HC Deb 20 April 1853 vol 126 cc130-41

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."


said, he intended to move that Mr. Speaker do not leave the chair till this day six months—that was, that the Bill be not committed till then. However, he would be satisfied at present to state that he thought the Bill most destructive and objectionable in its tendency; thinking it would be better to let it pass this stage unopposed, he gave notice that on the third reading it would certainly meet with his opposition.

House in Committee.

Clauses 1 and 2 agreed to.


moved, that the Recorder of the City of London, shall, during his continuance in office as such Recorder, be incapable of being elected or sitting as a Member of the House of Commons.


said, that if the words were inserted in the Schedule, it would have the effect of disqualifying the present Recorder.


said, he did not intend that his Amendment should apply to the present Recorder; therefore, he would move the insertion of the words in the Schedule, and if necessary bring up a clause preserving the right of the present Recorder.


said, he begged to tender his acknowledgments to the hon. Member for Montrose for his disclaiming any desire to affect him (Mr. Wortley) personally, but that, painful as it was to him to address the Committee on a matter personal to himself, he did not think he should be doing his duty to that House or to the office which he held, as well as to his constituents, and whose rights it was proposed arbitrarily to abridge, if he did not state what were the duties of the office, the holder of which it was now proposed to exclude from the House of Commons. There were in the Schedule other Judges, who, like the Recorder of London, were not included among the Superior Judges, and the introducer of the Bill only intended it to apply to Superior Judges. The principle of the Bill was not in question to-day, and, if it were, he should shrink from taking any part in the discussion on it, and he should take no part in a division on the present question if one took place; but he was anxious to draw the attention of the Committee to the distinction which existed between this office and those to which his noble Friend (Lord Hotham) had alluded in introducing the Bill. The principle of the Bill was to exclude all judicial officers whose duties were so absorbing that they could not attend to the duties required by their offices and to their duties in this House; and also that their position was so exalted, that it would depreciate their dignity if they sought to be returned by popular elections, or had seats in that House. Another ground taken by the supporters of the Bill was, that the Judges were in the service of the Crown, and were appointed by the Crown. He could show that the Recorder of London did not come within any one of those three characters. The Recorder of London was not appointed by the Crown, but from time immemorial had been elected by the Corporation of London; and it was one of the privileges for which the Corporation felt the greatest attachment, that of electing their own judicial officers. The Recorder of London was not a public servant, and received no pay either from the Crown or the country, and so far was as independent as any other Member. He had no rank at Court, or in any assembly beyond the City, and his jurisdiction was limited to the City itself. What were his duties? In the first place, he was the law adviser of the Corporation, and on all occasions their mouthpiece. He had a duty in an humble degree analogous to the Speaker of that House, as he preserved order at the meetings of the Corporation, and put the question. He also attended at certain ceremonies, and attended to advise the committees of the Corporation. Those were his official duties, and there was nothing in them inconsistent with his performance of the duties of that House. What were his judicial duties? In the first place, he was a Judge of the Lord Mayor's Court, the jurisdiction of which extended only to the City; and though it sat every month, and the monopoly which it once enjoyed was abolished, it was not overburdened with business. The great business of the Recorder of London as a Judge was at the Central Criminal Court. With respect to his other duties he was so situated as to have the command of every evening; and as respected the duties of that Court he was in the same situation as Lord Denman was when he was Common Serjeant, and as Mr. Russell Gurney and the Common Serjeant were now—namely, that he was only one of the Commissioners appointed by the Act of Parliament to assist in constituting that Court; and if that was a disqualification the exclusion should extend to those other officers also, for as regarded their time, although they were occupied in the mornings, their evenings were at their command. As regarded the morning business of the House, he could only say that whenever he was called on he was ready to serve, and did so, and so had his predecessor in the office, nor had they made any claim to be excused. Such was the liberal provision made by the City of London for the administration of criminal justice, that if he was absent for a few hours it would still go on. There were Members of that House who were Justices and Chairmen of Quarter Sessions who tried and transported prisoners, and had an extensive jurisdiction, and it was not thought inconsistent with their dignity to have seats in that House. It had long been allowed to Serjeants-at-law to try, not only prisoners, but civil cases, on circuits; and Queen's Counsel who, until lately, were confined to trying prisoners, now had their powers extended to the trying of civil cases, and they, as well as Serjeants, were allowed to go circuits to supply the place of the Judges, and many of them were Members of that House. It might be flattering to put the Recorder of London on the same level as the Master of the Rolls and the other Superior Judges; but there was no such analogy between them as regarded exalted position, as to render the office of Recorder and no descending to the lower arts of inconsistent with a seat in that House. As to its being humiliating to seek the suffrages of popular constituencies, did not the right hon. Gentleman who filled the chair in that House seek a popular election? If there was no misconduct popular elections, there was nothing beneath any one's dignity in that proceeding. He (Mr. Wortley) believed that in the exercise of the duties of his office, whether official or judicial, so far from being shackled by being a Member of that House, he stood in a better position before the Corporation of London, and that it rather favoured than injured him in the administration of criminal justice. To himself and to the office he held, one of the objections which had been urged in favour of the exclusion of other offices did not apply; for, so far from being much absent from London, he was obliged to be constantly there, and so was always on the spot to perform his duties as a Member of that House. The argument on the question he should now leave to the House, nor should he, as he had stated, take any part in the division, if one took place.


