§ MR. BOUVERIE
Before the House, Sir, fixes a day for the consideration of the Amendments I wish, with their permission, to make a few remarks on the question of Privilege which has been raised in the other House, and which is still pending, with respect to the application of the appellate part of this Bill to Scotland and Ireland, and on the proposal to re-commit the Bill, with a view to the insertion of clauses enabling their Lordships, if they think fit, to include Ireland and Scotland in its operation. Let me remind the House that that question has not been put forward by the House of Lords in any tangible or intelligible shape—in any form which would enable us to obtain what I may call official information with regard to it. Technically, the House of Commons 346 has no knowledge of the claim put forward by their Lordships, and we could not even gather it from the proceedings of the other House, which are on our Table from day to day; we merely know something of the kind from the reports of speeches made in that House. Most of us have, no doubt, read a speech of a distinguished Member of the other House, in which he puts forward a certain claim of Privilege; but I believe the greater part, if not the whole, of this House—and I imagine everybody else who has attempted to investigate the case with candour and fairness—looks upon that claim as being utterly baseless and unsubstantial. But, Sir, I, for one, do not think it is desirable to embark upon a discussion of the question thus raised, particularly on a measure of this sort. The measure itself is one of such substantial public advantage, one so anxiously looked for by the country, and likely to lead to such great and important results, and to be so beneficial in the promotion of the administration of justice, that nothing could be more undesirable than that it should be lost in the midst of a contest between the two Houses of Parliament as to the Privileges of the one House or the other. I wish the House to bear in mind that not only is there nothing before us asserting this Privilege; but, so far as I am aware, there is nothing on record in the Journals and records of the other House to substantiate it. It is true, a statement has been quoted as made by a noble and learned Lord of very great judicial eminence some 20 or 30 years ago (Lord Lyndhurst); but we all know, if we know anything of that noble and learned Lord and his ability, that he was a masterly advocate, and that when he had a case to make he was not particularly scrupulous with regard to the weapons he made use of. And, therefore, a statement made by that noble and learned Lord—however eminent he may have been as an advocate, or however distinguished a Member of the House of Lords he may have been—is really no evidence at all of there being any foundation for this claim. And I cannot but imagine that if there had been any real and substantial foundation on the records of the House of Lords for such a claim as this, we should have heard of it long ago. It would have been introduced in the argument 347 of the noble and learned Lord who put forward the claim, and therefore I say there is nothing on the Journals of the House of Lords to support or substantiate it, and there is nothing on the records of this House acknowledging or even referring to it. I must say, therefore, I think it would be most undesirable that there should be placed on our records any evidence at all of there having been such a preposterous demand made as that which was put forward by the noble and learned Lord. Well, now, I wish the House to remark, that if we take the course which was suggested the other evening in reference to this question by my right hon. Friend at the head of the Government, we shall practically upon our records, by sending up an imperfect Bill, be admitting this claim of the House of Lords, and we shall be giving them an opportunity of putting on their records a statement of their claim, and the fact that we have furnished them with incontrovertible evidence of the justice of such claim. Sir, I think it is most undesirable on both hands that that should be the case. -We know by surreptitious means—because reports of debates in the House of Lords are irregular—that some ambitious and able lawyer in that House, of great eminence and distinction, has in the course of a speech there put forward a claim of that kind. But as a body—as the House of Commons—we know nothing of that; and I own I think it would be taking a very unwise and imprudent course if we were to lose sight of our great object, and risk the loss of this great measure by entering into a contest with the other House on this subject. I think the House should take no notice of it whatever. The Motion for the re-committal of the Bill, of which Notice must be given in the course of the evening, has only one object—to extend to Irish and Scotch appeals the appellate jurisdiction of the new Court. That is a most important object to keep in view, and it is one which I ventured to suggest to this House. I think it is impossible for anybody with a grain of sense to contend that, when you have removed from the House of Lords their appellate jurisdiction in English cases, which form the great bulk of the appeal business, the Scotch and Irish cases should still be permanently submitted to their jurisdiction. All the 348 arguments in favour of taking away the English appellate jurisdiction from the House of Lords apply with ten-fold force to the Irish and the Scotch appeals. Men of sense even in the other House—and there are a great many men of sense there—would never seek to maintain their appellate jurisdiction merely over Scotch and Irish appeals, unless, indeed, some side issue were raised or their prejudices were excited by a question of Privileges. This is only a matter of time, and of a very short time. The new Appellate Court is not to come into operation until November in next year. There is, therefore, ample time, without running the risk of engaging the House in these useless controversies on this question of Privilege, to succeed in the object we have in view and provide that that great Appellate Court should deal with appeals from the three kingdoms. As a Scotch Member, I feel the strength of the proposition that the same Court should hear both English and Scotch appeals; but I also feel the reasonableness of the demand which Englishmen may fairly make—namely, that the chance of establishing a good Appellate Court for England shall not be lost merely for the satisfaction of making an attempt to extend its jurisdiction to Scotch appeals. I wish, therefore, to urge upon my right hon. Friend and his Colleagues that, as far as my humble judgment goes, the judicious and proper course is not now to re-commit the Bill, with a view to extend the appellate jurisdiction of the new Court, but allow this promising opening to a quarrel to drop altogether, and thus set an example of good sense and temper to the other House—an example which I hope they are always ready to follow. I invite my right hon. Friend, therefore, to give an undertaking that early next Session this detect in the Bill will be remedied by the introduction of a supplementary one, and that he will then be ready to propose the extension of the appellate jurisdiction to Ireland and Scotland. There is, however, one Amendment on the Paper of the hon. and learned Attorney General, for extending the qualification of the Judges in the Appellate Court from barristers in this country to Irish barristers and Scotch advocates. That Amendment should, I think, be made; but the Bill does not require re-committal for such a purpose, and I trust 349 that, if the course I have suggested be taken that Amendment may be made upon the Report.
§ SIR GEORGE GREY
I must express my entire concurrence in the suggestion made by my right hon. Friend, which I strongly recommend her Majesty's Government to accept. I listened with great satisfaction the other night to the observations made by my right hon. Friend at the head of the Government on the subject of Privileges, which cannot be said with accuracy to be claimed by the House of Lords, but as to which we had notice that the House of Lords will be invited to assert them if this Bill is sent up, depriving the House of Lords of the appellate jurisdiction over Scotch and Irish appeals. The more one looks at this possible claim of Privilege on the part of the House of Lords, the stronger appear to be the precedents against the validity of such a claim. I therefore think the House would be perfectly justified in sending up the Bill, with the Amendments of the hon. and learned Attorney General; hut I am perfectly satisfied that it would not be consistent with our dignity to enter into such a contest with the other House. My right hon. Friend, therefore, showed good sense in the course which he proposed to take—namely, to avoid any possible collision with the House of Lords on the question, thereby risking the loss of a very valuable Bill upon the consideration of which great time has been spent. At the same time I think the course which he indicated was a dangerous course with reference to this question of Privilege. We are invited to send the Bill up to the other House in an imperfect state, indicating our wishes, but not inserting the clauses which are necessary to give effect to those wishes. But in adopting this course should we not be saying in effect that we shrink from doing what we think we have a right to do, because we should thereby come into collision with the other House; and should we not be inviting the other House to do what they say they have a right to do? It seems to me that we should thus be creating a precedent against ourselves, and should be practically surrendering the very question of Privilege which we assert. There are other considerations which appear to me to make it desirable that the question of the Irish and Scotch 350 appellate jurisdiction should receive more consideration than has yet been given to it. I am not authorized to speak on behalf of anyone, but the Scotch and Irish Members with whom I have communicated concur in that opinion, and say that nothing will be lost by delay; on the contrary, that good will result from delay, because in the next Session a Bill may be brought forward containing provisions to obviate any of the inconveniences which might arise under the present measure. It would not be right to call upon my right hon. Friend for any opinion at present, nor ask him to pledge himself to take any particular course; but I do ask him to consider whether it would not be better to send up the Bill as it stands, with any Amendment which may be needful upon the Report, reserving till next Session the question of extending the appellate jurisdiction of the new Court to Ireland and Scotland. I agree with my right hon. Friend (Mr. Bouverie) that it is impossible that if the House of Lords surrender their appellate jurisdiction in English cases, they can retain it for the comparatively few cases that come to them from Scotland and Ireland. The loss of the appellate jurisdiction in those cases must necessarily follow. We may safely rely upon the result, and I should, therefore, be glad if my right hon. Friend at the head of the Government would abstain from moving the re-committal of the Bill, reserving to himself the right next Session of introducing a new measure to carry out the object he has in view.
