JUDGES EXCLUSION BILL. (Hansard, 3 March 1853)

§ LORD HOTHAM

said, that the object which he had in view was so plain and so simple as to require neither argument nor illustration to make it intelligible. The subject was one upon which he had always had a strong opinion, and he only regretted having been prevented, by particular circumstances, from bringing it under the consideration of the House in a previous Session. It might be in the recollection of those who were in Parliament in 1840 that it was decided, in the Session of that year, that the Judge of the Admiralty Court should no longer be capable of sitting or voting in the House of Commons. It was not without reluctance that he (Lord Hotham) made that Motion, the learned Judge himself being at the time one of the Members for the Tower Hamlets. He (Lord Hotham) felt, however, that he had no alternative; for a Bill to regulate the Admiralty Court being under discussion, it seemed to be his bounden duty then, if ever, to take the sense of the House on a matter so materially affecting the position of the Head of the Court to which the Bill in question referred. In like manner, he (Lord Hotham) had been unwilling to take the next obvious step in the same direction while the Master of the Rolls was sitting among them. But as he had no longer a seat in that House, he (Lord Hotham) felt relieved from those feelings of delicacy by which he had hitherto been restrained, and he hoped that he might now, without any appearance of personality, suggest to the House the propriety of acquiescing in such an extension of the existing exclusion of Judicial Officers as should embrace all those who could properly he considered Judges of Superior Courts. He begged, once for all, to repudiate the slightest wish to cast imputation or reflection on any of those learned Judges to whose offices his proposed Bill was intended to refer; and if, in consequence of his having mentioned the Master of the Rolls, anything that might fall from him (Lord Hotham) should be taken as evidence of a contrary feeling, he trusted that hon. Members would do him the justice to bear in mind that he made this voluntary admission, namely, 1000 that although by inheritance as well as by conviction a strong party man, yet as far as his (Lord Hotham's) observation had gone, the Master of the Rolls, during the time he had been a Member of the House, and whether, as a private individual, a law officer of the Crown, or a Judge, had always set an example of moderation and good temper. But the questions which he (Lord Hotham) had to put to the House were, whether every individual, on being appointed to a high judicial station, ought not to be prepared to devote himself entirely to the duties of his office, and to renounce every other pursuit having a tendency either to create an undue pressure on his time, or to disturb that calmness and serenity which ought to be the characteristic of a judicial mind; and, further, whether it was fitting that a high functionary of this description should also he a member, and perhaps an active member, of a political assembly, subject to popular election and its various incidents, and a constant spectator of, if not a participator in, those scenes of angry and acrimonious contention which were, he feared, of increasing rather than diminishing frequency within those walls. He (Lord Hotham) might perhaps be reminded of the brilliant career of a former Master of the Rolls, Sir William Grant, in that House. He (Lord Hotham) had had the advantage of being personally known to that learned and eminent Judge, and although this was not until after his public career had closed, he (Lord Hotham) was perfectly well aware that the character of Sir William Grant in that House was second only to the character he had established for himself in the two Courts over which he so long, and so ably, and to the satisfaction of the whole country, presided. But we now lived in different times. Formerly, the close or nomination boroughs afforded a ready access to that House to those who from age, or infirmity, or from other circumstances, were unable or unwilling to encounter the turmoil of a contested election; now, those avenues were closed, and all were liable to, and many certain of, a contest on every occasion. A general election having so recently occurred, it must be unnecessary to recall to the recollection of hon. Members the humours of the canvass—the nomination—the polling day—the chairing, and the jollification in celebration of the return; but he might, without fear of contradiction, assert that there was much to be done at every contested election which 1001 it was not becoming for a Judge of tin-land to engage in. But, the election over, how was the learned Judge to perform his new duties? Was the business of the House to give way to the business of the Court, or the business of the Court to that of the House? The learned Judge would scarcely have taken his seat before he would be warned by the General Committee of Elections to hold himself in readiness to serve on an Election Committee; and this notice would be immediately followed by a request that he would inform the Committee of Selection when it would suit him to serve on a Committee on a group of private Bills, which might have to sit a week, a fortnight, or a month, as the case might be. How was this to he arranged? Was the court to be closed, or the learned Judge to be permitted to come to the table (like the Ministers of State) and make oath that so long as he holds his present office (an office for life), he could not serve on a Committee?

