their jurisdiction. All the arguments in favour of taking away the English appellate jurisdiction from the House of Lords apply with ten-fold force to the Irish and the Scotch appeals. Men of sense even in the other House—and there are a great many men of sense there—would never seek to maintain their appellate jurisdiction merely over Scotch and Irish appeals, unless, indeed, some side issue were raised or their prejudices were excited by a question of Privileges. This is only a matter of time, and of a very short time. The new Appellate Court is not to come into operation until November in next year. There is, therefore, ample time, without running the risk of engaging the House in these useless controversies on this question of Privilege, to succeed in the object we have in view and provide that that great Appellate Court should deal with appeals from the three kingdoms. As a Scotch Member, I feel the strength of the proposition that the same Court should hear both English and Scotch appeals; but I also feel the reasonableness of the demand which Englishmen may fairly make—namely, that the chance of establishing a good Appellate Court for England shall not be lost merely for the satisfaction of making an attempt to extend its jurisdiction to Scotch appeals. I wish, therefore, to urge upon my right hon. Friend and his Colleagues that, as far as my humble judgment goes, the judicious and proper course is not now to re-commit the Bill, with a view to extend the appellate jurisdiction of the new Court, but allow this promising opening to a quarrel to drop altogether, and thus set an example of good sense and temper to the other House—an example which I hope they are always ready to follow. I invite my right hon. Friend, therefore, to give an undertaking that early next Session this detect in the Bill will be remedied by the introduction of a supplementary one, and that he will then be ready to propose the extension of the appellate jurisdiction to Ireland and Scotland. There is, however, one Amendment on the Paper of the hon. and learned Attorney General, for extending the qualification of the Judges in the Appellate Court from barristers in this country to Irish barristers and Scotch advocates. That Amendment should, I think, be made; but the Bill does not require re-committal for such a purpose, and I trust that, if the course I have suggested be taken that Amendment may be made upon the Report.
I must express my entire concurrence in the suggestion made by my right hon. Friend, which I strongly recommend her Majesty's Government to accept. I listened with great satisfaction the other night to the observations made by my right hon. Friend at the head of the Government on the subject of Privileges, which cannot be said with accuracy to be claimed by the House of Lords, but as to which we had notice that the House of Lords will be invited to assert them if this Bill is sent up, depriving the House of Lords of the appellate jurisdiction over Scotch and Irish appeals. The more one looks at this possible claim of Privilege on the part of the House of Lords, the stronger appear to be the precedents against the validity of such a claim. I therefore think the House would be perfectly justified in sending up the Bill, with the Amendments of the hon. and learned Attorney General; hut I am perfectly satisfied that it would not be consistent with our dignity to enter into such a contest with the other House. My right hon. Friend, therefore, showed good sense in the course which he proposed to take—namely, to avoid any possible collision with the House of Lords on the question, thereby risking the loss of a very valuable Bill upon the consideration of which great time has been spent. At the same time I think the course which he indicated was a dangerous course with reference to this question of Privilege. We are invited to send the Bill up to the other House in an imperfect state, indicating our wishes, but not inserting the clauses which are necessary to give effect to those wishes. But in adopting this course should we not be saying in effect that we shrink from doing what we think we have a right to do, because we should thereby come into collision with the other House; and should we not be inviting the other House to do what they say they have a right to do? It seems to me that we should thus be creating a precedent against ourselves, and should be practically surrendering the very question of Privilege which we assert. There are other considerations which appear to me to make it desirable that the question of the Irish and Scotch appellate jurisdiction should receive more consideration than has yet been given to it. I am not authorized to speak on behalf of anyone, but the Scotch and Irish Members with whom I have communicated concur in that opinion, and say that nothing will be lost by delay; on the contrary, that good will result from delay, because in the next Session a Bill may be brought forward containing provisions to obviate any of the inconveniences which might arise under the present measure. It would not be right to call upon my right hon. Friend for any opinion at present, nor ask him to pledge himself to take any particular course; but I do ask him to consider whether it would not be better to send up the Bill as it stands, with any Amendment which may be needful upon the Report, reserving till next Session the question of extending the appellate jurisdiction of the new Court to Ireland and Scotland. I agree with my right hon. Friend (Mr. Bouverie) that it is impossible that if the House of Lords surrender their appellate jurisdiction in English cases, they can retain it for the comparatively few cases that come to them from Scotland and Ireland. The loss of the appellate jurisdiction in those cases must necessarily follow. We may safely rely upon the result, and I should, therefore, be glad if my right hon. Friend at the head of the Government would abstain from moving the re-committal of the Bill, reserving to himself the right next Session of introducing a new measure to carry out the object he has in view.
joined in the appeal which had been made to the right hon. Gentleman at the head of the Government to postpone for the present the extension of the new jurisdiction to Irish and Scotch appeals, but upon grounds differing from those already urged. He hoped the question of extending the operation of the Bill to Ireland would not be pressed during the present Session; for he had found that there was a strong opinion against it in that country founded on very valid objections. After carefully considering the provisions for transferring Irish appeals to the English Courts, he entertained a strong objection to such a transfer. That, however, was not the time for stating the grounds to that objection. He was prepared to do so, but the proper time would be if the hon. and learned Gentleman the Attorney General persevered in the Motion for re-committing the Bill. One objection, however, lay upon the surface. It was a mistake to suppose that that was a Bill for substituting another tribunal for the House of Lords. It was really a Bill to substitute another tribunal for the Court of Exchequer Chamber, and so to supersede the necessity for appealing to the House of Lords. There was at present in England an appeal from the Judges to the full Court; from the full Court to the Exchequer Chamber; and afterwards to the House of Lords; and what was proposed was to make one Court of Appeal only—the Court of Exchequer Chambers. It was not proposed, however, to do that in Ireland. The Court of Exchequer Chamber there was to be left untouched, and there were still to be three appeals; but an English Court was to be set up as a Court of Appeal for Ireland instead of the House of Lords. The scheme of the Bill for Ireland was to strengthen the intermediate Court of Appeal, making it so strong as to supersede the necessity of appealing to the House of Lords. The Bill for Ireland, therefore, would become a totally different Bill from that which was applicable to England. After the predominant opinion expressed on the other side, he was almost afraid to say that, in his opinion, a great mistake had been made in taking from the House of Lords its appellate jurisdiction. He did not believe it would be possible, by any new tribunal, to replace the great traditions and the prestige which belonged at present to the House of Lords. Apart from that question, however, the House was not in a position now to deal with the Irish appellate jurisdiction, as they were doing with the English. It was proposed by the Bill that the Lord Chancellor of Ireland and the Lord Chief Justice of Ireland should sit on appeals in this country; but how could they leave the business of their own Courts, without the substitution of a new Court for the Irish Exchequer Chamber. The Lord Chancellor of Ireland and the Lord Chief Justice of Ireland would come to sit as strangers in a Court to which they were unaccustomed. They would feel that they were inferior members of that Court. He was not sure that the Irish people would be satisfied with the proposition of the Bill to transfer from the present highest Court of Appeal for the three kingdoms the jurisdiction which it had hitherto exercised in the case of appeals from Ireland to an English Court only co-ordinate with the Courts in Ireland from which those appeals were to come. That proceeding had been tried in the time of Lord Mansfield, with an unfavourable result; and he was not sure that the people of Ireland would be satisfied if the decision of the Court of Exchequer Chamber in Ireland were reversed by Judges in England. He had no right to speak on behalf of any one but himself; but he believed the objection he entertained to the Amendment introduced with reference to this matter was very largely shared by people in Ireland. Why should there be any hurry on this subject of dealing with appeals from Ireland? The people of Ireland had suffered under grievances for many a generation, and for a Session or two more they could contentedly wait to see how this plan as to the hearing of English appeals worked before asking that it should be extended to Irish appeals. He would say—"Fiat experimentum in corpora vili;" but for once let an experiment on a vile body be made in England. He hoped the right hon. Gentleman at the head of the Government would accede to his request, that so far as concerned Ireland the proposition about a transfer of jurisdiction in the matter of appeals—or, in other words, an attempt to place a sort of excrescence upon the Irish system of judicature—would be delayed for a Session or two.
