§ [Lords.] [Bill 111.]
§ (Mr. Attorney General.)
§ COMMITTEE. [Progress 7th July.]
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 6 (Appointment of Lords of Appeal in Ordinary by Her Majesty).
§ MR. SERJEANT SIMONmoved, as an Amendment, in page 2, line 33, to omit all the words after "shall" down to "longer" in the following line, the ef- 760 fect of the Amendment being that a Lord of Appeal should still be summoned and sit and vote in the House of Lords after he had ceased to be a Lord of Appeal. The hon. and learned Member said, he had an insurmountable objection to the sort of Peerages that were to be created by the Bill, contending that they were inconsistent with the dignity of the Peerage. There would be Peerages for life, Peerages during pleasure, and Peerages during good behaviour. He thought it would be unwise to introduce this novel kind of Peerage. There was nothing analogous to them. They were not like the Scotch and Irish Peerages. These were represented in the House of Lords, and there was no analogy between them and the Bishops who were Lords of Parliament, not Peers, and sat as one of the three Estates of the Realm, representing the Church which was always represented by her Prelates, notwithstanding the death or retirement of any one of them. But these new Lords of Parliament, as some called them, or Peers as they were spoken of elsewhere by the Lord Chancellor, Lord Selborne, and Lord Hatherley, represented nothing, and in the event of their ceasing to be Lords of Appeal would be themselves unrepresented, for being Lords of Parliament, it would be, he took it, unconstitutional for them to vote at the election of Members of the House of Commons. In this aspect, they would be worse off than a retired Bishop, he ceased thereby to be a Lord of Parliament, and might comfort himself on his retirement with the electoral franchise. In fact, these new Peers or Lords of Parliament would form a new caste, and might be called the outcasts of the State. No man of first-rate ability or position at the Bar, such as they had been accustomed to see holding the Great Seal or otherwise raised to the Peerage, would be tempted to accept these new places. Men of this stamp, of those who had hitherto been the Law Lords, would refuse to fill the secondary rank in the Peerage proposed by this clause, and to act the part of Puisne Judges in the House of Lords. These appointments, he thought, would lower the judicial character of the House of Lords, and would lead to political subserviency on the part of those who held them. The weak man would cling to office in order that he might retain his dignity as a sitting Member of the House 761 of Lords, or he might court Government favour by political subserviency in order that he might be made a hereditary Peer; while the man of high spirit and independence, whose talents might be made available to the country, even though he had ceased to be a Lord of Appeal, would be relegated to private life and obscurity, because he had failed to court or to conciliate Party favour. On all these grounds, and on many others which the lateness of the hour prevented him going into, he had the most decided objection to the clause as it stood in the Bill, and he hoped that the Committee would agree to his Amendment.
§
Amendment proposed,
In page 2, line 33, after the word "shall," to leave out the words "during the time that he continues in his office as a Lord of Appeal in Ordinary and no longer."—(Mr. Serjeant Simon.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
§ SIR GEORGE BOWYERexpressed a hope that the Government would not allow the clause to be altered, as it was in strict accordance with the ancient Constitution of the country, the House of Lords having enjoyed its judicial character long anterior to the time when it became a legislative Body. His hon. and learned Friend the Member for Dewsbury (Mr. Serjeant Simon) argued that these Judges were to be made Peers, but the fact was they would only be Lords of Parliament; they would only have to aid the House of Lords in determining appeals. It was true they were to sit and vote, but they would not be Peers; their position would resemble that of the Bishops, who also were Lords of Parliament, not Peers. The hereditary character of the House of Lords was the real essence of the Peerage, and where there was not a hereditary right there was no Peerage. To show that the Bishops were not Peers, he would just state that if a Bishop were charged with felony, he would not, as a Peer would be under similar circumstances, be tried by the Court of the High Steward in the House of Lords, but by an ordinary jury, like any other commoner. These would not be "Peers made by statute," for the Act would simply empower the Queen to make a Lord of 762 Parliament, and if he resigned his office he would, like a Bishop who resigned, be no longer a Member of the House of Lords, and would no longer be summoned to sit there. There were Constitutional objections to the creation of life Peerages, as it would tend to degrade the House of Lords to the level of those miserable Senates which existed in Continental countries, and this was probably the reason why the Bill did not propose to make life Peers.
