HC Deb 04 March 1867 vol 185 cc1326-35

Order for Committee read.

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


said, he intended to move an Amendment in this, a fuller House than he had addressed on a former occasion. The object of the Bill was to enable the Counsel to the Secretary for India to sit in the House of Commons, and he moved an Amendment to the effect that the House should resolve itself The present Counsel was Mr. Forsyth, who was returned for Cambridge, but unseated by a Committee of the House on the ground that his sitting in the House was contrary to the statute of Anne, which disqualified any one for a seat in the House who received emoluments from the Crown, imposing also a penalty of £500 for a breach of its provisions. He objected to the Bill because it was exceptional, and because, as Counsel to other Departments of the State might be equally required in the House, the Act of Anne should be dealt with as a whole. When he had questioned the Chancellor of the Exchequer on Friday night whether he intended to repeal the statute of Anne in favour of the gentleman whom it was proposed to appoint as Equity Counsel to the Treasury, the right hon. Gentleman declined to give an answer. If he were to take for truth the old adage that silence implied consent, then it was clear that the right hon. Gentleman was in favour of the hon. and learned Gentleman sitting in the House. There was no more reason for this official to sit in the House than for many other learned gentlemen who occupied analogous positions. The House should either admit all or admit none. He should not object to a Bill throwing over the statute of Anne altogether, and allowing the Counsel for all the Departments to sit in Parliament. There were altogether seven Standing Counsel for different offices, and he saw no reason why legislation should take place for a particular case.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said Committee,"—(Mr. Serjeant Gaselee,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, he approved the Bill, on the ground that constituencies ought to have the fullest freedom of choice in the selection of representatives, and that restriction by disqualification was opposed to the policy which ought to govern our legislation. The statute of Anne was obsolete, because it was passed under the influence of jealousy lest the Crown should obtain undue influence in that House. But the House now, indirectly, appointed the advisers of the Crown, without whose advice the Crown could do nothing. One objection to the restriction was that it was technical. An officer appointed by the Crown could not sit in the House, but one appointed by the Ministry could. The Secretaries to the Treasury and the Admiralty did not, on appointment, vacate their seats, because they were appointed by the Lords of the Treasury and the Admiralty. It would be easy, therefore, to secure an officer a seat in that House by providing that he should be appointed, not by the Crown, but by the Ministry. The restriction was therefore a delusion, because it was grounded on technicalities; and if Mr. Forsyth had been appointed, not by the Crown, but by the noble Lord at the head of the India Office, he might have sat in the House. The thing was absurd, and could not be justified. He was sorry the Bill did not extend to other cases; but that was no reason why they should not deal with this case. He accepted the Bill as an instalment towards a desirable consummation when every constituency should possess the fullest liberty in the choice of its representatives.


said, that the Bill was directed against an absurdity. The statute of Anne was passed when there was a contest between the aristocracy and the Crown, and that contest had entirely passed away. The aristocracy fancied that the Crown might acquire power in the House of Commons; but we were now living under new circumstances, and the real qualification for a seat in that House was the vote of a constituency. Lord Macaulay made a remarkable speech in that House upon the question of the Master of the Rolls being entitled to sit there, while other Judges were excluded. Doubtless that was one of the anomalies that ran through our laws on the subject. A Lord of the Admiralty vacated his seat when he was appointed, but a Secretary of the Admiralty did not, because the former was appointed by the Crown and the latter by the Lords of the Admiralty. The slightest alteration of arrangements would enable the Ministry to bring in whom they pleased, provided the persons had constituencies; and if the counsel to the India Board were appointed by the Board instead of by the Crown, he could sit in the House. Why that course was not adopted he did not know. No man in his senses could imagine that the Crown could acquire undue influence in the House through inducing a constituency to send into the House a person appointed to an office by the Crown. The Bill would effect good to the extent of doing away with one anomaly, and it was an odd reason for opposing it that it did not abolish other anomalies. Our whole legislation had been piecemeal, and expe- rience showed that it was advantageous in the long run to abolish grievances piecemeal, and not by wholesale.