said, he did not agree in the views which had been expressed by the hon. and learned Member for Limerick, for one of the main reasons which induced him to consent to a transfer of Irish Appeals to the same Court as that which the Bill proposed should be constituted to hear English appeals was, that such transfer would further consolidate an intimate union between the two countries. With that object in view, he thought it was most undesirable that there should be proclaimed such an essential difference between the two countries as was implied in the demand that there should be one tribunal for hearing English appeals and another for hearing Irish appeals. A large majority of the Irish Members were ready to vote with him on this question, and he was supported in it not merely by Members on his own side of the House; on the contrary, he had the support of hon. Gentlemen sitting on the Liberal side. He deeply regretted that the hon. and learned Member for Cork (Mr. Downing), who knew well the feeling of the Irish people, and particularly of the legal portion of that people, was absent. That hon. and learned Gentleman felt deeply on this question; and in the very last conversation he had with him he urged him not to give way on this subject. He (Dr. Ball) did not like delay. He was satisfied with the terms which had been offered by the right hon. Gentleman at the head of the Government, who had offered everything which Ireland or the Irish Bar ought to demand. There was no certainty that the right hon. Gentleman would be at the head of the Government another year, or, if he was, he might not be disposed to offer the same terms again. In opposition to the suggestion that the question concerning the hearing of Irish appeals should be delayed, he must say that he recollected the promise solemnly made by his noble Friend the Chief Secretary for Ireland that he would introduce a Bill relating to Labourers' Dwellings in Ireland, and from that day to this not only had he not brought in such a Bill, but he (Dr. Ball) did not believe that there was a draft or a sketch of it in the well-supplied pigeon-holes of the Irish Office. The fact was, no Government wished to embark on Irish questions unless pressure was exercised. There was an opportunity now of pressing the right hon. Gentleman at the head of the Government; good terms had been offered by the right hon. Gentleman, and if the offer of those terms were not accepted, hon. Members would act very shortsightedly with reference to the interests of Ireland.
said, he thought the very candid speech of his right hon. Friend the Member for the University of Dublin (Dr. Ball) would explain the situation in which they were placed with reference to the House of Lords. The Government, by accepting the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), had created all the diffi- culties in which the House of Commons was placed. They accepted it because the right hon. Member for Kilmarnock was supposed to represent the Scotch Members, and the right hon. Gentleman the Member for the University of Dublin the Irish Members. It was the right hon. Gentleman the Member for Kilmarnock who asked the House to commit this dreadful breach of the Privileges of the House of Lords, and it was well he was going to be supported by the right hon. Gentleman opposite the Member for Buckinghamshire. The only mistake which was made by the Government was that they did not take a division on the subject, because if a division had been taken on the Motion of the right hon. Member for Kilmarnock, it would have been seen that the Scotch Members voted with him, that the majority of the Irish Members voted with the right hon. Member for the University of Dublin, and that the Conservative party voted under the direction of their Leader to do the very act for which the House of Commons was now attacked as a gross breach of Privilege of the House of Lords. That that was the view taken by the Leaders on either side nobody could doubt for a moment. His right hon. Friend the Member for Buckinghamshire (Mr. Disraeli) was not now present, but he made a very elaborate and ingenious speech objecting to the course taken. He referred to almost every possible topic. The one topic which was conspicuous by its absence was the question of a breach of the Privilege of the House of Lords. Now, could it be conceived to be possible that the right hon. Gentleman the Member for Buckinghamshire, whose great reputation had been built up in the House of Commons, would have willingly and intentionally consented to that House committing a breach of the Privilege of the House of Lords? Certainly not. The right hon. Gentleman was much too tender of the honour and reputation of the House of Commons to have taken any such course, and if he did not urge an objection about a breach of the Privilege of the House of Lords, it was because he thought such an objection could not be well founded. There had been a speech made by an eminent and learned Lord on this subject, and there had been a speech by the Prime Minister and Leader of the House of Commons. As to those two speeches, one was an assertion and the other was a counter-assertion. One assertion was as good as another "and a great deal better." But he must venture to ask the attention of the House, as that question of breach of Privilege had been raised, to a precedent which occurred at a very important epoch. In 1675, the House of Commons sent up a message to the House of Lords objecting to the exercise of their judicial functions, and requesting a conference between the two Houses on the subject. The message which the Lords sent in reply—28th of May, 1675—was as follows:—
The answer of the House of Commons to this claim of the House of Lords was as follows:—"That the Lords did not agree to a conference when the whole matter concerned the judicature of the Lords, on which they could admit no debate nor grant any conference. But this present Message being for a conference as to the privileges of their House—that is, House of Commons—the Lords have agreed, always provided that nothing be offered at the conference that may any way concern their Lordships judicature."
That was the language of the House of Commons when the question of Privilege in respect of their judicature was raised, and that language formed an important item in our constitutional history. The result of this difference between the two Houses appeared to have been the dissolution of the first Parliament of Charles II., which had then sat for 15 years. Two days after the occurrence to which he had just referred, the King came down to Parliament and, with the ready wit and sharp-sightedness that distinguished him, he made a speech that accurately described the situation, and which was somewhat germane to the situation in which the House now found itself. He said—"That the House of Commons do agree with the Lords that conferences between the two Houses are essential to Parliamentary proceedings when they are agreed in the usual and Parliamentary way, but the manner of the Lords' agreement to the Conference to have been on Friday, the 28th of May, in the Painted Chamber with limitation and proviso, did necessitate the House of Commons to forbear to meet at that Conference, and gave the first interruption to Parliamentary proceedings in conferences between the two Houses. For that the Conference desired by the Commons was upon their Privileges concerned in the Answer of the Lords to a Message of the House of Commons, sent to the Lords the 17th of May, in the case of Mr. Onslow, to which the Lords did not agree, but did only agree to a Conference concerning their Privileges in general, without reference to the case of the said Mr. Onslow, which was the only subject-matter of the desired Conference. The limitation in the Lords' agreement to a Conference, with proviso that nothing be offered at the Conference that may in any way concern the Lords' judicature, is in effect a denial of any Conference at all upon the subject upon which it was desired which ought not to be. The judicature which the Lords claim in appeals against a Member of the House of Commons, and the privilege of that House in that ease is so involved that no conference can be upon the matter without some way touching the former. That this manner of agreeing to a conference with any limitation or proviso is against the course of proceedings between the two Houses in coming to conferences, and cloth seem to place a power in the managers of such conferences to judge whether such provisos be broken or not, and accordingly to proceed or break off the conference upon their own judgments. The House of Commons doubt not, but that, when the Lords have considered of what is delivered at this Conference, the good correspondence which the Lords express their desire to continue between the two Houses (which the Commons are no less careful to maintain) will induce them to remove the present interruption of coming to conferences, and therefore to agree to the conference as it was desired by the House of Commons, upon the privileges of their House concerned in the Lords' Answer to the Message of the House of Commons in the Case of Mr. Onslow: That the particular limitation, that nothing be offered at the Conference, that may any way concern the judicature of the Lords, appears unreasonable; for that their Lordships' judicature in Parliament is circumscribed by the laws of the land as to their proceedings and judgments; and is, as well as all other Courts, subjected to Parliament."—[Parl. History, iv. 732–3.]