§ MR. BUTT
joined in the appeal which had been made to the right hon. Gentleman at the head of the Government to postpone for the present the extension of the new jurisdiction to Irish and Scotch appeals, but upon grounds differing from those already urged. He hoped the question of extending the operation of the Bill to Ireland would not be pressed during the present Session; for he had found that there was a strong opinion against it in that country founded on very valid objections. After carefully considering the provisions for transferring Irish appeals to the English Courts, he entertained a strong objection to such a transfer. That, however, was not the time for stating the grounds to that objection. He was prepared to do so, but the proper time would be if the 351 hon. and learned Gentleman the Attorney General persevered in the Motion for re-committing the Bill. One objection, however, lay upon the surface. It was a mistake to suppose that that was a Bill for substituting another tribunal for the House of Lords. It was really a Bill to substitute another tribunal for the Court of Exchequer Chamber, and so to supersede the necessity for appealing to the House of Lords. There was at present in England an appeal from the Judges to the full Court; from the full Court to the Exchequer Chamber; and afterwards to the House of Lords; and what was proposed was to make one Court of Appeal only—the Court of Exchequer Chambers. It was not proposed, however, to do that in Ireland. The Court of Exchequer Chamber there was to be left untouched, and there were still to be three appeals; but an English Court was to be set up as a Court of Appeal for Ireland instead of the House of Lords. The scheme of the Bill for Ireland was to strengthen the intermediate Court of Appeal, making it so strong as to supersede the necessity of appealing to the House of Lords. The Bill for Ireland, therefore, would become a totally different Bill from that which was applicable to England. After the predominant opinion expressed on the other side, he was almost afraid to say that, in his opinion, a great mistake had been made in taking from the House of Lords its appellate jurisdiction. He did not believe it would be possible, by any new tribunal, to replace the great traditions and the prestige which belonged at present to the House of Lords. Apart from that question, however, the House was not in a position now to deal with the Irish appellate jurisdiction, as they were doing with the English. It was proposed by the Bill that the Lord Chancellor of Ireland and the Lord Chief Justice of Ireland should sit on appeals in this country; but how could they leave the business of their own Courts, without the substitution of a new Court for the Irish Exchequer Chamber. The Lord Chancellor of Ireland and the Lord Chief Justice of Ireland would come to sit as strangers in a Court to which they were unaccustomed. They would feel that they were inferior members of that Court. He was not sure that the Irish 352 people would be satisfied with the proposition of the Bill to transfer from the present highest Court of Appeal for the three kingdoms the jurisdiction which it had hitherto exercised in the case of appeals from Ireland to an English Court only co-ordinate with the Courts in Ireland from which those appeals were to come. That proceeding had been tried in the time of Lord Mansfield, with an unfavourable result; and he was not sure that the people of Ireland would be satisfied if the decision of the Court of Exchequer Chamber in Ireland were reversed by Judges in England. He had no right to speak on behalf of any one but himself; but he believed the objection he entertained to the Amendment introduced with reference to this matter was very largely shared by people in Ireland. Why should there be any hurry on this subject of dealing with appeals from Ireland? The people of Ireland had suffered under grievances for many a generation, and for a Session or two more they could contentedly wait to see how this plan as to the hearing of English appeals worked before asking that it should be extended to Irish appeals. He would say—"Fiat experimentum in corpora vili;" but for once let an experiment on a vile body be made in England. He hoped the right hon. Gentleman at the head of the Government would accede to his request, that so far as concerned Ireland the proposition about a transfer of jurisdiction in the matter of appeals—or, in other words, an attempt to place a sort of excrescence upon the Irish system of judicature—would be delayed for a Session or two.
§ DR. BALL
said, he did not agree in the views which had been expressed by the hon. and learned Member for Limerick, for one of the main reasons which induced him to consent to a transfer of Irish Appeals to the same Court as that which the Bill proposed should be constituted to hear English appeals was, that such transfer would further consolidate an intimate union between the two countries. With that object in view, he thought it was most undesirable that there should be proclaimed such an essential difference between the two countries as was implied in the demand that there should be one tribunal for hearing English appeals and another for hearing Irish appeals. 353 A large majority of the Irish Members were ready to vote with him on this question, and he was supported in it not merely by Members on his own side of the House; on the contrary, he had the support of hon. Gentlemen sitting on the Liberal side. He deeply regretted that the hon. and learned Member for Cork (Mr. Downing), who knew well the feeling of the Irish people, and particularly of the legal portion of that people, was absent. That hon. and learned Gentleman felt deeply on this question; and in the very last conversation he had with him he urged him not to give way on this subject. He (Dr. Ball) did not like delay. He was satisfied with the terms which had been offered by the right hon. Gentleman at the head of the Government, who had offered everything which Ireland or the Irish Bar ought to demand. There was no certainty that the right hon. Gentleman would be at the head of the Government another year, or, if he was, he might not be disposed to offer the same terms again. In opposition to the suggestion that the question concerning the hearing of Irish appeals should be delayed, he must say that he recollected the promise solemnly made by his noble Friend the Chief Secretary for Ireland that he would introduce a Bill relating to Labourers' Dwellings in Ireland, and from that day to this not only had he not brought in such a Bill, but he (Dr. Ball) did not believe that there was a draft or a sketch of it in the well-supplied pigeon-holes of the Irish Office. The fact was, no Government wished to embark on Irish questions unless pressure was exercised. There was an opportunity now of pressing the right hon. Gentleman at the head of the Government; good terms had been offered by the right hon. Gentleman, and if the offer of those terms were not accepted, hon. Members would act very shortsightedly with reference to the interests of Ireland.
