HC Deb 01 June 1853 vol 127 cc993-1014

Order for Third Reading read.

Motion made, and Question proposed, "That the Bill be now read the Third Time."

MR. DRUMMOND

said, he begged to move that the Bill be read a third time this day six months. This Bill was a Reform Bill, and a Reform Bill brought forward from the Opposition side of the House, with every evil that every Reform Bill had hitherto had in it. Framed upon narrow exceptions, and from ephemeral purposes, without taking any grasp of the past in order to become a guide for the future—he would not say brought in with any personal interest or with a personal application, for he was desirous of placing the matter upon a foundation which should effectually exclude from consideration all its personal effects—it did not look to history as a guide for the future—it did not consider that the things which had occurred in any past times might, and assuredly would, occur in future times—and it wanted to deprive this House of many of those advantages which it had had in past times, upon a speculation of what might occur in the future. It was as true in politics as it was in grammar, that— Multa renascentur quæ nunc cecidere, cadentque Quæ jam sunt in honore. There was nothing which had occurred in former times which they might not see again. He would not refer to historical antiquity to prove the importance which that House had ever entertained of the advantage of having men of great judicial capacity sitting amongst them. He might refer to the time when that House considered the presence of Serjeant Maynard so important to its discussions that one of Mr. Speaker's predecessors was requested to send his warrant to command his attendance during the discussions in that House. He would, however, allude no further back than to things which bad occurred within his own memory, to most of which he was himself a witness, and of which he might say, Quorum pars parva fui. He would not refer to the period when Sir William Grant, Sir William Scott, and various others of minor note were sitting in that House; he would allude only to those few instances in which he thought no one would dispute that the presence of such, men was highly desirable. The first instance to which he would refer, and which he very well remembered, was that of the seizure of the Danish fleet in consequence of an alleged secret treaty of which the Government was in possession, but of which they could not bring forward positive proof. He remembered the debates upon that subject perfectly well. The Opposition, very naturally and very properly, joined issue upon two grounds: first, as to the fact whether this treaty was in existence; and, secondly, whether, supposing they had possession of that treaty, they were justified in the seizure. There could be no doubt it was a question of immense importance, and the presence of those men to whom he had alluded in that House, added greatly to the weight of its decision. The next case was that of the King's illness, at the time when Pitt and Fox were at the head of parties. He remembered very well being of opinion, although, he believed, he voted on the other side, that the arguments of Mr. Fox were the weightier on that subject. At all events, it must be admitted, that questions of disputable succession to the Crown were those which, of all questions, required the most calm and deliberate consideration by men competent to entertain and decide upon them. The next case he remembered was that respecting the Orders in Council. Then there was the case, a most important one, regarding the rights of neutrals, which were almost established during the last war by the decision of Sir William Scott; and those decisions were continually brought before that House and made the subject of debate there. It would be said that these things were not likely to occur again; but he differed from those who thought so. Did they not see anything in the new claims which the Americans were putting forward to make it very probable that the next war would involve cases far more complicated and difficult to deal with than those he had alluded to? The Americans said they had a right to expel from their continent every European nation. Was it nothing, too, for them to say that they would nurture buccaniers in their ports, and to declare that they had no power to prevent men from going forth upon whatever predatory excursions they pleased? Then came the right of search, a very delicate question, admirably managed by the Earl of Aberdeen when he was at the Foreign Office. Did not the House think the question of the right of search would become more complicated in the next war than it was now? For all these questions, and many more that might be enumerated, it was of great importance to have men of eminent ability in that House. But he was told, in answer to this, that it was not seemly for grave Judges to be canvassing such people as 5l. voters. Well, this might be a very good reason for disfranchising 5l. householders, but it was no reason whatever why learned and fit men should not canvass them. He could not understand how it was derogatory to the dignity of any man whatever to do so, nor would he believe that any Gentleman was degraded by this canvass, or that it was not possible to canvass men, let their difference of station be what it might, without losing their personal respect. He (Mr. Drummond) differed so entirely from the noble Lord's measure, that no Reform Bill for the future should receive his assent which did not provide for increasing the number of men of ability in that House. He earnestly wished to see the old principle which gave Members to the English Universities carried out to a much greater degree; and, as the number of Universities had been extended, the number of University representatives should be extended also; and Members should be given, not only to the Scotch and Irish Universities, but also to the inns of court and other learned bodies. In the operations on both sides of the House, hon. Members appeared to have combined to exclude men of ability. On the Ministerial side they brought in a Bill to exclude all property, and on the Opposition side to exclude all brains; and so their notion of forming that House was to make it a mass of pauperism and ignorance. That was Socialism; and whenever they had made that House a place for persons without property and without intelligence, the sooner they fell into the hands of a military despot the better.

SIR ROBERT H. INGLIS

seconded the Amendment.

Amendment proposed, "To leave out the word 'now,' and at the end of the Question to add the words 'upon this day six months.'"

Question proposed, "That the word 'now' stand part of the Question."

