HC Deb 19 February 1872 vol 209 cc658-762

, in rising to move— That this House has seen with regret the course taken by Her Majesty's Government in carrying out the provisions of the Act of last Session relative to the Judicial Committee of the Privy Council; and is of opinion that the elevation of Sir Robert Collier to the Bench of the Court of Common Pleas for the purpose only of giving him a colourable qualification to be a paid member of the Judicial Committee, and his immediate transfer to the Judicial Committee accordingly, were acts at variance with the spirit and intention of the Statute, and of evil example in the exercise of judicial patronage, said, he wished, first, to thank the right hon. Gentleman at the head of Her Majesty's Government for having given him the opportunity of bringing on this Motion on the present occasion, and he (Mr. Cross) assured him that, had he been more fortunate in securing a place on the first evening of the Session, he should have fixed a Tuesday evening, so as to avoid interfering with the Government Business fixed for to-day. At the outset, he wished to state the exact nature of the charge he had put upon the Paper. It was not his intention to find any fault with the fitness of Sir Robert Collier for a judicial office apart from that to which he had been appointed. Long a Member of that House, and for some time holding high office, by his general courtesy and the way in which he discharged the high duties entrusted to him in that House, he won the esteem and regard of hon. Members on both sides. Although, therefore, it might unfortunately be his duty to make an observation upon one act of his in the course of that transaction, he should endeavour to do so in such a way as would not hurt Sir Robert Collier's feelings or those of any of his Friends here or elsewhere. He also wished it to be understood that, in speaking upon this particular Motion, he had no intention of questioning the actual legality of his appointment to this particular office. Being for all practical purposes a layman, he should never have thought of arguing a question of law with the hon. and learned Gentleman opposite (Sir Roundell Palmer), who had charge of the Amendment to be proposed in opposition to the Motion he was about to make. Whether it would ever be tested at any other time, or whether some parsimonious Chancellor of the Exchequer might ever be tempted to dispute Sir Robert Collier's salary, or the pension to which he would be entitled, founded originally, as it was, solely upon a fortnight's sitting in the Court of Common Pleas, were matters with which, at the present time, neither himself nor the House had anything to do. He would proceed, therefore, to state the exact nature of the charge which he thought might fairly be brought against Her Majesty's Government. The terms of his Motion were, that the acts were— At variance with the spirit and intention of the Statute, and of evil example in the exercise of judicial patronage. He was aware that the words "evasion of the statute" had been treated by some persons of high authority as sensational language, and, therefore, in a very few words, he wished to put a construction upon them which he thought could hardly be mistaken. What he meant was, that when the Bill, which eventually became an Act, and under which Sir Robert Collier was appointed, was introduced, it was represented by the Government to contain, and was believed by the House to contain, certain safeguards as to the class of persons who were to be appointed to that office. The Go- vernment represented those safeguards as contained in the Bill to have, and Parliament believed them to have, a certain meaning and interpretation. During the whole course of the debates in that House the whole matter was argued out on that understanding, and if Parliament had not believed those safeguards to have existed, and to have had that meaning, they would not have passed the Bill in the form in which it was passed. But subsequently, when the Government came to make the appointment in question, they discovered that the words of the clause would bear another interpretation which Parliament had never put upon it, because by that interpretation those safeguards which both Houses believed to exist were practically done away with. The Government, therefore, for all practical purposes, at all events, had committed a sort of breach of faith with Parliament in appointing Sir Robert Collier to his present office. Now, he did not believe that could be termed a sensational way of dealing with the subject. Lord Chief Justice Cockburn, in his letter to the Lord Chancellor, said that though the appointment might be strictly within the words of the Act, yet it was at variance with the intention of the Legislature, and was in that sense an evasion of the statute. That, then, he (Mr. Cross) said, was an act of great indiscretion on the part of Her Majesty's Government. It was a very grave error of judgment. It set an evil example in the exercise of patronage. And if that was so, in spite of the Amendment which the hon. and learned Member for Richmond had put on the Paper, in his humble judgment it deserved the condemnation of this House.

Would the House bear with him for a moment while he endeavoured to recall to their memory the original constitution of the Judicial Committee of the Privy Council. The House must be well aware that the Indian appeals and the Colonial appeals always came before the Privy Council, and that they had, so to speak, original jurisdiction in the matter. In 1832 the duties of the High Court of Delegates in connection with ecclesiastical and maritime affairs was transferred to the Privy Council, which body had then very large functions to perform; and it was thought necessary to provide that instead of the appeals being heard before the Council at large, there should be a Judicial Committee for hearing these matters, and in 1833 an Act was passed, which had very great bearing on the present case. Under that Act it was provided that the Judicial Committee should consist of two classes of persons. In one class there was to be a large body of persons who were from their position, judicial training, and long experience as Judges, set apart to provide the main body of the Judicial Committee of the Privy Council. That body was to consist of the Lord President, the Lord Chancellor, the Lord Chief Justices, and the Judges of the Superior Courts at Westminster, provided they were Privy Councillors, and of those who had occupied the said offices, provided they also were Privy Councillors—that was to say, they were either the very picked men of those who were appointed Judges for the purpose of acting and continuing to act as bonâ fide Judges, or who having long acted as bonâ fide Judges, had retired from office. As to the other class of which the Judicial Committee was composed, the Crown had the power, under that statute, of appointing two other persons who were not expected to have filled those judicial functions, but who for other reasons were fit to sit upon that Bench. For a long series of years that Committee disposed of appeals of great magnitude from all parts of the world, and no other Court in the kingdom had ever had the weight which the sentences and judgments of that Committee had had, which was chiefly owing to the constitution of that Committee, and the long judicial experience of its Members. Their decisions were quoted not only in England, in the Colonies, and in India, but in America also. But by degrees the number of appeals increased so largely that it was found the Court was not able to keep down the number of appeals that were brought before it. The appeals got very largely in arrear, and the appellate jurisdiction, which in his (Mr. Cross's) belief was one of the strongest bonds of union between the Colonies and this country, was likely to fall into discredit owing to the great length of time before colonial appeals were determined. With a view, therefore, to prevent such a probable calamity, it was wisely determined by the Government that they would attempt to afford some remedy for that purpose, and accordingly in 1870 a Bill was brought into the other House of Parliament to alter the constitution of the Judicial Committee, to enable that body to sit more constantly than the late Judicial Committee had been able to sit, and thus to clear off those appeals that had been accumulating for so long a time. He was afraid he would be obliged to trouble the House with the provisions of that Bill, and in doing so he could not but say that he believed the Bill was shaped with an honest desire to form an effective judicial tribunal, but that it failed in consequence of the parsimonious spirit in which it was framed. It provided that there should be added to the Judicial Committee the Chief Justices from India, the Members of the Legal Council of India, and Judges who, having served 15 years on the Bench in England, would be tempted to retire by an addition to their pensions of £1,500 a-year. There was also a provision which contemplated that by giving some compensation to Judges who had only been 10 years on the Bench they might be tempted to retire in the same way. But there was one provision in that Bill which would have vitally altered the constitution of the Judicial Committee. For the first time it was proposed by the Government that they should be allowed to appoint such members of the Bar as, in their discretion, they might think fit to be Members of the Judicial Committee, and to give them such a salary as might induce them to take that office—namely, £2,500 a-year. That was a breaking down of the old constitution of the Judicial Committee, composed, as it formerly had been, of men of tried judicial experience. He must repeat that the Government, actuated simply by reasons of economy, proposed to take from the Bar men whom they thought fit, and to give them a smaller sum than they paid the Judges. How was the proposition received by the House? The House said that they would not give the Government the discretion that they asked. They said that if they did, the tribunal would be turned into a third-rate tribunal, and the right hon. Gentleman the Secretary of State for the Home Department, who had charge of the Bill at the time, was obliged to say, even on the second reading, that it was a proposition which he dared not put before the House; and therefore he withdrew it, because he knew that if it remained in the Bill the measure would not be read a second time. But there were hon. Members who sat opposite to him, who invariably supported the Government, whose observations in the course of the debate on that Bill he should like to place before the House. The first hon. and learned Member to whom he would appeal was one who, judging from the part which he took when the Ballot Bill was before the House last Session, enjoyed the confidence of Her Majesty's Government—he meant the hon. and learned Member for Taunton (Mr. James.) What course that hon. and learned Gentleman might take in this debate, or what views he now held, he would not presume to say; but during the debate on the Bill of 1870 these were the hon. and learned Gentleman's words— With the greatest respect for Mr. Maine, a gentleman whose great learning was admitted, he could not think that the proposal to put among the Judges of the Judicial Committee a gentleman who had had no judicial experience was at all satisfactory."—[3 Hansard, cciii. 1715.] But the hon. and learned Member for Taunton was not alone among the supporters of Her Majesty's Government in that opinion. The hon. and learned Member for Denbigh (Mr. Watkin Williams) said he Entirely objected, as a rule, to appointing men to the highest Court of Appeal who had not proved by service on the Bench that they possessed temper, judgment, discretion, patience, and those judicial qualities which could only be tested by actual experience."—[3 Hansard cciii. 1713.] And although the clause relating to barristers was taken out of the Bill, still the opinion of Parliament was so strongly against it that the Government, having on one of the divisions had only a majority of 2, withdrew that, like other measures of the Home Secretary, at the fag-end of the Session. But, after all, the warning was given to the Government that in any proposition to alter the constitution of the Judicial Committee of the Privy Council Parliament would not give them even the discretion to appoint any man, however fit, unless he had, besides other qualifications, the qualification also of judicial experience. Well, by the Bill introduced the Session following, and which afterwards became law, it was provided that Her Majesty, within 12 months after the passing of the measure, might by Warrant under the Sign Manual appoint four persons qualified as in that Act mentioned—that was to say, they were to be men who at the date of their appointment were or had been Judges of one of Her Majesty's Superior Courts at Westminster, or Chief Justices of one of the High Courts of Judicature in India. Now, could any person, after reading these words, come to any other conclusion than that Parliament meant that the persons to be appointed should be bonâ fide Judges? Under the old Act of William IV. there were, as he had said, two classes which composed the Judicial Committee—the great body of the Members was to consist of Lord Chancellors, Lord Chief Justices, and Judges and ex-Judges, if Privy Councillors; and there were afterwards added Vice Chancellors, Lords Justices, and, with a view to ecclesiastical causes, the Archbishops—men who had been bonâ fide appointed to act as Judges, or having so acted for many years had retired from office; and the other class was to consist of two laymen, so to speak, who might be appointed by the Queen. The present Act was to put the Judges on all fours with the old Act of William IV. No person reading this Act, and comparing it with that of William IV., could ever come to the conclusion that an entirely different thing was intended under the one from that under the other. And was not the sole intention of the Act of last Session not to change the class of Judges, but, by giving salaries, to secure the regular attendance of certain Judges of the same class, of which they otherwise could not be sure? He believed what was meant by Parliament was this—that it would put a restriction upon the choice which Her Majesty might make under the Bill; that the qualification was to be a real qualification—that was to say, it was not to be the status of the man. They were to be "specially qualified." It was not like saying the man was to be a voter, ratepayer, or householder, or, as in the appointment of a magistrate, that he was to have an estate of £100 a-year; but that he should be in such a position that he could not, for the purposes of the appointment at the time, acquire the qualification. What was meant was, that by his knowledge, his learning, his abilities, he should have gained a certain position, and should have acquired experience in that position. He was to have such a position, that the Queen could not put him into it at the time she made the appointment, but he was to have got it independently beforehand. That, he understood, was what was meant in the letters of the Lord Chief Justice of England, and of Lord Chief Justice Bovill. The Lord Chief Justice of England said— Whether wisely or unwisely, it plainly was not intended that the selection should be made from the Bar. It was to be confined to those who were already Judges, and who, in the actual and practical exercise of judicial functions, had acquired and given proof of learning, knowledge, experience,"— Almost following the words used by the hon. and learned Member for Denbigh, in the debate of 1870— And the other qualifications which constitute judicial excellence. And in the language of Chief Justice Bovill— The manifest and expressed intention of the Legislature was, that the new Judges of the Privy Council should be men of tried judicial experience, and that this had been clearly indicated not only by the language of the Statute itself, but by the debates in Parliament. If that were not so, he should like to ask, if the Queen could appoint a practising barrister to the office in the face of the Act which showed that Parliament never intended that she should do so, what was the use of the clause in the Act respecting special qualifications in that case? Why, such clause would, under those circumstances, be mere verbiage or surplusage, without having any practical effect. He would say boldly that not only did Parliament mean that there should be a special qualification, but that when the Bill was brought in, the Government themselves meant it, and had no other intention. What was their language on the occasion? It was, that when the Judicial Committee was constituted, it would be formed with the view of having the assistance of Judges of the Superior Courts who had retired upon pensions, and who would be willing to take upon themselves the duties of Judges, in consideration of certain salaries which were to be given them under the Bill. And what was the language of Sir Robert Collier, himself then Attorney General? He, having charge of the Bill, said that— The provisions of the Bill were very plain and simple, and very much what had been indicated by some hon. Members during the debates of last Session. Why, one of the things indicated by every hon. Member of the House was that no practising barrister should be appointed. The hon. and learned Gentleman went on to say— The appointment being limited to persons who may be assumed to be of high judicial authority, all these four members were to be Judges or ex-Judges. What language could be stronger? Could any one suppose that, after such language, the Government could have meant the Judges referred to were to be created Judges merely for the purpose of passing them on to the Privy Council? He affirmed, then, that when the Government brought in the Bill it was their intention, as well as the intention of Parliament, that the persons to be appointed should be bonâ fide Judges, and he firmly believed that such was the construction put upon it by the Attorney General in this House, and the Lord Chancellor in the other House of Parliament. At all events, they either meant it so or they did not; he had taken the more charitable view, and had supposed that they had so meant it. But if the Government would contend here to-day that such was not their intention, then he feared that he should be obliged to fall back on language which he should be very reluctant to employ, were it not put into his mouth by one who had written strongly on the subject on the side of the Government—he meant Mr. Justice Willes. That learned Judge said— Whether Parliament was surprised into passing the Act by any suppression, for which its framers are answerable, is a political question with which I decline to meddle—Parliament must decide that for itself. He (Mr. Cross) certainly would not have ventured upon these words himself; but if Parliament did not mean what he contended for when it passed the measure, Mr. Justice Willes's language just quoted would be applicable to the conduct of Government. But he contended that, not only Parliament, but the Government intended that the persons to be appointed should be taken from Judges or ex-Judges. The whole subject was, in fact, argued out on that supposition. A question was raised whether Judges would take the office on account of the difficulty of providing for their clerks, or whether a Judge would be content to be a Privy Councillor, from which office he might be removed by the Queen by a stroke of the pen. In snort, in whatever way the question was looked at, it would be seen that Parliament when discussing it never contemplated that the Bill should be applied to any but bonâ fide Judges. It had been said by the Government—and he was astonished to hear of such a defence—that when the Bill was brought into the other House it contained certain safeguards which were struck out in this House. Now, there was no foundation for that statement, for he had compared the Bill as originally introduced, and also as it came down to this House, with the Act which was passed, and he maintained that no safeguard existed in the Bill which was not retained in the Act; neither was any qualification required lessened in the slightest degree. There was no inducement in the Bill to old experienced Judges to retire to the Privy Council which was not in the Act, and there was no inducement to younger and less experienced Judges so to retire in the Act which was not also in the Bill as originally introduced. When the Bill was brought into the House of Lords the Government intended that there should be four paid Members of the Judicial Committee, consisting of two English and two indian Judges; but it was seen that the proposed scale of pay would produce a very unequal division of salary among Members of the Judicial Committee, because the English Judges would receive £5,000 a-year, while Indian Judges, or persons who were not Judges at the time of their appointment, would only receive £1,500 in addition to their pensions; and therefore persons who performed exactly the same work would receive very different salaries. It was felt that this would not be a proper arrangement, and the consequence was, that the House of Commons said—"You shall all have £5,000 a-year, whoever you are, including your pensions." That was the whole alteration made by the House of Commons; the Bill did not contain a single security for the qualifications of the Judges which did not exist in the Act; and the House of Commons had in no way lessened that security. On the contrary, so far as the security was altered at all, it was strengthened, because the House of Commons insisted that the tenure of the paid Members of the Judicial Committee should be such as to induce the older Judges to go upon the Committee, and required that they should be only removable by an Address from both Houses of Parliament, and not merely at the pleasure of the Crown. Again, in the House of Lords, whereas the original proposal was that the Indian Judges might be Puisne Judges, the clause was altered, and the only Indian Judges eligible were Chief Justices. Therefore, Parliament intended not to reduce the qualification, but to add to it, in order to secure the appointment of the best Judges.

That being so, and the Act being passed, what was the conduct of the Government respecting it? They first applied to some noble and learned Lord, who declined the appointment; then to Sir James Colvile, an Indian Chief Justice, who accepted it; and next to two Judges of some note, who refused it on the question of the clerks' fees. Then the Government applied to a third Judge, Sir Montague Smith, who accepted the appointment. Having thus got one Indian and one English Judge, they very wisely determined to adhere to their original plan of having two Indian and two English Judges. They had appointed Sir James Colvile; they had Sir Barnes Peacock in their minds as the other Indian Judge; they only wanted another English Judge; and then Sir Robert Collier stepped upon the stage and said—"I am willing to take the post;" so they made him a Privy Councillor, passed him through the Court of Common Pleas, and then made him a paid Member of the Judicial Committee. These were the facts of the case. [Mr. GLADSTONE: No!] At all events, they were the facts as represented by other Members of the Government. The discovery had been made that the Act would bear a construction differing from that put upon it by Parliament; and Sir Robert Collier was made a Judge of the Court of Common Pleas for the purpose of being passed on to the Judicial Committee. The Lord Chief Justice very properly called that a colourable appointment to the Judgeship. The House would bear in mind that at the moment he so stepped forward Sir Robert Collier was a practising barrister—the very kind of man whom the House of Commons had in 1870 told the Government they should not have the discretion to appoint. Suppose they had appointed all four Judges in the same way, the whole of them passing through the Court of Common Pleas one after the other, like Banquo's ghost—unreal Judges, mere shadows, colourable appointments made for the purpose of giving each of them the requisite technical qualification. If such had been the case, he doubted whether the hon. and learned Gentleman (Sir Roundell Palmer) would have undertaken the defence of the Government. Mr. Justice Willes, in defence of the Government, said they had acted legally. No one doubted that they had done so; but in saying so, Mr. Justice Willes did not carry the case one step farther on that head than if he had never written the letter. He could not help regretting that, as the letter of Mr. Justice Willes had been published at all, the House had not before it the expressions which were thought by Mr. Justice Willes himself "too lively for public reading." The learned Judge, however, said— The practical objection is to the Statute itself for not providing a sufficient inducement to the Judges to accept the office, because of making no provision or compensation for their existing staff. Upon this ground I thought from the beginning that the framers of the Act must have contemplated the appointment of Sir Robert Collier, or some other newly-appointed Judge, in the event of Judges of older standing declining the office. No doubt it was quite open to the Government to have passed over such, and to have appointed junior Judges, though such appointment, if legal, would have been questioned by the profession. But this was an appointment of a totally different kind. Mr. Justice Willes said he always expected that Sir Robert Collier might have been appointed. Now, see how illogical—nay, how absolutely impossible—this is. The number of Judges was limited, for the Queen had no more power to appoint an extra Judge than she had to appoint a whole body of Judges, or remove them from their office. Suppose Sir Montague Smith had not accepted the appointment. At that time there was only one other vacancy—in the Court of Queen's Bench, which the Government had for State reasons steadily declined to fill for two years, in spite of the remonstrances of the Lord Chief Justice, and, therefore, for all practical purposes, that vacancy did not exist. That being so, how could it have been the intention of the Government to appoint Sir Robert Collier? The Bench was then full, and the Government could not have made any practising barrister even a Judge, much less appointed him to a seat on the Judicial Committee, for there was no Judgeship vacant to which he could have been appointed so as to give him even his "special" though colourable qualification. Now, what was the real defence of the Government? It was said that there was great difficulty in getting Judges to accept this office on account of there being no provision made out of the Treasury for their clerks. One word, then, first on the question of the Judges' clerks. The Judges had £5,000 a-year on the understanding that they were to pay the expense of their circuits, which amounted to some £600 a-year. Against this, they had provided for them a clerk at a salary of £600 a-year, who was usually the clerk who had been with them when practising; and besides this, they had an additional clerk at a salary of £400. As the circuit expenses would be done away with, the Judge would gain £600 a-year by going to the Privy Council, so that the only point of difference would be the junior clerk at £400. No doubt the Judges made some remonstrance on this head when the Bill was passing through the House; but it could not be presumed that they were conspiring among themselves to oppose it in its passage, and to frustrate its operation afterwards, and the Government had stated that all that they had tried to do was "to frustrate the frustrators of the law"—namely, the Judges. Much had been said, about condemning persons unheard; but he had heard with the greatest possible regret the words of the noble Duke (the Duke of Argyll) in "another place," when he said—["Order!"] He was quite aware he had no right to refer to the speech; but Sir William Erle, it was reported, had said the other day that care should be taken to prevent technicalities doing injustice, and he did not think that in this instance a technical rule should prevent a protest being entered against the noble Duke's speech, in which he virtually asserted that the Judges of England were practically joined in a conspiracy to defeat the intentions of the law, and on this ground they stepped in and strained the Act of Parliament. The action of the Government, however, had been very consistent, for in another analogous case of an appointment restricted by Act of Parliament, the Rectory of Ewelme was offered to a Cambridge man, who pleaded he was not a member of Convocation at Oxford, as required by the statute in the case provided. "No matter," said the Prime Minister, "go and pay your fees, qualify, and you shall have the Rectory." Sir Robert was offered the seat on the Judicial Committee. He pleads he is not a Privy Councillor. "No matter," said the Prime Minister, "I'll make you a Privy Councillor." Said the Lord Chancellor—"I'll make you a Judge of the Court of Common Pleas." "And when this is done," said the Prime Minister, "I'll step in and make you a Member of the Judicial Committee." But that was all one and the same act. Sir Robert Collier, a practising barrister, was placed on the Judicial Committee of the Privy Council; a proceeding not contemplated by the Legislature; therefore, it was a wrong act. But while saying it was wrong, the only part of the transaction to which he (Mr. Cross) attributed blame to Sir Robert Collier was this—that knowing what was the intention of the Government when the Bill was brought in, and of Parliament in passing it, he should have come forward under the circumstances and have accepted it, he being at the time a practising barrister. He (Mr. Cross) said it was wrong, and the Government knew it was wrong, because they knew at the time there were many men on the Bench whose learning and experience made them eligible for the new appointment, and who were ready to accept it if the Government had offered it to them, and not only the Government but Sir Robert Collier knew it. The hon. and learned Member (Mr. Watkin Williams) stated in 1871, when the Bill was under discussion, that he had had a conversation with the Lord Chief Justice, in which that learned Judge had expressed a doubt whether, having regard to the clerks, the Judges would accept the appointment.