§ MR. VERNON HARCOURT
said, he thought the very candid speech of his right hon. Friend the Member for the University of Dublin (Dr. Ball) would explain the situation in which they were placed with reference to the House of Lords. The Government, by accepting the Motion of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), had created all the diffi- 354 culties in which the House of Commons was placed. They accepted it because the right hon. Member for Kilmarnock was supposed to represent the Scotch Members, and the right hon. Gentleman the Member for the University of Dublin the Irish Members. It was the right hon. Gentleman the Member for Kilmarnock who asked the House to commit this dreadful breach of the Privileges of the House of Lords, and it was well he was going to be supported by the right hon. Gentleman opposite the Member for Buckinghamshire. The only mistake which was made by the Government was that they did not take a division on the subject, because if a division had been taken on the Motion of the right hon. Member for Kilmarnock, it would have been seen that the Scotch Members voted with him, that the majority of the Irish Members voted with the right hon. Member for the University of Dublin, and that the Conservative party voted under the direction of their Leader to do the very act for which the House of Commons was now attacked as a gross breach of Privilege of the House of Lords. That that was the view taken by the Leaders on either side nobody could doubt for a moment. His right hon. Friend the Member for Buckinghamshire (Mr. Disraeli) was not now present, but he made a very elaborate and ingenious speech objecting to the course taken. He referred to almost every possible topic. The one topic which was conspicuous by its absence was the question of a breach of the Privilege of the House of Lords. Now, could it be conceived to be possible that the right hon. Gentleman the Member for Buckinghamshire, whose great reputation had been built up in the House of Commons, would have willingly and intentionally consented to that House committing a breach of the Privilege of the House of Lords? Certainly not. The right hon. Gentleman was much too tender of the honour and reputation of the House of Commons to have taken any such course, and if he did not urge an objection about a breach of the Privilege of the House of Lords, it was because he thought such an objection could not be well founded. There had been a speech made by an eminent and learned Lord on this subject, and there had been a speech by the Prime Minister and Leader of the House of Commons. As to those two speeches, 355 one was an assertion and the other was a counter-assertion. One assertion was as good as another "and a great deal better." But he must venture to ask the attention of the House, as that question of breach of Privilege had been raised, to a precedent which occurred at a very important epoch. In 1675, the House of Commons sent up a message to the House of Lords objecting to the exercise of their judicial functions, and requesting a conference between the two Houses on the subject. The message which the Lords sent in reply—28th of May, 1675—was as follows:—That the Lords did not agree to a conference when the whole matter concerned the judicature of the Lords, on which they could admit no debate nor grant any conference. But this present Message being for a conference as to the privileges of their House—that is, House of Commons—the Lords have agreed, always provided that nothing be offered at the conference that may any way concern their Lordships judicature.The answer of the House of Commons to this claim of the House of Lords was as follows:—That the House of Commons do agree with the Lords that conferences between the two Houses are essential to Parliamentary proceedings when they are agreed in the usual and Parliamentary way, but the manner of the Lords' agreement to the Conference to have been on Friday, the 28th of May, in the Painted Chamber with limitation and proviso, did necessitate the House of Commons to forbear to meet at that Conference, and gave the first interruption to Parliamentary proceedings in conferences between the two Houses. For that the Conference desired by the Commons was upon their Privileges concerned in the Answer of the Lords to a Message of the House of Commons, sent to the Lords the 17th of May, in the case of Mr. Onslow, to which the Lords did not agree, but did only agree to a Conference concerning their Privileges in general, without reference to the case of the said Mr. Onslow, which was the only subject-matter of the desired Conference. The limitation in the Lords' agreement to a Conference, with proviso that nothing be offered at the Conference that may in any way concern the Lords' judicature, is in effect a denial of any Conference at all upon the subject upon which it was desired which ought not to be. The judicature which the Lords claim in appeals against a Member of the House of Commons, and the privilege of that House in that ease is so involved that no conference can be upon the matter without some way touching the former. That this manner of agreeing to a conference with any limitation or proviso is against the course of proceedings between the two Houses in coming to conferences, and cloth seem to place a power in the managers of such conferences to judge whether such provisos be broken or not, and accordingly to proceed or break off the conference upon their own judgments. The House 356 of Commons doubt not, but that, when the Lords have considered of what is delivered at this Conference, the good correspondence which the Lords express their desire to continue between the two Houses (which the Commons are no less careful to maintain) will induce them to remove the present interruption of coming to conferences, and therefore to agree to the conference as it was desired by the House of Commons, upon the privileges of their House concerned in the Lords' Answer to the Message of the House of Commons in the Case of Mr. Onslow: That the particular limitation, that nothing be offered at the Conference, that may any way concern the judicature of the Lords, appears unreasonable; for that their Lordships' judicature in Parliament is circumscribed by the laws of the land as to their proceedings and judgments; and is, as well as all other Courts, subjected to Parliament."—[Parl. History, iv. 732–3.]That was the language of the House of Commons when the question of Privilege in respect of their judicature was raised, and that language formed an important item in our constitutional history. The result of this difference between the two Houses appeared to have been the dissolution of the first Parliament of Charles II., which had then sat for 15 years. Two days after the occurrence to which he had just referred, the King came down to Parliament and, with the ready wit and sharp-sightedness that distinguished him, he made a speech that accurately described the situation, and which was somewhat germane to the situation in which the House now found itself. He said—My Lords and Gentlemen: You may remember, that, at the meeting of this Session, I told you no endeavour would be wanting to make the continuance of this Parliament impracticable. I am sorry that experience hath so quickly showed you the truth of what I then said; but I hope that you are well convinced, that the intent of all these contrivances is only to procure a Dissolution."—[Ibid. 737.]Probably, the same observation might be equally applicable at the present moment to a. quarrel which seemed to have been most unnecessarily attempted to be picked between the two Houses of Parliament. It was for those reasons that he entirely concurred in the view that had been taken of the matter by the right hon. Member for Kilmarnock. It appeared to him that the House of Commons had two things to do, and that they must try and combine them—first, pass the Bill; and secondly, not to admit the claim of Privilege which had been set up by the Lords. The question was, how could those objects be best attained. If, in order to pass the Bill, it were 357 necessary to admit the Lords' claim to Privilege, he would rather lose the Bill than admit their claim. He did not, however, think that that was necessary. In the first place, this was a claim advanced not by the House of Lords—the claim did not appear upon the records of either House of Parliament, and if it were passed by as au idle wind nothing would remain of it beyond the speech of the noble and learned Lord who had set it up, and the speech of the right hon. Gentleman at the head of the Government in that House in reply to it. By adopting the suggestion of the right hon. Member for Kilmarnock the Bill would be saved, while the claim of the Lords would not be admitted; whereas if the Bill containing imperfect clauses were to be sent up to the other House, in order that it might be perfected there, it might be construed as a yielding to the claim of the Lords. Under those circumstances he joined with the right hon. Member for Kilmarnock in appealing to the right hon. Gentleman the Prime Minister not to pursue the course he had indicated the other clay, but having got the Bill out of Committee, to go on with the Report, and to send it up to the House of Lords, and so remove all pretext whatever for advancing that dissolution in the manner to which King Charles II. had referred.