Probably, the same observation might be equally applicable at the present moment to a. quarrel which seemed to have been most unnecessarily attempted to be picked between the two Houses of Parliament. It was for those reasons that he entirely concurred in the view that had been taken of the matter by the right hon. Member for Kilmarnock. It appeared to him that the House of Commons had two things to do, and that they must try and combine them—first, pass the Bill; and secondly, not to admit the claim of Privilege which had been set up by the Lords. The question was, how could those objects be best attained. If, in order to pass the Bill, it were necessary to admit the Lords' claim to Privilege, he would rather lose the Bill than admit their claim. He did not, however, think that that was necessary. In the first place, this was a claim advanced not by the House of Lords—the claim did not appear upon the records of either House of Parliament, and if it were passed by as au idle wind nothing would remain of it beyond the speech of the noble and learned Lord who had set it up, and the speech of the right hon. Gentleman at the head of the Government in that House in reply to it. By adopting the suggestion of the right hon. Member for Kilmarnock the Bill would be saved, while the claim of the Lords would not be admitted; whereas if the Bill containing imperfect clauses were to be sent up to the other House, in order that it might be perfected there, it might be construed as a yielding to the claim of the Lords. Under those circumstances he joined with the right hon. Member for Kilmarnock in appealing to the right hon. Gentleman the Prime Minister not to pursue the course he had indicated the other clay, but having got the Bill out of Committee, to go on with the Report, and to send it up to the House of Lords, and so remove all pretext whatever for advancing that dissolution in the manner to which King Charles II. had referred."My Lords and Gentlemen: You may remember, that, at the meeting of this Session, I told you no endeavour would be wanting to make the continuance of this Parliament impracticable. I am sorry that experience hath so quickly showed you the truth of what I then said; but I hope that you are well convinced, that the intent of all these contrivances is only to procure a Dissolution."—[Ibid. 737.]
said, he had given Notice, at an earlier part of the evening, of a Motion which would distinctly raise the question of Privilege, which ought to rest upon some sounder footing than the mere dicta of text writers and doubtful precedents. He advised the House to decline to take upon themselves at this period of the Session the responsibility of altering the whole of the law of Irish and Scotch appeals. It appeared to him that this claim of the House of Lords, which had been somewhat ostentatiously made, not by the House of Lords, but by a single Member of that House, amounted to this—that it was not competent for the House of Commons, in the most minute degree, to alter any Bill sent down from the House of Lords touching its appellate jurisdiction. That appeared to him to be a most dangerous proposition, and one which it would not be consistent with the dignity of the House of Commons to pass over in silence. If there was one thing more than another in which the people were interested, and over which it was the duty of the House, as guardians of the rights of the people to watch, it was the administration of justice, and if that House were to hesitate to express its opinion on the judicial functions of the House of Lords, it would not only be surrendering one of its greatest Privileges, but be committing a great national wrong. The passage relied on by Lord Cairns in Blackstone did not apply, because it was written by him in reference to the Lords not in their judicial capacity, but as Members of the Legislature, and if it were not, the point was far too important to be settled by a text writer, however eminent. To re-commit the Bill would be a grave mistake, for, supposing the Bill to be passed by the Lords in the shape in which it was now proposed to be sent up to them, they would actually create two new Judges with nothing to do. He, therefore, thought the House was bound before parting with the Bill, to enter its emphatic protest against the claim set up by the House of Lords. It was said that what was good for England was good for Scotland and Ireland, and earlier in the Session such an argument would be unanswerable; but just now the shadow of the long vacation was upon the House, and the question in every man's mind was— "How soon can we get out of this place?" It would be absolutely necessary to deal ultimately with this question of Irish and Scotch appeals; but when that time came it ought to be considered as a whole, and clauses for Scotland and Ireland ought not to be pitchforked into a Bill for England. Take away the English appeals, and the House of Lords would die of inanition.
The Question is, that this Bill, as amended, be considered on Thursday next. The whole of this discussion has been, according to my judgment, somewhat premature. It would have been more properly raised on the question of the re-committal of the Bill, which has not yet been proposed. I submit this observation to the House that, on the Motion that this Bill be considered on Thursday next, no Amendment could be moved, except as to the time at which the consideration of the Bill should be taken; and therefore any discussion not relevant to an Amendment of that kind is out of place.
said, after that intimation from the Chair he would not, of course, continue his remarks; but in making them, he was only following the example of other hon. and right hon. Members. He would only express a desire that the Prime Minister would accede to the universally expressed opinion of the House.
as an Irish Member, did not concur in the observations of the hon. and learned Member for Limerick (Mr. Butt). His impression was, that one of the Irish Judges at all events, and that was the Lord Chancellor, would have no particular difficulty in attending any Appeal Court in England. He deprecated delay; but at the same time, the passing of a Bill for the United Kingdom or for any portion of it that year was a comparatively unimportant matter; the more important question was, whether, on a great question of Imperial policy, the one Bill should not embrace the three kingdoms. The questions of Irish and Scotch judicature could not be postponed in the nonchalant manner assumed by the hon. and learned Member for Oxford (Mr. Harcourt), who addressed them as a monitor from the depôt centre of Oxford. Was that an occasion on which they-ought to legislate for England? ["Hear, hear!"] That cheer of his hon. and learned Friend was not a cheering cheer. He supported the views of his right hon. and learned Friend the Member for the University of Dublin (Dr. Ball) and he believed his opinions were shared by Irish Members generally. [Mr. MITCHELL HENRY: No, no!] It was all very well for his hon. Friend, who wrote a letter to The Times once a week, to say, "No, no;" but he (Sir Patrick O'Brien) had had experience in that House for 20 years, while his hon. Friend had only been in it about two—so that his interruption was out of place. As he had said before, he believed Irish Members generally were in favour of there being only one Court of Appeal for the United Kingdom. He therefore wished to advance as far as he could the view of the right hon. and learned Member for the University of Dublin, that this great question ought to be considered in the Imperial Parliament as one affecting the United Kingdom, whether it was considered now or next year, or by a new Parliament.
In the few remarks which I am about to make I shall endeavour to bear in mind the observations that have fallen from the Chair; but I think, after so much has been said, and with so much ability and authority, in reference to the future course of this Bill, to be considered on Thursday next, perhaps I ought not to pass altogether unnoticed the appeal made to the Government. I am bound to say with regard to the speech of the hon. and learned Member for Limerick (Mr. Butt), whether or not we may ultimately agree with his conclusions, we shall arrive at them upon grounds totally and diametrically opposite to his. I am sorry, however, he has thought it necessary to avow the opinions he has declared with regard to the best arrangements in regard to the Irish judicature. With respect to the speeches which have been made upon the subject, I have the good fortune to agree with their main principle. As far as I am concerned, I have no doubt there ought to be one final Court of Appeal for the three kingdoms; and I have also no doubt, after listening to the very manly statement of the right hon. and learned Gentleman the Member for the University of Ireland (Dr. Ball), there will be one Court of Appeal for the three kingdoms, and that the just claim of Ireland has received a recognition which I believe will be permanent and effectual at the proper time, whether it be found practicable or not to give effect to it during the present Session. I think it only just to say so much in answer to what has fallen from the right hon. and learned Gentleman. There has been no difference expressed among the speakers to-night with regard to the supposed Privilege which has threatened to be an impediment to our proceedings, and for my own part, all reflection confirms me in the conclusion that that Privilege is as purely visionary as any claim in the history of Parliament that ever was set up. On the other hand, those who share that opinion agree with the Government in thinking it is not desirable we should enter into controversy with the other House of Parliament upon the subject. It has been our desire to frame our course with reference to this principle—it might be, if the House of Commons were weaker than it is, it could not afford to pass by an occasion when its rights are challenged; but it is because it is strong in the breadth and depth of its popular base, as well as in great historical traditions, that we come freely to that conclusion which the public interest dictates as the best, on the whole, with reference to the circumstances before us, and do not trouble ourselves about the question—what observations or criticisms may be made upon the apparent surrender of rights, which, if we had thought fit, we might have proceeded to urge? The hon. and learned Member for Oxford (Mr. Harcourt) has most justly laid the ground of the proceedings we should take in this case, when he says that we have two objects to reconcile as well as we can. One is to promote the passing of this Bill, and the other is to hold ourselves clear from an acknowledgment of the claim which has been set up. On all these matters of principle the House is not likely to be disturbed by serious differences. The point at which I should part company with the right hon. Member for Kilmarnock is in the very great preference which he has expressed fur one mode of