said, he must explain why he stood in the somewhat anomalous position of supporting the Amendment while his name was on the back of the Bill. It was his own fault entirely, and not that of the hon. and learned Member for the University of Cambridge (Mr. Selwyn), that he wrongly understood the object of the Bill. He had supposed it was designed to appoint a sort of Attorney General for India, to advise the Government, and to go in and out like other officers of the Government. To such an officer he could not see any objection, as Indian law was a special subject with which the generality of English lawyers were not familiar, and if the statute of Anne stood in the way of the appointment of such an officer it would prevent the appointment of a useful one. But if the proposal was that the counsel was to be a permanent officer he saw considerable objection to it. It was undesirable to let the Government appoint an officer who was practically irremovable, and who, being fully acquainted with all the details of the policy of a Government, might not agree with it, and might from his place in the House oppose it. It appeared to him that there would be considerable practical inconvenience in the appointment of an officer who, he understood, would not go in and out with the Government, but would be irremovable. He should, therefore, vote in favour of the Amendment.


said, he regretted that any misapprehension on the subject should have existed in the mind of his hon. and learned Friend; and if the forms of the House would allow it he should be ready to move that the name of his hon. and learned Friend should be at once struck off the back of the Bill, especially as the speech just delivered had convinced him that even now the hon. and learned Member had not read the Bill, and did not understand its provisions. His anxiety had been to divest this Bill of anything like a party character, and he was therefore desirous to have two Gentlemen on the opposite side of the House to support the Bill. One of those Gentlemen, who, he understood, was favourable to the principle of the Bill, was the hon. Member for East Surrey, and the other his hon. and learned Friend who had just spoken, and whose only doubt, he then believed, was as to the two sections of the statute of Anne. He (Mr. Selwyn) had never thought of creating any new office, but the object of the Bill was merely to remove an exclusion which was not merely an accident, but also an anachronism. The hon. and learned Serjeant (Mr. Serjeant Gaselee), who had moved the rejection of the Bill, seemed to think that he (Mr. Selwyn) had advocated the Bill upon personal considerations, but that he altogether denied, and he would not, therefore, speak of the Gentleman who held the office at the present time. It was plain that this exclusion was merely the result of accident. If there had been any doubt on the subject before, it must have been removed by the statement of one of the Members of the Committee—Sir James Fergusson—who said they did not at all dispute the proposition laid down that if the office were an old one, the transfer of patronage to the Crown did not make it a new office; but that their decision was founded upon the circumstance that the Act required a scheme, and that this office was included in the scheme. When the Act of 1858 was passed the office in question was held by Mr. Loftus Wigram, who at that very time sat in that House as one of the representatives of Cambridge University. That being the case, it was impossible to doubt that the question as to the exclusion from Parliament of the holder of that office must have been present to the minds of the framers of that Act, and of the Legislature which passed it. The members of the Counsel were expressly excluded, but the Standing Counsel was not, and if it had been intended to exclude him the Act would doubtless have declared it. The hon. and learned Serjeant must be singularly ignorant of the position occupied by Mr. Wigram if he supposed that, for the sake of retaining this office, he would ever have resigned his seat for the University of Cambridge. But this exclusion, besides being an accident, was also an anachronism, and a proof of that was to be found in the speech of the hon. and learned Serjeant, who had said that the power of the Crown was increasing, had increased, and ought to be diminished. That statement might be left to answer itself. Lord Macaulay, in a memorable speech on the proposed exclusion from Parliament of the Master of the Rolls, said that nothing could be more unreasonable, or more inconvenient, than the rule which laid down that the holder of an office created since the 25th of October, 1705, should not be a Member. He added— A great jurist seated among us might, without taking any prominent part in the strife between the Ministry and the Opposition, render to his country most valuable service, and earn for himself an imperishable name. Nor was there ever a time when the assistance of such a jurist was more needed, or more likely to be justly appreciated, than at present. But it bad been objected that it would be exceedingly inconvenient to take the opinion on matters of Indian policy of a person who might have been appointed by a Whig Government and who would consequently be in opposition to the Conservative Secretary of State. This objection, however, bad been conclusively answered by Lord Macaulay in the speech which had been already referred to. The truth was that the House would not require from a legal officer an opinion on matters of policy, but simply information as to matters of fact. As an instance of this he might refer to the debate of Wednesday last on the sale of banking shares, when the Solicitor General was asked by an hon. Member opposite as to what were the limits of the liability of partner's who had retired from associations of that kind. So as to the right of adoption question, the Standing Counsel to the Indian Secretary would be asked, not what was his opinion on the policy of adoption, but what was the fact respecting the terms in which treaties were usually drawn up in India. He could not help thinking it would be a very great convenience if there were an officer in the House who could answer questions of that nature, and that consequently the exclusion of the holder of the office was a great disadvantage to the House of Commons. There never was a time when such assistance was more requisite as would be evident if they regarded the increase of trade between this country and India, and the importance of our relations with the Native Princes of that country. On ordinary questions of law, if information were wanted by any Member of the House, an appeal might be made to the Law Advisers of; the Crown; but the questions with which the Counsel for India would have to deal would be of a very difficult and of a special character. Then, as to the inconvenience of such an officer being permanent, and to his being called upon to serve alike under a Whig and a Tory Government, he would point, by way of analogy, to the Counsel to the Admiralty, in which case no such inconvenience had been felt, though the successive holders of that office bad sat in the House for many years. It was true as the hon. and learned Serjeant had said, that there are many barristers who would be glad to accept this office, but the Secretary of State was bound to choose, not amongst the hundreds of briefless barristers, but amongst those who had deserved and obtained professional success; he was bound to look out for a man who could worthily fill the office; and men of that class usually aspired to a seat in the House of Commons, and would therefore decline an office which was subject to such a condition. The choice of the Secretary of State would thus be materially limited, and by insisting on this exclusion a great injury would be inflicted on the public service.