MR. OSBORNE MORGAN
said, he had given Notice, at an earlier part of the evening, of a Motion which would distinctly raise the question of Privilege, which ought to rest upon some sounder footing than the mere dicta of text writers and doubtful precedents. He advised the House to decline to take upon themselves at this period of the Session the responsibility of altering the whole of the law of Irish and Scotch appeals. It appeared to him that this claim of the House of Lords, which had been somewhat ostentatiously made, not by the House of Lords, but by a single Member of that House, amounted to this—that it was not competent for the House of Commons, in the most minute degree, to alter any Bill sent down from the House of Lords touching its appellate jurisdiction. That appeared to him to be a most dangerous proposition, and one which it would not be consistent with the dignity of the House of Commons to pass over in silence. If there was one thing more than another in 358 which the people were interested, and over which it was the duty of the House, as guardians of the rights of the people to watch, it was the administration of justice, and if that House were to hesitate to express its opinion on the judicial functions of the House of Lords, it would not only be surrendering one of its greatest Privileges, but be committing a great national wrong. The passage relied on by Lord Cairns in Blackstone did not apply, because it was written by him in reference to the Lords not in their judicial capacity, but as Members of the Legislature, and if it were not, the point was far too important to be settled by a text writer, however eminent. To re-commit the Bill would be a grave mistake, for, supposing the Bill to be passed by the Lords in the shape in which it was now proposed to be sent up to them, they would actually create two new Judges with nothing to do. He, therefore, thought the House was bound before parting with the Bill, to enter its emphatic protest against the claim set up by the House of Lords. It was said that what was good for England was good for Scotland and Ireland, and earlier in the Session such an argument would be unanswerable; but just now the shadow of the long vacation was upon the House, and the question in every man's mind was— "How soon can we get out of this place?" It would be absolutely necessary to deal ultimately with this question of Irish and Scotch appeals; but when that time came it ought to be considered as a whole, and clauses for Scotland and Ireland ought not to be pitchforked into a Bill for England. Take away the English appeals, and the House of Lords would die of inanition.
§ MR. SPEAKER
The Question is, that this Bill, as amended, be considered on Thursday next. The whole of this discussion has been, according to my judgment, somewhat premature. It would have been more properly raised on the question of the re-committal of the Bill, which has not yet been proposed. I submit this observation to the House that, on the Motion that this Bill be considered on Thursday next, no Amendment could be moved, except as to the time at which the consideration of the Bill should be taken; and therefore any discussion not relevant to an Amendment of that kind is out of place.
MR. OSBORNE MORGAN
said, after that intimation from the Chair he would not, of course, continue his remarks; but in making them, he was only following the example of other hon. and right hon. Members. He would only express a desire that the Prime Minister would accede to the universally expressed opinion of the House.
§ SIR PATRICK O'BRIEN,
as an Irish Member, did not concur in the observations of the hon. and learned Member for Limerick (Mr. Butt). His impression was, that one of the Irish Judges at all events, and that was the Lord Chancellor, would have no particular difficulty in attending any Appeal Court in England. He deprecated delay; but at the same time, the passing of a Bill for the United Kingdom or for any portion of it that year was a comparatively unimportant matter; the more important question was, whether, on a great question of Imperial policy, the one Bill should not embrace the three kingdoms. The questions of Irish and Scotch judicature could not be postponed in the nonchalant manner assumed by the hon. and learned Member for Oxford (Mr. Harcourt), who addressed them as a monitor from the depôt centre of Oxford. Was that an occasion on which they-ought to legislate for England? ["Hear, hear!"] That cheer of his hon. and learned Friend was not a cheering cheer. He supported the views of his right hon. and learned Friend the Member for the University of Dublin (Dr. Ball) and he believed his opinions were shared by Irish Members generally. [Mr. MITCHELL HENRY: No, no!] It was all very well for his hon. Friend, who wrote a letter to The Times once a week, to say, "No, no;" but he (Sir Patrick O'Brien) had had experience in that House for 20 years, while his hon. Friend had only been in it about two—so that his interruption was out of place. As he had said before, he believed Irish Members generally were in favour of there being only one Court of Appeal for the United Kingdom. He therefore wished to advance as far as he could the view of the right hon. and learned Member for the University of Dublin, that this great question ought to be considered in the Imperial Parliament as one affecting the United Kingdom, whether it was considered now or next year, or by a new Parliament.
In the few remarks which I am about to make I shall endeavour to bear in mind the observations that have fallen from the Chair; but I think, after so much has been said, and with so much ability and authority, in reference to the future course of this Bill, to be considered on Thursday next, perhaps I ought not to pass altogether unnoticed the appeal made to the Government. I am bound to say with regard to the speech of the hon. and learned Member for Limerick (Mr. Butt), whether or not we may ultimately agree with his conclusions, we shall arrive at them upon grounds totally and diametrically opposite to his. I am sorry, however, he has thought it necessary to avow the opinions he has declared with regard to the best arrangements in regard to the Irish judicature. With respect to the speeches which have been made upon the subject, I have the good fortune to agree with their main principle. As far as I am concerned, I have no doubt there ought to be one final Court of Appeal for the three kingdoms; and I have also no doubt, after listening to the very manly statement of the right hon. and learned Gentleman the Member for the University of Ireland (Dr. Ball), there will be one Court of Appeal for the three kingdoms, and that the just claim of Ireland has received a recognition which I believe will be permanent and effectual at the proper time, whether it be found practicable or not to give effect to it during the present Session. I think it only just to say so much in answer to what has fallen from the right hon. and learned Gentleman. There has been no difference expressed among the speakers to-night with regard to the supposed Privilege which has threatened to be an impediment to our proceedings, and for my own part, all reflection confirms me in the conclusion that that Privilege is as purely visionary as any claim in the history of Parliament that ever was set up. On the other hand, those who share that opinion agree with the Government in thinking it is not desirable we should enter into controversy with the other House of Parliament upon the subject. It has been our desire to frame our course with reference to this principle—it might be, if the House of Commons were weaker than it is, it could not afford to pass by an occasion when 361 its rights are challenged; but it is because it is strong in the breadth and depth of its popular base, as well as in great historical traditions, that we come freely to that conclusion which the public interest dictates as the best, on the whole, with reference to the circumstances before us, and do not trouble ourselves about the question—what observations or criticisms may be made upon the apparent surrender of rights, which, if we had thought fit, we might have proceeded to urge? The hon. and learned Member for Oxford (Mr. Harcourt) has most justly laid the ground of the proceedings we should take in this case, when he says that we have two objects to reconcile as well as we can. One is to promote the passing of this Bill, and the other is to hold ourselves clear from an acknowledgment of the claim which has been set up. On all these matters of principle the House is not likely to be disturbed by serious differences. The point at which I should part company with the right hon. Member for Kilmarnock is in the very great preference which he has expressed fur one mode of proceeding over the other. He thinks if we were to pass a Bill constituting a complete Court of Appeal and send it to the Lords, leaving it to them to insert the transference of appeals from the House of Lords, we should seriously compromise the rights of this House; but if we simply withdrew from the purpose, which certainly had been entertained, and which appeared at one time to meet, if not with the unanimous, at least with the general approval of the House, in that case no harm would be done. I say frankly this is a matter in which the Government is ready to be prompted and led by the general conviction of the House. When we accepted the Motion of my right hon. Friend the Member for Kilmarnock on a former night, Member after Member in different parts