I think, Sir, it will be for the convenience of the House that I should give some further explanation of the intentions of Her Majesty's Government in consequence of what 155 ocurred "elsewhere" in relation to the Judicature Bill. I stated, when the subject was formerly alluded to, that it had come to our knowledge that serious doubts were entertained in quarters entitled to much authority and respect, whether the proposal we had given notice of our intention of making in this Bill was or was not consistent with the Privileges of the other House of Parliament. We have thought it our duty, not in a controversial, but, I hope, in a constitutional and prudential spirit, to give immediately our best attention to the question. It is our duty, in the first place, to watch with care over everything that relates to the progress of a Bill of so much importance, on which so much of the labour of both Houses has been spent, and in regard to which so much expectation is entertained by the country; and it is also our duty to consider any matter relating to a subject so serious as a conflict of opinion between the two Houses of Parliament as to their Jurisdiction—a matter which we know to be grave, and which, especially after the transactions of 1860, the House of Lords knows to be grave also. We thought it very advantageous that we should consider this subject before any question was actually proposed to this House of Parliament which could lead to the adoption of any positive proceeding in the other House leading to the possibility of future difficulty. At present nothing has happened, excepting that the Government has announced its intention to make a certain proposal as to which Gentlemen in many different quarters of the House have given their opinion almost uniformly, I think, if not quite uniformly, in its favour; but on the other hand, as I have said, in quarters of influence and authority doubts have been raised on this very serious matter. What I understand to be the statement made to which these observations of mine have reference is this—if this House should, in amending the Supreme Court of Judicature Bill, insert provisions which would extinguish the Jurisdiction of the House of Lords with regard to Irish and Scotch appeals, it is to be considered as a violation of the Privileges of the House of Lords, assuming these Privileges to be correctly declared in a certain well-known passage of Mr. Justice Blackstone, which runs as follows:— 156All Bills likewise which in their character affect the rights of the Peerage are, by the wisdom of Parliament, to have their first rise or beginning in the House of Peers, and suffer no changes or Amendments in the House of Commons.Now, there are two questions that may be raised on that passage—first, with reference to its meaning, and second with respect to its authority. As regards its authority, I should not say that a sentence quoted from Mr. Justice Blackstone could bind the right or title of Parliament—I mean morally—which must depend on accumulated evidence of often repeated and long-continued consent. With respect to the meaning of the passage; it is very difficult to say what is meant by "the rights of the Peerage." But, undoubtedly, it is the opinion of some—I confess I think it a reasonable opinion—that that expression does not point so much to what concerns either the constitution or the duties of the House of Lords collectively, as it does to questions affecting the titles individually by which Members of that House sit within its walls. However that may be, I wish to observe upon an important point in connection with the present case. The present case is one in which we do not propose—it never has been proposed—to deal with one of the original and traditional Privileges of the House of Lords. As regards the power of the House of Lords to judge English Appeals, it is a power which the House has possessed from time immemorial, and which it is very difficult to detach even in argument from the history and being of that House. But as respects the power to deal with Irish and Scotch Appeals, it is a power which accrues to the House of Lords exclusively from the declarations of a statute; and while I would carefully avoid any term of controversy so far as it is in my power, I must say it would be to carry this doctrine to excess if, with respect to what has been done by a statute, it were to be contended that it was not in the power of this House to make proposals to modify or remove that power. I may be permitted on this occasion of very considerable interest to point out how very far the practice of the other House of Parliament has been from the assertion of this rigid theoretic doctrine. I will mention a few cases which have occurred, and I will quote nothing what- 157 ever but what have been the subjects of Parliamentary controversy. Some of those who hear me recollect the time when it was almost the annual practice to bring forward Motions in this House to relieve the Members of the Episcopal Bench from their duties in the House of Lords. Bills for that purpose were introduced, although they were never passed or accepted by the House. They were objected to on the ground of policy and sometimes of high constitutional argument; but never, so far as I know, was it asserted that to deal with or even to initiate such a Bill was beyond the proper province of this House. I may mention that Bills for that purpose were brought forward in 1834, 1836, 1837, and 1838, and I believe, if the Votes were carefully examined, additions might be made to the list.