MR. MACAULAY

Sir, I cannot suffer the House to proceed to a division on this question without expressing the very strong feeling which I entertain upon the subject. I shall vote with all my heart and soul for the Amendment moved by my hon. Friend the Member for East Surrey. I never gave a vote in my life with a more entire confidence that I was right; and I must say that I think it hardly creditable to the House that a Bill against which so much can be said, and for which there is so little to be said, should have come to this stage without a division. On what ground is this Bill brought in? Is it brought forward on the ground, which is the only one on which, as I should conceive, a great statesman—a Conservative statesman—could ever propose any important reform—is it brought forward on the ground that the present state of the law has produced any practical evil whatever? That ground is utterly disclaimed by all those who support the Bill. No one of them has asserted that in any single case any inconvenience, during the experience of ages, has arisen from our permitting the Master of the Rolls to have a seat in this House. The office of the Master of the Rolls and the House of Commons commenced their existence, I think, in the same generation—certainly in the same century. During 600 years the Master of the Rolls has been eligible to a seat in this House. To go back no further than the time of the Hanoverian succession, we have had amongst the most distinguished Members of this House a succession of Masters of the Rolls—Sir Joseph Jekyll, Strange, Kenyon, Pepper Arden, Sir William Grant, Sir John Leach, Sir John Copley, Sir Charles Pepys, and Sir John Romilly. Is it pretended that in any one case any one of these eminent Judges ever, in any respect, discharged his judicial duties less efficiently because he was admitted to a seat in this House? And if not, I ask if it is the part of a wise man—if it is, above all, the part of a Conservative politician, to propose to alter a system which has existed for six centuries, and against which it is not alleged that it has ever, in any single case, produced any single inconvenience, solely because it does not appear to the House to square with an abstract principle? Well, and what is this abstract principle? It is that it is desirable to separate politics from judicial functions. "Nothing is so hateful"—I think these were the words of the noble Lord who brought in this Bill—"nothing is so hateful as a political Judge. The union of the political and judicial character is contrary to a principle so sacred, that even when we cannot find that the union has produced any pernicious effect in the experience of centuries, yet, in order to be true to a general theory, we ought to provide against the possibility of its occurrence." Well now, I say that if I adopt the noble Lord's principle, I must pronounce this Bill the most wretched and pitiable reform that was ever proposed—the most homoeopathic dose that ever quack proposed for the widest spread malady. For if the noble Lord considers the nature of the political and judicial institutions of this country, he will find the political and judicial character so combined, so interwoven from the top to the bottom of our system, that the reform he proposes to make will be a mere infinitesimal change when compared with the system he proposes to amend. It has been asked, with great justice, if the Master of the Rolls is to be excluded, why not the Recorder of London also? I should be extremely sorry to see the Recorder of London excluded from this House; but I must say that the reasons for excluding him are ten times as strong as those for excluding the Master of the Rolls. But, to go still further—why exclude the Recorder of London alone?—why not all Recorders, and all Chairmen of Quarter Sessions? I will venture to say that there are much stronger reasons for excluding Chairmen of Quarter Sessions than for excluding the Master of the Rolls. I have attended Quarter Sessions formerly. I have seen presiding over the Quarter Sessions of a great county a man of the most eminent abilities—one of the most able and expeditious Judges I ever saw—but a Member of Parliament, a Very keen politician, a very decided party man. He was a man who had made a Motion that had upset a Ministry—he was a man who before the end of his life occupied a seat in the Cabinet; and this distinguished Member of Parliament, himself the head of the Blue interest, as it was called in the county, would have had to try for an election riot any Orange rioters. He took a very conspicuous part in the case of the Queen—so much so indeed that he was hooted by the mob of London—nay, I am not sure that he was not pelted. He then went home to his county, there to try people for breaking the windows of those who would not light up in honour of the Queen's acquittal. You leave persons of this kind to be Members of this House, and you exclude the Master of the Rolls; although nothing can be more notorious than this, that whenever the nation has been in a discontented state, whenever there has been any disposition to outrage and turbulence, you have had universally the whole democratic press crying out that the Chairmen of Quarter Sessions, the unpaid magistracy, were not to be trusted in the administration of justice with regard to the friends of liberty. So loud were these cries at one time, that I remember Mr. Canning, in one of his most eloquent speeches, saying that one of the worst signs of the times was, that here, in this House, there was a growing distrust of the conduct of gentlemen of this kind in political cases. Yet you allow forty or fifty of these judges to be Members of this political assembly, and to exercise political and judicial functions, but would exclude a Judge whose functions are such, that since the time of Edward I., neither he nor any of his predecessors have been accused even by calumny, or have ever been suspected, of using their judicial power for political ends. You turn him out, because, forsooth, you say you hate political Judges. Well, but even if I were to admit there is something in the functions of the Master of the Rolls which makes it peculiarly important that he should take no part in politics, I should still vote against the Bill before the House as being utterly inconsistent and inefficient. Because, as you say, it is unfit that he should sit in a political assembly, you shut him out from the House of Commons. If it be unfit that the Master of the Rolls should be a member of political assemblies, why not exclude him from all political assemblies? But you do no such thing. You shut him out of this House, but leave the House of Lords still open to him. Is that not a political assembly? And is it not notoriously the fact that for several centuries Judges have always had considerable sway in that House, nay, that they have very often had a decided ascendancy in that House? Is it not perfectly notorious that Lord Hardwicke—a great Judge—long ruled that House?