§ MR. GREGORYsupported the Amendment. He thought it would be a degradation of men of high legal training, having made them Barons with the right of taking part in all the discussions in the House of Lords, whether judicial or legislative, to turn round upon them when they had given their best services to the country, and tell them they should no longer enjoy those privileges. There would, he believed, be a difficulty in finding men to take the office under such conditions. It would, too, when men had grown old, prevent them from resigning, and thus they might have a number of effete Judges exercising the function of Judges of Appeal.
§ SIR HENRY JAMESsaid, that the House of Lords had already determined that there should be no judicial Peers for life, and appealed to the House whether, in these circumstances, it was worth while to discuss the question. Hitherto the elevation of a man to a Judgeship placed him beyond political partizanship; but this Bill placed four Judges in a political arena, and the Amendment would give the Government an unlimited power of increasing the number of political partizans in the other House by appointing Judges who might resign soon after their appointment. As to the statement that the condition attached to the acceptance of these high offices would be considered by eminent men as an insult, he would ask whether a clergyman considered it an insult to be asked to become a Bishop upon a precisely similar footing with regard to the House of Lords. He hoped the Government would not accept the Amendment.
§ MR. W. M. TORRENSmaintained that the decision of the House of Lords against Peerages for life ought not to be any difficulty in the way of the House of Commons doing what was right in the matter. In the passage of the Bill through their Lordships' House Lord 763 Cairns, Lord Selborne, and Lord Hatherley had never treated these Lords of Appeal as other Peers. He (Mr. Torrens) had found by reference to the records that 20 years ago a Bill was sent down from the House of Lords proposing to create Peers for life, and Lord Palmerston moved its second reading in the House of Commons. The Bill was opposed by Mr. Gladstone, Lord Russell, and Sir James Graham, because one of its clauses provided that Lords of Appeal in ordinary should be chosen from the Judges, without being Peers, as well as Peers for life. Independent Members were induced to oppose the Bill, and it was lost because it was not solely for the creation of Peerages for life. The House of Lords had taken back their jurisdiction, and it was for Parliament to see that that jurisdiction was a reality. He would remind the House that this was not the first time the House of Commons had had the power of revising the indiscretion of the House of Lords in regard to its own constitution. There was a strong feeling in favour of modifying the present clause, and he hoped the Government would not be deterred from undertaking the task by any false delicacy towards the House of Lords.
THE ATTORNEY GENERALsaid, he felt satisfaction in approaching the discussion of that Amendment, because he felt that after they had dealt with it they would get on rapidly with the Bill. The matter raised by the Amendment, no doubt, was important, but the question was not whether they should create life Peerages or not, but simply whether the eminent persons who were to be created Lords of Appeal, Assistants in Administering the Appellate Jurisdiction of the House of Lords, were, after they ceased to be Lords of Appeal, to sit in that House and vote or not. The question was one of interest to those who might be created Lords of Appeal; and it was of serious importance to the House of Lords, because it might trench on the constitution of that House. Far be it from him to contend that the House of Commons should succumb to, or become subservient to, the other House of Parliament; but in dealing with the question they should bear in mind they were dealing with the privileges and the constitution of the House of Lords. If they rejected the Amendment, they 764 should be doing no injustice to the eminent persons who were to be appointed, because they would accept the appointment with the full knowledge that they would cease to have the right of sitting and voting in the House of Lords when they ceased to hold office. On the other hand, if the Amendment were accepted, a more tempting bait would be offered, and they would secure a more perfect and complete tribunal. But then they would be trenching on the privileges of the House of Lords, for there could be no doubt that the House of Lords entertained a strong repugnance to the creation of life Peerages, and if they passed the Amendment they would compel that House to accept life Peers against their own wish and desire. In 1856 and in 1869 the question of life Peerages was discussed in the House of Lords, and if the conclusion arrived at was not that life Peerages were illegal, it certainly was that they were undesirable and inexpedient. No doubt, if Parliament chose to clothe Her Majesty with the authority to do so, she could institute life Peerages; but the sole question for them was whether it was expedient that that should be done. The hon. and learned Member for Dewsbury (Mr. Serjeant Simon) said that when these Assistant Lords of Appeal ceased to hold office they would occupy an anomalous position; but no doubt they would retain their office as long as they were capable of discharging the duties of their office. It would be very dangerous to place in the hands of a Prime Minister the power of creating at any particular juncture of politics a number of life Peers under the disguise of appointing Assistant Lords of Appeal. What the Government wanted to do was to strengthen the Appellate Jurisdiction of the House of Lords by providing them with able and dignified Assistants who would be well paid for their services; and also to strengthen and improve the Intermediate Court of Appeal. If the hon. and learned Member's Amendment were adopted, the House of Lords would be certain to reject it, and the result would be that a great and beneficial measure would be lost, at all events, for the present Session.