Again, should the new Member in question be Master of the Bolls, he (Lord Hotham) begged to call the attention of the House to another case which seemed fully to justify the course which he now-ventured to recommend. The contest had been unexpectedly severe, and instead of winning by a large majority, as the promises had led the Master of the Rolls to expect, he had narrowly escaped defeat. So soon as the borough had begun to resume its former tranquillity, the learned Judge's Committee determine to ascertain how it was that the canvass and the poll had presented such opposite results. The borough was a large one, and had within it a rich charity, the proceeds of which were dispensed among the poorer freemen, and needy inhabitants. It soon appeared that the trustees of this charity were very few in number—were active partisans of the opposing candidate, and that their influence had occasioned that whosesale defection among the recipients of the charity funds which had well nigh led to such a serious result. The Committee are immediately informed by the principal law agent, that the only remedy is to he found in an application to the Court of Chancery, and that the local knowlege of the Master of the Rolls would be highly valuable in restoring the balance of power within the borough. And from this results an application to the Master of the Rolls to appoint additional trustees. A highminded honourable man, as it was to be hoped 1002 English Judges always would he, would shrink with horror from the thought of being influenced in the discharge of his duty by private considerations; but with this feeling uppermost in his mind, he would probably decide wrong from the fear of not doing right; or if he decides ever so rightly in favour of his own friends, he is sure to be accused of partiality by his opponents; and if, fearful of falling into cither of those two extremes, he sends the case to another court, there is at once a denial of a right which every suitor possesses—the right to choose his own court. From the possible occurrence of such evils as these, he (Lord Hotham) felt himself entitled, in a constitutional point of view, to call upon the House to guard the public. He was happy to find that a very large majority of the Judges of the land were already excluded from the House of Commons. In England, the Lords' Justices, the three Vice-Chancellors, and the fifteen Judges of Common Law, were excluded. In Scotland, the whole of the Judges were excluded; and in Ireland, the Lord Chancellor, the Master of the Rolls, and all the Common Law Judges, were likewise excluded. He (Lord Hotham) proposed to add to this list the Master of the Rolls; next the Judge of the Ecclesiastical Court: then (finding that the Judge of the Ecclesiastical Court was only Judge for the province of Canterbury) it became necessary to add the Judge of the Ecclesiastical Court of York; then, on the same grounds, the Judge of the Ecclesiastical Court of Ireland, and the Judge of the Admiralty Court in England being already excluded, the Judge of the Admiralty Court in Ireland should be placed on a similar footing; and this was the extent to which the proposed Bill was intended to go. He (Lord Hotham) knew not what reception this proposal would meet with at the hands of Her Majesty's Government; but this was no political or party question, and the best proof of this was, that he knew as little what course would have been taken by their predecessors, who were in office when his notice was originally given. There were circumstances, however, which led him to think that if it were to be his misfortune to encounter opposition, it could not be from the Treasury Bench that such opposition would proceed. The noble Lord (Lord John Russell) then, as now, representing the Government in that House, had tacitly assented in 1840 to the exclusion of the 1003 Judge of the Admiralty Court; and he (Lord Hotham) had also had the advantage of the active support of the present First Lord of the Admiralty and Chancellor of the Exchequer. Could it be said that a rule that had been held good for the Judge of the Admiralty Court, was not equally good for the Master of the Rolls and the Judge of the Ecclesiastical Court? Against the exclusion of the latter certainly nothing could be said by Her Majesty's Ministers, for he was in a condition to show that with the exception of the Chief Commissioner of Works (Sir W. Molesworth) they were all of them committed to the propriety of that exclusion. From 1830 to 1834, the noble Lord (Lord John Russell) and his friends were in office; and in 1835 and 1836 Ecclesiastical Court Bills were introduced by the Government. Between 1841 and 1846, when his (Lord Hotham's) lamented friend Sir Robert Peel was in