—that he bequeathed that power to another Judge, equally famous—Lord Mansfield; and that when his energy decayed he bequeathed the power he had received from Lord Hardwicke to a third Judge—Lord Thurlow—who was succeeded in his turn by Lord Eldon? We many of us can remember how powerful a political influence Lord Eldon exercised in that House—how he made and unmade Ministries—with what veneration, approaching to idolatry, he was regarded by one great party in this country—with what peculiar aversion by the other. When Lord Eldon's long domination over the Lords ceased, there arose both Whig and Tory Lord Chancellors who divided or contended for power in that House. Some who are here can remember, and no one who had then a seat in this House can have forgotten—those first ten days of October, 1831. It was the most alarming and exciting crisis during my life. It was the time at which that great debate of many nights took place in the House of Lords which ended in the rejection of the Reform Bill on the second rending. God forbid we should ever see such another crisis! I certainly can never hope to hear such a debate again. It was, indeed, a great and most splendid display of every kind and variety of ability. I dare say some of those are here, who, like myself, waited all that last night—waited until the late daybreak of an autumn morning—for the result of the division—walking up and down the Court of Requests, crowding and squeezing to reach the doors of the House of Lords—pleased if we could catch a word of that wonderful conflict of oratory. And there, in the front rank of either side, appeared two Judges leading the opposite parties—Lord Brougham, the Lord Chancellor of England, on the one side—and Lord Lyndhurst, the Chief Baron, on the other. How we hung on their words! How eagerly they were read before noon that day by hundreds of thousands through the country! What fearful excitement they caused!—excitement proved a few hours later by the disasters of Nottingham and the sack of Bristol. And yet this so exciting and important arena the noble Lord, who hates political Judges, is perfectly willing to leave open to the Master of the Rolls. His objection is not to the union of the political and judicial functions, but simply to the union of the judicial character of the Master of the Rolls with that of a Member of the House of Commons. The Master of the Rolls may be—the noble Lord has not the least objection to it—the soul of a great party—the head of a great party—the leader of a democracy, the leader of an aristocracy—he may use all his powers of oratory or sophistry to enlist the passions or mislead the understandings of the Senate; but it must not be in this room; he must go a few hundred feet from where we are assembled; he must sit on a red bench and not on a green one; he must say "My Lords," and not "Mr. Speaker," and then the noble Lord is perfectly willing to allow him to form part of a political assembly. But I am understating the case; indeed, I am greatly understating it. For this union of the judicial and political character in the other House is not a mere accidental union. The fact is, not only that a Judge may be made a Peer, but that all the Peers, as Peers, are necessarily Judges. Why, no foreigner who had been admitted to the gallery of this House, and had heard the noble Lord laying down the principle that we should make a change in the law in order to prevent the union of the political and judicial character, could ever have imagined that in this country the supreme Court of the realm is a great political assembly; that to this assembly go up appeals from all the Courts of equity and law in this country, from the Courts in Scotland and in Ireland, and from this very Master of the Rolls himself. Is it not perfectly clear that if the principle of the noble Lord was sound, he should begin, not with the Master of the Rolls, but with the House of Lords? For, can any position be clearer than this, that it is more important that the Court above should be constituted on right principle than the Court below? If the Master of the Rolls goes wrong, the House of Lords may correct him; but who is to correct the errors of the House of Lords? The noble Lord is perfectly content that their Lordships shall, in the morning, sit as Judges upon questions which affect the liberties and the property and the character of every man amongst us; that they shall decide these in the last resort—shall pronounce determinations which, until they are altered by Act of Parliament, are absolutely binding on all the ordinary tribunals of the realm—the Master of the Rolls amongst them; and then that in the afternoon the same Lords shall meet as politicians, and debate—sometimes pretty sharply, and sometimes in such a way that, if you, Sir, were among them, you would call them to order—and debate such questions as the Canadian Clergy Reserves, Irish Education, or the Government of India. And to all this the noble Lord says he has no objection whatever. Here, then, you have a judicial system in which the exercise of political functions is combined with the judicature both above and below. If we pass this Bill it will probably be taken up to the House of Lords by men who have judicial functions, and will there be taken out of their hands by the Lord Chancellor, who is a Cabinet Minister, and at the same time the highest Judge in the realm—and this mummery we call "purifying the administration of justice from all political function." Ob, no, it is nothing of the kind. This is a Bill for the purpose of purifying the administration of justice! If justice does need such purification it is utterly ineffectual; it is effectual for one purpose and for one purpose only—the purpose which has been so ably noticed by my hon. Friend—it is effectual only for the purpose of weakening and degrading the House of Commons. This is not the first time that a similar attempt has been made. More than 150 years ago there was a very great and general outcry—and a just one—there was great reason for it—against the number of placemen in Parliament, and the immense influence of the Crown—an evil which did admit of remedy; and a remedy was tried by well intentioned men (and I doubt not that the noble Lord is well-intentioned), but rash and shortsighted men—a remedy that would have produced evils far worse than the disease they desired to cure. They brought in an Act of Parliament which provided that no person who held any office under the Crown should be permitted to sit in this House. The clause was not to take effect until after the accession of the House of Hanover; but, happily for this House and for the country, it was repealed before that accession took place. If it had not been repealed, it is easy to see what its effect would have been. It was said by those who defended it that it would purify the Parliamentary atmosphere; that the influence of the Crown, which was so fatal to the interests of the people, would be done away, and it was but just that the servant of the nation should be the servant of the nation alone. The supporters of that Bill asked, how could a person who was deeply interested in supporting the prerogative of the Crown, be a faithful guardian of the liberties of the people? That was specious—but no more; for no person can doubt what the effect would have been of that clause in an Act of Parliament, if it had remained the law. The effect would have been to degrade that branch of the Legislature that springs from the people, and to elevate the hereditary aristocracy. All the Ministers of the Crown must necessarily have been Peers, and all the eminent Members of the House of Commons would have made it their object to obtain a peerage. As soon as any man by his eloquence, or by his knowledge of business, had raised himself to such distinction that he was selected to be Chancellor of the Exchequer—First Lord of the Admiralty—Secretary of State—First Lord of the Treasury—Secretary at War, or no matter what, he would instantly turn his back on what would have been then emphatically the "Lower" House, and would have gone to that House in which alone it would have been possible for him to display his great ability for the administration of public affairs. Sir Robert Walpole, the first Pitt, the second Pitt, Fox, Canning, Peel—all the men whose fame is inseparably associated with the House of Commons—whose names are mentioned with pride—whose