§ MR. SERJEANT SIMONsaid, his objection was a purely practical one. He believed that if they adopted the pro- 765 posal of the Government they would not be able to obtain men of the highest ability, such as had held the Great Seal, for these offices, and they would fail to improve the Appellate Jurisdiction of the House of Lords. He should therefore press his Amendment to a division.
§ Question put.
§ The Committee divided:—Ayes 107; Noes 30: Majority 77.
§ SIR EARDLEY WILMOT,in moving as an Amendment, in page 2, line 36, after "heirs," to add—
Provided always, That when under the provisions of this Act, or at any time hereafter, a Judge of the High Court of Justice shall, while he is such Judge, be appointed a Lord of Appeal in Ordinary, he shall not receive a less salary than he was entitled to receive while Judge of the High Court of Justice,urged that in constituting a Supreme Court of Appeal it was most desirable that the highest judicial talent and the most matured judicial learning and experience should be imported into it. True it was that at the present time the House of Lords was exceedingly rich in legal ability, as they had there not only the Lord Chancellor, but other legal functionaries no longer in office, among whom might be recorded the very eminent names of Lord Selborne, Lord Hatherley, Lord Penzance, and Lord O'Hagan. Those distinguished men were admissible into the proposed Court of Appeal under the 2nd section of the Bill; but the time might come when the House of Lords would not be so gifted with judicial ability and authority, and in such a case it would be very desirable that the doors of the new Court should be open to the Chief Justices and Lord Chief Baron, whose presence would greatly enhance its dignity and weight. It was for that reason he (Sir Eardley Wilmot) proposed his present Amendment. With the salary of £6,000, as at present proposed, it could not be expected that the Chiefs would accept appointments, their acceptance of which would entail upon them a loss of salary, without corresponding other advantages. The question of the Judicial Peerage had already been discussed under the Amendment of his hon. and learned Friend the Member for Dewsbury (Mr. Serjeant Simon), and he should be out of Order in again adverting to it then. 766 But his Amendment as to salaries had been objected to as offering promotion to Judges. He would remind the Committee of several eminent names, where Judges holding highly honourable but inferior posts, had been transferred to more exalted offices, with great advantage to the country, and without the slightest impeachment or sacrifice of their moral independence. Campbell, Cranworth, Truro, Hatherley, were all Judges before they became Lords Chancellors, and no one found fault with their elevation because they had previously sat on the Judicial Bench. Say what men might, the hope of promotion in every station of life, the highest as well as the lowest, was a most powerful stimulus and incentive to increased exertion in the path of duty. Under the present provisions of the Bill, the two new Lords of Appeal would actually take social precedence of the Lord Chief Justice of England, and would continue to do so, in every case where he did not happen to be a Peer of the Realm. Even their eldest sons, as the Committee were at present advised, would take precedence of the Lord Chief Justices and Lord Chief Baron, if Commoners. Influenced by these reasons, he appealed to the First Lord of the Treasury, who was then present and had introduced the Bill, to accept his Amendment. The Puisne Judges of the Supreme Court of Judicature were eligible under the 2nd section after two years' holding of the judicial office, and the principle of promotion was directly sanctioned and recognized in their case, and why should a hard-and-fast rule be laid down directly opposite in principle, by which they would lose the advantage and opportunity of inviting such men as Sir Alexander Cockburn and Sir Fitzroy Kelly, to add strength and lustre to the highest legal tribunal in the Kingdom?