proceeding over the other. He thinks if we were to pass a Bill constituting a complete Court of Appeal and send it to the Lords, leaving it to them to insert the transference of appeals from the House of Lords, we should seriously compromise the rights of this House; but if we simply withdrew from the purpose, which certainly had been entertained, and which appeared at one time to meet, if not with the unanimous, at least with the general approval of the House, in that case no harm would be done. I say frankly this is a matter in which the Government is ready to be prompted and led by the general conviction of the House. When we accepted the Motion of my right hon. Friend the Member for Kilmarnock on a former night, Member after Member in different parts of the House rose to express satisfaction with the course we had taken, and when, in pursuance of our announcement, we placed Amendments on the Notice Paper of the House we were no longer free to act and to recede from them, unless we ascertained in the first instance the feeling of the House. But I frankly own my opinion is that we shall not—I mean the House will not — escape criticism, whatever course may be taken. In the one case, as was most justly stated by my right hon. Friend, there will be a record in the official and authentic documents of this House; in the other case there will be none. But in either case it will remain as matter of history—as a matter admitting of no moral doubt whatever—that a claim of Privilege had been raised—I need not say by whom, not by the House of Lords—which might have affected the proceedings of the House of Lords; that that claim had been firmly, promptly, and generally repudiated by the House of Commons, but still that the House of Commons had thought it well, on the whole, to waive any controversy at the time and under the circumstances. I am quite ready, for my own part, to incur whatever disadvantage may arise from our decision. And I found myself distinctly and expressly on this one ground—that the House of Lords have sent us a Bill in which they have patriotically given up a great Privilege and power of their own; and it is the consideration of that conduct on the part of the House of Lords which I think renders it right for us to meet them with courtesy and conciliation, even although the act which we perform might in the minds of persons not thoroughly informed lead to the suspicion that we have not been so jealous of our Privileges as we ought to be. I have said we were very willing to follow the feeling of the House on the choice of those two courses, the difference between which does not touch the essence of this question. There is advantage, no doubt, in fixing at once the principle that a single Court of Appeal shall be established for the three kingdoms; but I feel the force of the observation that undoubtedly there is also some disadvantage in postponing the consideration of the intermediate appeals to a period different from that at which you are fixing the standard and tribunal of final appeal. The discussion we have heard has certainly gone far in my mind to show that we need not consider ourselves under any obligation of honour or courtesy to the House of Commons to persevere in the course we had proposed. Not only as to the speeches which have been made, and the authority of the speakers, but likewise the manner in which they have been received, justifies me, I think, in saying as much as that. I feel the general desire of the House is to place us in a position of perfect freedom, without reference to any supposed pledge either to my right hon. Friend, or to anyone else, to take the course which may seem on the whole to be the best. I will, therefore, with the permission of the House, act upon the suggestion of my right hon. Friend the Member for Morpeth, and will not, without au opportunity for further consultation with my Colleagues, proceed at this moment to announce any positive intention. At the same time, I think it is desirable at this period of the Session that we should make known our intention as early as possible, and, therefore, unless some unexpected difficulty arises, I will this evening and in the early part of to-morrow endeavour to ascertain their opinions on the matter; and I hope at the meeting of the House to-morrow, I may probably be in a position to state whether we think it requisite or not to proceed with that part of the measure. But I again assure the right hon. Gentleman opposite and those interested, especially either in the case of Ireland or of Scotland, that if we are released from any obligation to proceed at this moment with that portion of the Bill, we do not deem ourselves released from the obligation to give that just consideration to the claims of those two countries which we had intended to give if we had dealt with them this year. In any case we shall act on the suggestion of my right hon. Friend the Member for Kilmarnock, and propose, not on the re-committal of the Bill—for it does not require re-committal—but on the Report, one or more of those Amendments which relate to the qualifications of those who should be chosen to become members of the Court of Final Appeal. With those observations I shall cease to trouble the House any further; but I hope to-morrow—probably when the House meets at 2 o'clock—to be in a position to announce whether we shall act on the suggestions that have been made.
I desire, Sir, to offer a few observations. I shall not offer them in opposition to any ruling you may have made when I was unfortunately absent, because I think my first duty is to obey your ruling in every respect. But I have heard enough since my return to the House, and also learnt enough of what was expressed when I was absent, to induce me to believe that I shall be acting entirely according to the Orders of the House and to your decision if I make some remarks on those which have preceded me. This, Sir, is a singular occasion. We are really acting in circumstances not easily paralleled in Parliamentary history, and it is of great importance on occasions like the present, that there should be clear conclusions arrived at by the House, whatever those conclusions may be, so that hereafter, when these cases are referred to as precedents, they may be referred to, so as to guide and not to confuse us. It has often occurred to mo during the last fortnight, how extraordinary it is that, considering the circumstances in which this Bill for the reform of the judicature of the country was introduced to Parliament and the concurrence of sentiment in its favour among the most eminent men of both parties, we should have arrived nearly at the end of the Session, and only just terminated our labours in the Committee, leaving them, too, in a sort of provisional state; that we should have become embarrassed with so many difficulties, when it was expected that the measure would pass with such facility; and that such a question as a possibility of a collision between the two Houses should be raised; and that it should be rumoured on authority that the House of Lords might have to vindicate its Privileges in the conduct of a measure which came from the House of Lords itself, and was carried by that Assembly with so much unanimity—I say all this appears to me to constitute one of the most extraordinary situations that ever presented itself in Parliament. Sometimes we say—probably with some degree of rhetorical affectation of a measure we may be discussing, it is not a party question, while it is possible that beneath the surface of sentiment there may be some party animosity, and perhaps even some party manœuvres. But this I can say, as to the Bill for the reform of the judicature of the country, that none of these imputations can be made. It was brought forward by Her Majesty's Government in the other House; it was supported in the other House by the most eminent Leaders of the Opposition; it met with no resistance there; it elicited, I think, from the Leaders in both Houses—and certainly from the Leader of the other House—the acknowledgment that a generous support had been given to it. When the second reading was moved here, no opposition was offered. No doubt, when it got into Committee it provoked a considerable degree of criticism, which, having listened to with impartial attention, I thought was valuable and useful. But the greater part of that criticism emanated from the supporters of the Government, and I regret that many of the propositions made by them on those occasions were not adopted by the House. As far as the great principles of the measure are concerned, I am not aware that any difference of opinion was expressed in either House. The mature opinion of the country was in favour of the proposed reform of the judicature, and. both Houses, generally felt it to be their duty to support the Government on the occasion. The country had adopted the two great principles that in that reform there should be a Court of Primary Decision, and a Court of Conclusive Appeal. There might have been a difference as to the means by which those principles should be carried into effect. For my own part, I never disguised my opinion that it would have been well to have proceeded on the old lines, and that you could have effected the required development of your judicature within the House of Lords. But the Government having considered the case and brought forward a measure founded on principles that we acknowledge, I, and others too, waived our opinions in regard to the means by which the object might be attained, and felt that it was our duty to support the Government. This was the opinion—I may say without reserve—of my noble and learned Friend, who has taken so active a part in the matter, and his view agreed with mine. I had long ago spoken with Lord Cairns on the subject, and he always thought that, if possible, we ought to proceed on the old lines; and we all know that last year he himself brought forward a proposition, by which a single Court of Appeal might be established in this country, and yet that it might be found within the precincts of the House of Lords. Lord Cairns, nevertheless, gave the present Bill his hearty and sincere support, and possibly but for that support the Bill might not have reached us with such facility as it did. It is remarkable, under these circum- stances, that such difficulties should occur. When the Bill was introduced two objections were urged against it, even by those who supported its principles. It was said—and, indeed, no one could deny it—that it did not furnish a Court of general and universal Appeal, and that it was to be regretted that two kingdoms of Her Majesty were not under the jurisdiction of the new tribunal. The second objection to the measure of the Government was, that the Court was so constructed that it lacked some of the vigour and authority which had been promised to the people of this country, and which they expected in the new tribunal, and which alone had brought them to consent to the abolition of the jurisdiction of the House of Lords. With these