I beg the hon. Member's pardon; I never said anything of the kind. What I stated was a totally different thing, and my objection was removed by the alteration that was made in the Bill.


said, he thought the hon. and learned Member was under a mistake. He stated in the debate that he had heard there were great doubts whether the Judges would really accept the office, and on that he was taken to task by the Attorney General, who said that the statement made to him by the Judges was wholly different; for some of the Common Law Judges had expressed approval of the Bill, and had not intimated to him any objection to taking office under its provisions. That being so, it was idle to say in defence of the appointment that the Judges would not accept it. It was idle to say that in the exercise of their discretion they had appointed a fit man from the Bar when the Act gave them no such discretion. It was idle to say that any other construction of the words of the Act would be injurious to the public service. What really was injurious to the public service was a Government not acting according to the spirit of an Act of Parliament. But the Government of late had not been very happy in the composition or the construction of written documents. Here was an Act of Parliament which did not say what it meant; and a Treaty existed which did not mean what it said; and the mischief of it was, that in the matter of the Act of Parliament the public service was always endangered by the Government failing to keep to the strict letter and spirit of the law. Nor would even such a plea as the necessity of the public service avail them, for one of the objects of the Act was that this Court should sit in November; but it was not until the 22nd of November that Sir Robert Collier was sworn in; and if there had been any difficulty in the matter the Government could, with a little more delay, have come to Parliament and have amended the mistake without this scandal having occurred. He now came to the Amendment of the hon. and learned Member for Richmond, and he must say that the terms of the Amendment were not clearer than those of the Act of Parliament or of the Treaty. It was open to two different constructions, and he was rather curious to know which construction the hon. and learned Gentleman would put upon it. The hon. and learned Gentleman moved—"that this House finds no just cause for a Parliamentary censure." Did that mean that this was rather a grave matter, that the Government ought not to have done it, but that it was not a case for Parliament to interfere? If that were the meaning of it, the hon. and learned Gentleman should rather have moved the Previous Question. If not, then he (Mr. Cross) had to fall back upon the words of the right hon. Gentleman at the head of Her Majesty's Government at the commencement of the Session, when he blamed him (Mr. Cross) for introducing such a serious question on the Motion for going into Supply, but that it was a Motion that, if made, should meet with a direct negative. [Mr. GLADSTONE: Those were not my words.] The right hon. Gentleman declared that the Government could not sit under such a censure, and that the earlier it came before the House the better. What he (Mr. Cross) meant was, that the Government accepted the Motion of Sir Roundell Palmer, not as the Previous Question, but for Parliament to decide whether that was a question for Parliamentary censure or not—that was, whether the Government had acted in good faith in passing that Act, and in afterwards giving effect to it. He had not taken up the matter on mere technical grounds, but to protest in the name of the public that when a difficulty occurred in working an Act of Parliament—which he denied was the case in the present instance—that it was not for the Government to step in and set aside the known and perfectly well understood meaning of Parliament, because the words would bear a different though strained interpretation which would suit the purposes of the Government better. If the Government, after they had made the mistake, had come to Parliament and acknowledged it, and said they were sorry for it, and that it should not be drawn into a precedent, Parliament would not have had a word to say against it, but would have accepted the apology. But if, on the other hand, in spite of public opinion, they still persisted in the belief that they were right, then the English people, who had a somewhat ugly and determined manner of putting two and two together, and insisting that they make four, would say that the same spirit which dictated the strain of the Royal Prerogative to overcome an obstacle, in a manner that it had not been strained for many generations before, had again been exercised in setting aside the words and intentions of an Act of Parliament, and de- pend upon it, the English people love not the exercise of arbitrary power.


, in seconding the Motion of the hon. Member for Southwest Lancashire (Mr. Cross), said, he wished to deal with that grave question in a practical and common-sense way. After what occurred in the House last Session in reference to that Act, the Government were the last persons who should take advantage of any technical construction of its language, and he thought it was their duty in bringing forward a measure dealing with the highest Appellate Court in the kingdom to have taken care that its clauses should be so framed as to be capable of bearing only the simple and ordinary interpretation of the language employed in them. The appointment of Sir Robert Collier, if not absolutely illegal, was illusory, and not borne out by the plain meaning of the Act. The Act first gave power to the Crown to appoint four paid officers to the Judicial Committee of Privy Council, and the next clause said they must be specially qualified by having been at the date of their appointment, Judges of the Superior Courts at Westminster. It was impossible to say that Sir Robert Collier, not having been a Judge at the time, could have been contemplated as eligible at the passing of the Act, because the qualification it specified was limited to Judges in existence or who retired. If that Motion were rejected, and the Amendment of the hon. and learned Member for Richmond (Sir Roundell Palmer) adopted, let them consider what a precedent would be laid down. It was nothing less than a return, under cover of a hollow form, to the old dispensing power of which they had all hoped they had got rid for ever many generations ago. The appointment of Privy Councillors by the Crown required no patent or grant. On the simple nomination of the Sovereign, and on taking the oaths, a man immediately became a Privy Councillor. There was no subject on which the House of Commons had long shown more jealousy than that of appointments to the Judicial Committee, which was a high Appellate Court; indeed, that constitutional feeling had been evinced from the time of Henry V. downwards. Therefore, if the Government intended to exercise the old dispensing power to get rid of an Act of Parliament by a mere shuffle or trans- formation scene in the Court of Common Pleas, the Judicial Committee of the Privy Council was the very last subject on which they should have made their experiment. There ought to be, and must be, some check on the Executive authority acting contrary to the spirit and intention of legislative enactments. In the 15th and 16th of Her present Majesty, an Act was passed fixing the salaries of the Chief Clerks of the Court of Chancery at £1,200 per annum, with power to increase them to £1,500, after a specified period of service, and subject to a certificate from the Judge that the duties had been properly performed. An Act was subsequently passed authorizing the increase to be made in the amount of the salary at the end of a probationary term of three years, but still requiring the Judge's certificate. When the Public Accounts Committee sat, the matter was brought before them by the Controller, who stated that, notwithstanding the statute, the Lord Chancellor had thought proper to increase to the full sum the salary of an individual obtaining the office immediately on his being appointed. In that case the answer of the Lord Chancellor was similar to that given in the present case—namely, that a fit man could not be obtained to fill the office for £1,200 per annum. He merely referred to this circumstance as an illustration of the necessity that existed for compelling the Executive Government to keep within the terms of statutes, and of not permitting them to override them at their discretion. If the Executive Government found that the statute was not properly framed, they should come to Parliament and get it altered to suit the circumstances of the case. In the present instance, the Government had withdrawn their original proposition of throwing open these appointments to practising barristers, and had required, as a qualification for the office, that the person appointed should be a Judge. If it was the impression of the Government that it was the intention of the House that Judges only were to obtain these appointments, they should have taker care to have had the Act so framed as to have prevented the possibility of putting such an interpretation upon the Act as they now sought to put upon it He was very far from endeavouring to depreciate the merits of the late Attor- ney General; but whatever those merits might be, they did not give him the qualification rendered necessary by the Act for this appointment. He would for a moment bring under the notice of the House the expressions contained in the letter of Mr. Justice Willes to the Lord Chancellor, who alone had sought to shield the Government beneath its mantle, for in his opinion it seemed that if some of the paragraphs were transposed, they would appear rather inconsistent. For instance, while in Paragraph 4 of his letter, Mr. Justice Willes said that he much regretted that the Judge's opinions should be advertised, he states in the first that he had no objection to the Lord Chancellor stating or reading anywhere his views on the appointment of Sir Robert Collier. The Lord Chief Justice had very properly pointed out that the general impression was that Sir Robert Collier's appointment to the Court of Common Pleas was not a substantive one, but had been made with ulterior views, and had prayed that the threatened scandal might be avoided. Had not the result proved that the Lord Chief Justice was right in the opinion he had formed on the subject—an opinion that had received the support of newspapers of all shades of politics? His (Mr. Goldney's) contention was that if Parliament allowed the Executive Government to put their own construction upon Acts of Parliament, and to justify their acts upon the grounds of expediency, Parliamentary Government would be at an end. The Executive Government ought either to carry out Acts of Parliament in their integrity, or else they ought to come to Parliament in order to have them altered. When Sir Robert Collier was raised to the Judicial Committee of the Privy Council he was a mere paper Judge, and his appointment was a distinct violation of the spirit of the Act, and fully justified the language of the Motion. Doubtless, the Amendment of the hon. and learned Member for Richmond was framed so as to catch the votes of those who, while wishing to express the strongest opinion upon the conduct of the Government upon this matter, were afraid to turn them out of office at the present critical juncture of affairs; but the hon. and learned Gentleman was too wise to ask the House to declare that the Government were right in the course they pursued with reference to this subject.

Motion made, and Question proposed, That this House has seen with regret the course taken by Her Majesty's Government in carrying out the provisions of the Act of last Session relative to the Judicial Committee of the Privy Council; and is of opinion that the elevation of Sir Robert Collier to the Bench of the Court of Common Pleas for the purpose only of giving him a colourable qualification to be a paid member of the Judicial Committee, and his immediate transfer to the Judicial Committee accordingly, were acts at variance with the spirit and intention of the Statute, and of evil example in the exercise of judicial patronage."—(Mr. Cross.)