THE ATTORNEY GENERALopposed the Amendment, because he thought it would be undesirable to take away either of the Chief Justices or Chief Baron from the High Court of Justice, and because he thought it would be unwise to make such a difference of salary as that proposed.
§ Amendment negatived.
§ MR. BERESFORD HOPE (for Mr. Heygate)moved, as an Amendment, in 767 page 3, line 4, after "Privy Council," to add—
Nothing in the Order of Council of the twentieth day of February, one thousand six hundred and twenty-seven, or in any other Order in Council, rule, or practice of the Privy Council, or of the Judicial Committee of the Privy Council, shall, for the future, be construed to prevent any member or members of the said Judicial Committee, when sitting at the hearing of any appeal or petition, from delivering his or their separate opinion or judgment as to the report which should be made to Her Majesty upon the said appeal or petition.In the unfortunate absence of his hon. Friend the Member for Leicestershire (Mr. Heygate) it had devolved upon him to move an Amendment, in which, however, he thoroughly agreed, providing that the Members of the Judicial Committee should deliver their judgments separately, instead of, as at present, settling a report in private, in which of course the majority prevailed, however narrow it might be. He assumed that the general object of the Acts for the reform of the judicial system, of which the present Bill was the concluding one, was to produce uniformity of procedure, if so, his Amendment came with the strongest recommendation, for the Judicial Committee was peculiar and unique in its present practice. This had nothing to recommend it in itself, for it was the sole creation of certain Orders of February 20, 1627. It was, in fact, the survival of the procedure of that bye-word for tyranny—the Star Chamber, a fact not likely to recommend it now for continuance. These Orders laid down, among other matters, that—The Lords are, by questions or otherwise, to inform themselves of the truth of the matter of fact, but not to discover any opinions till all be fully heard;and he put it to the Committee, if the Judicial Committee did not, in its several members contravene this order every time it sat. The practical result of this way of deciding, by a report in which the minority had to bend to the majority, was that the real minds of the jurists making up the Court was never reached. He appealed to the Committee, if the great value of a Court of Appeal, as of a Court sitting in Banco, was not this very circumstance of the various lights thrown upon a question by the acute but dissimilar adjudicating intellects. This in the Judicial Committee was replaced by a washed out compromise, an essay from 768 which the spirit had evaporated, but which, from the form in which it was cast, had the false air of a sort of edict or institute of law when it was, after all, only a body of reasons for the real judgment which ambuscaded behind it. He begged to move the Amendment.
§ MR. FARLEY LEITHbelieved that the present mode of delivering judgment was one of the best characteristics of the Court, which, it should be remembered, was one of Final Appeal. It mattered not therefore whether one Judge was dissentient or not, where there were four sitting, and could be of no avail to the suitor. He thought it undesirable that the Judges should give their opinions seriatim, as it was better that the Court should appear to be unanimous in giving a decision. He therefore opposed the Amendment.
THE ATTORNEY GENERALsaid, that, properly speaking, no judgment at all was given in the Privy Council, but advice was given to Her Majesty. Besides, the procedure of the Privy Council was not a matter that was germane to the Bill. If any alteration were needed, it had better be made by means of an Order in Council.
§ Mr. BUTTthought that the first was a reason against any judgment at all being given, but he admitted that the Amendment was not germane to the subject of the Bill.
§ Mr. GREGORYsaid, his experience was that the judgments given in the Privy Council were most satisfactory; and he feared that if individual judgments were given on Indian appeals the Natives would not be satisfied whenever any difference of opinion amongst the Judges was apparent.
§ Amendment negatived.
MR. WATKINWILLIAMSproposed to amend the clause by inserting a Proviso—
That the appointment of Lords of Appeal in Ordinary under the provisions of this Act shall in no way affect or alter the duty of such Peers of Parliament as have held any of the high judicial offices aforesaid to attend at the hearing and determination of appeals in the House of Lords.
§ Amendment, by leave, withdrawn.