two objections urged against the measure, the House was yet still prepared to support the scheme of the Government. What then occurs? The Government resolved to meet the first great objection to the scheme—namely, that it did not establish a system of general and universal jurisdiction, that it did not regulate the affairs of the United Kingdom in the Appellate Court; and they proposed, by accepting the Motion made by the right hon. Gentleman the Member for Kilmarnock, to remove that difficulty, and to extend the Bill to Scotland and Ireland. But in so doing, it must be observed they increased and aggravated the objection that had been brought against the new tribunal as lacking in the vigour and authority that had been promised to the country, because it must be quite clear that in this amended Bill it was quite possible you might establish an Appellate Court as a substitute for the jurisdiction of the House of Lords, in which the affairs of an English suitor might be decided upon by Scotch and Irish and provincial and colonial Judges. With the utmost confidence that no person would be appointed a Judge who was not entitled to the respect, and, in a certain degree, to the confidence of the country, that cannot be candidly described as a fulfilment of the promise held out that the Court should be pre-eminent for its strength, its sagacity, and the high character and profound learning of its Members. In this state of affairs, notwithstanding the general feeling, we were resolved to carry the measure of the Government, and however I might have regretted some of the means by which they carried their principles into effect, and however I might have regretted that some of the Motions—most of them proposed by hon. Gentlemen opposite—to strengthen the new tribunal had failed, I thought, on the whole, it was our duty to support the measure. Well, what happened? Suddenly it was intimated to the House that the course proposed by Her Majesty's Government interfered with the Privileges of the House of Lords. It was described by the right hon. Gentleman the Prime Minister as "a supposed Privilege," "purely visionary," and the announcement of it is described by him as "a challenge to the House of Commons." Now, it is of the utmost importance, after the speeches of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), and of the hon. and learned Member for Oxford (Mr. Harcourt), and after the speech just addressed to us by the right hon. Gentleman, that there should be a clear conception what is the Privilege asserted by the House of Lords. Whatever course the Government may decide upon to-morrow, there ought, so as far the House of Commons is concerned, to be a clear conception of the Privilege claimed, of the answer which this House has made by its most eminent representative, and of the position in which, in consequence of that answer, we are placed; otherwise we may find ourselves in a position of embarrassment, in a position of discomfiture and disaster, not merely, as I shall show, for this House, but even for the other House. I understand the Privilege claimed by the House of Lords is this—that where their Privileges are concerned—and, of course, their jurisdiction, which is perhaps their highest privilege—no Bill can be brought in to alter or amend them unless it originates in the House of Lords, and that such a Bill cannot be altered in respect of those Privileges in the House of Commons. An hon. Gentleman who addressed us the other night, commenting on an observation or two I had made, said I had refrained from vindicating the Privilege claimed by the House of Lords. Well, I was not sent to the House of Commons to vindicate the Privileges of the House of Lords. In the first place, the case was not before us, nor is it before us now, except incidentally, after the speeches of hon. Gentlemen endorsed by the First Minister. I am sent hero to support the Privileges of the House of Commons, and I am not in any way prepared to say that I am ready to admit the Privilege asserted by the House of Lords in this respect, and I find fault in the first instance with the right hon. Gentleman for taking a course which is practically a precipitate admission of the Privilege claimed by the House of Lords. No doubt, he declared the Privilege to be purely "visionary;" no doubt, he has indulged in very high language upon this assertion of Privilege; but his language, though we always listen to it with pleasure, will not practically have the slightest effect upon the question. The speeches of the right hon. Gentleman are not enrolled in our Journals. What will appear in our Journals will be extraordinary vicissitudes of conduct on the part of Her Majesty's Government and great caprice in the management of this House and when the matter is examined it will be discovered that all this has arisen from a certain mesmeric influence exercised by another House of Parliament. In short, when a few years have passed, the conduct of the Government will be quoted as evidence of the existence of this alleged Privilege of the House of Lords, and there will, under those circumstances, be great difficulty in proving that it is, as he now calls it, purely visionary. Although, however, I am not here to vindicate the Privileges of the House of Lords, if a Privilege is claimed by that House, and if the Leader of this House denies its existence and attempts to disprove its validity by precedents which do not apply, and by arguments which are fallacious, it is my duty-to notice those statements, otherwise the House, under such leading, will find itself led into a quicksand. I cannot, therefore, allow this occasion, after all that has occurred, to pass without some comment on the statements of the right hon. Gentleman, and particularly after the observations made to-night by the hon. and learned Member for Oxford and the right hon. Member for Kilmarnock. It is necessary that the House should calmly consider this case, and not be hurried away into conclusions which, if they have no sufficient foundation, may lead them to a course which hereafter they may have bitterly to regret. I will ask the House calmly to consider the precedents brought by the right hon. Gentleman, and which, I conclude, have been urged to-night by very powerful assistants. These subjects are rather abstruse, so I will divide those precedents under differents heads. It will make my statement more perspicuous, and if there be any obscurity in it, the fault, I am sure, will be mine. The right hon. Gentleman says the House of Lords claim that, in all that concerns their Privileges, any Bill must originate in that House, and cannot be susceptible of change in this House—a privilege which I neither admit nor deny. It is not my province to do that, because the Privilege has never yet been asserted by the Lords, and has not been brought before the consideration of the House as in any way opposing our legislation. It has been introduced to the House by Her Majesty's Government. The right hon. Gentleman adduced cases the other day in which Bills had been introduced into this House affecting the Privileges of the House of Lords, such as the abolition of voting by proxy, and the election of Representative Peers. The right hon. Gentleman adduced Bills of that description as evidence that the House of Commons had introduced measures which were contrary to the alleged Privileges of the House of Lords in that respect. But none of those Bills ever reached the House of Lords, and it was therefore unnecessary for the House of Lords in respect of them at all to allege their Privilege. And anybody who reads, as I have read very recently, the debates upon this subject in the House of Commons, such as upon the Bill for the abolition of vote by proxy and the Bill, for example, to alter the mode of electing Peers in Parliament, will see throughout that not only those Bills were rejected by this House, but that they were rejected, because the House felt the measure would place them in collision with the alleged and asserted Privileges of the House of Lords. I do not mean to say that if the House of Lords had then asserted this Privilege the House of Commons would have recognized it. But that would have happened with regard to the House of Commons which happens with regard to the House of Lords. There are many Privileges which the House of Commons asserts that the House of Lords practically respects and yet has never recognized. Even our most undoubted and most valuable Privilege, that with respect to Money Bills, has never been theoretically admitted by the House of Lords, although in action it practically takes care that there is no clashing upon the subject. Well, I have now, I think, shown that with respect to this class of Bills, which the right hon. Gentleman put forward to prove that the Privilege of the House of Lords was not acknowledged by the Commons, the Privilege never could be asserted because none of the Bills reached the House of Lords. True, it may be said by the right hon. Gentleman—"But the House of Lords might have taken note of those Bills having been brought forward in the House of Commons, and have given us an intimation that their Privileges were affected by them, as they have in this instance." Why, Sir, the intimation that was given in this instance was given by a Friend of the measure of Her Majesty's Government. If my noble and learned Friend (Lord Cairns) had really wished to defeat the measure, would he have taken the means of publicly notifying to them, that if they pursued the course in which they had suddenly and precipitately embarked, they would be attacking the Privileges of the House of Lords? No; my noble and learned Friend would naturally have remained in grim repose until the day when the Bill came forward in the House of Lords, and would then have asserted, and triumphantly asserted—if it had been his object to defeat the Bill—a Privilege which, whatever may be our opinion, the House of Lords would have supported with the same zeal and determination that we would support any of our peculiar Privileges. The right hon. Gentleman talks to-night of a challenge being thrown out to the House of Commons by my noble and learned Friend. No challenge was thrown out, but an admonition was given to Her Majesty's Government to the effect that —"If you pursue the course you are taking we shall assert our Privilege." And Her Majesty's Government have profited by the admonition. And they were wise; and yet, Sir, I blame Her Ma- jesty's Government for the mode in which they have acted. I say it was most indecorous and indiscreet in the Leader of the House of Commons to come forward and denounce the House of Lords, declaring that their alleged Privilege was entirely fallacious, and then yield to it without 'a struggle, leaving behind him a precedent which may be hereafter quoted in favour of a Privilege of the House of Lords which the House of Commons has never yet acknowledged. Then, there is another class of precedents quoted by the right hon. Gentleman which might be described as cases in which