, in rising to move as an Amendment to the Motion of the hon. Member for South-west Lancashire (Mr. Cross)— That this House finds no just cause for a Parliamentary censure on the conduct of the Government in the recent appointments of Sir Robert Porrett Collier to a Judgeship of the Common Pleas, and to the Judicial Committee of the Privy Council, said: Sir, the hon. Member has discharged the duty which he has undertaken in a manner to which no just exception can be taken. Allowing, of course, legitimate range of argument to anyone adopting the views which he has submitted to the House, he has spoken with temper, with fairness, and with a reasonable degree of moderation. I will, in that respect, try to imitate his example; and as the House must be sensible that such a Motion as this invites it to discharge a duty which ought to be in some measure judicial, I think I shall not ask in vain for a patient hearing while I endeavour to explain the reasons for my Amendment, in a manner which I undertake to say shall be as dispassionate as possible. First of all, I will say one word as to the criticism passed upon the language of the Amendment. I should have thought that no words could well be plainer—"That this House finds no just cause for a Parliamentary censure." The reason I say that is, that we are asked to pass a Parliamentary censure and nothing else and we have nothing whatever to dc with anything but the question before us, which is whether a Parliamentary censure—and a very grave and serious one too—shall be passed upon the Government. It appears to me that if it were really just to say that the qualification is a colourable one, and that the acts done are, in the proper sense of the words, at variance with the spirit and intention of the statute; and if the House were to put that censure on record, it would be a very grave, and most assuredly it would be a Parliamentary censure. Surely, then, there cannot be a more direct mode of meeting the Motion, than to express an opinion that there is no just cause for such a censure. I shall take the liberty of stating what I think would be just cause for a Parliamentary censure in a case of this kind, and I shall admit that if some of the things which the hon. Gentleman imputes to the Government were established, they would furnish just cause for such a censure. I think that if the Government had violated an Act of Parliament in its substance or letter; if they had broken faith with Parliament and violated a public engagement with the country; if they had improperly exercised legal powers for some purpose, which, having regard to all the circumstances of the case, was a wrong purpose, or if they had appointed an unfit and incompetent person, which is not alleged—in any of these cases, there might have been sufficient grounds for a Parliamentary censure. But if, on the contrary, the Government have broken no Act of Parliament in its terms or substance; if they have violated no engagement with Parliament or the country; if they have acted with proper motives and an honest intention to effectuate the objects for which Parliament has legislated; and if it be admitted they have appointed a gentleman who is neither unworthy nor incompetent, then I venture to say there is no cause for a Parliamentary censure. Whether the hon. Gentleman, or I, or anyone else, may think there has been what he calls an indiscretion or error in judgment; whether I, or anybody else, may or may not have formed a different conception of the spirit of this Act and of this qualification, as distinct from its substance and legal obligation, is not the question. The hon. Member thinks that, if the votes of the House could be taken by ballot, there would be very few who would not say that the qualification had something to do with judicial experience. I frankly admit that I myself, while the Bill was passing through Parliament, and afterwards, was in the habit of associating this qualification in my own mind with judicial experience. I will even go further. Not having been present during the debates, and not having carefully studied the language of the Act of Parliament, when the arrangement was first announced, I certainly own that it seemed to me a serious question whether it would be found consistent with the Act of Parliament; but I must add that when it is proposed to pass a Parliamentary censure upon the Government for having made an appointment under an Act of Parliament in the discharge of their public duty, I hold myself bound to be extremely careful that I do not act upon my own private ideas of the substance and intentions of an Act of Parliament, and make it the standard of the public duty and public responsibility of other men, which I did not share. I must bring my own ideas, as well as the conduct of the Government, to the test of the law; and I quite admit that if their conduct, tried by the test of law, is found to be against law, it may be just ground for a Parliamentary censure. Now, I must say I find some difficulty in dealing with the manner in which the case is presented to the House, when I compare the language of the Motion with the grounds upon which it has been supported. The hon. Member has adopted, from a source entitled to the greatest respect and attention, a very serious and important ground—namely, that the appointment was at variance with the spirit and intention of the statute. He has also cited the language of Lord Justice Bovill— That the manifest and expressed intention of the Legislature was, that the new Judges of the Privy Council should be men of tried judicial experience, and that this had been clearly indicated not only by the language of the statute itself, but by the debates in Parliament. Now, reserving to a later stage the question, what was indicated by the debates in Parliament, I ask the House to observe that this eminent and distinguised Judge speaks of the manifest and expressed intention of the Legislature, and holds that intention to have been clearly indicated by the language of the statute itself. I certainly should not have expected that anyone adopting that ground for a censure conceived in the terms of this Motion would have started by admitting the legality of the appointment; for I have no hesitation in saying that, if those views are correct, the appointment was not only improper, but illegal. It is material to examine that question, in order to see whether there has been a violation in substance, and in fact, of the law. I do not say that everything which is within the law is necessarily right, and I shall not omit to examine those views of the case which may be presented in support of the Motion, consistently with an acknowledgment that the law has not been broken. But the assumption that it is within the law will be found, I think, to get rid, at least, of those words "acts at variance with the spirit and intention of the statute;" certainly it meets a great part of the objection of Chief Justice Bovill, whose authority would naturally have great weight with many persons, as, indeed, it would with me. There is an end to that portion of the case if one sees that it is an error; and not only has the hon. Gentleman declined to argue the question of the legality of the appointment, but he has done wisely in so declining; for in truth that ground of objecting to it is incapable of being supported. Now, with regard to the expressed intention, I look at the statute. Do I find anything whatever about men of tried judicial experience expressed in the statute as Chief Justice Bovill suggests? Not a syllable. I find simply that the Crown may appoint anyone who is specially qualified in certain ways; and I agree with the hon. Gentleman opposite that a special qualification is in terms required by the statute. We have two modes of qualification expressed in the Act. There is an Indian qualification, as to which I shall have something to say by-and-by, and there is an English qualification. The latter is, that a man either must be at the date of his appointmont, or have been, a Judge of one of the Superior Courts, as those words are interpreted in the Act. If he was a Judge for any length of time whatever, longer or shorter, he was manifestly qualified under the Act. ["Oh, oh!"] No one, I think, on reflection, can seriously dispute it. No one, I imagine, would have raised the question of the qualification being, at all events, a real and not a colourable one, if, for instance, the Vice Chancellor last appointed—not appointed with a view to his being transferred, although appointed within a very few months—had been transferred to the Judicial Committee. It is a perfectly distinct question whether an appointment which would otherwise be right is made wrong by the fact of the qualifying office having been conferred with a preconceived intention, and to that point it is necessary to pay great attention; but, for the just appreciation of that question, it is important to observe that no test of tried judicial experience is embodied in the Act, and it must have been purposely omitted. The judicial status is the test of fitness embodied in the Act; that, and nothing but that, is the special qualification under the Act, and if a man was a Judge when he was appointed he had the statutory qualification. I must go on to ask whether there is any ground for holding that, although it is not expressed in the words of the Act, he should be a man of judicial experience beyond the mere fact of his actually being a Judge. When we come to inquire into the spirit and intention of a statute, we first consider what was the cause of passing the Act—what was the mischief to be cured. The cause of passing this Act was not any mischief which had happened from not having men of judicial experience upon the Judicial Committee, or from the presence on that Committee of men without that qualification. It was the very great and special pressure of important business that made it necessary to apply a remedy. Of course, it might be a good way to get men of the highest judicial experience; but the nature of the mischief does not make that necessary, or lead to the conclusion that such must have been the intention of the Act. I should like here to refer to what was said in the discussions of the year 1870 by my hon. and learned Friend the Member for Denbigh (Mr. Watkin Williams), who is reported to have said it never could be satisfactory to have as members of an appellate tribunal men not already tried and tested in important judicial situations. Now, of that opinion I must say, with all respect for my hon. and learned Friend, that it cannot be supposed to be the foundation of this statute, and for this very plain reason, that it has never hitherto been the practice to require such a previous trial, either for the same or for other important appellate situations. Take the history of this appellate tribunal itself. I do not think the hon. Member opposite has reflected that the argument from the former statute of William IV.—which I agree with him was in pari materiâ—would recoil upon him when well considered. I agree that the special class of persons who, under the Act of last Session, have the English qualification for the new appointments, is the very same who, under the Act of William IV., and the Acts amending it, are ipso facto Members of the Judicial Committee, though not paid; and if I am asked for what reason the special qualification should be exactly what it is, I answer that the reason was to enable the Sovereign, out of the number of those who were already unpaid Members of the Judicial Committee, to make such as she should think fit—not exceeding four—paid Members. Therefore, this statute does not make judicial experience more necessary than it was under the former statutes, though I agree with the hon. Member it makes it quite as necessary as it was under the former. But was it necessary under the former statutes? Why, the moment a man was appointed to a Judgeship, if he were a Member of the Privy Council, he, under these statutes, took his seat upon the Judicial Committee. That is a thing which has happened over and over again. It happened with all the Vice Chancellors ill the year 1852, for down to that time every one of them was always made a Privy Councillor on the occasion of his appointment. When Vice Chancellor Knight-Bruce, when Vice Chancellor Wigram, when Vice Chancellor Turner, when Vice Chancellor Lord Cranworth were appointed, each of them was sworn of the Privy Council on the day of his appointment, and immediately took his seat upon the Judicial Committee of the Privy Council. And were they found, for a want of a previous test of judicial experience, to be inefficient Members? Why, these wore the men who, with Lord Kingsdown—who also had 10 judicial experience when he was made a Member of the Judicial Committee—made the reputation of the Judicial Committee. It is, therefore, utterly impossible to say that the practice under he previous law would have suggested it to be wrong to place a man on the tribunal of the Committee the moment he was made a Judge. But was that practice confined to the constitution of the Judicial Committee under the original law? I should like to know who it was that first made an Attorney General, direct from the Bar, Lord Justice of Appeal in the Court of Chancery—an office which down to that day had been filled only by men of tried judicial experience? I agree that under the Act of Parliament constituting the Lords Justices, no one could have contended that such experience was necessary. Why, the very first appointment which was made direct from the Bar to the Court of Appeal in Chancery—and it was one of the very best appointments ever made to that office—was the appointment of Lord Cairns. Sir John Rolt and Sir Charles Selwyn were also appointed Judges of Appeal in Chancery direct from the Bar. They conferred honour on those who appointed them, and they discharged the duties of their position in an admirable manner. They were all appointed by hon. Gentlemen opposite. And since that time another appointment of an Appellate Judge in Chancery—that of Lord Justice Mellish—has been made direct from the Bar. Of course, it does not at all follow because those appointments were right that this appointment is right; but you cannot possibly assume that it was an unreasonable thing to suppose that a man might be meant to be qualified who had not been tried by judicial experience. The same thing might have happened with respect to the Common Law Bench. The right hon. and much esteemed Recorder of London, who is now absent in the service of his country, is a Member of the Privy Council, and if it should please Her Majesty to appoint him a Judge—and no man is more fit for the office—and if he should accept the appointment, he would instantly, without any experience except such as he has had in the office of Recorder of London, be qualified to be a Member of the Judicial Committee of the Privy Council Mr. Stuart Wortley was also a Member of the Privy Council when at the Bar He afterwards filled the office of Solicitor General. If he had been appointed a Judge, he would instantly have become a Member of the Judicial Committee. It is quite evident, therefore, that the argument for tried judicial experience as a qualification, which must be implied in the interpretation of the Act, entirely fails. It cannot be drawn from the nature of the case; it cannot be drawn from the nature of the qualification per se; it cannot be drawn from anything whatever in the language of the Act. Well, having established these propositions, as I think I have, I now come to deal with the language of this Resolution about "acts at variance with the spirit and intention of the statute." These are the words of a man to whom I cannot refer without taking the opportunity of expressing my highest respect both for his person and for his public character and services. No word, I hope, will fall from me, and, I trust, no word will fall from anyone in this House, which does not in every way acknowledge the distinguished services of Lord Chief Justice Cockburn. What may have been said elsewhere, with respect to anything written by him, cannot possibly have been said with the intention of being understood in a sense inconsistent with the consideration due to his office and his services. But not even the greatest men are infallible, and if I have given good reasons for saying that the appointment of Sir Robert Collier was not contrary to the proper construction of the Act, I think I can give even stronger reasons why we should not permit ourselves to get beyond the statute by talking about spirit and intention for the purpose of such a censure as is now proposed. This is a very grave and very serious matter, and, to use the language of the hon. Gentleman opposite, I think it would be of very evil example if the House were to permit itself to act upon notions and ideas which the statute does not justify in order to condemn Ministers for acts honestly done in the exercise of their judicial patronage. Of course, there may be other reasons for condemning them, but not that. Nothing is better settled than that a statute is to be expounded not according to the letter, but according to the meaning and spirit of it. What is within the true meaning and spirit of the statute is as much law as what is within the very letter of it, and that which is not within the meaning and spirit, though it seems to be within the letter, is not the law and is not the statute. That effect should be given to the object, spirit, and meaning of a statute is a rule of legal construction; but the object, spirit, and meaning must be collected from the words used in the statute. It must be such an intention as the Legislature has used fit words to express. We sometimes appeal to American writers on these subjects and Mr. Justice Story says— Although the spirit of an instrument is to be regarded no less than its letter, yet the spirit is to be collected from the letter. It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words expressly provide shall be exempted from their operation. But I need not quote American authorities. Our own House of Lords gave a judgment some years ago, in which the same thing was said— The intention of the Legislature must be ascertained from the words of a statute, and not from any general inference to be drawn from the nature of the objects dealt with. Suffer me to read another sentence containing the words of Lord Cranworth— Whenever you can find that anything done is substantially that which was prohibited, it is perfectly open to a Court to say that it is void, not because it comes within the spirit of the statute, or tends to effect the object which the statute meant to prohibit, but because, by reason of the true construction of the statute, it is the thing, or one of the things, actually prohibited. And that introduces what was said by Lord Brougham— When the Legislature has confined itself to one specific mode of accomplishing its purpose, and carrying into effect the intention with which it made an enactment, we are not to go further and look at the presumed intention of the Legislature and add enactments which the Legislature never made—provisions beyond what the Legislature has made, for the purpose of completing that which it left incomplete, and supplying what it left defective. Now, not only is that law, but I venture to say that in the whole law of this country there is nothing more important, nothing more constitutional than this; for if for a single moment these rules were departed from by the Courts, they would be usurping our functions, they would become the Legislature; and if this or the other House of Parliament, each in its separate capacity, takes upon itself to say that something is the spirit, the meaning, the intention of Parliament, then that House is taking upon itself to alter the law. Our liberties, our rights, depend as much upon this principle as upon any other, that in construing Acts of Parliament you look to what you find there, not to what you imagine was meant, or ought to be there. I wish to argue this question with perfect fairness, and I do not mean to say there is no force in any of the arguments used on the other side, be- cause if I said so, I should not be stating my candid opinion. The part of the case most open to difference of opinion and argument is that which relates to the making of the two appointments simultaneously. Now, if this thing were done wantonly, maliciously, or without a bonâ fide view to serve the public, or, if it were done over and over and over again, as the hon. Gentleman suggested, I should not stand here to defend it. But that is an issue distinct from the question of legality; and we have not yet got out of the question whether this appointment was within the legal power of the Crown according to the spirit, as well as according to the letter, of the statute. Upon that point, I cannot help saying that this objection to the accumulation of the two appointments is a substantial one, if you grant either of these two things—that the man was unfit for the first place to which he was named—the Judgeship in the Court of Common Pleas—or, what I have endeavoured to show is not the case, that, according to the true intention of the Act, judicial experience was necessary. The objection would be a substantial one in either of these views. But I do protest that I think it the most technical objection in the world if Sir Robert Collier was fit to be a Judge of the Common Pleas, and if judicial experience was not necessary. Now let me suppose, that instead of its being the vacancy created at the time and in the way it was, the place of Chief Justice of the Common Pleas had been vacant—the particular post to which the Attorney General is supposed to have a right. Some hon. Gentlemen imagine he has a right to everything. I do not know whether my hon. and learned Friend the Attorney General is now in the House, but I have filled the office, and I do not admit that doctrine. It seems to me going far enough to say there is one great office to which the Attorney General is said to have a claim of right. When I was Attorney General, Lord Wensleydale gave me friendly warning that if the place of Chief Baron became vacant I should not be entitled to claim it; all that I could have claimed would be the place of Chief Justice of the Common Pleas. Well, suppose the Chief Justiceship of the Common Pleas to be vacant, and that Sir Robert Collier—which is not a very violent supposition— might have preferred serving on the Judicial Committee, would it have been wrong if, taking the particular place to which by usage he was entitled, and for which he was admitted to be fit, he was transferred immediately afterwards to the Judicial Committee? And yet it is all the same, except in this instance he accepted the lower place. I do say, then, that legality is an answer to technicality. If the thing were illegal, it would be no answer; and if Sir Robert Collier was not a fit and proper person to be a Judge of the Court of Common Pleas I would give the case up. If, however, he was fit—and everybody said he was—the transfer is not made wrong in substance, because, for reasons not in themselves improper, both appointments were, in substance, accomplished together. I heard not very long ago a most metaphysical view of the subject suggested. It was asked, by perhaps the most ingenious mind that could be brought to grapple with the question—"When is it that the choice is to be made?" The answer is—"Why; when you choose; and, of course, if the man is not qualified when you choose you are choosing an unqualified man." That was an ingenious and subtle speculation, and it was added that the rest was all wax and parchment, Yet, for all that, such are the laws we are living under, it is wax and parchment that make the deed. Until I put my seal to the deed, it is no deed however long a time I may have taken in instructing my attorneys. And by the same reason, until Her Majesty's Letters Patent had the Great Seal impressed upon them in favour of a particular person, it was no matter how much or how long the Sovereign had entertained or expressed her intention of honouring him. On the same footing, my right hon. Friend the Home Secretary was not a Privy Councillor in 1856, when he accepted the office of Vice President of the Privy Council on Education, and when, on the ground of that acceptance, this House ordered a new Writ for Merthyr Tydvil. The real truth is, the law does recognize the appointment as only made complete by certain things, and it does not prohibit those who have the duty of conferring the appointments from making their arrangements beforehand; and it is not accurate in any substantial or legal sense whatever to say, that you may not select for a particular place for which you can qualify him, a man fit for the place and fit for the qualification, before he has got it. To say anything else is simply begging the question. The question is a question of substance, and you cannot substitute these cobwebs and refinements for the substance of the case. The real question is—Had Her Majesty power to make Sir Robert Collier a Judge of the Common Pleas? Yes; she had. Was he fit? Yes; he was. Did Her Majesty make him a Judge of the Common Pleas? Yes; she did. When Judge of the Common Pleas was he qualified to go the Privy Council? Yes; he was. Therefore I say, if it is not denied that he was a fit person for that, the whole process was substantially right, because the end aimed at was right and the means used were legal. Now, I must deal with some false analogies not dwelt upon by the hon. Member for South-west Lancashire, who, I believe not being a lawyer—I wish he were, for I am sure he would do honour to the profession—was too wise to venture upon the dangerous ground of the doctrine of powers. I am not going to fatigue the House by discussing the equitable or legal doctrine of powers, but before I say the few words on the subject which I shall say for the sake of dissipating fancies and removing mistakes, I will premise that I lay no stress on any such analogies, for they may be very likely to mislead in matters of this high nature. But if the argument is good for anything, it tells against those who use it. The doctrine of powers and of frauds upon powers stands thus—If there be a power given by a deed to make an appointment for a particular purpose, and out of a particular class of persons, it is held to be a fraud in the appointment if there be any bargain, or any arrangement or motive, foreign to the purpose for which the power was given. But where are you to look for all the elements of the question? Where do you find the purpose for which the powers were given? Why, in the instrument which created the power, and nowhere else. You look into the deed, and if you find there that the thing done was done for some other purpose than that expressed in the deed, it is a fraud upon the power; but if the end and object are authorized, and the means are legal, there is no such fraud. I pass now from the legal branch of the argument and come to the grave and serious charge—made not with any aggravation of language, but not the less serious on that account—the charge that the Government has broken faith with Parliament and the public, and has not fulfilled the engagements they had entered into with this House. Now, if I found that that was so, I could not deny the propriety of the censure proposed by the hon. Gentleman; but I think there is no foundation for such a statement. I was not present during the debates on this subject, but I have looked at the usual records of what occurred, and they do not bear out the statement that there has been any violation of engagements by the Government. Reference has been made to the Bill and the debates of 1870, and to the proposal then made that barristers should be eligible for the Judicial Committee. But what sort of barristers were they? Barristers with small salaries. I do not know whether the salaries which were then offered were much greater than the salaries of County Court Judges; but they were certainly very much below those of the Judges in Westminster Hall; therefore such salaries would necessarily have brought into the Judicial Committee barristers of a lower grade than those from whom the Judges in Westminster Hall are selected; and objections were justly made to the Bill on that ground. Sir H. S. Maine was objected to as not having judicial experience, and the criticism was true as to him in a sense in which it is not true of Sir Robert Collier, for Sir H. S. Maine had no experience at the Bar, as well as no judicial experience. I protest, therefore, against censuring the Government for this appointment in 1872, because Parliament declined a proposal which would have led to the appointment of barristers without a judicial status, and upon terms not ensuring fitness for the same judicial status which is enjoyed by the Judges of the Superior Courts of Law and Equity in 1870. What occurred in 1871? There were three debates in the Lords on this subject, and in this House there was only one. In the Lords it was proposed to give small salaries in addition to the retiring pensions, so as, in the case of English Judges, to bring the pay up to £5,000 a-year. Such a provision manifestly tended to confine the choice to Judges who were disposed to retire upon pensions, otherwise no Judge would have received an amount anything like equal to his present pay. Upon the Report, however, the Lord Chancellor introduced an Amendment giving £5,000 a-year to all the paid Members of the Judicial Committee. The Bill left the House of Lords with a salary of £5,000. [Mr. ASSHETON CROSS: No, no!] We know there are mysteries about Money Bills; but I have read the debates in the House of Lords, and it was agreed to give salaries of £5,000. Whether I am correct or not in that is not essential; but not one word was then said upon the mode in which the choice should be made with reference to judicial experience, nor can I find that anything was said about it here. It is true that the then Attorney General, Sir Robert Collier, said that the persons who might be appointed were persons who might be assumed to be of high judicial authority, and to be qualified to become members of any supreme tribunal, however constituted. But that remark had reference to the presumable fitness of any man who would be appointed to these high posts, and would only justify censure of the Government for promoting a person who was not fit. It is not reasonable to infer from this statement anything inconsistent with the course actually taken by the Government. In fact, I cannot find in the proceedings of Parliament anything which can fairly be represented as an engagement of the kind which the hon. Gentleman thinks he discovers in the debates of Parliament, and which, undoubtedly, Sir William Bovill thought he found there. It seems to me that if the Government understood the Bill as requiring the judicial status and yet not making judicial experience indispensable, they said nothing whatever to the House inconsistent with that understanding. Putting aside these two points, I come now to consider whether the thing itself, assuming it to have been within the law, was a proper or improper thing, having regard to the circumstances under which the Government did it, and their reasons for doing it. The House will understand that when I use the words proper or improper, I mean proper or improper in a sense pertinent to Parliamentary censure. I do not propose to enter into the discussion of any question short of that, as to whether a man may think it is or is not the wisest act which could have been done. That is a wholly different matter, and when I inquire whether it is improper, I mean, whatever degree of impropriety may attach to it; for I must say that I should not think myself warranted on any grounds I can at present discover in pronouncing any censure at all, still less the more severe penalty of a Parliamentary censure. For an illustration of what I mean, I will refer to the case of the Indian qualification. It has not been noticed in this debate, but the Lord Chief Justice paid attention to it in his letter. Now, I must say candidly that I cannot agree with those who think it would have been a proper thing to have appointed a person to be a Judge in India, who was never meant to act as an Indian Judge, but was merely so appointed for the purpose of giving him a qualification for a seat in the Judicial Committee. That appears to me to be quite another matter, for the Indian qualification is a new one, and must be looked at with reference to Indian reasons and Indian exigencies. The persons to be appointed are Chief Judges only, and I think it would have been improper, though it might have been legal, to appoint to the Judicial Committee any person who was not really and truly such an Indian Chief Judge as to be in that respect a fit representative in the Judicial Committee of the Indian judicature. Such a case, from the novelty of the qualification specified in the Act, and the fact of India being specially mentioned, seems to me to rest on different grounds from that with which we are dealing now. Even in this case the thing done would have been extremely wrong if it had been done with reference to any object except the object of the Act, and it would have been equally wrong if the Government had acted contrary to their own views of their obligations under the Act, or their obligations under any engagement given to Parliament. If they had done so, I could by no means deny that they would have deserved censure; but it seems clear that the sole motive of the Government was to fill up this judicial office honestly and sincerely, and whether they made a mistake or not, they believed that they were right in acting in such a manner that the object of the Act might be accomplished, and the arrears before the Judicial Committee disposed of. The hon. Gentleman said the Government knew it was wrong; but the Government have never told us so. I do not expect that they will tell us so, and I do not believe that they did know or consider it wrong. I believe that, whether the Government made a mistake in this matter or not, they acted with a bonâ fide belief that the thing they did was authorized by the letter and by the spirit of the law, and was, under all the circumstances, the best mode of accomplishing the object desired. They did not lose sight of the desirableness of securing judicial experience, though they did not think judicial experience indispensable. They made four applications to eminent Judges, and of those applications only one succeeded. We understand that in the next place they desired to obtain the services of two other eminent Judges, but they had reason to believe that those applications would have proved unsuccessful. It is said that another Judge was willing to accept the appointment. No doubt he might have been a very fit man; but I cannot think the Government were censurable, because having desired to select certain Judges, being unable to obtain their assent, and being uncertain how a similar application to other Judges might be received, they did not run through the whole Bench, or even offer the appointment to a particular Judge who, perhaps, might be thought so useful in his own Court that it would be undesirable to remove him from it. Above all things, I wish to avoid any allusions which might be directly or indirectly personal; but I will venture to mention, for illustration's sake only, the name of Sir Robert Phillimore. I do not know whether the offer was made to him, or whether he was inclined to accept it. But there might be a very good reason for not making the offer to him, for with his special knowledge of the Admiralty Court it might not be the easiest thing in the world to replace him there. I cannot, therefore, think that the Government were bound to make the offer to Judges who might be eminently useful in their own Courts, if they thought that, on the whole, another course was open to them equally for the public advantage. It is very possible there may be some Vice Chancellors who are so useful in their positions in the Court of Chancery that it would not have been expedient to propose them for the Committee. For those reasons, I think that the Government were entitled honestly to judge for themselves at what point of time it ceased to be for the public advantage or the dignity of the office to go on offering it to Judge after Judge. I must now turn for a moment to a very extraordinary remark made by the hon. Member opposite (Mr. Cross), who said it could not be supposed the Judges would conspire to break the law, because someone else, according to him, had suggested a conspiracy on the part of the Judges. He quite forgot, apparently, that there was no law whatever which any Judges could possibly be breaking by not accepting this office. The Judges are not called upon by this Act to do anything, either singly or in concert; how, then, can they break the law? [Mr. A. CROSS: I said frustrate the intention of the Act.] But the Act imposes no obligation upon them, either direct or indirect; and I cannot think it a fair interpretation of anything anyone had said, to represent that the Judges, in the opinion of anyone, were conspiring together to upset this Act. That the Judges may have talked over the Act among themselves may be assumed without casting any imputation upon them whatever; but that there was anything like a combination among them to frustrate the intention of the Legislature I do not believe, and I hope no one else does. It is quite clear that the terms proposed were not satisfactory to the majority of them; that some of those who were invited did not accept the appointment, and others whom it was thought desirable to invite were understood not to be desirous of accepting it; but it is equally clear that they were not under any obligation to accept the offer. It is quite clear also that after the majority of them had declined the appointment the Government acted in a manner open to explanation consistently with the best possible motives, and I see no reason fore doubting the motives on which they acted The House will recollect that the time was pressing; they had only twelve months to make the appointment; the duration of the Act was limited to two years there was a great pressure of business on account of that pressure it was that the Act was passed. They thought that the dignity of the office would be better preserved if they did not expose themselves to too many refusals from the Bench. Then, again, the point of fitness is not altogether beside the question now under discussion. If the Government had broken the law in substance, or had broken faith with Parliament, or had acted in defiance of the law, the appointment of the fittest man at command would not have absolved them from blame, and should not have prevented censure; or if the man appointed were unworthy, the Government would be justly open to censure; but we have the testimony of Chief Justice Cock burn and Chief Justice Bovill to his fitness. I therefore think there is no sufficient cause for Parliamentary censure. But even if there were more plausible reasons to be given for this proposed censure, the mischief it would do under these circumstances is very manifest. I do not speak of the position of the Government. It is very possible hon. Gentlemen opposite have no particular wish just now to displace the Government; but no doubt a sense of public duty would lead them to face even so great a calamity as that if it were necessary to vindicate the purity of our judicial administration. I will put that aside, however, and refer to what I confess would have weight with me. If ever the position of chief Legal Adviser of the Government was held by a man of unsullied integrity, and unquestionable public virtue, the present Lord Chancellor is such a man; and I should feel that I did an act of gross injustice, and of great general mischief, if I passed a censure of this kind, without a conviction of its absolute necessity, on so eminent and excellent a public servant. And let the House consider the effect which such a vote would have upon Sir Robert Collier's position. It might drive him from the post. I am very far from sure that, with the sensitive feeling he entertains upon the matter, that would not be the result, to the regret, I am sure, of every hon. Member of this House. I have witnessed the manner in which he performs the duties of his office; and I am bound to say that it has been such as to prove his fitness for the appointment. And if this vote did not cause him to vacate the position, would it not tend materially to diminish his usefulness in that position, and to diminish the honour and credit of the office? A very deserved tribute to the estimation in which Sir Robert Collier was held in this House was paid by the hon. Member opposite. He (Mr. Cross) said that he had discharged the duties of his former office with honour, courtesy, and ability; and that he was very much esteemed in this House. We desire that he should remain in the office he now holds, and not only be useful in it, but hold it without any slur or discredit of any kind. I do not say it would be unnecessary if it were just to pass this Motion; I do not say it would be unnecessary if the spirit and meaning of the Act of Parliament, in the true and legal sense of its words, had really been violated. I should very reluctantly face the necessity, if these propositions had been proved; but being convinced that they are not, and at the same time feeling that great mischief would be done by the adoption of the Motion, I earnestly trust the House will accept the Amendment to the Motion of which I have given Notice.


said, he had on many occasions felt it his duty to oppose the Government, but on this occasion he heartily supported them. Much had been said with regard to the construction of the Act, but he would ask, who was more competent to construe an Act than those who drew it and advocated it in Parliament? It was obvious to most men that had it not been for the letter of the Lord Chief Justice of England the appointment would never have been called in question; and without expressing any opinion as to the right of the Chief Justice to offer advice, he (Mr. Goldsmid) would unhesitatingly say that when the advice tendered in that letter was not accepted, the letter itself should never have been published. Now, as to the Bill of 1870, it should be remembered that Sir Robert Collier, although then the principal Law Officer of the Crown, and repeatedly challenged to declare his view of it, persistently offered no opinion on it, thereby showing that he would not support what he did not deem right; and, in fact, the present Attorney General followed the same course. The main objection to the proposals in the Bill was, that as any barrister of 15 years' standing might be appointed under its provisions, its tendency was to lower the high position of the Members of the Judicial Committee of the Privy Council. And this view was confirmed by the low salary proposed to be given. The Bill was withdrawn, and the mistake was not repeated in the Bill of next year, as it declared that anyone who at the moment of his appointment was a Judge of one of the Superior Courts might be appointed to the Judicial Committee; but its terms did not imply that any lengthened judicial experience was necessary. If such had been intended it would have been laid down in the Act, as had been done in many other instances. When the Act was passed, there was obviously no intention on the part of the Government to appoint Sir Robert Collier; but they were brought face to face with a very difficult position. They had to fill up places in an Appellate tribunal, so as to enable it to clear off a great accumulation of colonial and other cases then in arrear, and it was desirable to do that as soon as possible. They offered a place on that tribunal to four eminent existing Judges. Sir Robert Collier was cognizant of those offers, and did not ask the Government to appoint him. Those offers were refused; but it being privately intimated that Sir Montague Smith was willing to go up to the Judicial Committee, the Government removed him from the Court of Common Pleas. It was then suggested to the Government that they should appoint Sir Robert Collier, and there being a vacancy in the Court of Common Pleas, they nominated him to that Court, and subsequently, after he had sat as Judge in the Common Pleas, promoted him to the Judicial Committee. That appointment was, he thought, right and proper, and without it, practically, that Appellate tribunal would not have been constituted to do the pressing work that lay before it. The hon. Member opposite (Mr. Cross) had said an Attorney General was no more than a practising barrister; but that was obviously incorrect, as Lord Coke declares that the Attorney General is the only barrister who occupies a quasi judicial position, because he can, as a matter of right, if there be a vacancy, take the place of Chief Justice of the Common Pleas. The Government in that matter had done what they believed to be the best for the public service; and the only remaining question was whether they had committed an error of judgment in placing Sir Robert Collier on the Judicial Committee within a few days after raising him to the Bench. On so small a point as that, he thought they would be simply splitting hairs if they passed a grave censure on the Ministry. The motive for the act of the Government having been good, and the appointment being according to law, the only question remaining was—was the man they appointed a fit and proper person? They had all had proofs in that House of Sir Robert Collier's courtesy, learning, and ability; and if his opinion had been followed years ago in regard to the Alabama question, possibly the present difficulty on that subject would have been averted. Sir Robert Collier was a man of too high a sense of honour to do anything which he believed to be contrary either to the spirit or the letter of an Act of Parliament; and he had told him, and had authorized him to repeat, that so far from his having imagined that any length of judicial service was intended by the Act of 1871, if a fixed period of judicial service had been proposed, he would have opposed it. Sir Robert Collier's appointment had been offered to him in order to avoid the very grave scandal of not putting an Act in force to relieve the great block of business in the Judicial Committee. It would be most unfair both to the Government and to Sir Robert Collier to pass that Vote of Censure. He believed Sir Robert Collier would do his duty to the satisfaction of the public and of the suitors who went before him; but if that Resolution were carried, he might not feel it consistent with his dignity to retain his office. For himself, under the circumstances, he thought the House of Commons ought rather to thank the Government than to censure them for what they had done; and for that reason he had much pleasure in seconding the Amendment of the hon. and learned Member for Richmond (Sir Roundell Palmer).