§ MR. DISRAELI
I must rise to Order, Sir. I do so with the greatest regret but I must call attention to the fact that, without Notice, the right hon. Gentleman is entering into discussion on a subject of the greatest importance. No doubt the indulgence of the House to one filling the exalted position of the right hon Gentleman, and who is entitled to that position for so many reasons, would be willingly granted, but it must be done with reason. Under usual circumstances, a Minister would bring up some Papers, and on the Motion that these do lie on the Table the House would, of course, listen to him, and enable him to make any statement which he thought necessary. The late Lord Palmerston, when he led this House, always took that course. Even if he did not take that course, the House will receive with great indulgence any statement of facts from the right hon. Gentleman, however lengthy it must necessarily be; but he is not confining himself to a statement of facts for the future consideration of the House. He is entering into an argument upon a very abstruse question, without first of all giving any Notice to the House, and under circumstances which will not allow other Members to express their opinions. I therefore object to the course taken by the right hon. Gentleman. If he wishes a discussion on this important question he should have given Notice, and, at all events, he should make some Motion now which will enable other Members to avail themselves of their right and 158 privilege to make such observations as they think necessary.
The importance of the matter is such that unquestionably I should be justified in making the Motion, which ought never to be made without serious cause, that the House do now adjourn; and I have not the slightest objection to conclude with that Motion, in order to enable the right hon. Gentleman to make any remarks which he would be entitled to make, whether I conclude with a Motion or not. The right hon. Gentleman will see I have justification for the course I am pursuing, because it is one which is conceived in no narrow spirit, and which really aims at giving facility for the progress of Public Business as well as avoiding causes of serious difficulty. The right hon. Gentleman must be aware that there is some peculiarity in the circumstances out of which my address arises, and it has reference to proceedings such as are not permitted in this House, and it is difficult to treat under the regular forms of this House of proceedings which have been so carried on. I will resume the enumeration of precedents to which I had begun to refer. In the year 1832, there was actually introduced into this House a Bill for the abolition of the right of voting by proxy in the House of Lords. That proposal, however, was not persevered with, upon the ground that it trenched on the Privileges of the House of Lords. I think that withdrawal was perfectly justified, inasmuch as the Bill did not refer to anything belonging to the duties of the House of Lords, but to a subject which is properly one of procedure in the House of Lords. It is a plainly reasonable assumption that the procedure of either House ought not to be the subject of discussion in the other House. In the year 1856 a Bill was brought into this House from the House of Lords, which dealt with the appellate jurisdiction of the Lords in relation to the creation of life Peers for certain purposes. That Bill was not accepted by this House, but it was referred to a Select Committee, and, unless I am very much mistaken, it is impossible to conceive any more clear assertion by the House of its title to deal with the details of such Bills and to introduce Amendments into them. In the year 1868 there came to this House a Bill to increase the number of Bishops, 159 and provision was made in this Bill for I introducing the new Bishops into the rotation by which prelates take their seats in Parliament. That Bill was amended by this House. We struck out all the provisions relating to the Peerage, and we struck out of it others relating to salary. The Bill was sent back to the Lords, and the Lords disagreed with the Amendments, but they disagreed upon the merits and did not raise any question of Privilege; and the Bill was finally dropped, because this House adhered to its Amendments, the Lords adhered to their disagreement upon the merits, and the Bill was lost. In the year 1833, under the high authority of the late Lord Derby, there was actually introduced into this House that important measure known as the Irish Church Temporalities Act, which most importantly modified and altered the constitution of the House of Lords with regard to the rotation in which the Irish Bishops were to sit. That Bill was accepted by the Lords without any difficulty as to Privilege, and finally became the law of the land. In 1869, we introduced into this House the Irish Church Bill; in that Bill, if I am correct in my recollection, we proposed to take away the right of Peerage of existing Peers as well as to destroy the Peerages themselves prospectively. That Bill went to the House of Lords, and the Lords, I believe, amended the Bill by carrying the rights of the existing Peers; we adhered to our refusal to recognize those rights, the Lords eventually accepted the provisions of the House of Commons; and that provision, on the initiation of the House of Commons, going straight to the rights of the Peers in the highest sense, became the law of the land. These are proceedings of the Commons, and I believe many others might be mentioned; but there are other proceedings in the House of Lords. If ever there was an Act which materially touched the constitution and Privileges of the House of