said, he begged to disclaim any wish to make his Amendment personal to the right hon. and learned Gentleman; but he must say that he considered the office which he held to be incompatible with a seat in Parliament. At the time the Masters in Chancery and other persons were excluded, the question of the office of Recorder came under consideration. At that time the Courts were held only two or three times a year; but now the Sessions were held monthly, and supposing them to last only a week, the Recorder's time was taken up with his judicial duties for more than a quarter of the year. He thought the less Judges had to do with popular constituencies the better.


said, he was not present during the discussion on the second reading of the Bill; but as he understood that the hon. Member for West Surrey (Mr. Drummond) had given notice that day that he would raise the question on the third reading, he would only now say, that he had great doubts of the policy of the Bill; and those doubts were advanced by what he had heard during the present discussion. If there was sufficient ground for excluding all the judicial officers enumerated in the schedule, there were still stronger for excluding the Recorder of London, looking at the nature of his criminal jurisdiction. But if there were sufficient grounds for his exclusion, he did not see why the Recorder of Liverpool, or Hull, or Bristol, should not be excluded also. He believed that the course which was now being taken with regard to the exclusion of Judges from that House was not a wise one, and he was one who regretted the exclusion of the Judge of the Admiralty Court, and he believed that since the passing of the Bill for his exclusion, many persons had changed their opinion on the subject. He should vote against the Amendment, and he intended to vote against the third reading of the Bill, thinking, as he did, that the principle of exclusion had been carried far enough,


said, he wished to say a few words with regard to an Amendment which he had proposed to the same effect with regard to the Recorder of Dublin. Whatever arguments might be urged to justify the admission of the Recorder of London, he did not think he should bear any justification with regard to the Recorder of Dublin. The right hon. and learned Gentleman (Mr. S. Wortley) said that the appointment of the Recorder of London was not made by the Crown; but under the Municipal Corporation Act it was provided that the Recorder of Dublin should be appointed by the Crown, and he believed part of his salary was paid also by the Crown; so that the argument of the right hon. and learned Gentleman as to the independence of the Recorder of London did not apply to the case of the Recorder of Dublin. The Recorder of Dublin had besides a very extensive jurisdiction, and had much to do: he revised the jury lists, heard poor-law cases, and presided in a small-debt court, in which a vast number of cases were tried, and all this besides his duty in the criminal court. It would be difficult to say that such an officer could attend in that House compatibly with his other duties; there was therefore a marked distinction betweeen the Recorders of London and Dublin.