Amendment proposed, To leave out all the words after the word "House" to the end of the Question, in order to add the words "finds no just cause for a Parliamentary censure on the conduct of the Government in the recent appointments of Sir Robert Porrett Collier to a Judgeship of the Common Pleas, and to the Judicial Committee of the Privy Council,"—(Sir Roundell Palmer,) —instead thereof.

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


said, he must congratulate the House upon the change that had come over the character of that dispute since the commencement of the Session. No person would have regretted more than he should have done had the question been pressed in its more offensive form, because he was a personal friend of Sir Robert Collier, whom he had known both as a Bencher of his Inn and a barrister of the highest integrity, zeal, activity, knowledge, and skill; and because he believed that he had obtained his present distinction deservedly at the end of a long and successful career. At the commencement of the Session, and in the debate which had occurred in "another place," the appointment of Sir Robert Collier had been characterized as a crime little short of high treason—whereas, now, the simple and sole question was, whether the Government had been to blame in making the appointment, or what was the power given to the Executive under the Act, and had they acted fairly in the execution of the power. Had they power to appoint any barrister, or only persons of "tried judicial experience?" He knew that these words did not occur in the statute, but could anything else be its meaning? Therefore, in determining the question whether or not the Government was to blame in this matter, it was necessary to look at the exact words of the statute, in order to ascertain what was the limitation of the power given to the Executive. It was true, as had been said by the hon. and learned Member for Richmond, (Sir Roundell Palmer), that the statute did not contain words limiting the choice of the Executive to Judges of tried judicial experience, but was not such a limitation to be inferred from the general tenour of the Act? The hon. and learned Member had contended that that House, sitting as it did as a Court of Justice in interpreting the Act, must be bound by the words of the statute, and must not look outside of the four corners of that document for an interpretation of those words. The position of that House, however, was very different from that stated by the hon. and learned Member, for they were con- stantly in the habit of turning to Hansard, so as to ascertain from the debates the meaning and intention of statutes; and, therefore, they had a right to look further than the mere words of the statute, in order to ascertain the intention of those who had undertaken the responsibility of introducing the measure. The hon. and learned Member for Denbigh (Mr. Watkin Williams) had opposed the Bill on its introduction, on the ground that the Judges were not likely to accept appointments under it, and Sir Robert Collier replied to that argument by asserting that several of the Judges had consented to accept such appointments, and that the persons to be appointed under this measure must either be, or have been, Judges of the Superior Courts at Westminster. The right hon. Gentleman at the head of the Government, on the first night of the Session, said that the appointments that had been made were consistent with the text of the statute and conducive to the public interest; and there was no doubt that the appointments were consistent with the words of the statute. So far he agreed with the Government, that the appointment was consistent with the text of the Act. They now came to the question whether it was conducive to the public interest. The way in which the letter of the Lord Chief Justice of England—a man whose character and ability made it needless to vindicate him—had been carped at, was surprising, for in the letter written by the head of the Bar and the Bench to the right hon. Gentleman on the subject, he says— Forgive me, I pray you, if I ask you to consider whether such a proceeding should be resorted to in a matter intimately connected with the administration of justice in its highest departments. And, again— I beg you to believe that I make these observations in no unfriendly spirit, and from a sense of duty only. Surely a letter, written in such a spirit as that, deserved a much better reception than it had received from the Lord Chancellor. He would pass now to the letter written by Mr. Justice Willes—a letter which he (Mr. S. Hill) wished had never been written. That learned Judge spoke of the words of the Lord Chief Justice as being "sensational." He (Mr. S. Hill) was sorry to find a man who possessed such a considerable know- ledge of law should have written those words—that he thought the framers of the Act must have contemplated the appointment of Sir Robert Collier. Those were extraordinary words to be used by the learned Judge, and he thought the letter had better have been kept back, for it did not show the spirit which should have characterized the opinion of a Judge written for the purpose of being quoted in Parliament. If Mr. Justice Willes was right in construing the Act as actually contemplating the appointment of Sir Robert Collier, then the whole of England, including the hon. and learned Gentleman himself (Sir Roundell Palmer), were wrong; but how such a construction could be put upon it by a learned Judge was inconceivable. It appeared to him (Mr. S. Hill) that it would have been more conducive to the public interests if they were even obliged to postpone the 30 appeals for a few months longer than to cause this scandal. It was a scandal to draw such letters from the Lord Chief Justice as those which had been referred to. It was a scandal that called forth the censure of almost the whole of the public Press. It was a scandal condemned by the whole Bench and Bar of England, with the exception of Mr. Justice Willes. Not only that, but the worst part of the scandal was, that the conduct employed by the right hon. Gentleman at the head of the Government in this affair, exemplified the language which Shakespeare put into the mouth of Cardinal Wolsey—himself, too, a Prime Minister of that day—to the effect "that his own opinion was his law." They had now one at the head of the Government whose opinion was his law. It might be that when the division bell rang out its adeste, fideles! the Government would obtain a majority; but that fact would afford only one more proof that the voice of the majority of that House was not the voice of the majority of the country.


said, that although he had formed an impression upon this matter at the time of its occurrence, he had carefully suspended his judgment till the Government had offered a full explanation. He deeply regretted that that explanation had entirely confirmed his original impression—namely, that the Government, finding themselves, as they believed, in a diffi- culty in filling tip the appointment according to the terms of the Act, resolved to extricate themselves by deliberately straining and violating it. He felt bound, therefore, to vote against the Amendment, and wished to explain his reasons for doing so. It was easy to exaggerate and misrepresent the conduct of the Government, and there was considerable danger lest the House should be invited to form its opinion upon an entirely false issue. It had been suggested that the appointment was an unworthy one, and something in the nature of a job; but he could see no job in it, any more than in the issue of the Royal Warrant abolishing purchase in the Army, which had been condemned by many as a high-handed and unconstitutional proceeding. Whether the Lord Chief Justice of England deserved well of his country for his courage and independence in endeavouring to dissuade the Prime Minister and the Lord Chancellor from violating an Act of Parliament, or whether he deserved censure for an uncalled-for and unwarrantable interference with the Executive Government was not the question before the House. He had been told that any opinion he might express would be deemed one which he was authorized to offer on behalf of the Judges; but this suggestion was quite unfounded. He had been in no communication with them, and had not seen or communicated with the Lord Chief Justice of England since last July. Whether Sir Robert Collier was fit to be a Judge of the Common Pleas—had he been willing to fill that office, which was not the case—or a paid Member of the Judicial Committee, was not the question, for the simple reason that nobody had questioned his fitness. The question was, whether the Government had substantially disregarded the statute under circumstances deserving of Parliamentary censure. That was a question of substance, and not a question of legal technicality. It would have been more agreeable to himself if the hon. and learned Member for Richmond (Sir Roundell Palmer) had moved the Previous Question, because he would have been glad to escape from giving the vote he should feel driven by his judgment to give, if the House went to a division on the Amendment. He should be still more pleased if the hon. Mover of the Motion, looking to other questions besides those immediately involved, would not press it to a division, because in that case he should be compelled reluctantly to support the Motion. Many irrevelant matters had been introduced; but he would take the bull by the horns, and say at once that the question was—What is the substantial meaning of this Act of Parliament? He had been unable to follow the differences drawn between the equitable and legal construction of the Act, and as a lawyer he believed that that was a matter which any plain man of ordinary education could understand as well as a lawyer, and perhaps a good deal better. The meaning of an Act of Parliament must, of course, include its spirit, object, and design, aud the intention of the Legislature in passing it, and these, of course, must be collected from the words of the Act, without adding to or taking away from them. They must not speculate on what anyone fancied the meaning of the words to be; they must not look to the debates in either Houses of Parliament, whose Members supported a clause for directly opposite reasons. They must, therefore, take the words of an Act alone to see what its meaning was. Such, however, was the poverty of language, such was the imperfection of all human contrivances, that it was practically impossible to make use of language, in a statute, treaty, or deed, which should not be susceptible, by means of a perverse and spurious interpretation of the mere letter, of being so construed as to defeat the whole design and object of the users of that language. The result was, that they occasionally had disputes, such as arose in this case, as to the design, object, and spirit of an Act of Parliament. Many learned writers had written upon the subject; but, perhaps, the best, plainest, and most sensible rules on the subject were laid down by Puffendorf and Grotius, who, at all events, were precise, clear, and conclusive. They said that when a question had arisen whether the construction sought to be put upon words was within the real sense of the user of those words, they might look at three things in order to trace out the design of the lawgiver—namely, the subject-matter, the effects, and the context and surrounding circumstances—and they gave many illustrations. One of these arose under the law of Bologna, that anyone who should draw blood in the street should be severely punished. Under that law a barber was indicted for opening a vein in the streets, and it had like to have gone hard with him, for he was convicted; but on appeal to the Council, the conviction was quashed, on the ground that although the letter of the law was against him, the manifest intention and design of it was in his favour, because it was passed, not for the purpose of regulating the practice of surgeons or barbers, but for the purpose of checking the practice of duelling in the streets. A more recent and analogous case to that arose in the time of Louis XII. of France, who made a treaty with the Pope that all bishoprics which should be void by the death of Bishops in France should be filled up by the King. A French Bishop happened to die at Rome, and the Pope immediately filled up the vacancy. Thereupon a serious contention arose. There was no doubt that the act of the Pope was within the letter of the bargain; but it was as clearly and plainly a violation of the plain meaning and intention of the parties. The County Court Act, again, provided that the persons appointed as Judges should be barristers of seven years' standing. Suppose the Lord Chancellor said to any man of acknowledged learning and ability—say, his private secretary, who had no inclination to practice at the Bar—"You go to the Bar and eat your dinners; you need not practice, read, nor take chambers; but when you have been called seven years I will appoint you a County Court Judge." Such an appointment would be within the letter, but not within the meaning of the Act; because it was clear the intention of the Legislature was to secure the appointment of men whose fitness for the Bench had been to some extent tested by their seven years' standing at the Bar. Lord Coke, using a metaphor more expressive than accurate, said these external matters were the very lock and key to open the windows of a statute, and look inside to see the intention of the Legislature; and in this case, using this lock and key, they had to see whether the Government had regarded the intention of the Act. That they had acted in accordance with the letter he admitted, though he could not admit that doing so they had made a legal and valid appointment. The Go- vernment had placed themselves upon the horns of this dilemma—either they had strained and violated the expressed intention of the Legislature, as he believed they had, or they had, in bringing in that Bill, practised a deception upon Parliament, which he did not believe. The hon. and learned Member for Richmond really gave up the case, when he admitted that if this had been a case of qualifying a barrister to be a Chief Justice in India it would not have been legal; and he could not reconcile with that admission the conclusion that this was a legal appointment. The object of the Act was to strengthen the Judicial Committee of the Privy Council, which was very differently placed from the Superior Courts of Common Law at Westminster. The Judicial Committee sat practically in private; there was scarcely any attendance of the general Bar, of the reporters of the Press, or of the public, and the business was done in the quietest manner possible. In the Courts of Law the Judges performed their duties in presence of a powerful Bar, and a still more powerful Press, and often in conjunction with a jury, and they were constantly under the eye of the public; and if a Judge, from too great vivacity, attempted to put down a suitor or a witness, or a member of the Bar, he was constantly kept in check. One of the most serious things for a Government having the appointment of Judges was the impossibility of knowing before they placed a man on the Bench whether he would have that patience, discretion, and good temper, which were not less important than knowledge and great learning. A man might rise to a high position at the Bar, but how they were to know beforehand that he possessed all the qualifications necessary for a Judge? It was almost impossible for a practising barrister to speak with unreserve on this subject; but the fact was notorious that some of the most distinguished advocates had as Judges failed deplorably, particularly in the matter of patience in listening to both sides. In any ordinary Court, one of the grandest checks upon the Judges was the institution of the jury, and the power to take their judgment to a Court of Error to have it reviewed; but here was a Court of Final Appeal—the judgment of the Judicial Committee of Privy Council was not subject to review, and only one judgment was given; the Judges did not give their separate opinions. He therefore said it was of the utmost importance that the Judges appointed should be men known to possess high judicial qualifications, as well as ability, learning, and experience. It was not so much the judicial experience that was required, as experience on the part of the Government of the judicial qualities of the men they were going to appoint. The great desideratum was, that the Judges appointed should be men not only of learning and ability, but also of patience and temper and discretion; but how could it be known they had those judicial qualifications till they had been tried? He quite accepted the proposition that nothing which passed in debate could be referred to in construing an Act of Parliament; but, he must repeat, the Government had placed themselves in this dilemma—either they had strained this Act, or they had deceived the House; and he could only show that by referring to what had occurred when the Bill came down. The principal objection to the Bill of 1870 was, that there was no security that the Judges would be persons known to possess those qualifications which were essential in Members of the Judicial Committee as a final Court of Appeal. When that Bill was before the House he moved its rejection, and pointed out that the selection ought to be made from tried experienced Judges who were found to possess patience, discretion, judgment, and high judicial fitness in addition to learning and ability, and that that Bill afforded no security for any of these qualifications, and the Bill was thrown out. In the following year, the Lord Chancellor brought in the Bill which afterwards became law. Shortly before that Bill was brought in, he (Mr. W. Williams) following up his former speech in this House, wrote a letter to The Times newspaper. Having his own suspicion of what might possibly happen, he thought prevention better than cure, and therefore he wrote the letter to The Times, calling attention to the fact that the Bill of the preceding Session had not been thrown out owing to the want of time, as the Lord Chancellor had stated, but because of its objectionable nature, and specially on the ground that it did not provide any security that the Judges appointed should be tried men. His objections, both in his speech and in the letter, were intended and thrown out as a challenge to the Government; and what was the answer he received? The answer was this Bill of 1871, containing the clause now under consideration, which was thus described by the Attorney General himself. He said— The provisions of the Bill were very plain and simple, and very much what had been indicated by some hon. Members of the House last Session; And then he said this— The appointment being limited to persons who might be assumed to be of high judicial authority,….. care had been taken that the Judges selected under the Bill should be men presumed to be qualified to form members of any supreme tribunal."—[3 Hansard, ccviii. 931–2.] With that language the Attorney General introduced the clause. Now, no provisions had been indicated by any hon. Member except those referred to by himself (Mr. W. Williams), and he appealed to the candour of the House—suppose he had got up and objected to the clause upon the ground that it left the law exactly where the former Bill would have left it, and would have enabled the Government to appoint anyone qualified to be made a Judge by passing him through the formality of being made a Judge of one of the Superior Courts, what reply should he have received? He could only say he felt what he should have deserved if he had made use of such an argument. He did not believe for one single moment that the Government had paltered with the House in a double sense. He believed they understood the clause as it had been received, in perfect good faith—that it meant what he, for one, had hoped the clause would be. When the time came for filling up the appointment, he readily acknowledged that it would not have been a befitting proceeding for the Government to have hawked the office about, if they had a fair reason to believe that the offer of it would be rejected; and if the Government had only confessed like men that they had been disappointed in the Act, and that the necessity of the public service had compelled them to put a forced construction on it, trusting to Parliament for condonation, the Parliament under those circumstances, would not have refused to condone their conduct. They, however, not only did not take that course, but they justified the construc- tion they put on the Act, and therefore he could only come to the conclusion that Government deliberately put a forced construction on the Act of Parliament in order to get over the difficulty. The provision that the Queen should appoint persons having a certain qualification could only mean that the qualification must exist when the selection was made. If it were said that a man appointed to a certain office should be a Master of Arts, then he could understand that when the individual attained to that degree the qualification was obtained ipso facto; but it was not contended that if the Government appointed a person as Chief Justice in Calcutta, only for the purpose of passing him on to the Judicial Committee of the Privy Council, that that would be a good qualification. Therefore it was plain that the qualification in the Act was intended to be something more than the mere fact of a man being made a Judge for that purpose only. It was conceded that, taking the narrowest construction of the Act, the Judge to be appointed must be an actual bonâ fide Judge, and one able and also willing to accept and fill the office, and discharge the duties of a Judge of the Superior Courts of Law; and it was a remarkable fact that Sir Robert Collier was not willing to fill the office, and bonâ fide discharge the duties of a Puisne Judge. It was also remarkable how Sir Robert Collier could take the oaths of office as Judge in the Common Pleas, knowing that he was not appointed for the purpose or with the intention bonâ fide of holding and fulfilling the duties of that office. He did not put the case of the Government nominating a succession of Judges to the Court of Common Pleas, for the purpose of passing them on to the Judicial Committee of the Privy Council, as it was conceded that such a course would be an abuse of the statute. It appeared, therefore, to him that the Government, with their eyes open and with deliberation had, for the purpose of extricating themselves from a difficulty they supposed they were in, violated the declared intention of the Legislature, and upon those grounds he felt compelled to vote against the Amendment.