Commons, it was the Septennial Act, which in 1716 was introduced not in this House, but in the House of Lords. In the year 1832 there occurred a most singular instance. A Bill was introduced into the Lords, the effect of which was to alter the law with respect to the vacating of scats upon the acceptance of office under the Crown. That Bill was received by the Lords without objection; 160 it was debated in the Lords; a single Peer, Lord Radnor, took the objection that it dealt with the Privileges of the House of Commons, as, indeed, it did in the very highest and closest sense; that objection does not appear to have received any support from any other Peer, and the Bill was dropped before the second reading; but it was dropped, as I believe, entirely on the ground of want of time to proceed with it at the period of the Session at which it was introduced. We say, therefore, as regards this claim, such as we understand it, without seeking at this moment to commit the House,— because I am arguing the matter entirely with reference to the intention of the Government as to its own proposals—we shall feel bound to deny in the most respectful but in the most unequivocal, and in the most absolute manner, the claim of Privilege which has been advanced. With every regard for the freedom of the House of Lords to assert its own privileges, should it think fit, the time for this assertion upon the present occasion, as I have already said, at any rate has not yet arrived, and I am discussing only individual, but weighty opinions; but we must unequivocally decline to accept or admit that claim of Privilege. I may say we should do that in no narrow spirit of selfish or exclusive regard to the Privileges of the House, though I hold the maintenance of the Privileges of the House the very first among the duties of its Members. This is a matter in which, in our view, the interests of the whole country and the interests of the House of Lords itself are directly concerned. If it be held, with respect to the constitution and duties of the House of Lords, that the House of Commons cannot initiate a Bill nor amend a Bill, but is reduced to the simple function of saying "Aye" or "No" upon the aggregate, what is the consequence? Among other consequences it immediately results that the House of Commons must make a corresponding counter claim, and we must say, with respect to every Bill which touches the constitution of the House of Commons, the mode of its choice, and the duties it performs, that the Lords cannot take the initiative. I need not remind the House how completely that w ill be at variance with the course hitherto pursued, because we almost all of us recollect what happened in 1867, 161 Many may remember what happened in 1832—and happened in principle, I think, with perfect propriety—when the House of Lords came to exercise its title to pronounce an opinion adverse to that of the House of Commons upon many provisions of Bills for reforming the representation of the people. As to the general doctrine, there can be no question, in our minds, as to the duty we ought to pursue; but I ask nothing of the House upon the subject at the present moment. I may venture, without impertinence, to say this is not the first time the subject has been touched during the existence of the present Government. There have been two cases—one of them in the present year and one in 1869. An hon. Friend sitting behind me (Mr. Stapleton) proposed to introduce a Bill to alter the mode of electing representative Peers of Scotland and Ireland—undoubtedly a question directly affecting the constitution and Privileges of the House of Lords, and I venture to refer to what I said on that occasion, the 9th of March, 1869, to show that at least I do not require now to invent or profess for the first time a doctrine applicable to the present occasion. No objection was taken to the Bill on the ground that it trenched on the Privileges of the House of Lords, and I said—And yet if I might give a recommendation to my hon. Friend, it would be that he should be satisfied with the introduction of the Bill, and that he should not attempt, at the present time, to press it further. I should not certainly venture to make any recommendation of the kind in a manner implying the slightest derogation from the title of any Member of this House to introduce a Bill, or of this House to pass through all its stages a Bill affecting the constitution of the House of Lords. The House of Lords has at all times exercised its unquestionable right of passing and of modifying or rejecting measures affecting the constitution of this House. The rights of the two Houses in this respect are incontestable. At the same time, as a matter of policy, I think my hon. Friend will agree with me that it is desirable that the initiative should be taken by the House of Lords itself in legislation of this kind."—[3 Hansard, cxciv. 