of the House rose to express satisfaction with the course we had taken, and when, in pursuance of our announcement, we placed Amendments on the Notice Paper of the House we were no longer free to act and to recede from them, unless we ascertained in the first instance the feeling of the House. But I frankly own my opinion is that we shall not—I mean the House will not — escape criticism, whatever course may be taken. In the one case, 362 as was most justly stated by my right hon. Friend, there will be a record in the official and authentic documents of this House; in the other case there will be none. But in either case it will remain as matter of history—as a matter admitting of no moral doubt whatever—that a claim of Privilege had been raised—I need not say by whom, not by the House of Lords—which might have affected the proceedings of the House of Lords; that that claim had been firmly, promptly, and generally repudiated by the House of Commons, but still that the House of Commons had thought it well, on the whole, to waive any controversy at the time and under the circumstances. I am quite ready, for my own part, to incur whatever disadvantage may arise from our decision. And I found myself distinctly and expressly on this one ground—that the House of Lords have sent us a Bill in which they have patriotically given up a great Privilege and power of their own; and it is the consideration of that conduct on the part of the House of Lords which I think renders it right for us to meet them with courtesy and conciliation, even although the act which we perform might in the minds of persons not thoroughly informed lead to the suspicion that we have not been so jealous of our Privileges as we ought to be. I have said we were very willing to follow the feeling of the House on the choice of those two courses, the difference between which does not touch the essence of this question. There is advantage, no doubt, in fixing at once the principle that a single Court of Appeal shall be established for the three kingdoms; but I feel the force of the observation that undoubtedly there is also some disadvantage in postponing the consideration of the intermediate appeals to a period different from that at which you are fixing the standard and tribunal of final appeal. The discussion we have heard has certainly gone far in my mind to show that we need not consider ourselves under any obligation of honour or courtesy to the House of Commons to persevere in the course we had proposed. Not only as to the speeches which have been made, and the authority of the speakers, but likewise the manner in which they have been received, justifies me, I think, in saying as much as that. I feel the general desire of the House 363 is to place us in a position of perfect freedom, without reference to any supposed pledge either to my right hon. Friend, or to anyone else, to take the course which may seem on the whole to be the best. I will, therefore, with the permission of the House, act upon the suggestion of my right hon. Friend the Member for Morpeth, and will not, without au opportunity for further consultation with my Colleagues, proceed at this moment to announce any positive intention. At the same time, I think it is desirable at this period of the Session that we should make known our intention as early as possible, and, therefore, unless some unexpected difficulty arises, I will this evening and in the early part of to-morrow endeavour to ascertain their opinions on the matter; and I hope at the meeting of the House to-morrow, I may probably be in a position to state whether we think it requisite or not to proceed with that part of the measure. But I again assure the right hon. Gentleman opposite and those interested, especially either in the case of Ireland or of Scotland, that if we are released from any obligation to proceed at this moment with that portion of the Bill, we do not deem ourselves released from the obligation to give that just consideration to the claims of those two countries which we had intended to give if we had dealt with them this year. In any case we shall act on the suggestion of my right hon. Friend the Member for Kilmarnock, and propose, not on the re-committal of the Bill—for it does not require re-committal—but on the Report, one or more of those Amendments which relate to the qualifications of those who should be chosen to become members of the Court of Final Appeal. With those observations I shall cease to trouble the House any further; but I hope to-morrow—probably when the House meets at 2 o'clock—to be in a position to announce whether we shall act on the suggestions that have been made.
§ MR. DISRAELI
I desire, Sir, to offer a few observations. I shall not offer them in opposition to any ruling you may have made when I was unfortunately absent, because I think my first duty is to obey your ruling in every respect. But I have heard enough since my return to the House, and also learnt enough of what was expressed when I was absent, to induce me to believe that 364 I shall be acting entirely according to the Orders of the House and to your decision if I make some remarks on those which have preceded me. This, Sir, is a singular occasion. We are really acting in circumstances not easily paralleled in Parliamentary history, and it is of great importance on occasions like the present, that there should be clear conclusions arrived at by the House, whatever those conclusions may be, so that hereafter, when these cases are referred to as precedents, they may be referred to, so as to guide and not to confuse us. It has often occurred to mo during the last fortnight, how extraordinary it is that, considering the circumstances in which this Bill for the reform of the judicature of the country was introduced to Parliament and the concurrence of sentiment in its favour among the most eminent men of both parties, we should have arrived nearly at the end of the Session, and only just terminated our labours in the Committee, leaving them, too, in a sort of provisional state; that we should have become embarrassed with so many difficulties, when it was expected that the measure would pass with such facility; and that such a question as a possibility of a collision between the two Houses should be raised; and that it should be rumoured on authority that the House of Lords might have to vindicate its Privileges in the conduct of a measure which came from the House of Lords itself, and was carried by that Assembly with so much unanimity—I say all this appears to me to constitute one of the most extraordinary situations that ever presented itself in Parliament. Sometimes we say—probably with some degree of rhetorical affectation of a measure we may be discussing, it is not a party question, while it is possible that beneath the surface of sentiment there may be some party animosity, and perhaps even some party manœuvres. But this I can say, as to the Bill for the reform of the judicature of the country, that none of these imputations can be made. It was brought forward by Her Majesty's Government in the other House; it was supported in the other House by the most eminent Leaders of the Opposition; it met with no resistance there; it elicited, I think, from the Leaders in both Houses—and certainly from the Leader of the other House—the acknowledgment that a generous support had been 365 given to it. When the second reading was moved here, no opposition was offered. No doubt, when it got into Committee it provoked a considerable degree of criticism, which, having listened to with impartial attention, I thought was valuable and useful. But the greater part of that criticism emanated from the supporters of the Government, and I regret that many of the propositions made by them on those occasions were not adopted by the House. As far as the great principles of the measure are concerned, I am not aware that any difference of opinion was expressed in either House. The mature opinion of the country was in favour of the proposed reform of the judicature, and. both Houses, generally felt it to be their duty to support the Government on the occasion. The country had adopted the two great principles that in that reform there should be a Court of Primary Decision, and a Court of Conclusive Appeal. There might have been a difference as to the means by which those principles should be carried into effect. For my own part, I never disguised my opinion that it would have been well to have proceeded on the old lines, and that you could have effected the required development of your judicature within the House of Lords. But the Government having considered the case and brought forward a measure founded on principles that we acknowledge, I, and others too, waived our opinions in regard to the means by which the object might be attained, and felt that it was our duty to support the Government. This was the opinion—I may say without reserve—of my noble and learned Friend, who has taken so active a part in the matter, and his view agreed with mine. I had long ago spoken with Lord Cairns on the subject, and he always thought that, if possible, we ought to proceed on the old lines; and we all know that last year he himself brought forward a proposition, by which a single Court of Appeal might be established in this country, and yet that it might be found within the precincts of the House of Lords. Lord Cairns, nevertheless, gave the present Bill his hearty and sincere support, and possibly but for that support the Bill might not have reached us with such facility as it did.