memories must he in the recollection of every one who passes through St. Stephen's Chapel, the old scene of their conflicts and of their triumphs—all these men, in the prime and vigour of life, would have become Peers; while the conflict of opinions having been transferred from the House of Commons to the House of Lords, it would be utterly impossible for the House of Commons, left without a single statesman conversant with high and grave questions, of alliances, of peace, of war, to give as this House has given, and as I hope it always will give, a general direction to the whole external and internal polity of the realm. Then all Europe would have been looking to the great conflicts of Pitt and Fox in the House of Lords, and the House of Commons would have been left to look after turnpike roads and canals. That is the exact spirit of the legislation in which you are now invited to proceed. It is true that the evils to be apprehended from this Bill are not so extensive; but still they are very serious, because the tendency of this Bill, and of similar Bills, is to make this House decidedly less efficient than it once was, and decidedly less efficient than the House of Lords is now, for all the most important purposes of a legislative assembly. I have heard this question argued as if the only business of the House of Commons was party struggling—as if the only thing which a learned and eminent Judge would have to do in this House would be to vote on questions where the effect would be to turn out one set of men, and to bring another set in. It is not so. Party struggles, no doubt, there always will be; but there is an abundant and extensive province of Parliamentary labour that lies quite remote from the contentions of parties, and in which a great jurist can render immeasurable and inestimable service, and obtain for himself an imperishable name. And if ever there was a time when such a jurist was needed in this House, and was likely to be justly appreciated, it is the present. No observant man can fail to perceive that there is in the public mind a general, a growing and earnest, and at the same time, I must say, reasonable and sober desire for extensive law reform. I hope and believe that some of the Sessions that are approaching will, to a great extent, be occupied by discussions on the state of the law, and the law reforms that are required; and in such discussions no person is so well fitted to bear a useful and distinguished part as an upright and enlightened Judge; and yet at such a time it is that we are asked to shut the door of this House against the last great judicial functionary whom the bungling legislation of former Parliaments has left to us. In the meantime the other House is open to him, and is open, also, to other great judicial authorities who are excluded from this House. The Judge of the Admiralty Court is already driven from amongst us; and I believe that is an obligation which this House owes to the noble Lord who now proposes to confer upon us this other favour. In that other House they may have, besides the Lord Chancellor, the Lord Chief Justice, the Chief Justice of the Common Pleas, the Chief Baron, the Lords Justices, the Master of the Rolls, and the Vice-Chancellors; but here you are driving out the last man who, from his judicial position, could give to this House weight and consequence in any attempt—I am very far indeed from anticipating or expecting any conflict of a hostile kind with the House of Lords—but the presence of such a man would give us weight and consequence with them in any honourable rivalry that may take place to reform our institutions. I was much struck the other day—I do not know whether the hon. Member for Montrose (Mr. Hume) is in his place—but when I came down here, when the Bill was last on the paper, with the intention of voting against it, I learned it could not come on in consequence of the debate on a Bill brought in by the hon. Member for West Surrey, on the subject of the Combination of Workmen. I believe the hon. Member for Montrose is decidedly favourable to the Bill of the noble Lord; but I was amused to hear that hon. Gentleman press the House to pass a Bill on the subject of combination, for this reason—"We really," said he, "know nothing about it—it may be right or wrong—send it to the Lords, there are Judges there—they will decide whether it is right or wrong." Did any person ever hear of a great legislative assembly being called upon to abdicate its function in such a manner as that? And is it not extraordinary that a Gentleman who is so zealous for the popular part of the constitution should be the person to propose that in a matter so grave and so deeply concerning the interests of the great body of our constituents, we should content ourselves with simply registering whatever the judgment of the House of Lords might be? And is it not more extraordinary still, that, feeling as we do the deficiency of this House in one most important respect, we should propose to shut out of it the learning and ability that might yet come in? But it is said that the Master of the Rolls has duties to perform and fills a position hardly compatible with the duties of a Member of Parliament. It is said he is paid by the public, and the public require that he shall devote the whole of his time to the performance of his duties; it is said, let us enforce the division of labour, and let us not permit his time to be wasted on Parliamentary duties, but oblige him to devote it to that to which it more particularly belongs. If this be an argument, it is an argument for keeping Judges out of the House of Lords, as well as out of the House of Commons; but I deny that it is an argument of any weight whatever. I say the principle of the division of labour is one of great value and importance, but one that may be most easily abused. You can hardly carry it too far in matters that are purely mechani- cal, but you may easily carry it too far when you come to the higher operations of labour, and in matters of intellect. I do not doubt that in pin-making, as Adam Smith has said, the pins will be best made where one man makes the head, and another cuts the wire, and another rolls it up, and another sharpens the point. But I do not believe that Michael Angelo would have been a greater painter if he had not been a sculptor. I do not believe that Newton would have been a greater experimental philosopher if he had never been a mathematician and a logician. And I do not believe that a man would be a worse lawgiver because he is a great Judge. On the contrary, I believe that there is as close a connexion between the functions of the legislator and those of the Judge as there is between anatomy and surgery; and it would be as absurd to exclude the Judge from taking a part in legislation as it would be absurd to exclude a surgeon from the practice of anatomy, and for people to say, if they were looking out for the best surgeon, thst they would have one who knew nothing of anatomy. I am happy to state that I have authority for what I say of high value—authority, indeed, to which the hon. Member for Montrose will probably pay more respect than I do—I mean the authority of Bentham. For Mr. Bentham, as a jurist and a metaphysician, I have no very high opinion, but as a juridical writer there can be none greater. In his Judicial Organisation I find a chapter in which he speaks of the exceeding evil of pluralities in the case of Judges. He strongly objects to suffering a Judge to be anything but a Judge, with one single exception. A Judge, he says, ought to sit in the representative assembly that legislates for the commonwealth; "for" says he, "the very best school for a great legislator is the judicial