988.]That is the principle upon which Her Majesty's Government have endeavoured to act in the present year in inviting the House of Lords to deal in the first instance with a measure which went directly to the question of the exercise of its appellate jurisdiction. So much for the general doctrine; and now let 162 me consider the position in which we find ourselves. There has been made in the House a proposal which I may say met with general favour, and which was accepted by the Government, who anticipated any substantive Motion of my right hon. Friend behind me (Mr. Bouverie) with a declaration on their part that they had always regarded it as an improvement in this important Bill, and that the only reason which had prevented them from endeavouring to secure its adoption in the first instance as a portion of the measure had disappeared—namely, the presumed disinclination of the people of Scotland and Ireland. The question is this—can we gain the important objects we have in view of giving completeness to the Bill now before the House, with reference to appellate jurisdiction, and at the same time avoid any reasonable chance or apprehension of anything like a conflict with the House of Lords? I am bound to observe that this is an occasion upon which, if possible, the feelings of every Member of this House would induce him to desire to avoid any conflict with the House of Lords. There can be no mistake in our assertion of the rights of this House; but the circumstances under which we shall have to consider the application of them are peculiar circumstances, for the House of Lords itself has spontaneously tendered to us a Bill in which it has sacrificed the main part of this important jurisdiction as an offering to the public welfare. That, Sir, is a significant and an important fact, and it is one to which we desire to allow due and full weight. We consider it in conjunction with the public importance of passing the measure, and the great importance also of severing if possible the consideration of any measure involving large public interests from questions relating to conflict of jurisdiction between the two Houses. Now, we believe there is a mode of procedure which is not without sanction and analogy in the mode of procedure of Parliament, which will enable us to gain this end. If hon. Gentlemen will advert to the Amendments of which Notice has been given on the part of my hon. and learned Friend the Attorney General, they will perceive that a portion of those Amendments touch directly the jurisdiction of the House of Lords; whereas the larger 163 portion of them embrace matters which, although I am very far from saying they belong exclusively to the House of Commons, yet they most properly belong to the House of Commons, because they touch the question of the judicial establishments of the country, with the charge they necessarily entail. I am not now going to speak of money Bills properly so called, for the questions of privilege and practice with regard to such Bills are so well understood that I need not refer to them; but sometimes in other Bills collaterally there arises in the view of the House of Lords the necessity for some provision which, if fully made, would entail a charge on the people of this country; and the House of Lords when it desires to attain the double object, first of all of indicating what they think public policy requires, and, secondly, of avoiding even an apparent trespass upon the province of the House of Commons, is in the habit of introducing into such Bills words indicative of its purpose, but yet, until they receive their complement by the action of this House, insufficient to give effect to those provisions. We propose to pursue an analogous course with regard to the Amendments of which we have given Notice. We propose to retain in these Amendments everything which relates to the complete and effectual constitution of the new Court of Appeal and to all matters collaterally incidental to that Court. I am now speaking, of course, of what we intend to ask the House to allow us to propose, if the House should accede to the Motion to re-commit the Bill. The whole of these provisions of the Amendments we shall ask the House to adopt. If that is done we shall at the same time forbear to ask the House to adopt those words which directly deal with the jurisdiction of the House of Lords, and the transfer of the Appeals. If the House of Lords feels disposed on the merits to deal with these beneficial provisions and to accept them it will thus be able to pursue that course without finding itself entangled in any questions relating to the Privileges of that House. The Lords will find; ready made to their hands, a Court of Appeal evidently intended for the three kingdoms, and in truth only to be justified in its details, because it is intended for the three kingdoms. But they will find nothing which, by the force of the words contained in 164 the Bill, will either destroy or impair the jurisdiction of the House of Lords over Scotch and Irish appeals. That will be a mode of invitation from this House to the House of Lords to part with their appeals which is analogous to the invitation which the House of Lords addresses to us in certain cases to make provisions of law involving public charges, and it will enable the House of Lords to deal with the question entirely apart from perplexing matters of controversy. I may also say that this mode of procedure is one which I hope will not put the House to inconvenience by entailing any delay in our proceeding with this Bill. It is evidently for the convenience of the House thaw the proposal to re-commit shall be made immediately on the receiving of the Report and before the consideration of the Amendments, so that the House may have an opportunity of considering the Bill as a whole, instead of being obliged to consider the Amendments first in a fragmentary and then in a complete form. In the course of this evening we will make the necessary modifications in the Amendments which have been laid on the Table, and they will then be before the House in a form which we trust will be both effectual and pacific. We make this proposal as an act of courtesy and consideration, which we think is warranted and called for by the circumstances of the case. We are unwilling to enter into a conflict with the other House of Parliament on any subject, and we are most of all unwilling to run the risk of such a conflict—whatever we may think of any abstract proposal—when the challenge given