It is remarkable, under these circum- 366 stances, that such difficulties should occur. When the Bill was introduced two objections were urged against it, even by those who supported its principles. It was said—and, indeed, no one could deny it—that it did not furnish a Court of general and universal Appeal, and that it was to be regretted that two kingdoms of Her Majesty were not under the jurisdiction of the new tribunal. The second objection to the measure of the Government was, that the Court was so constructed that it lacked some of the vigour and authority which had been promised to the people of this country, and which they expected in the new tribunal, and which alone had brought them to consent to the abolition of the jurisdiction of the House of Lords. With these two objections urged against the measure, the House was yet still prepared to support the scheme of the Government. What then occurs? The Government resolved to meet the first great objection to the scheme—namely, that it did not establish a system of general and universal jurisdiction, that it did not regulate the affairs of the United Kingdom in the Appellate Court; and they proposed, by accepting the Motion made by the right hon. Gentleman the Member for Kilmarnock, to remove that difficulty, and to extend the Bill to Scotland and Ireland. But in so doing, it must be observed they increased and aggravated the objection that had been brought against the new tribunal as lacking in the vigour and authority that had been promised to the country, because it must be quite clear that in this amended Bill it was quite possible you might establish an Appellate Court as a substitute for the jurisdiction of the House of Lords, in which the affairs of an English suitor might be decided upon by Scotch and Irish and provincial and colonial Judges. With the utmost confidence that no person would be appointed a Judge who was not entitled to the respect, and, in a certain degree, to the confidence of the country, that cannot be candidly described as a fulfilment of the promise held out that the Court should be pre-eminent for its strength, its sagacity, and the high character and profound learning of its Members. In this state of affairs, notwithstanding the general feeling, we were resolved to carry the measure of 367 the Government, and however I might have regretted some of the means by which they carried their principles into effect, and however I might have regretted that some of the Motions—most of them proposed by hon. Gentlemen opposite—to strengthen the new tribunal had failed, I thought, on the whole, it was our duty to support the measure. Well, what happened? Suddenly it was intimated to the House that the course proposed by Her Majesty's Government interfered with the Privileges of the House of Lords. It was described by the right hon. Gentleman the Prime Minister as "a supposed Privilege," "purely visionary," and the announcement of it is described by him as "a challenge to the House of Commons." Now, it is of the utmost importance, after the speeches of the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie), and of the hon. and learned Member for Oxford (Mr. Harcourt), and after the speech just addressed to us by the right hon. Gentleman, that there should be a clear conception what is the Privilege asserted by the House of Lords. Whatever course the Government may decide upon to-morrow, there ought, so as far the House of Commons is concerned, to be a clear conception of the Privilege claimed, of the answer which this House has made by its most eminent representative, and of the position in which, in consequence of that answer, we are placed; otherwise we may find ourselves in a position of embarrassment, in a position of discomfiture and disaster, not merely, as I shall show, for this House, but even for the other House.
I understand the Privilege claimed by the House of Lords is this—that where their Privileges are concerned—and, of course, their jurisdiction, which is perhaps their highest privilege—no Bill can be brought in to alter or amend them unless it originates in the House of Lords, and that such a Bill cannot be altered in respect of those Privileges in the House of Commons. An hon. Gentleman who addressed us the other night, commenting on an observation or two I had made, said I had refrained from vindicating the Privilege claimed by the House of Lords. Well, I was not sent to the House of Commons to vindicate the Privileges of the House of Lords. In the first place, the case 368 was not before us, nor is it before us now, except incidentally, after the speeches of hon. Gentlemen endorsed by the First Minister. I am sent hero to support the Privileges of the House of Commons, and I am not in any way prepared to say that I am ready to admit the Privilege asserted by the House of Lords in this respect, and I find fault in the first instance with the right hon. Gentleman for taking a course which is practically a precipitate admission of the Privilege claimed by the House of Lords. No doubt, he declared the Privilege to be purely "visionary;" no doubt, he has indulged in very high language upon this assertion of Privilege; but his language, though we always listen to it with pleasure, will not practically have the slightest effect upon the question. The speeches of the right hon. Gentleman are not enrolled in our Journals. What will appear in our Journals will be extraordinary vicissitudes of conduct on the part of Her Majesty's Government and great caprice in the management of this House and when the matter is examined it will be discovered that all this has arisen from a certain mesmeric influence exercised by another House of Parliament. In short, when a few years have passed, the conduct of the Government will be quoted as evidence of the existence of this alleged Privilege of the House of Lords, and there will, under those circumstances, be great difficulty in proving that it is, as he now calls it, purely visionary. Although, however, I am not here to vindicate the Privileges of the House of Lords, if a Privilege is claimed by that House, and if the Leader of this House denies its existence and attempts to disprove its validity by precedents which do not apply, and by arguments which are fallacious, it is my duty-to notice those statements, otherwise the House, under such leading, will find itself led into a quicksand. I cannot, therefore, allow this occasion, after all that has occurred, to pass without some comment on the statements of the right hon. Gentleman, and particularly after the observations made to-night by the hon. and learned Member for Oxford and the right hon. Member for Kilmarnock. It is necessary that the House should calmly consider this case, and not be hurried away into conclusions which, if they have no 369 sufficient foundation, may lead them to a course which hereafter they may have bitterly to regret. I will ask the House calmly to consider the precedents brought by the right hon. Gentleman, and which, I conclude, have been urged to-night by very powerful assistants. These subjects are rather abstruse, so I will divide those precedents under differents heads. It will make my statement more perspicuous, and if there be any obscurity in it, the fault, I am sure, will be mine. The right hon. Gentleman says the House of Lords claim that, in all that concerns their Privileges, any Bill must originate in that House, and cannot be susceptible of change in this House—a privilege which I neither admit nor deny. It is not my province to do that, because the Privilege has never yet been asserted by the Lords, and has not been brought before the consideration of the House as in any way opposing our legislation. It has been introduced to the House by Her Majesty's Government. The right hon. Gentleman adduced cases the other day in which Bills had been introduced into this House affecting the Privileges of the House of Lords, such as the abolition of voting by proxy, and the election of Representative Peers. The right hon. Gentleman adduced Bills of that description as evidence that the House of Commons had introduced measures which were contrary to the alleged Privileges of the House of Lords in that respect. But none of those Bills ever reached the House of Lords, and it was therefore unnecessary for the House of Lords in respect of them at all to allege their Privilege. And anybody who reads, as I have read very recently, the debates upon this subject in the House of Commons, such as upon the Bill for the abolition of vote by proxy and the Bill, for example, to alter the mode of electing Peers in Parliament, will see throughout that not only those Bills were rejected by this House, but that they were rejected, because the House felt the measure would place them in collision with the alleged and asserted Privileges of the House of Lords. I do not mean to say that if the House of Lords had then asserted this Privilege the House of Commons would have recognized it. But that would have happened with regard to the House of Commons which happens with regard to the 370 House of Lords. There are many Privileges which the House of Commons asserts that the House of Lords practically respects and yet has never recognized. Even our most undoubted and most valuable Privilege, that with respect to Money Bills, has never been theoretically admitted by the House of Lords, although in action it practically takes care that there is no clashing upon the subject.