bench, and legislative ability is so rarely found in any society that it is madness to throw it away when it is accessible." The hon. Member for West Surrey has well replied to the argument of indecorum, and that there need be, in the endeavour to get a seat in this House, something unworthy of the judicial ermine. The noble Lord, I think, spoke of unseemly jollifications at elections. I wish from the bottom of my heart that indecent jollifications were the worst means by which men, reputed to be men of honour and respectability, stoop to obtain seats in this House. I should be sorry if the Master of the Rolls, in order to obtain a seat in this House, played the mountebank, or stooped to tricks upon the hustings. But I should be still more sorry if any Master of the Rolls should stoop to avail himself of the low arts, the false addresses, and the machinery of corruption by which, we are told, some hon. Members have entered this House. It is said on high authority that there are temptations which saints even should not be exposed to, and that a Master of the Rolls should be as scrupulous as a saint in avoiding temptation. On that point, if a long friendship authorises me to speak with confidence of any one, I can say that if ever the present Master of the Rolls should sit in this House, he would be brought into it by means far different from those by which he was excluded from it. But let me ask, are we prepared to say that no person can come into the House of Commons except by means that are inconsistent with the conscientious self-respect which ought to distinguish the judicial character? If so, it well becomes us to set our House in order; for how can a country long prosper if that assembly on which all its dearest interest depends—if that assembly which can by a single vote change its Government, and give a new direction to the whole policy of the country, colonial, commercial, and financial, can be entered only by means which must lower its character? But it is not so. In what measure did Sir William Scott lower his character by coming into this House as Member for the University of Oxford? In what way did Sir John Copley lower his character by coming into this House as Member for the University of Cambridge? But it is not necessary to speak of Universities; it would be most unjust and unfair in many Members of this House not to say that a delicacy and liberality of sentiment that would do honour to any University may be found among the 10l. shareholders of some great cities. But need we go further than to look to your own Chair? It was, Sir, of as much importance that you, at the last general election, should maintain the dignity, gravity, and impartiality of your exalted character, as that the Master of the Rolls should do so. It would be impossible for you, Sir, to permit the smallest indecorum, without grievous injury to your public character and utility. Did the great county which has done itself the honour to return you to this House as its representative, require any conduct on your part upon which the Speaker of this House must look back with shame? And what reason have we to doubt that some of our constituent bodies would not be as just to an eminent Judge as to you? There is no reason, I think, to doubt but that a Judge might take his seat in this House without being required to do anything inconsistent with the nicest punctilio of decorum due to his station. It may be said the law is inconsistent—and I admit it is; but my advice is, that as we have entered upon a bad path, let us stop in it and retrace it. The time is not far distant when we must come to reconsider the constitution of this House; I think on that occasion it will be the duty of the Government most carefully to recommend the rules according to which it shall be determined who shall be excluded from this House. The law is in a very singular and unsatisfactory state; as the law now stands no person can sit in this House who holds an office created since a particular day—I believe the 27th of October, 1705; and the effect of that rule on political offices is very inconvenient. For instance, there can be only two Secretaries of State in this House, and only two Under Secretaries of State. If there should be two Secretaries of State in this House, and if a vacancy should occur in the office of Foreign Secretary, though a Member of this House might be the person best qualified for the office, he cannot have it—you must give him the Admiralty, and give the Foreign Secretaryship to some person in the House of Lords, who would probably be better fitted for the Admiralty. There are other consequences the effect of the system. The Postmaster General cannot sit in this House; but he is generally a member of the Cabinet, and, so far as my experience goes, with the single exception of the Chancellor of the Exchequer, there is no public functionary whom it would be so convenient to have in this House as the Postmaster General; and I hope, when the constitution of this House is to be reconsidered, this will be taken into consideration. But, to speak of the Judges, my principle is very simple. Any Judge who is properly elected should be admitted into this House, except where there is some plain reason why that Judge should not come in here. There is a reason, I admit, against the admission into this House of the fifteen Judges of the Common Law bench; because they are occasionally summoned by the House of Lords to assist them—they have a place in the House of Lords—and if you mean that the House of Lords should continue to be the supreme Court of error, their sitting in it is absolutely necessary. It would be impossible to continue the House of Lords as a great Court of error, unless they are assisted by the fifteen Judges; those Judges have consequently, seats in it, and there you must leave them, for it would be inconsistent with the privileges and dignity of this House to have any Member here who is at the beck and call of the other House. The same rule applies to the Scotch Judges, and to the Irish Judges, who are excluded for the obvious reason that they could not discharge their duty in their countries if they were elected to this House. But certainly I would leave the door of this House open to the Master of the Rolls; I would throw the door open again to the Judge of the Admiralty Court, who is most absurdly excluded. I would suffer those eminent Judges who are kept out of the House, not by any particular Act applicable to them, but merely by the operation of the old Act of Queen Anne—the Lords Justices and the Vice-Chancellors—to sit in this House, if they find constituent bodies disposed to place them here. I am perfectly certain that in that way we should add to the credit of this great representative assembly—with the credit of which the credit of representative governments all over the world is intimately bound up—and render our own body far more efficient for the discharge of our duties. But whether those more extensive changes which I recommend shall or shall not be adopted, I see no reason whatever for entertaining the Bill of the noble Lord. I will ask the Conservatives of this House, will they agree to make changes in the state of a law which has lasted for twenty generations, and from which they do not themselves pretend that the smallest inconvenience has flowed? I address myself to the Liberal Members of this House, and I ask thorn whether it appears to them to be right to lower the character and diminish the efficiency of that branch of the Legislature which springs from the people? As one wishing to unite in myself the character of Liberal and Conservative, in both I shall give my vote most cordially for the Motion of my hon. Friend.