said, he would not say a word on the principle of the Bill, but as regarded the Amendment proposed, he thought it was pushing the exclusion of judicial functionaries a great deal too far. He could not see why on the same principle all Recorders should not be excluded, as they performed exactly the same functions as the Recorder of London, although his position was considered more dignified. As had been said by his right hon. and learned Friend (Mr. Wortley) he was similarly circumstanced as other Members, who as Serjeants and Queen's Counsel discharged the functions of Judges on circuit. Would the hon. Member for Montrose (Mr. Hume) exclude all Queen's Counsel and Serjeants from that House? If he did, he would exclude the elite of the profession; and although some might think that the exclusion of lawyers from that House would not be a bad thing, and although they did perhaps add to the amusement of the House, still there being some Members of the legal profession might add to the information of the House on professional subjects. He could understand the cogency of an argument which had been urged against superior Judges, such as the Master of the Rolls, having seats in that House, and which was, that they might be involved in legal discussion with other lawyers in inferior position to themselves who might differ with them, and that this would tend to lower their dignity. But that objection did not apply to criminal Judges. As the line must be drawn somewhere, he thought it would be safe to draw it at the point of the Master of the Rolls. With regard to the incompatibility of the duties of the Recorder of London and a Member of that House, he must remind the hon. Member for Montrose that other Gentlemen claimed exemption from some of their duties as Members on account of their official position, and some on account of their age. He had heard the hon. Member himself claim exemption from Election Committees, and would that be a reason for saying he was not as fit as any one to have a seat in that House? and there was no one who would not regret that he should be so excluded. He admitted that the Recorder of London, while he was sitting at the Central Criminal Court, could not attend a Committee on a morning sitting of the House; but the inconvenience must be balanced against the convenience of having a certain class of Members in the House. He should strenuously oppose the Amendment.


said, that the question of incompatibility in a Member to discharge his duties was for the constituency to decide. As to the general question, he took the same view as his right hon. Friend the Member for Morpeth (Sir G. Grey) and he believed that the principle of the exclusion of Judges from Parliament had been pushed not only far enough, but too far; and he believed that the debates had lost by the exclusion of the Judge of the Admiralty Court, as there were often questions of public law on which he was competent to give information. If it was pushed further, to the exclusion of the Recorder of London, it must be extended to all Recorders, and they would thus deprive the House of the assistance of many eminent lawyers. He should be glad if the Bill did not pass through the House, and he should oppose the Amendment.


said, he still adhered to the opinion he had expressed on the second reading of the Bill, that, by confining the exclusion from that House to the Judges of the Superior Courts, they would sustain, and would, if possible, add to the efficiency and lustre of the eminent persons who filled those distinguished situations, while they would at the same time escape the evil of unduly narrowing the limit of selection for Members of that House. He considered that if the Committee acceded to the Amendment, they would fail to draw the proper line, because, if the Recorder of London was to be included in the schedule, and was declared ineligible to sit in the House of Commons, he did not see why they should not also exclude every recorder, every chairman of quarter-sessions, and every magistrate included in the commission of assize. It was, in fact, difficult to say where they were to stop. He thought it could not be denied that, by such exclusion, the House would deprive itself of very great assistance; and he considered that it would also interfere improperly with the privileges of the electors, by unduly limiting the classes from whom they might select representatives.


said, he thought the best mode of dealing with a matter of this kind was to apply to it the test of experience. Now, the present Recorder of London had sat in that House ever since his appointment; but he (Viscount Monck) never heard that the learned Gentleman's judicial or official duties had interfered with his attendance in that House. Many hon. Gentlemen might also recollect that the Recorder of Dublin had formerly enjoyed a seat in that House; and he was sure he might with confidence appeal to them, whether the assiduity of that learned Gentleman's attendance to his Parliamentary duties was not equal to the ability and attention with which he discharged his judicial functions? He thought, then, that if the right hon. Gentleman could perform both duties satisfactorily to his constituents and to the public, the argument as to convenience entirely fell to the ground. The duties of Members of that House might be regarded as of two kinds. One of their duties was to attend the debates; and, in his opinion, this was a question as to which their conduct was to be judged of solely by their constituencies. Their other duty was to attend Parliamentary Committees; but as that was a mere matter affecting the convenience of the House, which granted many exemptions on the ground of official duties and of age, he did not see why they might not pay some regard to the convenience of hon. Gentlemen who occupied such judicial positions as those of the learned Recorders.