the House of Lords had, either by initiating measures such as the Septennial Act, or by amending measures such as the two Reform Bills—that of Lord Grey and that of 1867, legislated so as to affect the constitution of the House of Commons. But these only show that the House of Commons either has not, or has never claimed the privilege in question. It is a complete error to assume that the Privileges of both Houses are the same. The Privileges of the two Houses are not and need not be identical. We have peculiar Privileges. Witness the catena of Privileges of the House of Commons as to Money Bills. The House of Lords have peculiar Privileges, and the passage in Blackstone which has been referred to is valuable in itself as a proof and an illustration of what in his time was the settled general opinion of legal and constitutional authority upon the question at issue. He limits it to the Peerage. It proves that in his time this Privilege was supposed to be peculiar to the House of Lords and not to the House of Commons. But it is upon this last class of measures, where it is supposed that the House of Lords have legislated so as to effect the Privileges of the House of Commons, the right hon. Gentleman has delivered an opinion of a character so strange and so dangerous—one which both sides of the House are so much interested in completely comprehending and guarding themselves against—that I must call particular attention to it. The right hon. Gentleman says that the House of Lords having hitherto dealt with Bills which affected the constitution of the House of Commons with impunity, if they again take that course we must ourselves assert a privilege of a similar character and defend ourselves against the House of Lords. Why, Sir, the right hon. Gentleman should know—must know—that it is totally impossible for either House of Parliament to set up a new Privilege. It is part of the Constitution of this country. The most solemn Resolution at which Parliament has ever arrived—arrived at by both Houses, recorded in our Journals so far back as the beginning of the 18th century, at a time when the Constitution of England may be said to have become settled—declared that it should not thenceforth be in the power of either House of Parliament to set up a new Privilege. Our predecessors knew the value of Privilege of Parliament. By Privilege they had established the Parliamentary Government of England and secured their rights and liberties, and they knew well that Privilege was a delicate and dangerous weapon, and therefore they the resolved that the armoury should not be increased in that respect, and they arrived at that Resolution. It is upon our Journals, and is perhaps the most important Resolution on the Journals of the House of Commons. And yet we have the Leader of the House of Commons, in a moment of difficulty and danger, protecting the House from the assertion of a Privilege on the part of the House of Lords which, at least, is an ancient Privilege, and telling them that the only efficient mode in which they can guard themselves is to devise a new Privilege to vindicate their rights against the claims of the House of Lords. And this is the constitutional conduct of the Prime Minister of the country! I say with respect to this second group of cases that the House of Commons never asserted the Privilege in question, and no doubt, because the Privilege never existed. Then there is another class of cases, such as the Temporalities Act, which suppressed some, and the Irish Church Act, which abolished all the Irish Bishoprics; and the right hon. Gentleman brings forward those precedents to show that we have a right to deal with the Privileges of the House of Lords. Now, what I would say generally is this—that in none of these Acts is there any interference with the Privileges or jurisdiction of the House of Peers. There are several things which the House of Commons may do. They may amalgamate two Sees or abolish one, in each case dealing with the number of the other House. It is also in the power of the House of Commons at all times to present an attainder of a Bishop. For example, we sent up an attainder against the Bishop of Rochester (Atterbury) but the Lords claimed no Privilege in that matter. They never supposed that in dealing with an individual, we were interfering with the rights of an order, and the attainder was passed. The House of Commons might even to-morrow abolish the office of Lord Chancellor, and deprive the House of Lords of their Speaker. It would be no interference with their Privileges and the Act would immediately be recognized. None of these Acts on the part of the House of Commons would be au interference with the status, power, or jurisdiction of the Lords Spiritual or Temporal. They would remain the same. I am not upholding the claim of Privilege now asserted for the House of Lords, and so far as I am concerned, I am not prepared to enter on that subject in the haphazard manner of the right hon. Gentleman, and without ample time for investigation. When the claim is made, I will not shrink from discussing it; but what I want to show to the House is this—that all the arguments and all the precedents urged against this claim of Privilege by the right hon. Gentleman are utterly void, that there is nothing in them, and that if the House of Commons in any possible struggle with the House of Lords depends upon those precedents and arguments, they will find themselves in a position of humiliation, of discomfiture, and disgrace. I come now to the largest and most important group of these precedents, and they are precedents which refer to Scotland and Ireland. The right hon. Gentleman stated that the jurisdiction as to these two countries being given jurisdiction, statute is not like the English jurisdiction, which is customary, traditionary, and inherent, and moreover, that these statutes, the statutes of Union, originated in the House of Commons.
If I should not be interrupting the right hon. Gentleman I would wish to explain. I am quoted quite correctly by the right hon. Gentleman. I certainly did treat the jurisdiction of the House of Lords with regard to English Appeals as traditionary; but I was entirely wrong. It undoubtedly rests upon statutory foundation.
Well, there is a statute of Edward which remits and confirms the right of appeal in England to the House of Lords; that is a tolerably long time ago, and the subject is one of those moot points in archæological politics into which I am not disposed now to enter. I believe the right hon Gentleman never expressed himself with greater truth and felicity than when he said that the jurisdiction of the House of Lords in England was customary, traditionary, and inherent. But I will deal with the modern circumstances upon which the right hon. Gentleman insisted with so much vigour, and which are peculiarly the subject of consideration at this moment, because the course of the right hon. Gentleman and his Government, which is not decided with regard to Scotland and Ireland, depends upon accurate information in this matter. The statement of the right hon. Gentleman, as I took it clown at the time, was that the jurisdiction in regard to Scotland and Ireland being given by statute, was not like the English jurisdiction, which was traditionary and inherent, and, moreover, that the statute of union originated in the House of Commons. Well, Sir, I entirely contest that statement of the right hon. Gentleman. I will first of all treat of Scotland. The union between England and Scotland was effected by Treaty. The Treaty was negotiated in a very peculiar manner — not by the Prerogative of the Crown, but by Commissioners appointed by the Parliaments of the two countries. During the negotiations considerable conferences were held upon all those points which were afterwards reduced to the form of a Treaty, and executed as a great public document. Among those subjects—subjectsof grave importance, trade, taxation, and other matters—the judicature of the two countries was considered, and particularly the judicature of Scotland. The judicature of Scotland was respected and retained. The Privileges of the Peers of Scotland were acknowledged to be identical with the Privileges of the Peers of England. All the powers and Privileges which the Peers of England then exercised were to be exercised by the elective body of the Peers of Scotland, and were so provided for by the Treaty. The Peers of Scotland when they joined the Parliament of Great Britain came with all the attributes, all the privileges, and powers similar to those possessed by the Peers of England, and it was to them the Scotch addressed their appeals. In all the controversies that were carried on great jealousy was shown by Scotland on this point—the appeals of the Scotch people. They were afraid that if their appeals were addressed to the House of Lords, of which so inconsiderable a portion consisted of Scotchmen, they might not get justice. But after long discussions, admirably sustained on both sides, but especially by the Lord Chancellor of Scotland, they agreed to the system which prevails even to this moment. The right hon. Gentleman appeals only to the Act upon the Statute Book which is commonly called the Act of Union; but if the Act of Union were repealed to-morrow, the union between Scotland and England would still subsist, for the union between Scotland and England depends upon the existence of the Treaty between Scotland and England. The right hon. Gentleman insists very much upon the fact that the union depends upon an Act of Parliament, and that that Act of Parliament was introduced into the House of Commons. The Act, however, was introduced into the Parliaments both of England and Scotland, and for this reason, because, as the original Treaty was not negotiated under the Prerogative of the Crown, it was necessary that its ratification should be made by Parliament. The Commissioners of the Treaty being originally appointed by Parliament, it was necessary that the ratification of the Treaty should be made by Parliament. And so completely and clearly is this the case, that the Act of Union in the Scotch Act is called "the Ratifying Act." I cannot charge myself, speaking rather unexpectedly upon this matter at the present moment, with the exact title in the English Act; but in the Scotch Act it was absolutely called "the Act of Ratification." Why, Sir, so far as the union between the two countries is concerned, if the Act of Union to which the right lion. Gentleman appeals were abolished to-morrow the union would exist in all its force. The Act of Union is a complete diplomatic document dependent only upon one condition specifically mentioned, and that is its ratification by the Parliaments of the two countries. If you should repeal the Act of Union tomorrow, the union between the two countries would not be less complete, and the Privileges of the Peers, which are not mentioned in the Act of Union in this respect, but which are specifically mentioned and secured in the Treaty, would still exist. Therefore we