would be in the form of a reply to a Bill by which the House of Lords has patriotically and wisely surrendered a portion of its own jurisdiction. We wish to meet and to requite, as far as belongs to us, that wisdom and patriotism of the House of Lords by an act of courtesy and consideration on the part of the House of Commons. By doing so we must express the reservation of all we think the constitutional doctrine requires with record to the title of this House and of the other House generally, and, for the purposes of legislation, to treat with great, and I might even say unreserved freedom, those classes of subjects which, as I have shown, have constantly been matters of consideration. I hope it will 165 be seen that, although I began with a matter which might be considered a matter of contention and controversy this was not the end I had in view. I trust it will appear that this explanation was called for in consequence of the opinions elsewhere expressed, and that it has been warranted by the peculiar circumstances of the case. I beg to move the adjournment of the House.
§ Motion made, and Question proposed, "That this House do now adjourn."—(Mr. Gladstone.)
§ MR. BOUVERIE
As it was the Notice which I put on the Paper of the House in reference to the extension of the Jurisdiction of the Court of Appeal constituted under the Bill that caused all this disturbance, perhaps the House will permit me to say one or two words on the subject. Having looked into the matter, it appears to me that the contention of Privilege on the part of the House of Lords in this matter is entirely unfounded. The best evidence of it is that the proposal which I submitted, and which has brought about this great difference between the two Houses, is a proposal respecting the Jurisdiction of the House of Lords in Irish and Scotch appeals. Now, that jurisdiction was conferred on the other House by Act of Parliament. The Acts of Union between England and Scotland, and between Great Britain and Ireland, which conferred that jurisdiction, were both of them introduced in this House and carried through the other, without a single word being said, as far as I am aware of, with regard to the Privileges of the Peerage being interfered with. This, I think, affords conclusive evidence that there is no such Privilege in the present case as has been claimed. The fact is that the courtesy of this House has always been exercised in reference to many of the peculiar functions of the House of Lords as a Court of record and so forth, and the personal privileges of the Peers. The traditional feeling of this House has always been that legislation in regard to rights of Peerage ought, by the courtesy of this House, to be allowed to be initiated in the House of Lords; but there appears to be no claim to Privilege in this particular instance. With regard to the passage quoted from Blackstone, I may remark that Blackstone himself is not 166 considered a high authority unless his statements are confirmed by previous writers, and he gives no authority for his statement as to this Privilege, God forbid, however, that we should enter into any controversy on this matter with the House of Lords! for in the whole course of our history such controversies have never led to any good result or advantage to the public service. If we enter into this controversy there can be no doubt what the issue will be; but the question naturally arises, what is the prudent and proper thing for us to do in the circumstances of the case? I do not gather from my right hon. Friend the exact course which he now proposes. Though personally I am interested in the adoption of Amendments which were originally suggested by me, I think it would have been better, after this threatened dispute with the other House, to drop the proposal in the present Session, with a view to obtain the great good which the Bill, even in its imperfect state, offers to the public, being certain that in the ensuing Session the jurisdiction relinquished by the House of Lords over English appeals cannot be permanently maintained over Scotch and Irish appeals. I should, therefore, have willingly consented to drop these Amendments, and pass the Bill, dealing solely with the English appellate jurisdiction of the House of Lords. But my right hon. Friend proposes that we should make imperfect Amendments, indicating what we wish, and leaving it to the House of Lords to complete these Amendments, if they are so minded, by adding the necessary words, taking from them the whole of their appellate jurisdiction. The objection which I see at the first blush to that course would be that we should then appear upon the record to be admitting the claim of Privilege made by the House of Lords in this matter. To act with regard to this claim as the House of Lords act with regard to our undoubted money privileges by putting in imperfect clauses, to be filled up in accordance with their views of their exclusive rights and Privileges, appears to me to be an admission on our part that their claim of Privilege is a well-founded and a just one. Suppose, however, that they do not make the alterations we expect them to make, and the imperfect clauses are left as we insert them, the Bill would then be a lame and mutilated 167 one, creditable neither to us nor the other House. That is my first impression of the course proposed by Her Majesty's Government; but I concur with my right hon. Friend that nothing is more to be deprecated than a hot conflict with the other House of Parliament as to the Privileges of either House, because the history of these contests shows that they have impeded Public Business, created ill-blood, and have conduced to no one good result.