said, he cordially agreed in the principle of the Bill, but he should be sorry to see its operation extended beyond the Judges of the Superior Courts. He could not but apprehend that if an attempt were made to carry it further, its adoption by the House on the third reading might be seriously endangered. He would, therefore, suggest to the hon. Member for Montrose (Mr. Hume) that he should withdraw his Amendment for the present, and that after the Bill should have been read a third time he should move the addition of a clause for the purpose of carrying out the object which he had in view, if he should still think the attainment of that object desirable. He would by that means secure a fair consideration for his proposal, while he would avoid the risk of strengthening the hands of those who were altogether opposed to the measure.


said, he objected to the Bill, and he objected not less to the clause now under consideration, which strangely proceeded from one of those hon. Members who professed an anxiety to extend the eligibility of their fellow-subjects, without reference to their creed or any other qualification. The Recorder of London was elected for life, and was as independent of the Crown or of that House as any human being. The objection was simply to the judicial character of the office. If so, it was impossible to resist the conclusion that not only must the House exclude all other Judges in esse, all other recorders, and all chairmen of quarter-sessions, but all Judges in posse; in other words, all Serjeants-at-law who as such are named in every Commission, and who may be called upon in any assize to sit as Judges. Other Recorders, indeed, might have duties elsewhere; but with respect to the Recorder of London, whom alone it was proposed to exclude, there was this special exception in his favour—that he was in jaxtaposition with the scene of his duties. He trusted that House would never so stultify itself as to exclude from a share in its debates men so pre-eminently qualified to throw light on the various subjects which came under discussion. It reminded him of the old practice of striking Election Committees in the House, when the object of each party was "to strike out the brains," as it was called. So far from disqualifying the Recorder of London from sitting here, he agreed with his late friend Mr. Charles Buller, whom he had heard express an opinion in favour of the repeal of the Statute by which the Judge of the Admiralty Court was excluded. As to the question of the Master of the Rolls being in Parliament, he thought some confusion existed between seeing the Master of the Rolls canvassing a borough constituency and sitting in that House. It was held that the canvass of a borough constituency involved a subserviency inconsistent with the dignity of his high office; but such a canvass was not a necessary incident of an election. Objecting, as he did, to the exclusion of the Master of the Rolls by the original Bill, he equally and entirely objected to the introduction of the clause, and he hoped the Committee would, by a large majority, reject it.


said, it appeared to him that the course recommended by the right hon. Member for Oxfordshire (Mr. Henley) would materially save the time of the House. He should be very sorry to endanger the success of the Bill, and, as on the third reading he could take the sense of the House on this question, he would withdraw his Amendment for the present, with the understanding that on the third reading he would move a clause to the same effect.


said, he should like to hear the schedule read, in order to see who were termed the Judges of the Superior Courts.


proceeded to read the schedule—Master of the Rolls in England, Official Principal of the Arches Court of Canterbury.


Is he a Judge of a Superior Court?


said, the official principal of the Arches Court of Canterbury, who was commonly called the Judge of the Ecclesiastical Court, was at the head of that court, and decided appeals which were sent up to him from the lower courts. He (Lord Hotham) conceived, therefore, that that learned functionary came under the designation of a Judge of the superior courts. He might observe that no less than five Bills for altering and reforming the Ecclesiastical Courts had been proposed in Parliament, and that every one of those Bills contained a clause excluding the Judge of the Ecclesiastical Court from a seat in the House of Commons. On this ground, then, as he was informed the Judge of the Ecclesiastical Court could not with propriety be regarded otherwise than as a Judge of a superior court, he had inserted him in the schedule.


said, he wished to know whether it was proposed by the schedule to exclude from that House persons holding judicial offices on the ground that they were Judges of superior courts? The Judge of the Ecclesiastical Court for the province of York (Mr. Granville Vernon) had sat for a long time in that House, and he believed no one had ever thought of proposing his exclusion. He (Sir G. Grey) wished to know whether there were any special reasons for considering these functionaries Judges of the superior courts?