said, he must remind the House that they were not called upon to vote on a question of party politics, but to pass a Vote of Condemnation on the Government as violators of the law arid perverters of a statute of their own making. A question of that kind must necessarily be referred to legal principles of construction, and the House—sitting as it was judicially upon the conduct of the Government—was bound to look to the strict interpretation of the law before pronouncing its condemnation. One of the difficulties he found himself called upon to contend with arose from the looseness, inaccuracy, and the vague and even changeable character of the expressions employed to express the charge against the Government. His hon. and learned Friend who had just sat down (Mr. W. Williams) ended his speech by saying that he believed the Government to have been guilty of straining and violating the statute. What was meant, he would ask, by straining a statute? His hon. and learned Friend evidently did not mean to say that straining was violating; and if it was not, it did not come within the charge made against the Government. Yet the two terms were employed together, as if each were meant to cover a separate tangible offence. He found by the terms of the Motion that the House was called upon to say that it had Seen with regret the course taken by Her Majesty's Government in carrying out the provisions of the Act of last Session relative to the Judicial Committee of the Privy Council. There were, however, no grounds stated why the House should express its regret, unless they were contained in that part of the Motion which stated that the House was Of opinion that the elevation of Sir Robert Collier to the Bench of the Court of Common Pleas for the purpose only of giving him a colourable qualification to be a paid Member of the Judicial Committee, and his immediate transfer to the Judicial Committee accordingly, were acts at variance with the spirit and intention of the statute, and of evil example in the exercise of judicial patronage. Now, what was a "colourable qualification?" A colourable thing was something not real; and if the expression was applied in that sense—to the effect that the Government had given to Sir Robert Collier a qualification that was not real—then the Motion should have been couched in much stronger terms than those employed in it, because then the Government must have been guilty of a most deliberate violation of the statute. But if the qualification was not "colourable," then it was substantial and real, and if so the foundation for the charge was gone. In the letter of the Lord Chief Justice it was said that there had been an evasion of the statute, and therefore a "violation" of it; but to evade a statute was not to violate it. When a man evaded a law he did not break it; he avoided breaking it. In fact, all these terms "colourable," "evasion," and "spirit of the statute," and mere rhetorical expressions for the purposes of argument, were entitled to no weight. The true question for the House of Commons was what was the meaning of the statute, and that meaning was to be found in its letter, and the House ought to be bound by it. [Opposition cheers.] He was glad to hear hon. Gentlemen opposite cheer, because it showed they were content to abide by the meaning of the Act. The terms of the statute were that the person to be appointed by the Judicial Committee should be, or have been, a Judge of one of the Superior Courts. It had been stated by the Lord Chief Justice that if it had been intended to place persons other than Judges on the Judicial Committee, nothing would have been easier than to have express that in the statute, but the latter was entirely silent on the subject. With equal force it might be argued that if it had been the intention of the Legislature to require judicial experience as the qualification, nothing would have been easier than to have said so; but, in fact, there was no mention of anything of the kind in the statute. Nothing was prescribed as to length of judicial service on the Bench before the translation of a Judge to the Judicial Committee. The statute was utterly silent on the point. The qualification intended, might, therefore, mean judicial status simply, and if there was any doubt on the subject, and the Government had erred in construing the statute, that furnished, he maintained, no sufficient ground for censuring their conduct. Under the Act 4 Will. IV., by which the Judicial Committee was created, and with which the Act of 1871 was in pari materia, after specifying certain high official persons who were to be Members of the Judicial Committee, it was provided that it should "be lawful for the King from time to time, by his Sign Manual, to appoint one or two other persons, being Privy Councillors, Members of the Committee." He wished to know, then, whether creating a person a Privy Councillor for that purpose would be an infraction of that Act, and, if not, how could it be fairly contended that there had been an infraction of the law in the present instance? The two cases were precisely alike. Under the statute of last Session the qualification is the being or having been a Judge of a Superior Court; under the statute of William. IV. the qualification is the "being" a Privy Councillor—that is, the person must be already a Privy Councillor. Now, it had been the practice under this statute always to create persons Privy Councillors for the express purpose of placing them upon the Judicial Committee, and yet no charge or suggestion of illegality has ever been made; and yet, if there be any force in the objection to the promotion of Sir Robert Collier, it would be equally applicable to every case of an appointment under the statute of William IV. to which he had just referred. His hon. and learned Friend who spoke last seemed to be alarmed lest anyone who had not sat on the Bench should be appointed to the Judicial Committee, but he would remind him that the Chief Justices were appointed to it direct from the Bar. Another instance which he might mention was that of the late Lord Kings-down. The alarm about appointments without judicial experience was without foundation, because before the Act in question the Queen had the power of appointing a person without judicial experience to the Judicial Committee, and had done so. The late Lord Kingsdown was an illustrious instance. He admitted that the fitness of Sir Robert Collier did not determine the question of the meaning of the statute; but where that meaning was doubtful, where the construction was open to two or more interpretations, and the conduct of the Government was impugned, the fitness of the person appointed was a very material element in determining upon the bona fides of what they had done. The position of Attorney General, occupied with so much credit by Sir Robert Collier previously to his late appointment was a guarantee of his fitness for that office. Not only that, but it should be borne in mind that the Queen could have, at any time, placed Sir Robert Collier on the Judicial Committee under the Act of William IV. As to the letter of the Lord Chief Justice, he (Mr. Serjeant Simon) would observe that it had been made the case against the Government, and he must say that, entertaining the greatest respect and admiration for the eminent man who so well filled the office of Lord Chief Justice, he deeply regretted the letter which he had written. He looked upon it as an unconstitutional act. He ventured to submit that it was not the duty or right of any Judge to offer even an opinion, much less a protest, against the exercise of the duties of a responsible Minister of the Crown. Once admit that that was the duty or the right of a Judge, and where would it not lead? On the one hand we should have responsible Ministers of the Crown, who for an error bonâ fide committed might be removed from office by a vote of the House; and, on the other hand, a Judge who might have thwarted those Ministers, but who, not being responsible to the House, could not be removed from his office. Suppose that when Parliament passed the Bill for the disestablishment of the Irish Church, a Judge who held the opinion with respect to the Coronation Oath which the Solicitor General of the previous Government then appeared to hold had advised Her Majesty that it was contrary to her Coronation Oath to give her Assent to that Bill, what would have been the consequences? If it was right for the Lord Chief Justice or any Judge to interfere in matters connected with the Executive Department of the State, it would be right in the Government to call in the advice of the Judges. In that way a responsible Government might be either sheltered or thwarted by irresponsible advisers against the interests and will of the country, and no end of complications must be the result. He trusted that there would be no repetition of such interference on the part of the Judges. He had felt it his duty, however, not to allow the conduct even of the Lord Chief Justice to pass unchallenged. In conclusion, he thought that for all that, there was perfect good faith in what had been done by the Government, and that the charge of violation of the law had not been made out against them, and that there was no ground for the censure of the House.


said that the hon. and learned Serjeant (Mr. Serjeant Simon) appeared to have some difficulty in defining the difference between violating an Act of Parliament and evading it. He (Mr. Charley) thought he could relieve the learned Serjeant's mind upon that subject. To violate an Act of Parliament was illegal—to evade it was immoral; and they charged the Government with being guilty of an immoral act. The hon. and learned Serjeant had also argued that the promotion to the Privy Council as a qualification for a seat in the Judicial Committee was virtually the same thing as promotion to the judicial Bench for that purpose; but the difference was this—that in the former case the person continued all his life to be a Member of the Privy Council, whereas in the latter he was only a member of the judicial Bench for a few hours or days. He regretted that the Government, by the course they had adopted, had cast an undeserved stigma on an honourable man. The name of Sir Robert Collier, he feared, would be handed down to posterity, associated with an extraordinary feat of politico-legal gymnastics. He doubted whether the Amendment was strictly in Order. It seemed to be a mere argumentative traverse or denial of the original Motion. Why had not the original Motion been met with a direct denial? He thought the reason was plain. The right hon. Gentleman at the head of the Government had told them he was desirous that the question should be brought forward on a night when an Amendment might be moved in support of the Government. An Amendment had been moved by the hon. and learned Member for Richmond (Sir Roundell Palmer), in order that his name might appear for days upon the Notice Paper of the House in opposition to that of the hon. Member for South-west Lancashire (Mr. Cross). What was the position of the hon. and learned Member for Richmond in that House? The hon. and learned Gentleman was the most popular Member of that House, because he had conscientiously refused to accept office under a Government which had undertaken to carry a measure which he could not approve; but it was looked upon merely as a question of time when he could conscientiously accept office. The present Lord Chancellor had been simply regarded as his locum tenens, and therefore it was quite natural that the hon. and learned Gentleman should come forward to-night and throw his œgis over that noble Lord. With regard to the merits, or, perhaps, he ought to say the demerits, of the ease, no doubt whatever could be entertained, if reference were made to the debates upon the question in 1870 and 1871, that the scope and object of the Act of last Session was that none but persons of judicial experience should be placed on the Judicial Committee of the Privy Council. When it was proposed that barristers of 15 years' standing should be eligible, the proposal was condemned in severe terms by the right hon. Member for Oxfordshire (Mr. Henley) as a degradation of the supreme appellate tribunal, by the hon. Member for York (Mr. J. Lowther), and the hon. and learned Member for Oxford (Mr. V. Harcourt), who challenged the Law Officers of the Government to rise in their places and defend the Bill. The Bill, however, was left in the hands of the Home Secretary, and that right hon. Gentleman deliberately withdrew the proposal that barristers should be eligible. Well, in 1871 this proposal did not appear in the Bill introduced by the Government, and allusion was made to that circumstance by the Attorney General. It was useless to speak of Lord Kingsdown and other eminent men as having been Members of the Judicial Committee, though they had not the qualification of being Judges. That was not the matter under discussion. What the House was discussing was this, whether the Act of 1871 did not require a special qualification; and, whether that qualification was not conferred on Sir Robert Collier in a colourable way? The hon. and learned Member for Richmond cited the case of Vice Chancellors. But when they became Members of the Privy Council, they did not cease to perform the functions of their office as Vice Chancellors. And so of the Lords Justices. But in this case the Common Pleas had been "made use of," in the language of Chief Justice Bovill, in order to confer a colourable qualification. A point precisely similar arose with reference to the Church of Ireland. He had the honour to be a member of the General Convention of the Irish Church, and a barrister who was a Queen's Council brought forward a motion to the effect that Queen's Council should be eligible to sit on the supreme appellate tribunal of the Irish Church. The clergy, almost to a man, opposed the motion. They would not, they said, submit to anyone who was not a Judge of the land; and the motion was lost. Would it not have been a fraud on the Irish clergy for a Queen's Council to have been made a Judge of the land solely in order that he might sit in judgment on the Irish clergy as a member of the supreme appellate tribunal of the Irish Church?—and he put it to them whether the countless millions of India, and the inhabitants of their vast colonial possessions were not worthy of as much consideration as a small body of men like the clergy of the Irish Church. If the Motion of the hon. and learned Member for Richmond was not a mere argumentative traverse of the original Motion, it amounted to something more—it amounted to an approval of the conduct of the Government; and he would ask the House were they prepared to go out of their way to sanction this evasion of the law? Were they prepared to say to the newly-enfranchised working men that law-makers might be lawbreakers with impunity? He denied that this was a party Motion; he affirmed it was a party move to oppose it. The greatest living Equity lawyer, a Liberal (Lord Westbury), had condemned the appointment. The Liberal Lord Chief Justice of the Queen's Bench had condemned the appointment, and their censure would be bestowed on that eminent Judge, if they were to support the Amendment. There was a time when the Executive was allowed to ride roughshod over the Judges, but happily that time was long gone by. And even in the days of the Stuarts, Lord Chief Justice Coke was not afraid to rebuke, not merely the Prime Minister, but the King himself, when he ventured to assume judicial functions; and the present Lord Chief Justice was a worthy successor of a long line of illustrious predecessors. He would like to read the opinion expressed by one who sat upon the benches opposite of Sir Alexander Cockburn. It would be found in Foss's Lives of the Judges, vol. ix., p. 170— We like him because we know that his distinction was achieved by no back-stairs influence, by no political intrigue, by no political subservi- ence. …. We like and admire him, because we observe every day that the command which he possesses of all the treasures and all the beauties of our noble language, enables him, whenever there is occasion for it, to refute whatever fallacies and sophistries are put forward before him; but most of all, we like him, we respect him, we love him, for this, that whenever he has occasion to reprove or rebuke—and no man in his position can be without some occasion to reprove and rebuke—he takes care always to temper authority with gentleness, and to rebuke without giving pain. Such was the opinion entertained of the Lord Chief Justice of England by the late Mr. Justice Shee. He regretted that Mr. Justice Willes should have spoken of the letters of the Chiefs of the Common Law Bench as "advertisements." Mr. Justice Willes had cut away the ground from the Government, by declaring that they always intended to make this appointment. He should support the Motion of the hon. Member for South-west Lancashire (Mr. Cross).


Sir, there can be no doubt that it is always within the competency, and, may be, according to the duty, of Parliament to call in question, and, if it see fit, to censure the conduct of Government with respect to the appointment of a Judge. I, for one, should not be disposed to characterize any complaint against the Government as a party manœuvre, merely because it proceeded from, and found all or most of its supporters on, the Opposition benches. It may be of that character, but the circumstance to which I have alluded does not prove it to be so; for it is the function of the Opposition to watch the conduct of the Government more narrowly—I may say with more jealousy—in the interest of the public than its immediate friends and supporters may always be prepared to do. There is, however, one consideration of great importance which appears often more or less to be lost sight of in a discussion on the merits of such a complaint, and that is this—Whether the complaint itself, and the occasion of it are worthy of the interference of Parliament; and whether it is such that Parliament ought to express any opinion upon the conflicting views of the one party or the other. It is precisely with reference to that consideration that, upon the present occasion, the Amendment of my hon. and learned Friend the Member for Richmond (Sir Roundell Palmer) appears to be opportune. He would be a bold man, and more inclined than I should wish to be to doubt the honesty of the opinions expressed by others, who, after all that has been said and written as regards the appointment of Sir Robert Collier to the Judicial Committee of the Privy Council, allowed himself, whatever his opinions may be, and however strongly he may entertain them, to think that it was a subject about which there could be no difference of opinion in men qualified to form and entitled to express an opinion. For my own part, I entertain a very decided opinion upon it, and I share that opinion with very many eminent and distinguished men, whose judgment—corruption and jobbery being entirely out of the question—is entitled to respect, and will always be received with respect by me. But I am quite aware that another opinion is entertained by men of equal eminence, and whose opinions are also entitled to respectful consideration; and I would venture respectfully to press upon the House this—that before consenting to pronounce upon that conflict of opinion, they should well consider what is its nature and character, and what is the matter to which it relates. Now, what does it relate to? We know that there are several matters of great importance which have found expression in the course of the discussion, but only to be repudiated, to which it does not relate. It does not relate to any charge of corruption brought against the Government. When my noble Friend on the Woolsack defended himself against the charge which had been brought against him and the Government, he addressed himself in one part of his defence—["Order, order!"]—I do not allude to any particular place, but in a defence made by the Ministers against the charge brought against him. When I say, referring to the charge as involving an imputation of corruption and jobbery, he, with a becoming pride, and no unbecoming warmth—["Order, order!"]—I will not press the matter further than to say that on an occasion to which I am not entitled to make any reference, the noble Lord—to whose opinions many of those who are assailants of the Government would very readily defer, in a manner not unbecoming his character and distinguished position, and which met with universal approbation, repu- diated any idea of there being any imputation of corruption and jobbery. ["Order, order!"] I will not in the least pursue the subject. I think I may take it for granted, without making any such reference—which I am reminded by the House is irregular—that there is no charge of corruption brought against anyone. The House, therefore, is not asked to express its opinion upon any such charge. On the contrary, it has on all hands been most emphatically repudiated. It does not relate to any failure on the part of the Government duly to attend to and provide for the real and substantial performance of a public duty, and I think this is a very important consideration, if it be the fact that the present Motion has been proposed in the interest of the public, and not of any political party. Then, there is no charge against the Government that they have failed duly to provide for the real and substantial interest of the country, for it is admitted by everyone that Sir Robert Collier was not only really qualified, but most eminently qualified, to perform the duty to which he was appointed. It does not regard any charge of illegality, because it is admitted by everyone whose opinion is entitled to weight or consideration, that the conduct of the Government is not blameable in that respect. It has been said by lawyer after lawyer, even by those who entertain a difference of opinion in regard to other points, that there can be no difference of opinion among lawyers that the appointment of Sir Robert Collier first to the Common Pleas, and then in succession to the Judicial Committee of the Privy Council, was perfectly legal. Everyone concurs, then, that there is no charge on those three grounds—corruption, failure in attending to the public interest, or illegality. What, then, is the point of controversy? It dwindles down almost to the mathematical definition of a point—it has position, but not magnitude. We have been referred to the distinction between Common Law and Chancery Law. We have been told of the position occupied by Common Law lawyers, and the question has been elucidated by a reference to the sublime character of the Court of Chancery, and we have been told that, according to the views of those who practice before that elevated tribunal, the point in discussion, invisible to the grosser eyes of common mortals and Common Law lawyers, was very distinctly discernible by Chancery lawyers. The question was put in this way—the appointment of Sir Robert Collier to the Common Pleas was quite right and proper, his transference from the Common Pleas to the Judicial Committee was also quite right and proper, and then, by some extraordinary reasoning, not distinctly perceptible to any common mind, it is argued that these two rights make a most intolerable wrong. We have all beard that two blacks will not make one white; but I do not remember to have heard before that two whites make one black. It may be very sublime reasoning, but it has made it quite clear to my mind that there is but one step—and that is a short one—from the sublime to the ridiculous. This view has also been taken, that the qualification for an appointment on the Judicial Committee must exist not merely at the time the appointment was made, but at the time when the resolution for the appointment was first taken. I do not know how people can tell the exact time when a resolution is first taken. But can it be so in reference to any appointment whatever? Suppose it necessary in order that you should qualify a man for a place, that he should be a Peer, and you select a man eminently qualified to perform the duty of the situation, but who happens not to be a Peer, is he not created a Peer that he may have the necessary qualification which the statute requires? I do not mean to say that the case is altogether analogous, but it is a case which supports the argument in answer to the proposition with which I am dealing. That proposition is, that you do not act fairly, if in any case which by law or practice requires a particular qualification, you do not appoint a person who has it at the time of selecting him. That cannot be. You must make choice of a man qualified to perform the duties of the office, whatever they may be, and the qualification with respect to his being a Member of the Privy Council, may be conferred on him after the choice is made. A great deal has been said founded on the difference between the letter and the spirit of the statute. For my part I see no difference whatever between the letter and the spirit of an Act of Parliament. The accusation is that the letter has been followed and the spirit violated; but in this case it appears to me that you have done what is perfectly legal in carrying out the spirit and intention of a perfectly unambiguous Act. Can it be said that you have violated your duty in appointing a gentleman personally qualified in every way for an appointment on the Judicial Committee? If the person appointed had been a retired Judge, certainly the Act of Parliament might have been evaded. If, in a case where there was a question of any unfitness arising from age and infirmity, such an appointment would have been undoubtedly beyond the spirit of the Act of Parliament, although within its letter. The spirit and intention of the Act was, that the public service should be duly attended to, and the qualification of any Judge was, that he should be competent. Suppose the qualification for the office of Judge to be, that he should be a barrister of 15 years' standing, and you appointed a barrister who, although called to the Bar many years before that, had spent all his life out of practice, as a country gentleman, you would be violating the spirit of the Act, though you might be complying with and obeying the letter. As I said before, the whole question is one of fitness, and the qualification of the person appointed is the capacity for the performance of the duties with which he is entrusted. An Act of Parliament can have but one meaning, and when once that is determined no other meaning is admissible in that sense. Therefore, whether in the Court of Chancery or Courts of Common Law, neither this nor any other Act of Parliament, nor, indeed, any instrument whatever, or any spoken words, can have more than one meaning. Now it does not appear to me that the Act of Parliament in question is ambiguous. It does not appear to me to be capable of two constructions, so that there may be a dispute as to which of two probable meanings was the true one. The Act says that the person who is appointed must be, or must have been a Judge. But it does not follow that he must be a Judge at the time when the choice falls upon him. It has been asked more than once by some who, I think, have not sufficiently reflected upon the matter—"If that be not the meaning of the Act, what meaning has it?" Well, I will tell you what meaning it has. If the Bench is full—if there are no vacancies upon it—you must make your selection from the Judges who are there. There may be retired Judges who are open to you, who may or may not be fitting persons to appoint to the Judicial Committee; but from the retired Judges or Judges upon the Bench, you must find the best men you can. But suppose the Bench is not full, is it contended that the meaning of the Act is, that you must exhaust every man whom you find there, and have the refusal of them all before you can proceed to fill up the vacancy? But suppose that had been done—suppose that every Judge who was upon the Bench at the time Sir Robert Collier was appointed had been offered a seat upon the Judicial Committee, and had declined, what course was then to be open to the Government? There were two vacancies—one in the Court of Common Pleas, and one in the Court of Queen's Bench. That in the Common Pleas had been occasioned by the promotion of Mr. Justice Smith, and that in the Queen's Bench, since filled up, had existed for a long period. But had all the Judges on the Bench declined, I presume it would have been quite competent for the Government to have filled up those two vacancies, and to have appointed one or other of these gentlemen to a seat on the Judicial Committee. Indeed, it would have been a matter of necessity. I submit—and I feel every confidence in the soundness of what I say—that it would be quite legitimate in filling up a vacancy upon the Bench, to consider the eligibility of the person appointed, and the willingness of the person appointed to accept a seat upon the Judicial Committee. The vacancy in the Common Pleas was filled up with reference to the eligibility and willingness of Sir Robert Collier to go to the Judicial Committee of the Privy Council. What was the object in view? The object was to give him a qualification for an office for which he was eminently fitted, with a view of benefiting the public service. Had any person been appointed a Judge in the Court of Common Pleas who was unfit for the post, undoubtedly the Minister who appointed him would have been liable to censure; but if he is fit for that post, and he is appointed in order that he may be transferred to a position for which he is admittedly and eminently qualified, I cannot concede that that should be made a ground for censure. I shall support the Amendment.