§ MR. DISRAELI
The right hon. Gentleman said he addressed us in a spirit of conciliation, for which I give him every credit. I think he has, at the same time, to a certain degree addressed us in a spirit of confusion, for though I listened attentively, it was with great difficulty that I gathered—and my infirmity was shared by others—the precise intentions of Her Majesty's Ministers. On reflection they appear to me to be these:—That the House of Commons are to furnish certain salaries to certain officials, and the House of Lords are to assign to those officials the duties they are to perform in return for their salaries. That is not an unfair statement of what is proposed, and I certainly think it requires the month of July to induce a Minister to make a proposal of that kind. Almost all the resources of the Government must surely have been exhausted before such a proposal could be brought before us. It is not now for us to enter into a discussion respecting the Privileges of the House of Lords. At any time that is to be deprecated, as it is equally to be deprecated that the other House should discuss the Privileges of the House of Commons. But it is most inconvenient to enter into a discussion of so abstruse a character without any Notice on the part of the right hon. Gentleman that it was his intention to solicit the opinion of Parliament on the subject, as he has really solicited it now. It is difficult to follow the right hon. Gentleman, who comes here armed with precedents when we had no Notice of his intention to produce or discuss them. So far as I can judge, however, there is—I will not say no analogy—but no identity between his precedents and the case before us. For instance, the right hon. Gentleman quoted a Bill introduced into the other House as to the vacating of seats by Members of the House of Commons 168 upon the acceptance of office under the Crown, and he treated that as an infringement upon our Privileges. ["No!"] Then the right hon. Gentleman treated it as a Bill which might have infringed our Privileges. But in that case there could be no collision, for the House of Lords never sent the Bill down here. So with the Bill introduced here and bearing upon the present constitution of the Scotch Peerage, there could be no question of Privilege in the House of Lords, because the Bill never left the House of Commons. The right hon. Gentleman cited one case which had the appearance of a precedent. I have heard it quoted before; but it is one founded upon an entire fallacy—I mean the Septennial Act. That Act was proposed in the House of Lords, and was not, it is said, thought an invasion of the Privileges of the House of Commons. The right hon. Gentleman treated the Septennial Act as one referring peculiarly to the House of Commons. But it was really an Act referring to the Parliament of England, and concerned the House of Lords, as much as it concerned the House of Commons. ["No!"] The hon. Member for Brighton (Mr. White) seems astonished to hear that the House of Lords is a part of the Imperial Parliament. This is a fact of which he may avail himself in his next historical address to his constituents, and it may, perhaps, interest him and be of value to them. Sir, I cannot agree that this is a convenient mode of raising this question, and I think the right hon. Gentleman ought to have made the statement with which he has just favoured us at a time when we might expect it—namely, upon the consideration of the clauses which are to be brought up on the Report. We should then have entered into the subject with a more mature knowledge of the relative positions of the two Houses than we at present possess. He excuses the abrupt and unusual course he has adopted by reference to proceedings in "another place," which he thinks authorize his present course. But those proceedings elsewhere were adopted after due Notice; and though even then Her Majesty's Ministers were totally unprepared to meet the question at issue, that does not alter the fact that due Notice was given. The right hon. Gentleman is acting in error if he supposes that the 169 Privileges of the House of Lords in this matter are built up merely upon a passage in Blackstone. That passage was brought in in an illustrative manner—merely to illustrate a position and enforce an argument to show what was the opinion prevalent in the time of Blackstone. But all the precedents of the right hon. Gentleman refer to this passage in Blackstone, and have no reference to the alleged Privilege of the House of Lords. We shall, no doubt, have another opportunity of discussing the matter when the House, having received due Notice of and time to digest the queer propositions of. Her Majesty's Ministers on the matter, will be better enabled to come to a conclusion which I have no doubt will maintain the Privileges of this House and respect the Privileges of the other House of Parliament.