LORD HOTHAM,

in reply, said, that if this Bill were liable to all the objections now urged against it, he knew not how to account for their having been withheld until this, the last, discussion that could take place upon it. Painfully conscious of his own inability in an adequate manner to en- counter so formidable an opposition, it was nevertheless his duty; and, moreover, he was extremely anxious to say something in answer to what had been advanced against the measure he had ventured to introduce, and which the House had hitherto been pleased to view with favour. He trusted, therefore, that the House would bear with him for a short time, while he endeavoured to do so. It was not without regret that he found himself so strongly opposed by the right hon. Member for Edinburgh, who had now been heard by many Members of the House for the first time. He (Lord Hotham) had had many former opportunities of hearing him, and whether agreeing with or differing from the right hon. Gentleman, he always listened with pleasure to his speeches. But a great deal of the eloquent speech which the right hon. Gentleman had just delivered, referred not to any consequences which the present Bill could produce, but to times past, and to a state of things no longer existing. The right hon. Gentleman had inquired why it was that he (Lord Hotham) wished to exclude Judges from the House of Commons, without taking equal exception to their sitting in the House of Lords? If the right hon. Gentleman had attended the former discussions on this Bill, he would have heard the distinction between the two cases sufficiently explained; and he (Lord Hotham) would repeat that explanation now, if the right hon. Gentleman had not answered his own inquiry in reminding the House that Peers were, ipso facto, Judges—an admission which, if it proved anything, might be considered as pointing to the peculiar propriety of learned Judges having seats in that assembly. The right hon. Gentleman bad made another statement, which coming from one so conversant with history as himself, had astonished him (Lord Hotham) more than he could express. The right hon. Gentleman had asked, with an air of triumph, how the judicial office could be degraded by the appearance of Judges as candidates for seats in a popular assembly, without the dignity of the high office now so ably filled by the right hon. Gentleman in the chair, being in like manner impaired? But the right hon. Member for Edinburgh had strangely forgotten the entire want of analogy between the two cases, and had supposed that which could never occur—it being obvious to every one that no one not already a Member of the House could be its Speaker—that therefore a Speaker never could be a candidate at an election—that the same act which sent Members to their constituents, terminated also the office of Speaker—and, as he need not remind those now on the Treasury bench, that it had been very recently shown, that a long and faithful discharge of his duties to the House was not always considered sufficient to ensure the re-election of a Speaker. The right hon. Gentleman had alluded to the exclusion of the Judge of the Admiralty Court, and had, in attributing it to him, satirically called it a benefit which he had procured for the House. He (Lord Hotham) had in a former debate explained the grounds on which he had proceeded on the occasion to which the right hon. Gentleman had alluded, and was therefore unwilling to trouble the House with a repetition of them; but the right hon. Gentleman now imposed upon him the necessity of stating more fully to the House the circumstances attending the exclusion of that learned Judge. The exclusion of that high functionary from the House of Commons was expressly recommended by a Committee which sat in 1833, which also recommended that Judges, instead of being paid by fees, should be paid by fixed salaries, and should have retiring pensions, but should be incapacitated from sitting in that House. According to the statement of the right hon. Gentleman, it might be supposed that the Members of that Committee were young and inexperienced politicians, having little, if any, regard for the stability of our institutions. The House would perhaps permit him to give the names of some of the hon. Members who served upon that Committee, and it would then be seen how far they were of that description. The Chairman of that Committee he saw opposite to him, the right hon. Gentleman the Member for Taunton (Mr. Labouchere), and the Report of the Committee was in all probability drawn by him according to Parliamentary usage. He (Lord Hotham) had in his hand a copy of the Report of that Committee, and he would mention the names of some of those daring invaders who had proposed this measure. First, was the late Sir Robert Peel. Was he a man likely to have proposed any measure which would degrade the character of the House of Commons, and was he not well acquainted with what were the duties both of a Judge and of a Member of Parliament? The right hon. Gentleman the First Lord of the Admiralty (Sir J. Graham), whose opinion on this subject he (Lord Hotham) knew, and whom he was sorry not to see in his place, was also a Member of that Committee. Then came Mr. Charles Williams Wynne, Sir James Scarlett, afterwards Lord Abinger, Mr. Abercromby, now Lord Dunfermline; the right hon. Gentleman the Member for the University of Cambridge (Mr. Goulburn); the present Chief Baron of the Exchequer; Lord Campbell, then Solicitor General; the present Chief Justice of the Common Pleas; Lord Sandon, now the Earl of Harrowby; Sir John Nicholl, Mr. Cutlar Ferguson, Serjeant Spankie, Mr. Estcourt, Mr. William Brougham, a Master in Chancery; Lord Ebrington, now Earl Fortescue; Sir Charles Lemon; and the hon. Baronet the Member for the University of Oxford—heretofore the uncompromising champion of consistency—

SIR ROBERT H. INGLIS

I did not concur in the recommendation.

