§ Mr. Brougham
said, he rose, pursuant to notice, to move that he and his learned friend should have leave given them, as her majesty's attorney and solicitor-general, being members of that House, to appear in her behalf at the bar of the House of Lords. The learned gentleman moved, "That leave be given to her majesty's attorney and solictor general, members of this House, to plead as counsel at the bar of the House of Lords against the bill now pending in that House concerning her majesty, under the particular circumstances of the case; and that the said leave be not, in time coming, drawn into a precedent." The learned gentleman observed, that he had introduced the latter part of the motion, because the House would recollect, that their order was more especially directed against private bills than appeals, and he thought it was proper that the salvo should be co-extensive with their standing order.
said, the case of the queen was so peculiar, it was of such transcendent importance, that if there were two honourable members in that House to whose legal care her majesty wished to intrust her interests in the House of Lords, it was quite sufficient to state that fact to induce the House to dispense with the standing order, and to grant the necessary leave. But he conceived the same privilege should be conceded to the other side, if gentlemen, members of that House, were called on to exercise their talents in support of this important bill. In that case it would be proper that the individuals thus selected should exercise their functions in that House with the same reserve, and with the same understanding, that the gentlemen opposite would exercise their's; namely, that they should discuss the question professionally, and not interfere by 401 giving any vote on it. In making these observations, he alluded to his majesty's attorney and solicitor-general, who might, in the performance of their professional duties, be called on to attend. Actuated by this feeling, he would, either by way of amendment, or in the shape of a substantive motion, call on the House to allow his majesty's attorney and solicitor-general the same leave that was granted to the attorney and solicitor-general of her majesty.
said, it was necessary that a special permission should be granted to members of that House to appear at the bar of the House of Lords, if they acted in conformity with the standing order. It appeared, on reference to the earliest period to which their Journals reached, that it had been the constant practice to allow no member of the House of Commons to attend at the bar of the House of Lords without the special leave of this House. So early as the year 1694 several cases of this kind occurred. In one of these the Speaker stated, as a ground for this permission, that, in the reign of queen Elizabeth, the same principle had been acted on, and he had himself been permitted to appear before the Lords. The extreme inconvenience of extending this system was, however, evident; and therefore the House ought to be cautious in granting such permission. It was highly desirable that members should come to the discussion of bills In that House with minds completely unbiassed; and when they had acted as counsel in the other House, whether for or against a bill, they could not be supposed to be wholly unprejudiced. It was on this ground that the resolution of 1666 was entered into; which resolution he took to be strictly declaratory of the law of parliament on the subject. It was a matter worthy of the consideration of the House, whether it would not be proper that this standing order, which only extended to bills coming to that House from the House of Lords—bills which had not originated in the House of Commons—should be made to apply to all bills whatsoever. The inconvenience that might result from the existing state of the order was obvious, since members of the House of Commons might be retained to act as counsel on a bill, when it came before the House of Lords, with a view to obtaining their previous assistance in the Commons. The possibility of such a circumstance ought to be guarded against. Permission to ap- 402 pear at the bar of the Lords continued to be granted for some years after the Restoration, until considerable controversies took place between the two Houses on the subject of their respective privileges. The House must be aware that, at the time to which he alluded, the Commons asserted the right of committing any member, who, without special leave, appeared at the bar of the House of Lords. This undoubtedly they could do, because no court could ensure obedience to its orders, unless it had the power of punishing any practice contrary to those orders. After this period there were instances on record where the House of Commons refused permission to members to attend at the bar of the other House. One resolution had even been agreed to, refusing permission to members to attend at the bar of the House of Lords in appeal causes. The last leave given was in the year 1710, and it had since been customary to allow professional gentlemen, members of this House, to plead, in appeal causes, before the Lords, without molestation. He could not forbear suggesting to his learned friend that it would be better, and practically more convenient, if the motion terminated thus—" And the said leave shall not be, in time coming, drawn into precedent," without any further observation; because the leave granted, in this instance, would be avowedly under circumstances of a special nature, which could not occur in any other case. The individuals for whom leave was required stood in a particular situation. They acted as attorney and solicitor-general to the queen; and, with the exception of the king, none but the queen and the prince of Wales were allowed such legal officers. They were specially appointed to defend the rights of those personages. The Case of the king's attorney and solicitor-general did not rest on the same grounds. They were, in fact, counsel for the Crown. Now, the question lay between the queen and the public; and the public interest might be protected by any other legal characters.
The motion was agreed to.
did not think that any distinction could be drawn between the case of the king's attorney and solicitor-general and that of the attorney and solicitor-general of her majesty. The king's attorney and solicitor-general were officers appointed to act in great public prosecutions, and had a right, as officers of the Crown, to exercise their legal functions in 403 this, as in other cases of a more common nature. It would seem that they were the only parties that could appear, with advantage, before the House of Lords. He conceived it would be very unfair, supposing the bill should pass the Lords, and be brought under the consideration of this House, if, when one party was allowed the advantage that would result from the attendance of two gentlemen who had been present at the whole proceeding, and had cross-examined the witnesses, the opposite party were not allowed the assistance of two other gentlemen who had an equal knowledge of the case, and who were possessed of the necessary facilities for bringing the whole of its merits before the House. He would therefore move, that a similar permission be granted to the king's attorney and solicitor-general.
expressed his apprehension, that notwithstanding the concluding provision of the noble lord's motion, the adoption of it was but too likely to be drawn into precedent in other cases in which the Crown might feel an interest in supporting any measure in the House of Lords, while in the former motion no such apprehension could be entertained, as no such case was likely to recur, and this formed another marked distinction between the two motions.
remarked, that the noble lord had not coupled with his motion any statement that the king's attorney and solicitor-generals should not vote upon the bill of pains and penalties in that House, if such a bill were brought down from the other House of parliament.
§ Mr. Brougham
would not oppose this motion, although he was at a loss to conceive upon what ground it was proposed. It was observed by the noble lord, that the attorney and solicitor-general were counsel for the public as well as for the Crown. But every member of the House of Lords was, as well as every one of the judges, of counsel for the public, while it must be allowed that the Crown had quite enough of representation in that House in the great officers of state. Where, then, was the necessity for calling in the aid of the king's attorney and solicitor-generals?
§ The motion was agreed to. A similar motion with regard to Dr. Lushington, was also made and agreed to.