said, he felt it is duty not to allow this Bill to go to a division without expressing his opinion of it, though, for personal reasons with reference to the Gentleman who now held the office, he should do so with regret. He thought that considerable advantage to the public might arise from a careful revision and consideration of the disqualifications introduced by the statute of Queen Anne. There would also be some advantage in the revision of those provisions of the statute of Anne, which made every acceptance of office, even though it involved only a change from one office to another, necessarily lead to a new election. If any hon. Member proposed that the whole of that subject should be referred to a Committee, or if the Government thought fit to refer it to a Commission, considerable public benefit might arise from that course. He certainly should not commit himself to the opinion that the present case, among others, might not be properly dealt with by a change of the law consequent on such an inquiry. But he had a strong impression that it was unfit and inconvenient that a change in the law on that subject should be introduced in the manner now proposed for one particular case. If there was one principle clearer than another it was that a Bill for one particular case should be founded on reasons especially applicable to that particular case, and not on reasons of a general character, tending to the subversion of a law which had been, and still was, acted upon in a great number of other cases. The hon. and learned Members for Dundalk and Sheffield (Sir George Bowyer and Mr. Roebuck) had avowedly based their support of that Bill on a general disapproval, as unsuited to the present time, of the statute of Anne, and all the disqualifications it contained. In their view the right principle was to give an unlimited choice to every constituency, and abolish altogether all such official disqualifications. But there was a multitude of those disqualifications; and the House would hardly allow itself to be drawn into the hasty affirmance of so broad a principle, by so narrow an application of it, as a Bill to except one particular office from the general rule. On that ground, he thought it would be unwise to pass that Bill. But his hon. and learned Friend the Member for the University of Cambridge (Mr. Selwyn) did not rest his advocacy of it on any such general ground; but said that, without interfering with any general principle at all, it might be supported on its own merits. Before the decision of the Committee, he had himself doubted whether the particular appointment in question was an office within the statute at all; but a Committee of most competent persons having come to the conclusion that it was, it must be assumed in the present discussion that their conclusion was right. What, then, were the special reasons urged by his hon. and learned Friend for taking that disqualification out of the general category? His hon. and learned Friend said it was an accident and an anachronism, and that if the attention of Parliament had been called to the case, provision would have been made enabling the Standing Counsel to the Secretary of State for India to sit in that House. But how his hon. and learned Friend was able to divine what would have been the legislation of the House, if a question had been brought before it which never was brought before it, it was difficult to understand. His hon. and learned Friend said that in the very Act of 1858, a clause was introduced to prevent the Members of the Indian Council from sitting in that House; but if they were to adopt his line of reasoning it would lead them to the conclusion not only that the legal advisor of the Secretary of State for India should be eligible for seats in that House, but that the Members of the Indian Council should also be so; for who were more competent to enlighten the House on Indian questions than the members of the Indian Council? But the policy of the statute of Queen Anne was, as to those gentlemen, solemnly re-affirmed at the passing of the Act of 1858. Again, he did not think there would be that kind of advantage which his hon. and learned Friend expected from having the legal adviser of the Minister for India in the House, to be interrogated as to the law of India by all Members who might desire enlightenment on the subject. If the legal adviser of that Minister were to sit there, the one thing he ought not to do was to answer questions of that kind, affecting Indian affairs; for his special duty would be to advise the Government on such subjects; and as the legal adviser of the Government he was a confidential officer. Nothing could be more inconvenient than that he should be interrogated generally by hon. Members. As to the reference which had been made to a recent discussion connected with the succession to the Rajah of Mysore, those who had attended to that class of questions must be aware that there was a great difference of opinion among lawyers as well as statesmen as to the effect of Indian legal documents, especially as to those which might or might not contain words of inheritance; and much inconvenience might easily arise if the legal adviser of the Secretary of State were allowed to be interrogated upon such nice points in that House. The conclusion he came to, therefore, was, that although the presence of that Gentleman in the House, upon other general grounds, might possibly be of advantage, if they allowed the Counsel for the Home Office, and for all the other Departments to sit there also, yet there would be no special advantage in the legal adviser of the Secretary of State for India sitting there to enlighten the House on points of law, in respect to which he had confidentially to advise the Government. Therefore, all the special reasons urged in favour of the Bill failed. He expressed no opinion on the policy of sweeping away all these disqualifications, further than to say that the subject was one which well invited, and might well reward, general revision. But he protested against legislation which prejudiced the principle of a large and important public statute resting on public policy, by taking a particular case out of it without any sound reasons, applicable to that, more than to other cases.