LORD HOTHAM

But the hon. Baronet never took any opportunity of expressing his dissent from the Report; and last came the learned Judge himself, Dr. Lushington, then one of the most distinguished Advocates in Doctors' Commons. The right hon. Gentleman the Member for Edinburgh had asked him if there was any degradation in canvassing those 5l. freeholders whom the hon. Member for West Surrey considered ought to be disfranchised? What he meant to say was, that there were things to be done at every election, which, although no degradation to private persons, were not compatible with the dignity of a person holding a high judicial office. As an illustration, he would take a case which had occurred at the last general election—a case where the nomination was attended by a large crowd of persons, and one of the candidates, not being allowed to speak when he wished to address his constituents, was at length obliged to retire to the back of the hustings, and surround himself with the representatives of the press, who alone had the benefit of hearing his discourse. Would such a scene as that have well become the gravity of the judicial character? In the chairing, too, he would ask was there nothing in which a Judge ought not to join? He had seen at the conclusion of an election for the city of Oxford the successful candidate carried up the High-street with the back of his head streaming with blood—a parting compliment from some disappointed adversary. A learned Judge, too, would not be exempt from the chance of a petition being presented against his return; and the House was aware how many hon. Gentlemen had been unseated in consequence of acts committed by persons in connexion with them. Now, it might be an unfortunate thing for a private individual to lose his seat upon such grounds as those; but he would ask the House, would not the judicial bench be degraded if the Master of the Rolls, or any other Judge, were declared, by his agents, guilty of bribery; and whether such degradation would be removed by the Committee reporting that it had not been proved to their satisfaction that such bribery was committed with the knowledge or sanction of the learned Judge? There was also one point which he (Lord Hotham) had before referred to, and that was, that the Master of the Rolls was liable to be called upon to decide cases in which his own constituents were concerned. He had since the last occasion on which this subject had been under discussion in that House, noticed in the Rolls Court cases connected with the disposal of charities proceeding from electoral boroughs; and there was nothing to prevent cases being brought for decision from the very borough which the Judge himself represented. He had on former occasions quoted, in support of the course which he felt it his duty to pursue, the opinions of individuals well conversant with the duties of a Judge, and also of the duties of a Member of that House—opinions which ought to bear some weight with the right hon. Gentleman himself. He had quoted the opinion of a learned Gentleman, which, upon a subject of this nature, was well worthy of the consideration of the House—the opinion of the late Sir Samuel Romilly, and it was decisive against the propriety of a Judge being also a Member of that House. The late Master of the Rolls, Lord Langdale, was asked to accept the office upon condition that he became a Member of one or other House of Parliament. The noble and learned Lord refused, stating that he thought it quite clear that the Master of the Rolls ought not to be a Member of the House of Commons, for if an active Member he would act in a manner inconsistent with his judicial character; if inactive, he might neglect the interests of his constituents, and of those who promoted him; and, active or inactive in the House, he might be placed in the predicament of having to adjudicate in his office between his constituents and others. And he, moreover, distinctly declared that the judicial office was sufficient to occupy the whole of any man's time. Lord Brougham was also of opinion that the duties of a Judge and of a Member of Parliament were incompatible with each other. That noble and learned Lord, in speaking on the subject of the admission of a Judge into the House of Commons said—"You should not allow him to be one day on the bench, and the next to make his appearance on the hustings; the sort of conduct which a popular constituency expects is not becoming in a Judge." He had been furnished, through the kindness of an hon. and learned Member of the House, with the authority of an individual distinguished for the great variety of his attainments, and that individual was Mr. Curran. When Mr. Curran received a requisition to stand for the borough of Newry, what did he reply? He replied, "I know that you will not impute to want of the most profound respect for you the determination I have formed of not soliciting the vote of an individual. I cannot run the risk of soliciting a suitor in the character of an elector; for to do so would not befit my judicial situation, and I think it would diminish that credit which suffrage above all suspicion of bias, ought to give to your representative." He had one other authority which he desired to quote as being the authority of a Member of that House, and one upon which many hon. Members would look with respect, and no one, perhaps, more so than the hon. Member for West Surrey, for it was the authority of the hon. Member himself! On the day preceding that on which the Bill now before the House would, but for the length of other business, have come on for discussion, the hon. Member, in the course of a speech which he made upon another subject, asked the question, "Why are there so many lawyers in this House?" and then, thinking, perhaps, that a categorical answer from all the lawyers to whom he alluded would occupy too much time, the hon. Member answered the question himself. "Because," he said, "they know that making flashy partisan speeches in the House of Commons is more likely to procure them judicial situations than fagging in their chambers." If this were true, he could employ no more powerful argument in favour of his Motion; and if the hon. Gentleman believed it to be true, as he (Lord Hotham) felt sure he did, or he would not have said so, then he would contend that if any hon. Member less than another ought to have proposed the Amendment, it was the hon. Member for West Surrey. He did not see the noble Lord the Member for the City of London in his place, or he would have reminded him how often he had complained of the unwilling, ness of hon. Gentlemen to move forward with the times, and would have made a similar complaint against the noble Lord, and would have shown how he was now justly liable to the same imputation. The right hon. Gentleman (Mr. Macaulay) had said that the result of this measure would be to degrade the House of Commons; whereas the object of it was to preserve from degradation the judicial bench. And it was upon this ground, and in reference both to the public interest, and to the real interest of learned Judges themselves, that he (Lord Hotham) called upon the House to pass the present Bill.

MR. HUME

said, he was absent when the debate commenced, and he understood that allusion had been made by the right hon. Member for Edinburgh (Mr. Macaulay) to some speech of his on the combination laws; but he only wished to state on this occasion why he supported this Bill: he supported it because he considered the duty of the Master of the Rolls was utterly incompatible with the duty of a Member of that House, and he had voted for the exclusion of the Judge of the Admiralty on the same grounds.

Question put.

The House divided:—Ayes 123; Noes 224: Majority 101.