office, two similar Bills were brought in by his Government; and in 1845 a similar Bill was brought in by Lord Cottenham, to whom the noble Lord (Lord John Russell) afterwards gave the Great Seal; and every one of these five Bills contained the same clause of exclusion. In alluding, however, to the tacit consent given by the noble Lord (Lord John Russell) to the exclusion of the Judge of the Admiralty Court, it would be uncandid not to admit that his consent was an unwilling one, and that he said that he yielded more to the evident feeling of the House than to the conviction of his own mind. The noble Lord had said that he thought it an advantage to the constitution of the House that there should be as many men of learning in it as the people chose to send. This sounded exceedingly well as a general proposition; but the noble Lord well knew that if an individual could be found so full of learning as to be chosen by every constituency in the Kingdom to represent them, yet that if he wanted a few months of twenty-one years of age or had taken the first step in holy orders, all his talents would avail him nothing. It was therefore a question of degree—the free choice of the electoral body was and must be to a certain extent limited, and the only point to decide was on which side of the necessary limit the Judges of the land should be placed. The noble Lord had also on another occasion expressed regret at the absence of the Judge of the Admiralty Court, who might have thrown valuable light on a certain question then under dis- 1004 cussion. Now he (Lord Hotham) was ready to admit that perhaps there was no one person now excluded who might not on some particular occasion be able to give valuable information; but let it be remembered that any opinion thus given would be not a judicial but a political opinion, and that until the time came when any Member could be compelled to speak, it would be found that a Judge would never give any opinion at all unless he could conscientiously give it in support of that party with which he was politically connected. But even if any advantage which the presence of learned Judges could confer, were tenfold greater than had ever been contended for, the value of such advantage would be as dust in the balance, compared with the importance of the principle for which he (Lord Hotham) was earnestly, however feebly, contending. That principle was, that nothing was so hateful as a political Judge—that the functions of a politician and a Judge were inconsistent with each other—that when an individual accepted the office of Judge (which was a voluntary act on his part) he should thenceforward be known as a Judge and a Judge only—and that the only way of ensuring this, was to put it out of his power, let him be ever so minded, either to continue or to become a political partisan. Before he concluded, he wished to notice the opinions of two distinguished personages in reference to this subject. It was the recorded opinion of the late Sir Samuel Romilly, that a Member of Parliament was sure to be all the worse Member for being a Judge, and a Judge all the worse Judge for being a Member of Parliament: the other was the opinion of the late Master of the Rolls, who, when Mr. Bickersteth, was offered, by Lord Melbourne, the situation of Master of the Rolls, coupled with an intimation that he would be expected to give the Government his aid in one or other House of Parliament. Mr. Bickersteth said— I think it quite clear that the Master of the Rolls ought not to be a Member of the House of Commons. If active, he would act inconsistent with his judicial character; if inactive, he must neglect the interests of his constituents and of those who promoted him; but whether active or inactive, he might have to adjudicate upon affairs between his constituents and others. There is loss objection, upon public grounds, to the House of Lords. There is less to do, and less squabble and heat; but still, a Judge's office is enough to occupy the whole of any man's time. It was with these feelings, and on these grounds, that he asked the consent of the 1005 House to the Motion he was about to make. It was, as he had before observed, a Motion having nothing whatever to do with party or with politics—a Motion which he made on public grounds, and on public grounds alone—a Motion which he made on his own responsibility, but in the firm persuasion that the public interest would be benefited, and under the enduring conviction that the dignity and usefulness of those learned personages who now adorn the judicial bench, would be best consulted by its adoption. He moved, that leave be given to bring in a Bill to disqualify certain persons holding judicial offices, sitting or voting in the House of Commons.