§ Clause, as amended, agreed to.
769§ Supplemental Provisions.
§ Clause 7 (Hearing and determination, of appeals during prorogation).
§ MR. WATKIN WILLIAMSsaid, that an Amendment would be necessary in order to enable Lords of Appeal who might be appointed after the Prorogation and before the next Sitting of Parliament to be able to take their seats and be sworn in. He therefore proposed after the word "therewith," in page 3, line 25, to insert "and for the purpose of Lords of Appeal taking their seats and the oaths."
§ MR. SERJEANT SIMONsaw no necessity for the Amendment.
§ Amendment agreed to.
§ Clause, as amended, agreed to.
§ Clause 8 (Hearing and determination of appeals during dissolution).
§ SIR GEORGE BOWYERobserved that the clause was intended to enable appeals to be heard and determined during the dissolution of Parliament; but the wording of the clause seemed to him to create a new Court, and he thought it would be better for the House of Lords to hear and determine the appeals. He would, therefore, move the substitution of the words "House of Lords" for Lords of Appeal.
THE ATTORNEY GENERALsaid, he would consider the matter before the Report was taken; but it was his opinion that the wording of the clause was correct.
§ SIR GEORGE BOWYERexplained that he was only anxious that the House of Lords should hear the appeals, and not an entirely new Court.
§ SIR COLMAN O'LOGHLENremarked that the words "a continuation of the House of Lords" were somewhat strange, and he hoped they would be struck out.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clauses 9 to 12, inclusive, agreed to.
§ Amendment of Acts.
§ Clause 13 (Amendment of the Act of 34 & 35 Vict. c. 91, relating to the constitution of the Privy Council).
770§ MR. BERESFORD HOPE (for Mr. Heygate)moved, as an Amendment, in page 5, line 21, to leave out all after "given to Her Majesty." This was another Amendment, of which he had taken charge, for the hon. Member for Leicestershire (Mr. Heygate), and in which also he cordially agreed. It was to omit words in Clause 12, permitting the presence under certain regulations, to be hereafter named of Episcopal assessors at the sittings of the Judicial Committee when engaged upon ecclesiastical appeals. In moving this Amendment, he was only calling upon the Committee to confirm what the House had already concluded with a more complete and vehement unanimity than he had ever seen it employ on any question. The words which he called upon them to omit were in form to relieve the Ecclesiastical Court of Appeal from Episcopal assessors. It was, in substance, to declare that, being a Court of Law to define the legal meaning of certain documents, it ought to be composed of lawyers whose business it was to interpret such documents, and not partly of lawyers and partly of theologians, whose knowledge, coloured as it must be by conscientious convictions, was of course, of a partizan character. The name and pretence of their being only "assessors" would deceive no one. They were meant to be Judges, and only more influential Judges because not having countable votes they would exercise illicit influence. They would be to the real Court what a masterful wife was to her husband. But why did he appeal to the former unanimity of the House? When the original Bill for the reform of our Judicature was before Parliament in 1873, it came down to this House with provisions for a Supreme Court of Appeal from which ecclesiastical causes were excluded, for fear of overloading it as the then Lord Chancellor (Lord Selborne) owned. For these appeals, then, the Judicial Committee was retained. However, his right hon. Friend the present Secretary of State for War moved the omission of this restriction—and why?—simply and solely because the Judicial Committee was a Court of a mixed legal and ecclesiastical composition. The debate took place on July 4, 1873; and among the arguments of the Secretary for War was found the remarkable statement that— 771
The Judicial Committee gave an impression that it was rather a Court of Heresy than a Court of Law, where there were ecclesiastical persons sitting upon the tribunal, and that cases were decided rather by a theological bias than by a strict interpretation of the documents before it."—[3 Hansard, ccxvi. 1788.]He also took the opportunity of pointing out that the Lower House of Convocation had expressed the desire that the Court of Final Appeal should deal with ecclesiastical questions. His right hon. Friend was followed by the hon. and learned Member for the City of Oxford (Sir William Harcourt), who very strongly supported the same view. So did that very acute lawyer, Dr. Ball, now Lord Chancellor of Ireland, and the hon. and learned Member for Denbighshire (Mr. Osborne Morgan). The hon. and learned Member for South-west Lancashire, now Home Secretary, followed, and he said it was—The birthright of every layman in this country, that the doctrines of the Church were laid down in certain documents which were binding upon the clergy, and the clergy were entitled to have these documents construed according to the strict rules of law."