rose together, but the former giving way,


said, he was extremely obliged to the right hon. Gentleman opposite (Mr. G. Hardy) for affording him the opportunity of being heard, because he felt that, little as was the approbation which was extended to his endeavours to enlighten the House, he should have had but a very slight chance of obtaining a hearing on this occasion had not the right hon. Gentleman so courteously and so unexpectedly given way. And he confessed he was most anxious to be heard, because he looked upon this as a most important constitutional question, and because many of his Friends had urgently desired him not to speak and not to vote against the Government. It was only because a profound sense of duty urged him on that he did not adopt their advice, and that he ventured to try and obtain a hearing on this occasion. No person would say that it could be an agreeable task to him to speak against his party. He did not think the right hon. Gentleman at the head of the Government could point to anyone who sat on his own side of the House who had given to the right hon. Gentleman a more constant, a more faithful, and a more loyal support than he had during the last 13 Sessions. At a time when it required some courage so to act, he had always, as the right hon. Gentleman in the Chair could testify, contended that the right hon. Gentleman was their rightful Chief. Again, it was no pleasant task for a man in his position to have to send up and say that he thought the Lord Chancellor had been guilty on this occasion of a very grave dereliction of duty; and it was the less palatable to him to say so, because one of the arguments which had been urged by his Friends against his speaking was, that the course he took would be attributed to personal disappointment at the course adopted by the noble and learned Lord. But he held that there was no greater cowardice than the cowardice of being afraid to do that which one believed to be right from the fear that people would attribute it to a wrong motive. And with regard to his holding his tongue, because his duty lay one way and his in- terests another, he never should be able to look his own children in the face if he pursued such a course—if he gave them reason to doubt their possession of a father— Qui libera posset Verba animi proferre, et vitam impendere vero. Having got rid of any observations of the kind to which he had been referring, and trusting to the general character he had earned in that House to wipe away any such imputation as might, perhaps, be launched against him, he would deal at once with the very grave and important question before the House. That question seemed to him to resolve itself into this—Had the Government, in doing this joint complex act of appointing Sir Robert Collier to the Bench of the Court of Common Pleas, with a view of appointing him afterwards—and actually appointing him, to a seat on the Judicial Committee of the Privy Council, violated the spirit and intention of a very recent Act of Parliament? When he first heard of the contemplated appointment, he thought that to carry it out would be such a violation; he had then made no secret of his opinions, and he was confirmed in that opinion after having heard the speech of his hon. and learned Friend the Member for Richmond (Sir Roundell Palmer), and having read what was said in the House of Lords on the same subject. He was convinced that the appointment was a very grave act, which, if not visited with censure, or understood to be censured, by both Houses of Parliament, though no absolute Vote of Censure were passed, might occur again, and if it did so occur would tend to shake the security of our laws, weaken the authority of our Courts of Justice, and so do the greatest possible detriment to the rights and liberties of the people. In order to form an opinion on the subject, he would briefly consider what had occurred in Parliament with reference to the question, and then state the opinion he had formed—a course he felt bound to take from the position he held as a member of the Bar, and as one of those who valued and respected the high estimation in which the tribunals of the country had always been held. The charge made against the Government was not, in his opinion, at all too strongly stated in the Resolution before the House. He was himself of opinion that the qualification by means of which Sir Robert Collier was appointed to his position was a colourable and not a real one, and that the act done by the Government was one which deserved the censure of Parliament in the words of the Resolution. He felt that he could not vote for the Amendment of his hon. and learned Friend, without giving the act done his approval to the extent, at least, of encouraging future Governments, when backed by strong majorities in that House, to give the goby to Acts of Parliament which were, or ought to be, the security of the people. Let him state what he understood by the spirit and intention of an Act of Parliament. He did not go altogether with the large admissions which had been made even as to the actual legality of the appointment. In one sense doubtless, it was strictly according to the mere words of the Act, but it was gravely doubtful whether, taking the words of the Act altogether, a Court would not even now hold that the appointment was illegal. That was a matter which might arise hereafter; but whether strictly legal or not did not make the slightest difference so far as the Motion was concerned, because there were many things done which, though strictly legal according to the mere letter of the law, were nevertheless totally at variance with its spirit. To get at the spirit and intention of an Act, they must inquire what the Members of the Legislature understood at the time when they assented to the measure, and look carefully to the whole scope and to every word of the enactment, instead of to disjointed passages and selected phrases from its provisions. What, then, was the history of the measure? In 1870 a proposal was made that certain barristers of 15 years' standing should be paid salaries of £2,500 per annum, selected Members of the Privy Council, and appointed Judges of the Judicial Committee. That proposal was ridiculed by Lord Cairns, and though the Lord Chancellor maintained that the services of very good men could be obtained for the sum mentioned, the Bill was rejected by the House of Lords. When it came to the House of Commons that part of the measure was given up, and as an alternative it was proposed that the Judges should be allowed to retire from the Superior Courts after ten years' service, in consideration of their serving perma- nently as Judges of the Privy Council. The meaning of that clearly was, that the House of Commons were willing to make the terms of retirement to the Judges more easy, in order to obtain upon the Privy Council the services of men whose judicial qualities had been tried and approved, and who could, therefore, be trusted to sit as members of an important appellate tribunal. When the question came on in the House of Commons the discussion turned upon the desirability of appointing the barristers of 15 years' standing, and the hon. and learned Members for Taunton and the Denbigh Boroughs (Mr. H. James and Mr. W. Williams) strongly opposed the appointment as Members of the Judicial Committee of the Privy Council of gentlemen who had no judicial experience. That might or might not have been the right view of the question; but it was a perfectly intelligible one, and was generally accepted by the House. In 1871, the Bill which was the foundation of the Act now in force was sent down from the House of Lords, and it was a mistake for anybody to suppose that the Bill so sent down differed materially from the Act as passed, so far as the point now under discussion was concerned—namely, whether the Judges appointed were or were not to be men possessed of judicial experience. The Bill, as sent down, stated that two of the four Judges to be appointed must be, or must have been, Judges of the Superior Courts in England, and the other two must have been Chief Justices in one or other of the Indian Superior Courts; the Bill as passed into law did not alter the qualification, so far as each class was concerned, but simply provided that the whole of the four might belong to either of the classes originally specified, and did away with the division of the four into two of each class. The other provisions relating to the persons to be appointed did not affect this main point of the qualification. The point was put so clearly, and was so clearly understood by Members of the Legislature, that in his opinion, it could never have entered into the mind of anybody, except of a person determined to wrest an Act of Parliament to his own purposes, and not to construe it according to its spirit and intention, to say it was intended by the Act that a person should be appointed to a seat in one of the Superior Courts, merely for the purpose of giving him a qualification to sit in another Court to which he was immediately to be transferred. If such a thing might be done with an Attorney General, it might equally be done by any Government to any barrister of any standing whatever. If these provisions did not mean what he contended, what was the use of introducing them? What could be the meaning of such provisions, if the Ministry might at any time select a man who had never been a Judge at all, give him a Judgeship, and then make him a paid Member of the Judicial Committee? That this did not occur to the Government as possible when the measure was under consideration, he himself had the best proof, because when the Bill was in the House of Commons he was asked whether he would place an Amendment on the Paper, for the purpose of qualifying the Attorney General and ex-Attorneys General, which, however, he declined to do. ["Hear, hear!"] He did not mean to say that he was asked to do that by any Member of the Government, but he was asked by some one. ["Name."] It would not, in his opinion, be fair or right to give the name. But he was asked by some one who stated that such an Amendment was thought desirable by several persons, including the hon. and learned Member for Richmond (Sir Roundell Palmer), who, however, it was added, felt a delicacy about proposing it, because he was an ex-Attorney General himself. That was what occurred, though whether his hon. and learned Friend the Member for Richmond had been misrepresented or not he was unable to say.


With regard to what has just fallen from my hon. and learned Friend, I can assure him this is the first time I ever heard of such a thing.


said, he could not help that; but he could assure the House that he was asked to move such an Amendment. The circumstance, at all events, proved to his mind that the person who had spoken to him on the subject, had led him to believe that the hon. and learned Member for Richmond himself did not think at that time that the Bill contained any provision which would allow an Attorney General to be appointed.


I wish to make myself understood by my hon. and learned Friend, and am sorry to find that I have failed to make myself understood by him; but I must say that I never stated to any person that I was of opinion that the Attorney General and ex-Attorneys General should be introduced, nor had such an idea ever crossed my mind.


said, he did not mean to say that his hon. and learned Friend had ever said anything of the kind; but he was given to understand at the time that his hon. and learned Friend was in favour of the proposition, and the circumstance was mentioned to him in order to induce him to move the Amendment. However, it certainly did produce in his mind the notion that his hon. and learned Friend himself had never thought such an appointment was within the four corners of the Bill at the time it was in the House of Commons. The question now under discussion did not, however, turn upon scraps of conversation or anything of that kind, and what he had just stated was of far less importance than the words of the Act and what was stated in the House of Commons during the debate on the Bill. His hon. and learned Friend had stated that he might be induced to pass a Vote of Censure on the Government, if such a transaction as this were often repeated; but he went on to argue that there was nothing wrong or censurable in it, if it only occurred once. For his own part, he was unable to admit the force of such an argument, and he must say that in his judgment his hon. and learned Friend had here been guilty of inconsistency; for if such a thing once done, were not to be censurable, how was it that putting a number of such nothings together, you could, out of a number of nothings make up something that was in itself really censurable? What did the persons who brought forward this measure in both Houses of Parliament in 1871 say about it? In the first place, he would cite the words used by the Lord Chancellor when he brought forward the Bill in the House of Lords on the 29th of June, 1871. He said— It provided that two of them should be either Judges of the Superior Courts of Westminster (including the Divorce Court and the Court of Probate), or that they should be persons who, having served the Office of Judge in one of those Courts, had retired from their judicial duties."—[3 Hansard, ccvii. 725.] Surely, the meaning of this was perfectly clear—namely, that in making a selection the Government would be limited to those two classes of persons; for the spirit in which Parliament understood the words was, that the persons to be appointed should be Judges who had been before the public in their judicial capacity, and whose judicial capacity had been tested, and it required considerable ingenuity afterwards to put any other construction on the Act. The persons intended to be appointed were Judges—not persons who were merely passed through the mill, as it were, in order to be sent into the Judicial Committee. Then, what were the words used by Sir Robert Collier, then Attorney General in the House of Commons. He said— The provisions of the Bill were very plain and simple, and very much what had been indicated by some hon. Members of that House last Session as the description of a measure which would satisfy the exigencies of the case."—[3 Hansard, ccviii. 931.] These words could only have reference to the remarks of his hon. and learned Friend the Member for the Denbigh Boroughs (Mr. W. Williams), and the hon. and learned Member for Taunton (Mr. James), which were to the effect that the persons appointed must have had judicial experience. Sir Robert Collier proceeded to say— Power was given to the Queen to appoint four paid Members additional to the Judicial Committee of the Privy Council—the appointment being limited to persons who might be assumed to be of high judicial authority."—[Ibid.] It was now argued that an Attorney General might be assumed to be a person of high judicial authority, because he might be appointed to a Chief Justiceship; but he did not think that was the meaning of the Act, or of Sir Robert Collier's words. Sir Robert, however, did not stop there, but towards the latter part of his speech, said— Care had been taken that the Judges selected under the Bill should be men presumed to be qualified to form members of any supreme tribunal, however constituted; and he might state that the Judges who would be offered seats under the Bill in the Judicial Committee would be given dearly to understand that their services should be considered available for any Appellate Court which Parliament may hereafter constitute."——[Ibid, 932.] Sir Robert Collier did not speak of the "persons to be selected," or the "barristers to be selected," but "the Judges to be selected." Again, he did not speak of the barristers or Attorneys General who would be "offered seats," but of "the Judges." The words he had quoted were perfectly conclusive as to the real meaning of the Legislature at the time the Bill passed through the House of Commons; Ms conviction as to what that meaning was had not been shaken by anything he had heard in the House, and the intention clearly was that selection should be confined to a very special class indeed. Taking the Act of 1870 and what occurred with regard to it, the Act of 1871, the debates upon that Act, and the references made therein to the debate of the previous Session, he was convinced it was never contemplated to do that which had been done. The idea that it was never could have occurred to anybody from reading the Bill, still less could it have occurred to him after the communications that passed with himself, with a view to making alterations which were not required, if such an appointment as this was already provided for by the Bill. He maintained, therefore, that the intention was, that Judges only in the real sense of the word should be appointed. With reference to what had been done under the Act, he did not shrink from saying that if all the Judges of the Superior Courts of Law, Equity, Probate, and Admiralty had been applied to, and had declined to take office under it, still it would have been wrong to give to the Act the go-by, and to put into the Committee some one who was not qualified according to the Act. He said that very decidedly, for he believed it very firmly. Nothing could be more damaging to our institutions, or less like the conduct of a Liberal Government, than to do an act which in any way derogated from the supremacy and the majesty of the law, not only according to its letter, but according to its spirit and intention; and if such an act had been done by one to whom he was as devotedly attached as he was to the right hon. Gentleman at the head of the Government, by one whom he admired as much as he did the Lord Chancellor, and by one whom he respected so highly as he did the late Attorney General—to whom he was indebted for many personal kind- nesses, all he could say was the more exalted the men were and the more blameless their private characters, the more dangerous was their act, and the more it became Parliament to censure that act if it was as detrimental as he believed it to be. But let them consider what some of the topics of the defence were. It was said it was doubtful whether the Judges would not have gone on one after another refusing the office, if it had been offered them, so that it would have been impossible to make a proper appointment. He happened to know of two Judges who felt deeply hurt that they were not asked to take this appointment; one of them was a former Solicitor General of the Liberal party, and the other was a man who occupied a seat in that House for many years, a supporter of the Government, and a man who was in every respect an ornament to the Bench. If either of those Judges had received the appointment the selection would have been approved by the profession; it would have commanded confidence, and the Act would have been complied with, because either of them would have brought into Court what Sir Robert Collier could not, long judicial experience. Therefore, until the Government had asked those Judges, it was not for them to say they were in any difficulty. Further, he had it from good authority that not one of the Judges of the Court of Queen's Bench had the offer of the appointment, though whether they would have declined it or not he did not know. After all, he did not think that a very material part of the case; it was only an answer to a portion of the defence that had been made. If no one Judge had accepted the offer, still the Act should not have been strained in the manner it had been. It was said that four of the Equity Judges held the view that the Government had the right to do what it did; but he presumed that one of the four was the Lord Chancellor himself, so that left the Equity Judges three and three, or very much in the same condition as the House of Lords when it spared the Government by the casting vote of the Lord Chancellor. He did not say this with any disrespect to the Lord Chancellor, who, because this was made the ground of attack on the Government, was entitled to vote as a Member of the Government. Suppose four of the Equity Judges took the same view as the Lord Chancellor, who were the best qualified to form an opinion on this matter?—the Common Law Judges, through one of whose Courts this pantomine was passed, or the Equity Judges, who sat in a clear and serene atmosphere, as it was called, at a great distance, and who were not much affected by such a transaction. During the short time Sir Robert Collier sat on the Bench in the Court of Common Pleas, he had the honour of appearing in the Court, and it was painful to address a Judge whom you knew to be there, not really as a Judge of that Court, but merely for an ulterior object, wearing his predecessor's robes, which were observed to be too short for him. It was a case in which time might have been taken to consider the judgment, and in which the Judges might have been equally divided, and yet there was the probability that, in such an event, before their decision could be given, one of them might be transferred to another place. Generally, when a Judge is new to the Bench he is silent, feels his way, and learns his duty by observing his fellows; but, if a Judge were put on the Bench for a few days, it was to be expected he would show a little morbid activity; and he thought he observed that Sir Robert Collier said a little more than he would have done if he had been an ordinary Judge on the Bench. He did not wish to be jocose, for he believed the case to be one of deep importance. Our institutions were becoming more and more Democratic. ["Hear, hear!"] Whatever that cheer meant he did not object to the fact, but, as our institutions were becoming more and more Democratic, it was the more vitally important that our tribunals should be kept independent, and that nothing should be done to degrade them; and anything which had the tendency to do that was to be regarded as most dangerous. He could not help thinking, from what he had heard with regard to the opinions of certain Members of the Government, and from Bills that had been before the House within the last two years, that there was a desire to do something to render our Courts less independent, to place them on a lower basis, to prevent them being able to stand between the Crown and the subject, between the Government of the day or a popular majority in the House of Commons and the rights of the individual subject, and that there was a disposition on the part of persons now high in authority to destroy some of the securities which we possessed for the independence and the high character of our Courts of Justice. Two years ago there was introduced a Bill which he put his name down to oppose, because no one else did so, and the delay of which was a cause of dissatisfaction to Members of the Government, and the object of the Bill was to fuse the Courts at Westminster—he did not allude to the fusion of Law and Equity—into one high tribunal, and to place the Lord Chancellor, a Cabinet Minister, at the head of it. No Lord Chancellor who thoroughly understood the importance of our Common Law Courts, particularly of our Criminal Courts and our Court of Queen's Bench, would have proposed such a Bill; and he could not help thinking it was an indication of a state of mind similarly in the dark as to what were the requirements of the country which had caused the Lord Chancellor to use the Court of Common Pleas in such a way as, in the opinion of the Chief Justice of that Court, to degrade it, by turning it to a purpose which was derogatory to its position as one of the great Superior Courts of the country. If that conduct were passed over without censure, or what the Government should consider as a censure, there would be the greatest possible danger of similar acts being done again. He hoped what had occurred, whatever might be the result of the debate, would prevent the repetition of such an act on any future occasion. He trusted the Government would feel that there was a real, honest conviction in the country, in the Press, and elsewhere, that our Courts ought to be kept sacred from attempts such as this to degrade or to tamper with them; that our Acts of Parliament ought to be kept sacred, and be construed according to their spirit, not their letter. If such should be the result of this discussion he should be fully satisfied; but, feeling as he did about this transaction, he could not with any respect for himself refrain from voting for the Motion of his hon. Friend the Member for South-west Lancashire (Mr. Cross).


said, he hoped, when his hon. and learned Friend the Member for Tiverton (Mr. Denman) took his seat on the Bench, which he had fairly earned by his knowledge, ability, and long services, he would not, in the interpretation of statutes, call in aid the debates in that House, or conversations in the Lobby. Although the legal points of the case had been argued at length, there was one important point which he thought had not been noticed. The Act of last year fully recognized and incorporated all the provisions of the Act of William IV., under which the Judicial Committee of the Privy Council had been originally constituted, and the 1st section of which enacted, among other things, that any Privy Councillor when appointed a Judge of the Court of Common Pleas shall thereupon become a Member of the Judicial Committee. Sir Robert Collier was sworn in a Member of the Privy Council on the 3rd of November. According to the Papers laid before the House, he was appointed Judge of the Common Pleas on the 7th of November; he, therefore, became on the 7th of November not only a Judge of the Common Pleas, but a Member of the Judicial Committee of the Privy Council. Consequently, on the 10th of November, when Chief Justice Cockburn wrote the extraordinary remonstrance, which has been so justly condemned by the hon. and learned Gentleman (Mr. Serjeant Simon), Sir Robert Collier was already by operation of the statute of William IV. a Member of the Judicial Committee, and the only thing that was done by the Government after that remonstrance was to make him a paid Member of the Judicial Committee, with the same salary that he was entitled to as a Judge of the Common Pleas, but without any allowance for clerks. Considering these circumstances—considering that the legality of the appointment was indisputable, and had been frankly admitted, and that Sir Robert Collier's entire fitness for the appointment had been fully acknowledged, it was manifest that the whole matter resolved itself into the question of salary and allowance, and that but for the question of money nothing would have been heard of this case. Looking to the statement which bad been made when the Bill last Session was under discussion, that none of the Judges would accept office under it, and to the fact that several of them had refused to accept office under it since it became an Act, it appeared to him that the Judges had determined to frustrate the object of the statute, unless they got what they thought themselves entitled to—retiring allowances for their clerks. He was, therefore, of opinion that the Government had not only acted legally, but that they were upon every ground justified in making this appointment. It was said this was not a party move—but seeing in whose hands the Motion of Censure had been placed, it must be patent that this was not only a party move, but a personal move against the right hon. Gentleman at the head of the Government, and he, for one, would express the independent conviction he entertained that this appointment, entirely within the purview of the statute, would prove for the benefit of the judicial institutions of the country, and deserved the entire approval of that House.