§ MR. MITCHELL HENRY
said, that he believed it would be much more in accordance with the wishes of the Irish people if the consideration of the appellate jurisdiction was postponed until next year, and he would tell the House why. The English Bill did not treat simply of appeals, but was a great measure, designed to effect extensive and beneficial reforms in all the superior Courts, and if such a Bill was required in England it was much more required in Ireland. The Government itself had recognized this, for in 1869 they passed a Bill through the House of Lords which had for its object the assimilation of the Irish system of Common Law in many important points with the English system; but that Bill did not get further than a first reading in the House of Commons, and had since disappeared entirely. No harm could possibly arise from postponing the question of Irish appeals, because the Judicature Bill could not come into operation until after next Session, and therefore the Government would have the opportunity of dealing with the Irish judicature in a thorough and efficient manner. The House had heard the opinion of the Judges and the Bar of Ireland; but there was another class of persons to be considered, and that was the suitors and the public generally—and they had very good reason to be dissatisfied with the present state of things. He, for one, was not in favour of overworking the Judges; on the contrary, he thought 170 that those eminent persons ought to be amply sufficient in number to discharge their duties with comfort to themselves, and without undue strain on their mental and physical powers; but there was no getting over the fact that a Parliamentary Return had shown that Ireland provided only one-fifth of the amount of legal business that England did, whilst there were 12 Judges to do it, as against 17 in England. The Irish people, therefore, would object to additional expenses being incurred in new appointments until it was shown that they could not be done without. The present system was enormously expensive and cumbersome to the suitor, for the practice of a single Judge sitting at Chambers and disposing of motions of course, hardly existed in Ireland; but the time of the full Court was taken up in hearing trumpery applications in which counsel appeared on both sides, at great expense, which in England would be disposed of for a few shillings by an attorney's clerk going before a Judge in Chambers. Moreover, the hon. Member for Meath (Mr. Martin) had shown last year that the Government gave away not less than 150 legal appointments, amongst the 400 Irish Barristers who practised their profession; and they could calculate for themselves what the result would be in. England if the same proportion was maintained. He thought, therefore, that he had given reasons which were unanswerable in favour of the postponement of this question of Irish appeals; but he did not say anything respecting Scotch appeals, for he did not understand the question, and spoke only in the interests of the country of which he was one of the representatives.
§ MR. GORDON
wished to remind the House that Scotch appeals were not introduced to the House of Lords by statute: About the year 1680 there was a discussion as to the right of appeal from the Scotch Courts to the House of Lords. A serious discussion arose between the petitioners to the Courts and. the Judges, who went so far as to banish the advocates from Edinburgh unless they acknowledged that the judgments of the Court of Session were final and. conclusive, and that there was no appeal to Parliament. There was, however, a protestation made that the subjects should have the right of appeal against the sentences pronounced in the Courts 171 of Session. The result was that the appeals to Parliament were recognized in Scotland without any transference by the Act of Union or any statutory provision whatever. The system was, in fact, a simple continuance of a custom which existed in Scotland before the Act of Union between the two kingdoms was passed. All he wished to insist upon was that there was nothing in the Act of Union which set up the House of Lords as a tribunal for the review of Scotch decisions.
stated that the modified Amendments would be placed upon the Paper to-morrow morning, in order that hon. Members might have the earliest possible opportunity of understanding what was intended. The right hon. Gentleman opposite (Mr. Disraeli) was in error in stating that Notice was given of an intention to raise a discussion in "another place" on a question of Privilege on the Judicature Bill. Neither he nor his Colleagues had any knowledge of any such intention; but it was not a point of sufficient importance to detain the House with.
§ MR. DISRAELI
wished to know whether it was intended to proceed with the Judicature Bill at the morning sitting on the following day?