—[Ibid., 1791.]His own right hon. Colleague (Mr. Walpole), still speaking in the same sense, laid down that—It was a matter of very great importance in reference to the welfare of the country, and of the Church itself—first, that the tribunal to decide on Appeal should be simply a judicial tribunal, and secondly, that the people of the country should know and feel that it was so."—[Ibid., 1792.]He passed over his own remarks, and need only point out that the hon. Member for Salford (Mr. Cawley) also approved of the Motion. Finally, the then Prime Minister (Mr. Gladstone), in assenting to the Motion, and after remarking on the extraordinary unanimity with which it had been received, observed—He thought that they should commit a great error if they were to attempt to secure even a shadow of religious conformity on the part of the Members of the Court, or to attempt anything in the nature of a test which would throw upon those Judges a character other than that of Judges."—[Ibid., 1795.]There was, of course, no division upon a Motion thus supported. When the Bill went back to "another place" that Assembly, on July 24, in accepting the excision of the Judicial Committee, and, therefore, the abolition of 772 Bishop-Judges, hampered the Court of Appeal with Assessor Bishops. He need not dwell on the influences which had brought this about. It was too late in the Session to risk a conflict between the two Houses. But it was generally felt in this House that the Bill had been returned by them to the Lords in a much better shape than that in which it had for the second time come down for the consideration of the Commons. The House of Commons had, without distinction of Party, and by the voices of Leaders on both sides, emphatically declared against the principle of clerical Judges sitting upon appeals affecting matters which were really questions of law, and they had—though not quite completely—succeeded in stamping their conclusions on the Act of 1873. He now called upon the Committee to respect those conclusions, and by rejecting the words of which he moved the omission, to take care that the obnoxious principle did not again make for itself a clandestine lodgment within our judicial system.
§ Amendment proposed, in page 5, line 21, to leave out from the word "Majesty," to the end of the Clause."—(Mr. Beresford Hope.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
THE ATTORNEY GENERALopposed the Amendment. He said that the Archbishops and Bishops were part of the Judicial Committee, they were among the Judges, and what was proposed was to repeal that provision of the Clergy Discipline Act and substitute for it another which would give power to the Queen in Council to appoint the Archbishops and Bishops assessors. Even if it were approved of by the Commons, it would be certainly rescinded by the Lords.
§ MR. J. G. HUBBARDsaid, it was most important that the decisions should be purely legal, and therefore he was strongly of opinion that there should be no Episcopal assessors.
§ MR. MARTENsaid, that the clause with regard to assessors was not germane to the main purpose of the Bill.
§ Question put.
§ The Committee divided:—Ayes 45; Noes 45.
773§ And, the numbers being equal, the Chairman stated that, as the House would have another opportunity of considering the Question before the Committee, upon the Report of the Bill, he accordingly declared himself with the Ayes.
§ On Question, "That the clause be agreed to?
§ MR CHARLEYmoved its omission on account of a doubt as to its probable effect in the colonies.
§ SIR GEORGE BOWYERsupported the Amendment as likely to remove a difficulty in the case.
§ MR. FARLEY LEITHconsidered the matter might be safely left in the hands of the Privy Council as at present constituted.
THE ATTORNEY GENERALsaid, there must be some statutory provision on the question, because if there were not, when one of the Judges died, no appointment of a successor could be made. By an Amendment which he had placed on the Paper power was provided to appoint an assessor in the case of the death or resignation of a Judge.
§ SIR GEORGE BOWYERsaid, the assessor was the man who understood the Mahomedan law, and the Judges were ignorant of it. The assessor should therefore turn the Judges out.
§ Amendment negatived.
§ Clause agreed to.
§ Clause 14 struck out.
§ Clauses 15 to 17, inclusive, agreed to.
§ House resumed.
§ Committee report Progress; to sit again To-morrow.