Sir, I am very glad that I gave way to the hon. and learned Member for Tiverton (Mr. Denman), as I thought it due in justice to him, because he had risen on several occasions, and from the position he holds it was natural that he should be anxious to state his reasons for voting for the Motion. I will not detain the House by adverting at any length to the observations of the hon. Gentleman who has just spoken (Mr. Craufurd), because, so far as Sir Alexander Cockburn is concerned, he is able to take care of himself; and I may say that if he had been in "another place" a great deal that has been said with respect to him would have remained unsaid and in obscurity, and would not have taken a form which is hardly creditable to anyone. It seems to me not to lie in the mouths of those who have objected to the comments of Sir Alexander Cock-burn, to say that he should not have published his letter, when the letter of another Judge was not only referred to, but he was actually invited to write that letter. If it was wrong in the case of Sir Alexander Cockburn to blame, it was equally wrong in the case of Mr. Justice Willes to praise. If it was wrong for Sir Alexander Cockburn to state that he abstained from expressing any opinion, lest he should be called upon to pronounce upon it in his judicial capacity, surely it was unfair to invite another Judge to give an opinion on a question which he might be called upon to decide in his judicial capacity. The Chief Justice is the guardian of the Common Law Courts. He says he had heard that a step would be taken to degrade those Courts by making them a mere stepping-stone—a mere passage into another office, for which another qualification was intended to be given, and that he had written as he did in order to prevent, if possible, the taking such a step. The hon. and learned Member for Tiverton has gone so fully into the question that I will endeavour to be as brief as possible, although there are some points on which I think I can strengthen what he has said. The question is whether, when you lay down limitations of an Act of Parliament, they are useless if the Executive can put a person into a position to override the Act, and that the only limitations that are effective are such as cannot be dealt with by the Executive. When you lay down in an Act of Parliament that paid Members of the Judicial Committee shall be chosen from one of the Superior Courts of Westminster, I ask any man of plain common sense, looking at the Act of Parliament, whether he would have imagined it possible that you should take a man appointed as a Judge, not to be a Judge, but for a purpose—put into a place, not to act as a Judge, but for a special purpose, to take his place as a paid Member of the Judicial Committee? You have forbidden barristers even of 15 years' standing being appointed, and by so doing you have in fact forbidden the Law Officers of the Crown being appointed to these high judicial offices. And yet you seized upon one of those very Law Officers, who is a barrister of a certain number of years' standing, and made him a Member of the Privy Council on the 3rd November, at which moment he offered himself for the post. Do not let it be said that at the moment of appointment to the Judicial Committee Sir Robert Collier was qualified, for it was on the 3rd of November that he really accepted the office, when he presented himself as Member of the Privy Council, though he was not appointed to be a Member of the Judicial Committee until the 22nd of November. Does anyone doubt, however, that he had accepted the office long before? Would Sir Robert Collier have accepted a Puisne Judgeship? Such a course would have been contrary to practice, and as a matter of fact he was desirous of repose upon the Judicial Committee. Then what is the use of all the forms we have laid down? Why leave out barristers of 15 years' standing? Why leave out the Scotch and Irish Judges? And yet if this is the proper interpretation you put upon the Act, it is in the power of the Lord Chancellor to make a Scotch or Irish Judge an English one only for the purpose of transferring him to the Judicial Committee. To go outside this Act, let us suppose that there was an Act requiring that the holder of a particular office should be a colonel of Engineers, would anyone contend that it would be proper for Her Majesty to select any person, and, passing him over the heads of other officers, make him colonel of Engineers for the purpose of giving him the necessary qualification? That, no doubt, is an argument idem per idem, but it is necessary that you should look at the same point in different ways, and thus you will, I think, be enabled to see by the terms of the statute itself what the intentions of Parliament really were. It is said that this appointment was not made for any improper purpose. That may be quite true. Indeed, no one has ever said that it was made for a corrupt purpose. It is also stated that the person selected in this case was perfectly fit for the office. Well, in a certain sense, I should not for a moment dispute Sir Robert Collier's fitness for the higher office to which he has been promoted; but, at the same time, I wish he had achieved his object in a better way. Nor do I intend to challenge in any way the intentions of the Government in this appointment. Supposing, then, we admit all these things, I ask whether it alters this question in any degree? If the law were not only in itself clear, but made especially clear by the debates which took place in 1870, and by the declaration of the Government in 1871, I would say that that conduct shows that it is not a question of a technical fact, as the hon. and learned Member for Richmond (Sir Roundell Palmer) called it, but one of a very substantial character. I say that the Government by its own conduct shows what they thought was the meaning of the act. They went first to the Judges. They obtained one Judge and had failed with the others. The right hon. Gentleman at the head of the Government thought it degrading to hawk about an office for acceptance; but I think it was far more degrading on the part of the Government to defeat the intentions of Parliament, or to suppose, if the Attorney General took office, that the idea of getting on with the public business of the Committee was of more importance than that of keeping faith with Parliament. My hon. Friend behind me (Mr. Goldney) spoke this evening of the dispensing power which was used in granting commissions to persons not qualified. What was that, and how was it used? It was in effect giving qualifications to persons who were really unqualified. It was an excess of power. That evasion of the Constitution was resisted, and the King who resorted to it could not prevail on his Attorney or Solicitor General to defend it. So, likewise, in the present case, we have not as yet heard the Attorney or Solicitor General get up to defend the appointment of Sir Robert Collier. It was said that James might find Judges to support him, but they would not be lawyers, and I cannot help remarking that very few of them have, as yet, been found to take part with the Government in this transaction, which, I think, is as much an unconstitutional proceeding as was that dispensing power to which my hon. Friend alluded. It is true that the Queen has the power of appointing a Judge; but I deny that the Queen has a moral right to make a man a Judge of the Court of Common Pleas for the mere purpose of placing him on the Judicial Committee. But it is evident that this attempt was a foregone conclusion; it was an appointment ad hoc; it was clearly an unconstitutional act, though not so wrong as if it were made for corrupt purposes. Lord Macaulay said, in reference to acts of that description— We are taught by long experience that we cannot suffer without great danger any breach of the Constitution to pass unnoticed. It is universally held that a Government which unnecessarily exceeds its powers ought to be visited by a severe Parliamentary censure, and a Government which under great exigency, but with pure intentions, has exceeded its power, ought immediately to apply to Parliament for an indemnity. That, however, the Government have not done; but, on the contrary, they justify their conduct in the matter. Then we are asked, what motive could the Government have had in this transaction but a good one? Well, people's motives are inscrutable and a riddle, and I must say I think that that is specially the case with regard to the right hon. Gentleman at the head of the Government. There are cases in which Acts of Parliament have been dealt with—though I do not wish to impute wrong motives—in which I am not so confident of the right hon. Gentleman's intentions and views. There was, for example, the recent case of the appointment to the Ewelme Rectory, in connection with which we have seen that the words "a Master of Arts of Oxford University" have been interpreted to mean "a Master of Arts of Cambridge University." There was also the case of the three Commissioners of the Irish Church, to whom the appeal was to be made from a decision of any one of its members. Yet one of those Commissioners having died, no one has been appointed in his place, and so the only appeal under the statute has been taken away. I will not advert further to the right hon. Gentleman, except to say that there are cases in which statutes have been dispensed with. I do not pretend to find out motives—one man may wish to walk in the straight path, whilst another prefers a labyrinth. Again, while one prefers to make a plain simple statement, another will be found to indulge in all the arts of casuistry. Again, another man sees only one rational interpretation, while he admits that rational minds might interpret the same terms differently. I think we shall hardly find motives on such an occasion as this. It is a perverse act, and no real explanation is offered. It was said that it would be derogatory to great officials to give any explanation in reply to the letter of the Lord Chief Justice. I must here remind the House that the letter of the Lord Chief Justice was written before the appointment to which it referred was accomplished. Why, then, refuse to offer an explanation to the Lord Chief Justice. Yet his potent wand struck the rock and only drew from it a miserable spurt of vinegar, while the pen of a favoured New York reporter drew from it a flood of oil and honey which seemed almost unlimited. I do not know what the Government think of the defence made for them by the hon. and learned Member for Richmond. I can only say that if the hon. and learned Member were my advocate before a jury I should have felt that I had a much worse case than I had supposed could be possible, when a Gentleman of such high forensic power could have made such a miserable affair of it. The hon. and learned Member admitted the indiscretion of the Government; but he said that there had been no actual breach of the law in substance, and then he made another most extraordinary admission, with reference to the clause relating to the appointment of Indian Judges—that if a gentleman were appointed to an Indian Chief Judgeship with a view to his being transferred to the Privy Council, he should have thought it a proceeding for Parliament to censure, but in this instance he did not think so. If the thing is forbidden by Act of Parliament, why is it not as much wrong in reference to England as to India? Why was it not wrong in England to appoint a man to a Judgeship, whom the terms of the former Bill were altered for the purpose of excluding? The hon. and learned Member then went on to say that he would have regarded it as fatal to the case of the Government if Sir Robert Collier had not been fit for the appointment. But what, I should like to know, has his fitness to do with the question? It may be a moral justification in one sense if the Government have not appointed a bad man; but it is no justification in a legal sense that they appointed a good man, if it was contrary to the spirit of the Act of Parliament. If it is contrary to the spirit of the Act of Parliament with reference to Judges in India to appoint persons without the intention of sending them out there for the purpose of being Judges there, it is equally wrong to appoint a man to the Court of Common Pleas, not for the purpose of being a Judge there, but for becoming a paid Member of the Privy Council. When the hon. and learned Member began to distinguish between criticism and censure I thought there was a good deal of pressure on his mind with reference to this transaction, and yet he told us we must not censure the Government. It is somewhat curious, too, that when the right hon. and learned Lord Advocate came to speak he laid great stress on the words "Parliamentary censure," as if he thought that the act of the Government was not altogether free from blame. I say the act of the Government—or must it be regarded rather as the act of two Members of the Government, with which their Colleagues have nothing to do? It does, indeed, seem rather hard that during the Recess, when the Chancellor of the Exchequer is riding on his bicycle somewhere or other, he should be made responsible for an appointment which two Members of the Government had entirely in their own hands. But the Government as a body adopts the Act, and it is quite right we should deal with them in their collective capacity. "You may criticize the Government as much as you like," says the hon. and learned Member for Richmond, "but do not even seek to visit them with censure." "Why not? "Because," he tells us, "the Government acted bonâ fide, and the Lord Chancellor is a most excellent man." With regard to that, I have heard that a noble Lord said "elsewhere" that the Lord Chancellor was of such an excellent character that it was unredeemed by a single vice. I assure the House I am quite willing to admit all these qualities. I will admit that— E'en his failings lean to virtue's side; but he has his failings, and it is a failing through which he has been induced to invalidate the law of his country, which he was bound to defend more than any other person. He has shown by his own conduct what interpretation he put upon the Act of Parliament by going to the Judges, and he would have continued in that course but for the interposition of the right hon. Gentleman at the head of the Government. We have been told that my right hon. Friend who has gone to the Privy Council is extremely sensitive; but I do not see any reason he has to feel hurt at what has been said. There has been no attack upon his character, and there has been no attempt to impugn either his intellect or his morality. I believe he has deservedly obtained a high judicial position; and, as I before observed, I only wish that he had gone up to it through a straighter path, instead of having offered himself up a victim for the repose in which he now finds himself. I do feel that there is nothing in this country so important, not in the legal or technical sense, but in the higher view, as that the Government should keep faith with Parliament. This is not a technical question of the mere construction of an Act of Parliament, but of the intention of the Act itself, and the Government were bound to carry it out in the spirit in which they introduced and passed it. They were bound to carry out its provisions with a chastity of honour that could not be found fault with. Can they believe that it is a question they have dealt with fairly, when they find that not by one person on one side of the House only, or by one section of the Press, but that there is an unanimous outspoken cry, to the effect that they had wilfully violated a law which they themselves had passed. It is not because we want to displace or injure the Government, but that we should protect the law that we take this course. If we do not protect the law it will be recorded for a precedent, and many an error by the same example will rush into the State; and some time or other the acts done on the authority of these men of high character may be put forth by bad men in defence of worse cases of corruption. It is a dangerous thing for two such men to lend their nobility and their power in an unjust behalf; and I call upon the House to interpose, and condemn this act, by saying that it is a proceeding which they will not justify. It has not been justified by the hon. and learned Member for Richmond—and I call your attention to the fact that he has never endeavoured to deal with the last part of my hon. Friend's (Mr. Cross's) Motion—because he felt that he could not honestly deny that the appointment has been of "evil example in the administration of judicial patronage."