Well, I have now, I think, shown that with respect to this class of Bills, which the right hon. Gentleman put forward to prove that the Privilege of the House of Lords was not acknowledged by the Commons, the Privilege never could be asserted because none of the Bills reached the House of Lords. True, it may be said by the right hon. Gentleman—"But the House of Lords might have taken note of those Bills having been brought forward in the House of Commons, and have given us an intimation that their Privileges were affected by them, as they have in this instance." Why, Sir, the intimation that was given in this instance was given by a Friend of the measure of Her Majesty's Government. If my noble and learned Friend (Lord Cairns) had really wished to defeat the measure, would he have taken the means of publicly notifying to them, that if they pursued the course in which they had suddenly and precipitately embarked, they would be attacking the Privileges of the House of Lords? No; my noble and learned Friend would naturally have remained in grim repose until the day when the Bill came forward in the House of Lords, and would then have asserted, and triumphantly asserted—if it had been his object to defeat the Bill—a Privilege which, whatever may be our opinion, the House of Lords would have supported with the same zeal and determination that we would support any of our peculiar Privileges. The right hon. Gentleman talks to-night of a challenge being thrown out to the House of Commons by my noble and learned Friend. No challenge was thrown out, but an admonition was given to Her Majesty's Government to the effect that —"If you pursue the course you are taking we shall assert our Privilege." And Her Majesty's Government have profited by the admonition. And they were wise; and yet, Sir, I blame Her Ma- 371 jesty's Government for the mode in which they have acted. I say it was most indecorous and indiscreet in the Leader of the House of Commons to come forward and denounce the House of Lords, declaring that their alleged Privilege was entirely fallacious, and then yield to it without 'a struggle, leaving behind him a precedent which may be hereafter quoted in favour of a Privilege of the House of Lords which the House of Commons has never yet acknowledged.
Then, there is another class of precedents quoted by the right hon. Gentleman which might be described as cases in which the House of Lords had, either by initiating measures such as the Septennial Act, or by amending measures such as the two Reform Bills—that of Lord Grey and that of 1867, legislated so as to affect the constitution of the House of Commons. But these only show that the House of Commons either has not, or has never claimed the privilege in question. It is a complete error to assume that the Privileges of both Houses are the same. The Privileges of the two Houses are not and need not be identical. We have peculiar Privileges. Witness the catena of Privileges of the House of Commons as to Money Bills. The House of Lords have peculiar Privileges, and the passage in Blackstone which has been referred to is valuable in itself as a proof and an illustration of what in his time was the settled general opinion of legal and constitutional authority upon the question at issue. He limits it to the Peerage. It proves that in his time this Privilege was supposed to be peculiar to the House of Lords and not to the House of Commons. But it is upon this last class of measures, where it is supposed that the House of Lords have legislated so as to effect the Privileges of the House of Commons, the right hon. Gentleman has delivered an opinion of a character so strange and so dangerous—one which both sides of the House are so much interested in completely comprehending and guarding themselves against—that I must call particular attention to it. The right hon. Gentleman says that the House of Lords having hitherto dealt with Bills which affected the constitution of the House of Commons with impunity, if they again take that course we must ourselves assert a 372 privilege of a similar character and defend ourselves against the House of Lords. Why, Sir, the right hon. Gentleman should know—must know—that it is totally impossible for either House of Parliament to set up a new Privilege. It is part of the Constitution of this country. The most solemn Resolution at which Parliament has ever arrived—arrived at by both Houses, recorded in our Journals so far back as the beginning of the 18th century, at a time when the Constitution of England may be said to have become settled—declared that it should not thenceforth be in the power of either House of Parliament to set up a new Privilege. Our predecessors knew the value of Privilege of Parliament. By Privilege they had established the Parliamentary Government of England and secured their rights and liberties, and they knew well that Privilege was a delicate and dangerous weapon, and therefore they the resolved that the armoury should not be increased in that respect, and they arrived at that Resolution. It is upon our Journals, and is perhaps the most important Resolution on the Journals of the House of Commons. And yet we have the Leader of the House of Commons, in a moment of difficulty and danger, protecting the House from the assertion of a Privilege on the part of the House of Lords which, at least, is an ancient Privilege, and telling them that the only efficient mode in which they can guard themselves is to devise a new Privilege to vindicate their rights against the claims of the House of Lords. And this is the constitutional conduct of the Prime Minister of the country! I say with respect to this second group of cases that the House of Commons never asserted the Privilege in question, and no doubt, because the Privilege never existed.
Then there is another class of cases, such as the Temporalities Act, which suppressed some, and the Irish Church Act, which abolished all the Irish Bishoprics; and the right hon. Gentleman brings forward those precedents to show that we have a right to deal with the Privileges of the House of Lords. Now, what I would say generally is this—that in none of these Acts is there any interference with the Privileges or jurisdiction of the House of Peers. There are several things which the House of Commons 373 may do. They may amalgamate two Sees or abolish one, in each case dealing with the number of the other House. It is also in the power of the House of Commons at all times to present an attainder of a Bishop. For example, we sent up an attainder against the Bishop of Rochester (Atterbury) but the Lords claimed no Privilege in that matter. They never supposed that in dealing with an individual, we were interfering with the rights of an order, and the attainder was passed. The House of Commons might even to-morrow abolish the office of Lord Chancellor, and deprive the House of Lords of their Speaker. It would be no interference with their Privileges and the Act would immediately be recognized. None of these Acts on the part of the House of Commons would be au interference with the status, power, or jurisdiction of the Lords Spiritual or Temporal. They would remain the same. I am not upholding the claim of Privilege now asserted for the House of Lords, and so far as I am concerned, I am not prepared to enter on that subject in the haphazard manner of the right hon. Gentleman, and without ample time for investigation. When the claim is made, I will not shrink from discussing it; but what I want to show to the House is this—that all the arguments and all the precedents urged against this claim of Privilege by the right hon. Gentleman are utterly void, that there is nothing in them, and that if the House of Commons in any possible struggle with the House of Lords depends upon those precedents and arguments, they will find themselves in a position of humiliation, of discomfiture, and disgrace.
I come now to the largest and most important group of these precedents, and they are precedents which refer to Scotland and Ireland. The right hon. Gentleman stated that the jurisdiction as to these two countries being given jurisdiction, statute is not like the English jurisdiction, which is customary, traditionary, and inherent, and moreover, that these statutes, the statutes of Union, originated in the House of Commons.
If I should not be interrupting the right hon. Gentleman I would wish to explain. I am quoted quite correctly by the right hon. Gentleman. I certainly did treat the 374 jurisdiction of the House of Lords with regard to English Appeals as traditionary; but I was entirely wrong. It undoubtedly rests upon statutory foundation.