§ MR. VERNON HARCOURT
wished to know whether it was intended to consider the Amendments about to be put upon the Paper on the Report, before the re-committal of the Bill, or whether the Bill would be recommitted, and the Report be proceeded with after the re-committal? He wished to express his satisfaction with the entire and absolute terms in which the Prime Minister had repudiated the claim of Privilege set up by the House of Lords. That seemed to be the main question; what course would be taken with reference to the subject of the Bill was a secondary matter. It was not only satisfactory to have heard what the Prime Minister had said on this subject, but it was equally satisfactory to know that the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), Leader of the Opposition, did not maintain the doctrine of Privilege asserted by the House of Lords. He should have been much surprised if a person occupying a position so eminent as that of the right hon. Gentleman had been prepared to lay the Privileges of the House of Commons at 172 the feet of the House of Lords. It was most important that both parties in the House should enter their protest against the doctrine. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) spoke with great wisdom in respect to the authority of Blackstone, which had been cited. The right hon. Gentleman, did not seem disposed to rely upon the authority, and it would be, indeed, strange if the authority of either House of Parliament was to be made to depend upon a text-book of Common Law. On the occasion of the impeachment of Warren Hastings it was proposed to take the opinion of the Judges as to whether the impeachment abated by reason of a dissolution; but Burke, in declining to be guided by the ruling of the Judges, said he would not think of taking the opinion of a rabbit on the proper time of gestation for an elephant. That was a criticism which might properly be applied to an attempt to import the authority of Blackstone in order to determine the Privileges of either House of Parliament. The same question arose in 1856 on the occasion of a Bill being sent down to the House of Lords, the object of which was the creation of life Peerages for the express purpose of conducting the Appellate Jurisdiction. The Bill was strongly opposed in the House of Commons, and among others by the present Prime Minister. The Attorney General—the present Lord Chief Justice—rather faintly recommended the Bill to the acceptance of the House, remarking that it was not the best plan, but it was one which ought to be adopted, because the House of Lords would not consent to any other plan. Upon that argument of the Attorney General Sir James Graham said—The Attorney General, who proposed the second reading of this Bill, if I mistake not, told us that the defects of that tribunal were glaring, and that it was on account of those defects that the Government proposed this Bill. I am bound to add that there were several observations made by the Attorney General which filled me with amazement and fear. The hon. and learned Gentleman told us that the defects of this tribunal were glaring; that a better course might possibly be adopted than that proposed by this Bill: and he added, as a reason for passing this Bill, that the House of Lords would not surrender its Appellate Jurisdiction. I said some of the hon. and learned Gentleman's observations filled me with fear and amazement. Have we arrived at that point that we, the Commons of England, if we shall be satisfied with 173 the judgment of the House of Lords itself as to the inefficient mode in which it now exercises its judicial functions, are to be told, when called upon to supply a remedy, that, though a co-ordinate branch of the Legislature, we are not to exercise our own right of decision with respect to the remedy, and that we are to be coerced by the assertion of Her Majesty's Attorney General that the House of Lords will not surrender its Appellate Jurisdiction, and consent that a new tribunal shall be erected which, it was admitted, is not one that will fulfil all the requirements of such a Court. Have we arrived at such a pitch of degradation?"—[3 Hansard, cxliii. 436.]That was the language of Sir James Graham, and it was the language and the sentiment of every man who deserved to occupy a position in the House of Commons such as Sir James Graham held.
§ MR. MACFIE
said, he thought there was a great deal in the suggestion of the right hon. Member for Kilmarnock (Mr. Bouverie). The course proposed by the Government was an entirely new one, and if it were adopted it might create a precedent which would be embarrassing at some future time. He thought that, under all the circumstances of the case, it would be well to let the Bill stand over until next Session.
§ THE LORD ADVOCATE
asserted that the appeal to the House of Lords depended upon the Act of Union only. There was no express provision on the subject; but it was only by virtue of the statute that the appeals which formerly went to the Scotch Parliament were afterwards taken to the Imperial Parliament.
said, that the Government would adhere to their proposal of the re-commitment of the measure. He should propose to proceed to-morrow with the Judicature Bill.
§ Motion, by leave, withdrawn.