Sir, this question has now had a history of between three and four months, and it reminds me very much of what occurred in Ireland a considerable time back, when the Government of George I. introduced into Ireland a new copper coinage, under circumstances in some respects questionable and discreditable. Dean Swift took advantage of those circumstances, and made use of his unrivalled powers through the Press to discredit the coinage, and by a system of sarcasm, reasoning, invective, and even misrepresentation, wrought up the popular mind to a sense of indignation amounting almost to a state of fury. He pointed out to his countrymen among other things, as we are told in the "Drapier Letters," that 36 of Wood's halfpence were only equal to six legitimate pence. He wrote letter after letter, and got full possession of the field. After three of these letters had appeared Sir Isaac Newton, who was at that time Master of the Mint, issued a report on the character and quality of the coinage, and gave both a description of the metal and the weight of the coins which had been sent to Ireland. But it was too late, the public mind was possessed by the witchery of the extraordinary productions of Swift, and the bare, dry, prosaic facts even of such a man as Sir Isaac Newton were totally inadequate to the purpose of undeceiving the people. We have heard a Sir Isaac Newton to-night. We have heard to-night a man who, if it may be said of any man, will be admitted to stand at the head of the noble profession to which he belongs, in whose integrity and judgment everyone places confidence, and he has told us something of the true character of the transaction which we are engaged in debating. The appeal, I am glad to say, lies not to an uneducated or excited populace, but to the British House of Commons assembled for a judicial purpose. The Motion which has been brought forward by the hon. Member for South-west Lancashire (Mr. Cross) is a Motion strictly penal. I appeal to the House, I appeal to him, I appeal to the right hon. Gentleman who has just spoken (Mr. G. Hardy) whether this is not a judicial question, and whether it is desirable that it should have imported into it topics which are perfectly irrelevant? Therefore, my first duty is respectfully, but firmly, to put aside those allusions and misrepresentations which the right hon. Gentleman has introduced into the discussion on this judicial question. What, I should like to know, has the living of Ewelme to do with the conduct of the Government in this matter? What fair and just title have you, on a grave issue raised to determine whether the Government have, or have not, violated the spirit of an Act of Parliament, to prejudice the case against them by throwing into the discussion assertions of your own opinions with respect to other matters which it is absolutely impossible for us on this occasion to explain? With regard to the living of Ewelme, I will only say this—that I think the right hon. Gentleman and those who act with him would be acting more fairly, if they believe an Act of Parliament has been violated in that case, if they would make it the subject of a Parliamentary discussion. Should they do so, I will tell out to the House of Commons every syllable as to what I have had to do or say on the subject, and I am confident the House of Commons will determine that my conduct in reference to that living deserves, not censure, but approval. But I claim nothing on that point for myself or my right hon. Friend the Secretary of State for the Home Department, to whom also another of those irrelevant references has been made, except this—that we do not ask you to adopt our opinions. All that we ask of you is to reserve your judgments, and not to allow the question of the construction of an Act of Parliament now under your consideration to be prejudiced by the introduction of matters having nothing whatsoever to do with it. Allow me to add that it is not my fault if I give any offence in the course of the explanations and defence which I am about to make, and if in the position in which I stand I tax the patience of hon. Gentlemen opposite, I will at least endeavour not to try their tempers. I find no fault with hon. Members opposite, or those on this side of the House, who have joined in this proposal to pass a Vote of Censure on the Government. The temptation was, perhaps, too great, and in saying that I do not mean to imply anything disrespectful. They found the Chief Justice of England—the Chief Justice of the Queen's Bench—[An hon. MEMBER: Chief Justice of England]—you know who I mean—had written a letter. It was, therefore, a great deal too much to expect that the bias communicated to the minds of a party in Parliament should not have become irresistible when they found themselves fortified by the authority of the chief of the Common Law Judges, who declared that he had been drawn forth from his retirement by a sense of public duty, as he believed—I do not for a moment doubt him—for the purpose of denouncing the conduct of the Government; and, after having censured the act of the Government in terms of the greatest severity, he used these remarkable words—"Such, I can take upon myself to say, is the unanimous opinion of the profession." I could not, and I cannot, admit the title of the Lord Chief Justice to interfere in this matter by a letter of such a character as he addressed to me. Prom a New York reporter—aye, and from anywhere else, and at all times—I am glad to receive friendly expostulations. The necessities of my office place me in constant correspondence with the whole of Her Majesty's subjects; and there is no day that it is not my duty to answer letters from persons less distinguished and less important than representatives of the great American journals. But that is a very small duty, and I regret that I could not offer explanations to the Lord Chief Justice, whose title to address me in that letter I could not admit; a letter couched in language so final, decisive, and unalterable, that he found it necessary to repeat his words five times over, embodying what the sense of his judicial duty had wrung from him, but which from that single facility of repetition appeared to me to lose some of their judicial weight. Of the publication of that letter I do not complain; because, from the moment it reached me, I confess it appeared to be of such a character that, as they say money will sometimes burn a hole in the pocket, so that document would actually gnaw a hole in any writing desk into which it might have been put by the writer to be kept secret. I regret such a course has been taken as renders it necessary for me to accuse my accuser; but I am here to deal with this matter as best I can. I admit him to be a critic, and give him credit for the motive he alleges, and I feel the weight of the blast that has been poured over us, because I cannot wonder or feel surprised that others are ready to adopt the construction of the Act which the Lord Chief Justice has unmistakeably declared to be indisputable. As the Government is on their trial, I think it is desirable there should be no ambiguity in the indictment, and therefore let us see what is the Motion we are called on to discuss. I find no ambiguity in the letter of the Lord Chief Justice, nor in the speech of Lord Derby which he delivered in Lancashire; but I regret the hon. Mover of the Motion (Mr. Cross) has not been able to speak out in that plain and bold language which other critics have adopted during the last three months, for the hon. Gentleman has used terms which have placed us in considerable difficulty, and his speech has not solved the riddle. The hon. Gentleman, speaking with as much moderation as the case would admit, described the act of the Lord Chancellor as an act of indiscretion and a grave error of judgment. Now, is it a mistake we are dealing with, or is it a crime? If the Lord Chancellor misconstrued an Act of Parliament, which is temporary in its operation and limited to a particular contingency, I hold I do not understand why it should have been made the subject of a Motion aiming at the existence of a Government and involving a great deal more. But I cannot flatter myself that this is the limited construction to be put upon the Motion, because the hon. Gentleman in another part of his speech did not interpret it so moderately. He said it was not for the Government to set aside the known and perfectly understood meaning of the Act. And my hon. and learned Friend the Member for Tiverton (Mr. Denman) said we had acted in a manner contrary to what we knew to be the intention of the House. I will only now speak of what I think to be the value of my hon. and learned Friend's attempt to prove that intention. He says we acted contrary to what we know to be the intention of the House. That is an extremely grave charge, and yet that is not the gravest we have heard to-night; for we are charged with the violation, with the evasion, and with the straining of an Act of Parliament. All these things mean one and the same thing; not a mistake but a crime; they mean wilful misconduct, that we did not attach to Acts of Parliament the authority and sacredness which we should give them. [Opposition cheers.] That is the true character, I believe, of the charge that is made against us, and my construction of it is confirmed by the cheers my words receive from unaccustomed quarters. I at once proceed to assure the hon. Gentleman he never made a greater error than when he assumed there was a disposition on the part of the Government to deal lightly with the subject. Deal lightly with such a subject as this! Deal lightly with the sacred authority of an Act of Parliament over Ministers who are set to govern the country! What I stated on the first night of the Session I repeat—that, in my opinion, I know of no graver offence, short of treason or base pecuniary corruption, that can be charged against a Government that has collective responsibilities to perform, than that now made against us; and we could do no other than accept it as a question upon which our existence is at stake. And, therefore, if it is of such a character in relation to the Government at large, every one must feel that it is of a much graver character in respect of an individual who does not positively merge his personal responsibilities in the general responsibility of the Government. If I have been guilty of wilfully advising my Sovereign to appoint Sir Robert Collier to the Privy Council, and afterwards to appoint him to one of the paid offices of the Judicial Committee, in violation of what I knew to be the spirit and the intention of an Act of Parliament, I will ask the House whether such a man is worthy to sit within these walls? A man so blasted by the sense of the House ought to be expelled from its walls by the sentence of the House; and if he were not so expelled, he ought himself to decline to be a Member of it. That is my opinion of the gravity of the charge which has been so often repeated, and which while being repeated is pervaded by a double tissue of error, as it were—first, with regard to the question of violation of the Act of Parliament; and, then, with regard to the assertion that we regard, it as a light matter. And now, Sir, with regard to the question whether we are indeed guilty of this grave and, in a political sense we might well put it, this capital offence. Let us for a moment consider what admission has been made, and see how it will narrow the controversy. In the first place, it is admitted that the statute has been obeyed; and, secondly, it has been admitted that a competent Judge has been appointed. Not only is it admitted that a fit man has been appointed, but something more than a fit man. What are the presumptive rights of an Attorney General? It is not necessary for me to dwell upon the merits of Sir Robert Collier. As Attorney General they are well known. For six years he has performed the duty of Law Officer of the Crown, and during that time he has dealt with many important points of controversy and serious cases of International Law. What are the presumptive rights of his office? He has a presumptive right to be appointed to the office of Lord Chief Baron; and he is perfectly eligible—subject to the discretion of the Government—to fill the office of Lord Chief Justice, the Lord Chief Justice of the Common Pleas, to hold the office of Lord, Keeper, and he might even have looked to the office of Lord Chancellor, as that to which he might, as Attorney General, be advanced without any intermediate stage of probation; and, therefore, it is not unfair to say we have appointed a man who presumably must be regarded as having something more to recommend him than mere fitness for the office to which he has been advanced. Recollect that after all this office, although in a Court of Appeal, where it is imagined to be in a position of superiority as to Westminster Hall, is really not in a Court of Appeal from Westminster Hall at all, but is in a Court of Appeal from other Courts, and for other purposes altogether. Well, the Attorney General is admitted, on all hands, to be fit to be a Judge; nor is that all—he is admitted to be fit to preside over Judges—for that he does when made Chief Justice; but, on becoming a Chief Justice, he may, by usage, be sworn in as a Privy Councillor; and, on becoming a Privy Councillor, he may be put on the Judicial Committee. But is the House aware of what the practice has been for a great length of time, with regard to the promotion of Attorney Generals? Since the Revolution we have had, I think, 54 Attorney Generals; and out of that number, deducting those who died and those who retired, more than one-half have been promoted at once either to the office of Lord Chancellor, of Lord Keeper, or of Lord Chief Justice of the Court of Queen's Bench, or of Chief Baron of the Court of Exchequer, or of Chief Justice of the Court of Common Pleas. That is the elevation of the promotion to which in practice the Attorney General of this country has been able to look. He has been regarded as a person invested with much more than the qualities necessary to make a Judge in Westminster Hall; and, as hon. Gentlemen know well, to offer a Puisne Judgeship to an Attorney General who has discharged his duties creditably for a space of time, instead of being what it would be to other men—namely, an honour—would be to him a slight, and the offer would be resented. Therefore, I may claim it as an indisputable proposition that we appointed not simply a man fitted for this office, but one recognized as presumptively fitted for a still higher office. I will also state a matter which will, I think, hardly be denied, and I will not push the matter too far. My hon. and learned Friend (Sir Roundell Palmer) who spoke to-night against the Motion of the hon. Gentleman opposite (Mr. Cross), made a speech with respect to which the right hon. Gentleman who has just sat down (Mr. G. Hardy) said—"What could the Government have felt while the hon. and learned Gentleman was speaking? Well, I do not know what the rest of the Government felt; but I know what I felt myself. I felt not only great admiration, at his able and lucid exposition, but when he sat down, I perfectly concurred with my hon. and learned Friend in the wise limitations which he brought to the discussion of this subject, and which, I must say, were a great deal more akin to the judicial character of the duties in which we are now engaged than the manifestations I have just observed from one or two hon. Gentlemen opposite. Sir, we appointed a person of more than ordinary fitness for this office under circumstances of considerable difficulty. The right hon. Gentleman and others appear to think it was our duty to have gone the round of the whole Bench from man to man, and it was explicitly stated by my hon. and learned Friend behind me (Mr. Denman), that it was our duty to have gone successively to the doors of each and everyone of the 18 or 20 Judges to offer this office to each of them, irrespective of anything except the fact of their being Judges—irrespective even of any question of comparative ability and efficiency. ["No!"] I know that my hon. and learned Friend meant that we should take the best man if we could get him; but we were to go gradually down to the bottom of the list, and even then we might have acknowledged that we were at a dead-lock, and that the interpretation of the Act of Parliament left us no option. That is a very logical and consistent manner of stating his view; but, if that be the true doctrine on the subject, at least we are bound to call on you to show us clearly that it is the meaning of the Act of Parliament. You must not quote conversations in the lobby. You must not quote nameless suggesters of Amendments in the Bill who, the moment they are mentioned rise in their places to deny the assertion. You must go upon the fair rules of interpretation, you must make out some- thing like a general proof before you adopt the doctrine which he wishes to apply, either with respect to the appointment of Judges, or to the condemnation of the Government. My hon. and learned Friend the Member for Richmond stated the case fairly. We never dreamt of making the round of the whole of the Judges; and I must own, after writing three letters in terms as nearly approaching to civility as I could command to three of the Judges, distinguished and excellent persons, and after a failure in each instance, with a considerable lapse of time through accidental causes, but through no fault of theirs, I did begin to think that with reference to this office, and also to the freedom and discretion of Parliament, it was desirable, before we lengthened the list of offers, to have some idea as to their probable reception. Such was the depressing effect of these successive refusals that I must say it was an immense relief when I found, after all, that we were able to obtain a real live Puisne Judge who was willing to take a seat in this tribunal, notwithstanding that Parliament had not made the endowment of which others regretted the absence. We received these refusals one after another with the chance of their being multiplied, and of the loss of further time in these communications, and we had to take into view the effect of all this in lowering the judicial office, and, perhaps, in leaving Parliament in a position far different from that which it ought to hold—namely, that of being arbiter and master in determining what the emoluments of the office should be. Therefore, before we took any public step—I do not say before any confidential communication with Sir Robert Collier, but before the matter was made publici juris and rendered irrevocable, we say that we were placed in a considerable difficulty. But I fully and frankly admit that that was no reason at all for straining or violating an Act of Parliament. Let there be no mistake on that subject. No syllable has been spoken by any Member of the Government, either here or elsewhere, to sustain the notion for a moment that we look lightly on the responsibility of such a violation or straining. But we dispute your view of the Act of Parliament. I do not say we deny your construction of the Act, because it is not a construction of the Act at all. There is no dispute on the construction of the Act. The dispute is on a theory that you choose to found on an Act of Parliament. My hon. and learned Friend has a doctrine of his own, founded on certain language used by the Lord Chancellor in "another place," and language perfectly susceptible of explanation compatible with the views we entertain, and which doctrine he has a perfect right to entertain; but he takes it as a key to the construction of the Act of Parliament. But that is not a key to the construction of the Act, and has no weight in its construction; it is a key to quite another matter—namely, to the question of whether the Government has not broken faith with Parliament. That is a matter the importance of which I will not depreciate; but it is quite different from the question of construction. I have one word to say on the question of breaking faith with Parliament—that is, of having promised to Parliament that this Act should be understood to permit the appointment of Judges who had had experience upon the Bench, and then appointing Sir Robert Collier, who had none. Sir, I maintain that no ground whatever has been made out for saddling us with that breach of faith. It is idle to go back to the Bill of 1870 and to quote the fact that an hon. Member wrote to The Times about that measure, or to make the perfectly childish assumption that that letter to The Times was a real measure and test of the Bill introduced by the Lord Chancellor, and is to be applied to determine its intent and meaning. Why, the Bill of 1870 went on a totally different ground. I know not what, whether indisposition or some other cause prevented my attending the debates on that occasion; but I remember of the Bill of 1870 that the whole of the legal profession objected to it, because it tended to bring upon the Judicial Committee of the Privy Council legal persons of a stamp and class lower than would find their way there by this Act. That was the staple of the objections to the Bill of 1870. What, then, was more natural than that my right hon. and learned Friend (Sir Robert Collier), when he produced the Bill of 1871, not referring to the letter in The Times, but recollecting what he did of the debates, with which he was so conversant, should say, in effect—"In the Bill I am about to introduce, you will find that, conformably with the views expressed in this House, care has been taken to provide for the appointment of fit men, and meet the objections which were entertained to the former measure?" My hon. and learned Friend (Mr. Denman) quotes the words of Sir Robert Collier, and founds a doubtful interpretation upon them, and upon that doubtful interpretation he bases a construction of the Act on which to found his condemnation of the Government. Sir Robert Collier, in a letter which I hold in my hand, states in language that is material to the good faith of the Government, that the varied qualifications required in the Bill of 1870, were reduced in the Bill of 1871, and that— The choice under the Bill was limited to Judges of the Superior Courts of Westminster Hall and Chief Justices of Bengal, whereby we secured a class of Judges who might properly become members of any Appellate Court hereafter to be constituted. There was a long debate on the second reading of the Bill, in which numerous suggestions were made, but none for any provision securing judicial experience. Indeed, I put the qualification to the House as one of status, and it was so accepted. The requirement of a term of judicial experience is neither mentioned in the Act, nor referred to, nor suggested by anybody in debate. Well, Sir, so much for that point; but, undoubtedly, the main question is, what is the proper construction to be placed upon the Act? It is quite possible for two theories to be held with regard to it, but only one construction can be placed upon it; and that is the simple, full, logical construction which the Government has placed upon it, which you may test by logic, or grammar, or any other standard you choose. I admit that if you propose to go into the intention of the Act you travel into a much wider field. It does not require a lawyer to set up a theory with regard to the possible intention of the Act, neither does it require a linguist to maintain one. On this point I admit that we are at issue with my hon. and learned Friend and the right hon. Gentleman opposite, and let us see in what respect we differ from them with relation to it. Our assertion is a broad one—it is that the Act, by declaring that the persons to be appointed to the Court of Appeal should be either actual or past Judges, clearly referred to the status of the persons to be appointed, who should be such as were fit to be placed upon the Bench, at Westminster Hall. The hon. Member for South-west Lancashire (Mr. Cross) says that unless we adopt his view we shall reduce the Act to a nullity; but is there then no aggregate of qualifications supposed to characterize the persons appointed as Judges in Westminster Hall, and is it reducing the Act to a nullity to take care that the persons appointed under it shall be fit and proper persons to hold the office it creates? The hon. Member alleges that it was not status that Parliament had in view, but judicial experience exclusively, and I think I have shown you that his theory is erroneous. In fact, it has been argued that the Lord Chancellor and I have condemned ourselves because we set about looking for judicial experience, and it was only when we found that we could not obtain it that we resorted to a strange interpretation of the Act. Sir, I will give a simple explanation of that circumstance. The Act points out that the persons shall be Judges, thereby indicating that they should be persons of a certain status; but though by that indication Parliament expressed part of the duty of the Government, it did not express its whole duty. Its whole duty is to review the whole number of persons who possess that status, and to select from them the best. For that reason we gave judicial experience the first place, and so afterwards turned to Sir Robert Collier, because we also found in him elements of fitness altogether superior to mere status. Now, let me further observe that there are many modes by which the hon. Gentleman ought to have been able to support this Motion if his doctrine be a sound one. He ought to have been able to show that we had impeded the attainment of the purpose of the Act by failing to provide for the discharge of the duties it imposes by thoroughly competent persons, or by failing to relieve that dead-lock of business which had been complained of. He did make one attempt to do that—and I think he knows how entirely it failed—when he said that it was the intention of the Act to place the Judges on all fours with the other Judges in the Court of Appeal. But the other Judges did not all obtain their positions in the Court of Appeal on account of their possessing judicial experience; on the contrary, many of them got there per saltum, possessing no judicial experience whatever, and therefore I claim that argument of the hon. Member as being conclusive against himself with regard to this Motion. But why does not the hon. Member refer to the language of the Act in support of the Motion? Because he cannot find ground for the sole of his foot to stand upon in the language of the Act. If Parliament intended that judicial experience should be a qualification for the holding of this appointment, why was not the statute worded so as to support that view? What difficulty lay in the way? Are there not twenty ways of doing it? Why did not the Act direct that the appointment should be made from among the then Judges, or from among those who should have been Judges for a certain number of years—for such qualifications are familiar enough in our Acts of Parliament—or from among those Judges who have shown their fitness for the office? We have heard to-night reference made to the opinions of Lord Brougham; but I trust that the House will allow me to read another warning uttered by that noble Lord upon this method of construing statutes. Lord Brougham says— We cannot feel any doubt when the question arises as to the meaning of the words used; we may look at the spirit as well as at the letter of the enactment. But here, in order to uphold the decision, we are called upon to go a great deal further, and to look at the presumed intention of the Legislature. Because the Legislature has confined itself to one specific mode of accomplishing its purpose of carrying into effect the intention with which it made the enactment, we are therefore to add enactments which the Legislature never made, provisions beyond what the Legislature has made, for the purpose of completing that which it left incomplete, for the purpose of supplying what it left defective. I am not at all prepared to adopt any such general principle of construction. That is the opinion of Lord Brougham upon this subject. Well, Sir, in that case I say the burden of proof lies entirely upon the hon. Member who has brought forward the Motion, and I am bound to say that he has entirely failed in giving us such proof as is necessary to enable him to maintain the charge he has brought against us. The hon. Member is bound to prove his case strictly—it is not enough for him to give just enough as will enable him to set up a tenable construction of the Act, or a tenable theory of his own. I have shown that the construction which we put upon the statute is a reasonable one, and the hon. Member has failed in showing that it is unreasonable. Are we to be misled by false analogies? It has been asked—"Would it have been allowable had you sent out the Attorney General, or any other person, to India, or appointed him Chief Justice of India without sending him out, and then as such have appointed him to the Privy Council?" My hon. and learned Friend (Sir Roundell Palmer) very truly said that for such a course we should have deserved the censure of Parliament? But is there the slightest analogy between the two cases? Can anyone doubt as to why an Indian Chief Justice is named in the Act? If you merely wanted a larger number of Judges to select from you would not go to India, but to the Irish and Scotch Judges; but you require special knowledge of Indian law and judicature, and had we appointed a man who had that knowledge, we should not have appointed an unfit man. The English Members are appointed with regard to home practice alone, and the Attorney General has this element of superiority over English Judges—that he is more widely conversant with different kinds of law by the course of his practice as Attorney General. My hon. and learned Friend the Member for Denbigh (Mr. W. Williams), though he is going to vote against us, thinks judicial experience is not the thing required, thus being at variance with the hon. Member for South-west Lancashire. What was required, he says, was that the Government should have had large opportunities of testing the qualities and capacities of the men. If that is the case, I want to know with respect to whom have the Government such large opportunities of testing qualities and capacities as with respect to their own Law Officers, especially the Attorney General. He, as has been pointed out in certain cases, discharges many duties properly judicial, and the Attorney and Solicitor General are constantly trained in varied questions which come to them as the Advisers of the Government Departments, being called upon to lay aside the character of the mere advocate, endeavouring to convince a jury or obtain a verdict, and to give the Government advice founded upon knowledge and consideration of all the circumstances and aspects of the case, so that Government may proceed securely not only in dealings with Her Majesty's subjects, but even with colonies, dependencies, and foreign Powers. The right hon. Gentleman opposite (Mr. G. Hardy) asked what would be thought of a colonel of Engineers being created in this way, in order to give him a status to occupy some particular appointment. Probably he has never heard of the Duke of Wellington's opinion on the subject. Sir Charles Napier wished to have Colonel Pitt-Kennedy as the Chief of his Staff in India, and I believe made it a condition of his accepting the appointment. Colonel Pitt-Kennedy had left the Army, and could not, consistently with the regulations of the Army, hold the office unless he had the rank of a colonel in the Army. What did the Duke of Wellington do? He created him ensign, and passed him in a few weeks or days through various stages till he made him colonel, because he knew him to be qualified. That, I think, is a pretty fair parallel, and a complete answer to the right hon. Gentleman's case. I am about, however, to admit that we failed in one important particular—that of foresight. However we may be censured for it, we had not the smallest conception of the differences of opinion that this proceeding has given rise to, and the difficulties it has caused. That is a frank confession. We did not foresee the storm which would be raised. I will go further. I think that if we had foreseen it we should have been very foolish to have evoked it. Who in his senses would do such a thing? I am sure Sir Robert Collier would not. He was much too strong in the consciousness of his public services, and the strength of his substantial titles to approval and reward, to be in any undue hurry about obtaining a place of rest. It would, moreover, have been most unwise on our parts had we formed a conception even of what seem to us the extraordinary views fastened upon the Act of Parliament by a purely extraneous and wholly arbitrary process. Having made that frank avowal, I think I may ask an answer, as a concession in return, to the question—Was there ever a Vote of Censure passed upon a Government—a sentence of capital punishment—that hung upon so slender a thread? It is admitted that the statute has been obeyed, and that the public interest has not been injured. It has been explained that there were considerable difficulties. It has been shown that the Attorney General as such was entitled by usage to a higher office and reward than that which he has occupied. Under such circumstances, was it ever known that a Government was threatened as we are threatened upon this occasion, for I trust it has been most fully shown that we are in no way indifferent to the obligations imposed by Acts of Parliament? I have not treated this as a party measure on the part of hon. Gentlemen opposite, for I have admitted that it was impossible to expect, under such circumstances, and with such authority to back them, that they should not be led into a path where we venture to think they have been misled. But let me say a few more words on the general aspect of the subject. Nothing is more dangerous, especially to a popular tribunal, than this practice of assuming conclusions calculated to condemn any man, or a body of men, upon what is called the spirit of Acts of Parliament, upon what you cannot support by well-understood principles of legal construction, and upon what you attach as an appendix to Acts of Parliament, in order to meet your own views and opinions. Justice ceases to have certainty when these processes are adopted, and injustice can always find a cover when rules so lax are made to guide the conduct of Parliament. Stratford was condemned by a process now regarded as ever to be abhorred and shunned, because, though no particular acts of his amounted to high treason, it was held that according to the spirit of the law they were treasonable. We do not deal with men for treason now; we do not fly at such lofty game; but I have sometimes seen, with regard to theological differences, where passion has freest scope, that where men had propounded unpopular opinions, where it was found very difficult to convict them upon particular propositions, authorities, or bodies have been ready to say "the spirit of the book is worthy of the strongest condemnation." I trust this House, whatever party may sway its proceedings, will never be drawn aside from the straight road of justice into those slippery paths. My hon. and learned Friend thinks we intended well, but have been led in a moment of weakness into unwise means. That is just what we think of him. I know the goodness of the end he has in view, the sincerity with which he spoke, and with the almost idolatry he feels for the judicial Bench, he reasons with a fervour and depth which really bias the judicial truth and purity of his mind, leading him to use arguments which he would not have used, had not his feelings been so deeply involved. But it is not the consequences to the Government that I consider. I have never supposed that the welfare of the country was bound up with the continued existence of any Government, still less should I presume to say so of the Government with which I am specially connected. That is comparatively a small matter; and if there are Gentlemen who think that these are difficult times, and that it is desirable to avoid the political disturbance of a crisis, even in the mild and limited sense we attach to such terms—I do not press that, it is for them to consider whether they will support the Motion. I urge very much higher grounds—grounds that there are principles of construction which ought to be adopted for the security of all interpretations of law, and that—as my hon. and learned Friend the Member for Richmond has pointed out—if Parliament indulges in making into law those notions which hang about and attach to laws in the minds of particular men, they do something of more evil example to the conduct of the Government of this great country than could arise from this appointment, if it was as objectionable as you suppose it to be. One word on the effect of the Motion upon Sir Robert Collier. I wonder how many hon. Gentlemen opposite have weighed this. They are going to vote for this Motion, of course wishing it to be carried. Suppose it carried, what is the position of Sir Robert Collier to-morrow? It has been suggested that he would be exactly in the same position as now. If any hon. Gentleman holds that opinion he holds it in common with very few. My hon. and learned Friend, however, contemplates his possible resignation. I know nothing of that; but I think Sir Robert Collier would feel that a shade rested upon his judicial fame, and that it possibly might become the end of his judicial career. It is impossible, speaking plainly, to exempt the man who was a Member of the Government when this Act was passed—who was the Member of the Government responsible in this House for explaining its character. But this is not an appeal on behalf of Sir Robert Collier personally. It is an appeal upon a broader ground. What do you intend to be the relation between the Legislature in time to come and the Judges of the land? At present you are strictly restrained from interference except in one most solemn and formal manner. You are not to tamper with the question whether the Judges are on this or that particular assailable. You are not to inflict upon them a minor punishment. You have never thought it wise to give opinions in criticism or in reprobation of their conduct when they have casually gone astray. Once in my life—I will not say to which portion of the dominions of Her Majesty I refer—it has so happened to me as a Member of the Executive Government to be called upon to consider the conduct of a Judge who had most rashly and culpably reflected upon the proceedings of a Legislature, and had undoubtedly exposed himself to our severe reproof. But what view did we afterwards take of the matter? We came to the conclusion that, as the act was not an act with respect to which it would be right to ask Parliament to address the Crown for his removal, it was not an act of which hostile notice should be taken at all. Are you prepared to say that you will venture upon breaking down that fence which by your own wisdom—it is not by any external power—prevents you from intermeddling with the character of the Judges by means of Votes which, if I may say so, dare not aim at their removal, but which, at the same time, have a certain tendency to lower their character and to impair their credit and authority? I must say, I, for one, should be much surprised if the House of Commons were to pass a Vote with such a tendency as this. The House of Lords—I hope I may say so without the slightest breach of their Orders and great authority—have set us an example of wisdom. That House, in which the party opposite counts a majority of 80—An hon. MEMBER: 70]—70, if you like—has declined to pass even by a single voice judgment against this appointment, and therefore against the Government; and I, for one, am well convinced the House of Commons will refuse to fall into the snare.


said, he was surprised at the right hon. Gentleman at the head of the Government introducing the name of Sir Robert Collier in connection with that subject, and he trusted that no fear as to what might happen to that right hon. and learned Gentleman would influence the mind of any hon. Gentleman present in coming to a decision upon the merits of the case before them. Whatever that decision might be, and the aggregate result of the division which must ensue upon it, he could by no means accept it as conveying a true judgment on the case, as it was well known there was great reluctance to bring about a change of Government just at the present. Having listened to the defence of the right hon. Gentleman, he was bound to say that, as in the case of that Rectory which had been referred to, this was not the first explanation he had heard from him that was unsatisfactory, and no explanation had left the House more in the dark with reference to the motives which had led to the course of action than that just offered.

Question put.

The House divided:—Ayes 241; Noes 268: Majority 27.

Words added.

Main Question, as amended, put, and agreed to. Resolved, That this House finds no just cause for a Parliamentary censure on the conduct of the Government in the recent appointments of Sir Robert Porrett Collier to a Judgeship of the Common Pleas, and to the Judicial Committee of the Privy Council.

Adderley, rt. hon. Sir C. Bentinck, G. C.
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