must be very careful in the course that we take. We may pass an Act to-morrow which apparently may deprive the Peers of their right of hearing appeals from Scotland; but you will not deprive the Scotch people of the right you have secured to them by their Treaty; and they may demand that their appeals should be heard by their Peers, as they always were heard in Scotland. And you may find this—as no wrong can exist in this country without a remedy—you may find. yourselves involved in a controversy with your Courts of Law, which will be called upon and will not fail to vindicate the rights of the Scotch people. These are matters which there ought to be a clear conception of before Government decides in a haphazard manner a question which 24 hours before they had not considered. When you come to matters which demand the most profound consideration, is it not intolerable because some panic-stricken underling may whisper the Prime Minister that he is doubtful about the result of a division—is it not intolerable that the laws, statutes, and solemn guarantees of two nations should in a moment be set aside? I come now to the case of Ireland, and after what I have said on the ease of Scotland that will not detain me long. We are told that the case of Ireland is most remarkable, because the Act of Union was brought into the House of Commons, and here, according to the right hon. Gentleman, is a most significant precedent on which the House of Commons might interfere with the House of Lords as regards the claim of their Privilege. Now, it is perfectly inaccurate to say that the Act of Union was brought into the House of Commons, or was in any way peculiarly a statute of the House of Commons. I find this with regard to the Act of Union—that the Act of Union, and every sentence of the Act of Union, were submitted to the House of Lords and the House of Commons at the same time, and passed in separate Resolutions. And what is more the Act of Union, which is the Act of the 39th and 40th of King George III., mentions this upon its face. So jealous was the House of Lords then that the House of Commons should not have the initiative in that great Act that they took measures that every provision of the Act of Union should be framed in separate Resolutions, passed at the same time, on the same day, and that the statute, when it received the Royal Assent, should express that remarkable circumstance. These are the precedents of the right hon. Gentleman. I ask you candidly to consider if these four groups of precedents are applicable to the case before us. I ask you whether you can trust to them to guide you in your difficulties? Is there one of them that if you follow it will not mislead and bewilder you? You cannot for a moment deny, with regard to the first class, that the Bills were never carried to the House of Lords, and therefore the instances fall to the ground; that with regard to the second class of cases, in which the House of Lords has initiated legislation like the Septennial Act, or altered our Reform Bills that the House of Commons has never asserted a similar Privilege, and that no such Privilege exists. You cannot deny that the right hon. Gentleman, in saying that he will in our defence set up a new Privilege, has taken a course opposed to the Constitution, and that since the commencement of the 18th century it has been impossible for either House of Parliament to set up a new Privilege. Yet you are told to-night that the only way out of your difficulty is to set up a new Privilege. What a "leading" of the House is this? You cannot deny that with regard to the Temporalities Act and the Act of 1869, which abolished the Irish Bishoprics, you only did that which the House of Commons had done for two centuries of Parliamentary government, and no Privilege in that respect was ever asserted by the House of Lords. As to Scotland and Ireland I need not recapitulate. I think I have shown that in this respect every statement made by the right hon. Gentleman was inaccurate and that if you act on the conclusions he has drawn, you will undoubtedly find yourselves in immense difficulties. There is another authority that ought to be noticed on this subject. It is an anonymous authority, but a very influential one. I acknowledge its power. I admire the vigour of its ability, but I shall not shrink from doing my duty in criticizing the statements which have been made. It has been asserted by a powerful though anonymous writer, that both the right hon. Gentleman and myself and our mutual Friends wasted our time the other night in arguing this question, in regard to the alleged Privilege of the House of Lords, for the whole question was settled by the Bankruptcy Bill. The right hon. Gentleman was more particularly, assailed; but I was not so guilty, because I had spoken briefly and imperfectly while the right hon. Gentleman had come down with arms of power. That authority asserts that the Act of Bankruptcy which had made the Peers bankrupt bad shown that these Privileges were .nothing, and that the whole affair had been settled by that statute. Well, now, it is a most curious thing, but there never was a time when a Peer of England had any Privilege with regard to bankruptcy. Long before the time of these great regenerating Bankruptcy Acts the Peers of England were as much liable to be made bankrupts as any other subjects of Her Majesty's dominions. They had only to fulfil the same conditions to obtain the same result as the rest of Her Majesty's subjects—they had to become traders. If a Peer of England became a trader and could not pay his debts, he was as liable to be made a bankrupt in the clays of Charles II. as in the days of Queen Victoria. There have been not only several, but many Peers of England who, long before the reform of the Bankruptcy Laws, which we are now told settled this question, were made bankrupts. By the reform of the Bankruptcy Law in 1861 it was enacted that every debtor might be made a bankrupt, and the Peers never had any Privilege of any kind with regard to bankruptcy. And yet this assertion, so utterly fallacious, so empty, I observe to-day has been taken up by a considerable writer, who is also anonymous, but whom I think I know by his style. I believe that he is one who is not disinclined at all times to instruct the people of England; and, I am bound to say, often to their advantage. But this writer in- forms us to-day, in a very long epistle in the leading journal of the country, printed in those colossal proportions which indicate the importance of the writer, that this matter of bankruptcy is the one that entirely decides the question at issue at present. I do not know who is the writer, because style is deceptive, and if I raised the visor of this anonymous knight perhaps I should see only a mask, and on that mask might be perhaps written "Historicus." Now, Sir, I have put before the House these facts for its consideration. I presume to say that questions of this kind are not to be carried by bluster and by the bravado of rhetoric. [A Laugh.] Yes, I repeat it, they are not to be carried by the bravado of rhetoric. Opinions, however adroitly or strongly expressed, are nothing when you come to questions of law and Privilege. Precedents which do not apply are always ultimately discovered to be what they are—essentially futile and deceptive. "Upon real precedents we alone can rest. I have endeavoured to place before the House what really is the imputed claim of Privilege of the Lords. It is a very large claim—that no Bill affecting the Privilege of the other House shall be introduced into Parliament except in their own House, and when sent down to this House, it shall be susceptible of no change. That is a very large Privilege which I, whether sitting on this side of the House or on the other, would pause long before I should acknowledge. It has been acknowledged with dangerous, I will not say pusillanimous, precipitation, upon the present occasion. No one will deny that, as far as the House of Commons is concerned in relation to this alleged Privilege of the House of Lords, we do not stand as we did a month ago. The right hon. Gentleman has made admissions to-night and before to-night on this subject; and, whatever may be our ultimate decision, at least the ultimate decision of this matter in the Cabinet will be referred to hereafter as a precedent which supported this alleged Privilege. Nor can it be denied that the conduct of the House of Commons has been arrested and altered in this great matter of the reform of the judicature of England by the rumour of the existence of a Privilege of the House of Lords which the Government of Eng- land has acknowledged as valid. The precedents I have placed before the House refer to another branch of the subject. I give no opinion of my own; I am not called upon to give any opinion in regard to the Privileges of the House of Lords. If it fall to my lot to consider them, I will consider them with candour, and in the spirit of truth and justice, and a love for the Constitution. But when a Minister rises and inveighs against the alleged Privilege, and having showered upon you precedents and arguments to prove that the Privilege is entirely visionary, yet at the same time quite changes his conduct in consequence of the mere rumour of the assertion of the Privilege, it becomes my duty to show you that the precedents upon which he depends are utterly futile and vain; nay, more, that were you to proceed in. the course which he recommended, as far as Scotland and Ireland are concerned, you might find yourself in a position which you cannot uphold, and even the Parliament of England might find itself in a false position. These are the remarks which I have to make, and I hope that I may receive, if not at the present moment, on sonic fit occasion an answer to them. I do not think that it is a fit answer to the statements I have made to be told that I have not brought forward a "rag of an argument." In the first place, that is not a polite expression when addressed by the right hon. Gentleman who leads the House of Commons to one who, with all his deficiencies, still, by the kind indulgence of his friends, occupies the position that I now do. But the observation, which is not polite under these circumstances, when it is followed up by the opinions of his own Law Officers that every remark I made deserved attention, and that every point which I put forward was matter for consideration, but that upon the whole they had only a choice of difficulties to select from, ceases to be discourteous and becomes absurd. I commend these remarks and these precedents to the House of Commons. No one can be more deeply interested in the House of Commons, in its honour, its Privileges, and its integrity than myself. When the House of Lords claims a Privilege which I believe to be constitutional and true I should be ashamed not to acknowledge it. But whatever course I may take, this is one I will not pursue—I will not denounce the assertion of the Privilege by the House of Lords, and then yield to it.