List of the AYES.
Arkwright, G. Davies, D. A. S.
Atherton, W. Duffy, C. G.
Bagge, W. Duncombe, hon. A.
Bailey, C. Dunne, Col.
Baldock, E. H. East, Sir J. B.
Barrington, Visct. Egerton, E. C.
Barrow, W. H. Elmley, Visct.
Bennet, P. Esmonde, J.
Blake, M. J. Evelyn, W. J.
Boldero, Col. Farnham, E. B.
Brady, J. Fellowes, E.
Brockman, E. D. Fitzgerald, Sir J. F.
Brooke, Lord Fitzgerald, W. R. S.
Buck, L. W. Forbes, W.
Bunbury, W. B. Forester, rt. hon. Col.
Burrell, Sir C. M. Forster, Sir G.
Campbell, Sir A. I. French, F.
Chambers, M. Frewen, C. H.
Christopher, rt. hn. R. A. Fuller, A. E.
Clive, R. Gallwey, Sir W. P.
Cobbett, J. M. Galway, Visct.
Cobbold, J. C. George, J.
Cobden, R. Gladstone, Capt.
Cocks, T. S. Gooch, Sir E. S.
Codrington Sir W. Graham, Lord M. W.
Coles, H. B. Greenall, G.
Compton, H. C. Grogan, E.
Crook, J. Gwyn, H.
Hadfield, G. Parker, R. T.
Halford Sir H. Peel, Col.
Hamilton, G. A. Pennant, hon. Col.
Hanbury, hon. C. S. B. Potter, R.
Hawkins, W. W. Prime, R.
Henley, rt. hon. J. W. Pritchard, J.
Herbert Sir T. Pugh, D.
Hume, W. F. Repton, G. W. J.
Jones, Capt. Rolt, P.
Jones, D. Scobell, Capt.
Kendall, N. Seymour, W. D.
Kennedy, T. Smith, J. B.
Knox, hon. W. S. Somerset, Capt.
Langton, W. G. Stanhope, J. B.
Laslett, W. Taylor, Col.
Lindsay, hon. Col. Thesiger, Sir F.
Lovaine, Lord Tollemache, J.
Macartney, G. Trollope, rt. hon. Sir J.
Mandeville, Visct. Turner, C.
Manners, Lord J. Tyler, Sir G.
Meux, Sir H. Vance, J.
Miles, W. Vane, Lord A.
Michell, W. Waddington, H. S.
Montgomery, H. L. Wall, C. B.
Montgomery, Sir G. Whiteside, J.
Moody, C. A. Whitmore, H.
Moore, G. H. Williams, T. P.
Mullings, J. R. Williams, W.
Mundy, W. Woodd, B. T.
Murrough, J. P. Wyndham, Gen.
Naas, Lord Wynn, Major H. W. W.
Neeld, J. Wynne, W. W. E.
Oakes, J. H. P. TELLERS.
Pakington, rt. hn. Sir J. Hotham, Lord
Palmer, R. Hume, J.
List of the NOES.
Acland, Sir T. D. Charteris, hon. F.
A'Court, C. H. W. Cheetham, J.
Aglionby, H. A. Christy, S.
Anderson, Sir J. Clay, Sir. W.
Annesley, Earl of Cockburn, Sir A. J. E.
Bailey, Sir J. Collier, R. P.
Baines, rt. hon. M. T. Colville, C. R.
Bankes, rt. hon. G. Coote, Sir C. H.
Baring, H. B. Corbally, M. E.
Barnes, T. Cowper, hon. W. F.
Bass, M. T. Craufurd, E. H. J.
Bell, J. Crossley, F.
Berkeley, hon. C. F, Currie, R.
Berkeley, C. L. G. Dalrymple, Visct.
Bethell, R. Davie, Sir H. R. F.
Blair, Col. Denison, E.
Bouverie, hon. E. P. Denison, J. E.
Boyle, hon. Col. Dent, J. D.
Bramston, T. W. Drumlanrig, Visct.
Brand, hon. H. Duckworth, Sir J. T. B.
Brooke, Sir A. B. Duff, G. S.
Brotherton, J. Duncombe, T.
Browne, V. A. Dundas, G.
Bruce, Lord E. Dunlop, A. M.
Bruce, C. L. C. Dunne, M.
Bruce, H. A. Ellice, rt. hon. E.
Burke, Sir T. J. Ellice, E.
Burroughes, H. N. Elliot, hon. J. E.
Butler, C. S. Euston, Earl of
Butt, I. Evans, Sir De L.
Byng, hon. G. H. C. Evans, W.
Cardwell, rt. hon. E. Ewart, W.
Cavendish, hon. C. C. Fergus, J.
Cavendish, hon. G. Ferguson, Sir R.
Chambers, T. Ferguson, J.
Chaplin, W. J. Filmer, Sir E.
Fitzroy, hon. H. Milnes, R. M.
Floyer, J. Milton, Visct.
Foley, J. H. H. Mitchell, T. A.
Forster, C. Moffatt, G.
Forster, J. Monck, Visct.
Fox, W. J. Moncreiff, J.
Freestun, Col. Monsell, W.
Gardner, R. Morgan, C.
Gaskell, J. M. Morris, D.
Gladstone, rt. hon. W. E. Mostyn, hon. E. M. L.
Glyn, G. C. Mulgrave, Earl of
Goddard, A. L. Mure, Col.
Goderich, Visct. Murphy, F. S.
Goodman, Sir G. Napier, rt. hon. J.
Goold, W. Norreys, Lord
Greaves, E. Norreys, Sir D. J.
Greene, T. Osborne, R.
Gregson, S. Otway, A. J.
Grey, rt. hon. Sir G. Palmerston, Visct.
Grosvenor, Lord R. Patten, J. W.
Grosvenor, Earl Pechell, Sir G. B.
Hall, Sir B. Peel, F.
Hanmer, Sir J. Pellatt, A.
Harcourt, G. G. Percy, hon. J. W.
Harcourt, Col. Peto, S. M.
Hastie, A. Philipps, J. H.
Hastie, A. Phillimore, J. G.
Hayes, Sir E. Phillimore, R. J.
Hayter, rt. hon. W. G. Phinn, T.
Headlam, T. E. Pigot, F.
Heathcote, G. H. Pilkington J.
Heneage, G. H. W. Pollard-Urquhart, W.
Hervey, Lord A. Ponsonby, hon. A. G. J.
Heywood, J. Portman, hon. W. H. B.
Heyworth, L. Ramsden, Sir J. W.
Hindley, C. Ricardo, O.
Howard, hon. C. W. G. Rich, H.
Hutt, W. Robartes, T. J. A.
Ingham, R. Russell, F. C. H.
Jermyn, Earl Sadleir, J.
Johnstone, Sir J. Sandars, G.
Keating, H. S. Sawle, C. B. G.
Keogh, W. Scholefield, W.
Ker, D. S. Scully, F.
Kerrison, Sir E. C. Seymer, H. K.
Kershaw, J. Seymour, Lord
Kirk, W. Shafto, R. D.
Labouchere, rt. hon. H. Shee, W.
Lacon, Sir E. Shelburne, Earl of
Laing, S. Sheridan, R. B.
Langton, H. G. Smith, rt. hon. R. V.
Lawley, hon. F. C. Stafford, A.
Layard, A. H. Stirling, W.
Lewis, rt. hon. Sir T. Strickland, Sir G.
Lowe, R. Strutt, rt. hon. E.
Lucas, F. Stuart, Lord D.
Luce, T. Thicknesse, R. A.
Macaulay, rt. hon. T. B. Thornely, T.
Mackinnon, W. A. Towneley, C.
M'Cann, J. Traill, G.
MacGregor, J. Vane, Lord H.
M'Gregor, J. Vernon, G. E. H.
M'Mahon, P. Villiers, rt. hon. C. P.
M'Taggart, Sir J. Vivian, H. H.
Manners, Lord G. Walmsley, Sir J.
Marshall, W. Wells, W.
Massey, W. N. Whalley, G. H.
Mathieson, A. Whatman, J.
Mathieson, Sir J. Whitbread, S.
Miall, E. Wickham, H. W.
Milligan, R. Wilkinson, W. A.
Mills, T. Wilson, J.
Milner, W. M. E. Winnington Sir T. E.
Wise, A. Wyndham, W.
Wortley rt. hon. J. S. Wyvill, M.
Wrightson, W. B. Young, rt. hon. Sir J.
TELLERS.
Drummond, H. Inglis, Sir R. H.

Words added: Main Question, as amended, put, and agreed to.

Third Reading put off for six months.