said, that as a Member of the Committee which sat last year and unseated Mr. Forsyth, he might state that the only ground on which that gentleman was unseated was the accidental circumstance that in the Act of 1858 there was a clause requiring the Secretary of State for India to submit a scheme constituting the establishment connected with his office, which fact alone tended to make Mr. Forsyth's office a new one under the Act of Anne. Moreover, the Committee were not unanimous in their decision. This might, therefore, fairly be viewed as a doubtful case which the Bill was introduced to meet. The case of the Members of the Indian Council was not parallel, for they were incapacitated to sit in Parliament by an express clause in the Act; whereas the learned counsel was accidentally disqualified merely because he formed part of the establishment of the Secretary of State. A salary of £500 a year was the sum paid to that gentleman, and if he was to be incapacitated on that account from sitting in the House, the only result would probably be that the Secretary of State would not have a Standing Counsel, but would refer to a person learned in the law for advice as occasion arose. It was absurd to suppose that an eminent counsel would be influenced in political matters in that House by a salary of £500, At the same time, that particular case could not perhaps be wholly dissevered from many others of a similar kind; and he would suggest that the Motion and the Amendment should be withdrawn, and that his hon. and learned Friend (Mr. Selwyn) should consent to refer the subject to a Select Committee to be dealt with on broader and more general grounds.


said, if such was the feeling of the House, he was very willing to accede to it.


said, the policy of the law was entirely against the admission to that House of any persons who were appointed by the chiefs of the public Departments.

Amendment and Motion, by leave, withdrawn.

House adjourned at Eight o'clock.