We have just listened to two very remarkable speeches on the subject of Privilege, although, strictly speaking, the only question before the House is the appointment of a day for the consideration of the Report of the Bill which has just passed through Committee. I take leave to suggest that we shall get ourselves into great difficulty, if on an occasion like the present we proceed to discuss questions not before the House, whether they relate to the extension of the jurisdiction of the Court of Appeal to Scotland or Ireland, or whether they relate to the Privileges of the House of Lords. Both the right hon. Gentleman opposite and the right hon. Member for Buckinghamshire, have assumed that the question of Privilege has been claimed by the House of Lords in a form which requires this House to take notice of it; but I take leave to say that the Question of Privilege has not been raised in the House of Lords in a way that this House either can or ought to notice it at present. It is not merely because a noble and learned Lord, however able and however eminent he may be, may question in the House of Lords upon grounds of Privilege the proceedings in this House—in a way, perhaps, that is somewhat out of order—that any such claim can properly be considered. The only mode in which such claim can properly be considered is when it comes before us in a tangible shape. The right hon. Gentleman who has just sat down has justly observed that this is an unparalleled case in the history of the country, and what I wish to press upon the House is this, that until a claim for Privilege is actually made by either House and communicated to the other, it is impossible to come to any determination upon it. In that, and that way only, the matter may be discussed, and the question may be settled. We had, therefore, better wait until the day is appointed for considering the Bill on the Report, in order that we may have specifically before us any Motion which may be made either as to the propriety of extending the jurisdiction of the new Court to Scotland and Ireland, or as to the mode in which any supposed Privilege of the House of Lords may properly be dealt with. In saying this I beg to disclaim at the same time any intention of doing anything which may tend to maintain a difference between the two Houses of Parliament.
Question put, and agreed to.
Bill, as amended, to be considered upon Thursday, and to be printed. [Bill 237.]
Turnpike Acts Continuance Bill—Bill 199
( MR. Hibbert, Mr. Stansfeld.)
Committee Adjourned Debate
Order read, for resuming Adjourned Debate on Question [3rd July],
"That it be an Instruction to the Committee that they have power to make provision for rendering compulsory in England and Wales the highway Acts 1362 and 1864."—( Lord George Cavendish.)
Question again proposed.
said, that bearing in mind what had taken place the other evening on his Motion for an Instruction, and considering the pledge of the hon. Gentleman the Secretary of the Local Government Board that the Government would be prepared to introduce a measure on the subject early next Session, he would not further press his Instruction. He did not wish to put hon. Members to inconvenience, and feeling that they could not have it all their own way in this world—and certainly not in this House—he would by permission of the House withdraw his Motion.
Motion, by leave, withdrawn.
said, he was sorry the noble Lord had allowed himself to be frightened from his Resolution and Instruction by the persistence of a minority—he should have thought better of the noble Lord if he had exhibited the "courage of his opinions." He had himself given Notice to move that the House should go into Committee on the Bill on that day three months; but as the noble Lord had withdrawn his Instruction he should follow his example and withdraw his Notice.
Bill considered in Committee.
After long time spent therein,
Bill reported, as amended, to be considered this day, at Two of the clock.
Railway And Canal Traffic Bill—Bill 171
( Mr. Chichester Fortescue, Mr. Childers, Mr. Arthur Peel.)
Motion made, and Question,
"That this House cloth not insist on its disagreement to the Amendment made by the Lords in page 11, line 3, and which Amendment was leave out (may also, if they think fit), and insert (shall),"
put, and agreed to.
To insert after the word "shall" in the said Lords Amendments, the words "in all proceedings before them under sections 5, 10, 11, and 12 of this Act, and may, if they think fit, in all other proceedings before them under this Act."—(Mr. Chichester Fortescue.)
Question proposed, "That those words be there inserted."
Amendment proposed to the said proposed Amendment, to leave out the figure "10."—( Mr. Rathbone.)
Question put, "That the figure '10' stand part of the said proposed Amendment."
The House divided:—Ayes 88; Noes 14: Majority 74.
Civil Bills, &C, (Ireland) Salaries Bill 187 Committee
( Mr. Downing, Sir Colman O'Loghlen, Mr. Smith Barry, Mr. William Shaw.)
Bill considered in Committee.
(In the Committee.)
Motion made, and Question proposed,
"That it is expedient to authorise the payment, out of the Consolidated Fund, of any increase of Salaries provided for under any Act of the present Session to consolidate and amend the Laws relating to Civil Bills and Cowls of Quarter Sessions in Ireland."—(Mr. Downing.)
Whereupon Motion made, and Question, "That the Chairman do report Progress,"—( Mr. Glyn,)—put, and negatived.
Original Question again proposed.
Whereupon Motion made, and Question put, "That the Chairman do report Progress."—( Mr. Secretary Bruce.)
The Committee divided: — Ayes 21; Noes 26: Majority 5.
Original Question put.
The Committee divided:— Ayes 18; Noes 28: Majority 10.
Salmon Fisheries Bill—Bill 93
( Mr. Dillwyn, Mr. William Lowther, Mr. Assheton, Me. Alexander Brown.)
Order for Consideration, as amended, read.
Motion made, and Question put, "That the Bill be now taken into Consideration."
The House divided:—Ayes 39; Noes: Majority 32.
New Clause (Part of the Solway within limits of this Act,)— brought up, and read the first time.
Motion made, and Question put, "That the said Clause be now read a second time."
The House divided:—Ayes 13; Noes 30: Majority 17.
New Clause (Penalty on selling trout or char during close time,)—( Mr. Bowring,)— added
Clause 19 (Amendment of "Salmon Fishery Acts, 1861 and 1865.")
In page 8, line 32, after sub-section 3, to insert the words "The fifteenth section of "The Salmon Fishery Act, 18G1,' shall be construed as if the words (except with rod and line, and otherwise in accordance with the provisions of the Salmon Fishery Acts, 1861 to 1873)' were inserted after the word destroy,' in the first sub-section, and after the word injure,' in the fourth sub-section of the First Part thereof, and as if the words otherwise taken' were added to the second subsection after the word 'salmon.'"—(Mr. Walsh.)
Question put, "That those words be there inserted."
The House divided:—Ayes 10; Noes 29: Majority 19.
Other Amendments made.
Clause 37 (Power of conservators and water bailiffs).
Motion made, and Question put, "That the Clause stand part of the Bill."
The House divided:—Ayes 30; Noes: Majority 25.
Other Amendments made.
Bill to be read the third time Tomorrow, at Two of the clock.
Penalties (Ireland) Bill
On Motion of The Marquess of HARTINGTON, Bill to amend the Law relating to Small Penalties in Ireland, ordered to be brought in by The Marquess of HAARTINGTON and Mr. Secretary BRUCE.
Bill presented, and read the first time. [Bill 239.]
Public Health Act (1872) Amendment Bill
On Motion of Mr. SPENCER WALPOLE, Bill to amend so much of Section Four of "The Public Health Act, 1872," as relates to the Cambridge Commissioners, ordered to be brought in by Mr. SPENCER WALPOLE, Mr. BERESPORD HOPE, Sir ROBERT TORRENS, and Mr. WILLIAM FOWLER.
Bill presented, and read the first time. [Bill 238.]
And the other Orders of the Day, 40 in number, having been disposed of—
House adjourned at Four o'clock in the morning.