said, that when he consulted a professional' gentleman with reference to the offices to be comprised in the schedule, he was asked, "What will be said if you include the Judge of the province of Canterbury, and omit the Judge of the province of York, and you a Yorkshireman, too?" He was informed that the hon. Member (Mr. Granville Vernon) occupied the same position in the province of York as was occupied by Sir John Dodson in the province of Canterbury, and he therefore included the office of the former Gentleman in the schedule. Indeed, he had endeavoured to include in the schedule all those who could be properly considered as Judges of superior courts; and if he could be satisfied that he had inserted any officer who was not the Judge of a superior court, he would be ready at once to withdraw the name.


had not intended to have said one word in this discussion, but he believed the Committee would understand his reasons for then rising, and that they would also appreciate the motives of his previous silence. A near relative of his had been alluded to, and as the present Bill proposed to exclude the holder of the office which that relative had the honour to hold, he (Mr. Vernon) had intended to have taken no part in discussions on the Bill in Committee, as he did not wish to rest his opposition to it on any but public grounds. It was in the recollection of many hon. Members that his father held a seat in Parliament for more than fifteen years—that he was a diligent, able, and useful Member of that House. As far as his father was concerned, this measure might have no personal bearing. He (Mr. Vernon) was not aware that his father had any intention of re-entering political life. He quite concurred in the course which the hon. Member for West Surrey and the right hon. Baronet (Sir G. Grey) proposed to take, and he should reserve his opposition to the Bill until the third reading. He thought that the whole Bill was vicious in principle. He objected on constitutional grounds to thus narrowing the choice of the constituency. He objected to the exclusion of so much of that intelligence, that information, and those services which it ought to be the object of that House to secure; and while he should decline to make particular objections to this or that office being inserted in the schedule, he should in common, as he hoped with a majority of the House, vote against the third reading.


said, he thought, that as reforms in the Ecclesiastical Courts were about to be proposed for the consideration of Parliament, it would be unwise now to leave in this schedule of persons to be ineligible the names of the Judges of the Arches Court and the Prerogative Courts, who would be able to explain the operation of any changes that might be recommended in regard to those courts. These functionaries did not come within the category of Judges of the superior courts in the meaning that had been attached to that term in excluding Judges from that House; and their exclusion would better form part of a scheme for the reform of the Ecclesiastical Courts.


said, he believed the schedule involved the supporters of the Bill in great difficulties, from which he had no desire to relieve them, as he intended to vote with the hen. Member for West Surrey (Mr. Drummond) on the third reading.


said, he could not think that a sufficient reason for striking out of the schedule the names of officers whose exclusion from Parliament had been over and over again recommended by Committees of that House.


said, he had not heard the noble Lord (Lord Hotham) say that his Bill was confined to Judges of the superior courts. It had been the argument of a right hon. Gentleman opposite, who would probably have some difficulty in proving that these officers came within that definition. However, he (Mr. V. Smith) intended to vote against the whole Bill on the third reading, and he thought this discussion showed the difficulties attending such a measure.


said, he would not pretend to be peculiarly skilled in determining the application of a particular term to these Judges, but he believed they were the principal ecclesiastical authorities of the country.


said, that their jurisdiction extended to matters of the highest importance, and their courts were attended by all the civilians, including the Queen's Advocate—a law officer of the Crown who took precedence of the Attorney General and the Solicitor General. It would be inconsistent to have excluded from Parliament the Vice-Chancellors and the Judge of the Admiralty Court, and, by the second reading of this Bill, to have sanctioned the exclusion of the Master of the Rolls, on the ground that their occupations were inconsistent with attendance at a contested election and in Parliament, and now to allow a technical objection that the Judge of the Prerogative Court was not a Judge of one of the superior courts, though he certainly was so, in the meaning of measures of this class.

Schedule agreed to; the House resumed, Bill reported.

The House adjourned at a quarter before Six o'clock.