§ MR. DISRAELI
Well, there is a statute of Edward which remits and confirms the right of appeal in England to the House of Lords; that is a tolerably long time ago, and the subject is one of those moot points in archæological politics into which I am not disposed now to enter. I believe the right hon Gentleman never expressed himself with greater truth and felicity than when he said that the jurisdiction of the House of Lords in England was customary, traditionary, and inherent. But I will deal with the modern circumstances upon which the right hon. Gentleman insisted with so much vigour, and which are peculiarly the subject of consideration at this moment, because the course of the right hon. Gentleman and his Government, which is not decided with regard to Scotland and Ireland, depends upon accurate information in this matter. The statement of the right hon. Gentleman, as I took it clown at the time, was that the jurisdiction in regard to Scotland and Ireland being given by statute, was not like the English jurisdiction, which was traditionary and inherent, and, moreover, that the statute of union originated in the House of Commons. Well, Sir, I entirely contest that statement of the right hon. Gentleman. I will first of all treat of Scotland. The union between England and Scotland was effected by Treaty. The Treaty was negotiated in a very peculiar manner — not by the Prerogative of the Crown, but by Commissioners appointed by the Parliaments of the two countries. During the negotiations considerable conferences were held upon all those points which were afterwards reduced to the form of a Treaty, and executed as a great public document. Among those subjects—subjectsof grave importance, trade, taxation, and other matters—the judicature of the two countries was considered, and particularly the judicature of Scotland. The judicature of Scotland was respected and retained. The Privileges of the Peers of Scotland were acknowledged to be identical with the Privileges of the Peers of England. All the powers and Privileges which the Peers of England then exercised were to be exercised by the 375 elective body of the Peers of Scotland, and were so provided for by the Treaty. The Peers of Scotland when they joined the Parliament of Great Britain came with all the attributes, all the privileges, and powers similar to those possessed by the Peers of England, and it was to them the Scotch addressed their appeals. In all the controversies that were carried on great jealousy was shown by Scotland on this point—the appeals of the Scotch people. They were afraid that if their appeals were addressed to the House of Lords, of which so inconsiderable a portion consisted of Scotchmen, they might not get justice. But after long discussions, admirably sustained on both sides, but especially by the Lord Chancellor of Scotland, they agreed to the system which prevails even to this moment. The right hon. Gentleman appeals only to the Act upon the Statute Book which is commonly called the Act of Union; but if the Act of Union were repealed to-morrow, the union between Scotland and England would still subsist, for the union between Scotland and England depends upon the existence of the Treaty between Scotland and England. The right hon. Gentleman insists very much upon the fact that the union depends upon an Act of Parliament, and that that Act of Parliament was introduced into the House of Commons. The Act, however, was introduced into the Parliaments both of England and Scotland, and for this reason, because, as the original Treaty was not negotiated under the Prerogative of the Crown, it was necessary that its ratification should be made by Parliament. The Commissioners of the Treaty being originally appointed by Parliament, it was necessary that the ratification of the Treaty should be made by Parliament. And so completely and clearly is this the case, that the Act of Union in the Scotch Act is called "the Ratifying Act." I cannot charge myself, speaking rather unexpectedly upon this matter at the present moment, with the exact title in the English Act; but in the Scotch Act it was absolutely called "the Act of Ratification." Why, Sir, so far as the union between the two countries is concerned, if the Act of Union to which the right lion. Gentleman appeals were abolished to-morrow the union would exist in all its force. The Act of Union is a complete diplomatic document dependent only upon 376 one condition specifically mentioned, and that is its ratification by the Parliaments of the two countries. If you should repeal the Act of Union tomorrow, the union between the two countries would not be less complete, and the Privileges of the Peers, which are not mentioned in the Act of Union in this respect, but which are specifically mentioned and secured in the Treaty, would still exist. Therefore we must be very careful in the course that we take. We may pass an Act to-morrow which apparently may deprive the Peers of their right of hearing appeals from Scotland; but you will not deprive the Scotch people of the right you have secured to them by their Treaty; and they may demand that their appeals should be heard by their Peers, as they always were heard in Scotland. And you may find this—as no wrong can exist in this country without a remedy—you may find. yourselves involved in a controversy with your Courts of Law, which will be called upon and will not fail to vindicate the rights of the Scotch people. These are matters which there ought to be a clear conception of before Government decides in a haphazard manner a question which 24 hours before they had not considered. When you come to matters which demand the most profound consideration, is it not intolerable because some panic-stricken underling may whisper the Prime Minister that he is doubtful about the result of a division—is it not intolerable that the laws, statutes, and solemn guarantees of two nations should in a moment be set aside?
I come now to the case of Ireland, and after what I have said on the ease of Scotland that will not detain me long. We are told that the case of Ireland is most remarkable, because the Act of Union was brought into the House of Commons, and here, according to the right hon. Gentleman, is a most significant precedent on which the House of Commons might interfere with the House of Lords as regards the claim of their Privilege. Now, it is perfectly inaccurate to say that the Act of Union was brought into the House of Commons, or was in any way peculiarly a statute of the House of Commons. I find this with regard to the Act of Union—that the Act of Union, and every sentence of the Act of Union, were submitted to the House of Lords 377 and the House of Commons at the same time, and passed in separate Resolutions. And what is more the Act of Union, which is the Act of the 39th and 40th of King George III., mentions this upon its face. So jealous was the House of Lords then that the House of Commons should not have the initiative in that great Act that they took measures that every provision of the Act of Union should be framed in separate Resolutions, passed at the same time, on the same day, and that the statute, when it received the Royal Assent, should express that remarkable circumstance. These are the precedents of the right hon. Gentleman. I ask you candidly to consider if these four groups of precedents are applicable to the case before us. I ask you whether you can trust to them to guide you in your difficulties? Is there one of them that if you follow it will not mislead and bewilder you? You cannot for a moment deny, with regard to the first class, that the Bills were never carried to the House of Lords, and therefore the instances fall to the ground; that with regard to the second class of cases, in which the House of Lords has initiated legislation like the Septennial Act, or altered our Reform Bills that the House of Commons has never asserted a similar Privilege, and that no such Privilege exists. You cannot deny that the right hon. Gentleman, in saying that he will in our defence set up a new Privilege, has taken a course opposed to the Constitution, and that since the commencement of the 18th century it has been impossible for either House of Parliament to set up a new Privilege. Yet you are told to-night that the only way out of your difficulty is to set up a new Privilege. What a "leading" of the House is this? You cannot deny that with regard to the Temporalities Act and the Act of 1869, which abolished the Irish Bishoprics, you only did that which the House of Commons had done for two centuries of Parliamentary government, and no Privilege in that respect was ever asserted by the House of Lords. As to Scotland and Ireland I need not recapitulate. I think I have shown that in this respect every statement made by the right hon. Gentleman was inaccurate and that if you act on the conclusions he has drawn, you will undoubtedly find yourselves in immense difficulties.
378 There is another authority that ought to be noticed on this subject. It is an anonymous authority, but a very influential one. I acknowledge its power. I admire the vigour of its ability, but I shall not shrink from doing my duty in criticizing the statements which have been made. It has been asserted by a powerful though anonymous writer, that both the right hon. Gentleman and myself and our mutual Friends wasted our time the other night in arguing this question, in regard to the alleged Privilege of the House of Lords, for the whole question was settled by the Bankruptcy Bill. The right hon. Gentleman was more particularly, assailed; but I was not so guilty, because I had spoken briefly and imperfectly while the right hon. Gentleman had come down with arms of power. That authority asserts that the Act of Bankruptcy which had made the Peers bankrupt bad shown that these Privileges were .nothing, and that the whole affair had been settled by that statute. Well, now, it is a most curious thing, but there never was a time when a Peer of England had any Privilege with regard to bankruptcy. Long before the time of these great regenerating Bankruptcy Acts the Peers of England were as much liable to be made bankrupts as any other subjects of Her Majesty's dominions. They had only to fulfil the same conditions to obtain the same result as the rest of Her Majesty's subjects—they had to become traders. If a Peer of England became a trader and could not pay his debts, he was as liable to be made a bankrupt in the clays of Charles II. as in the days of Queen Victoria. There have been not only several, but many Peers of England who, long before the reform of the Bankruptcy Laws, which we are now told settled this question, were made bankrupts. By the reform of the Bankruptcy Law in 1861 it was enacted that every debtor might be made a bankrupt, and the Peers never had any Privilege of any kind with regard to bankruptcy. And yet this assertion, so utterly fallacious, so empty, I observe to-day has been taken up by a considerable writer, who is also anonymous, but whom I think I know by his style. I believe that he is one who is not disinclined at all times to instruct the people of England; and, I am bound to say, often to their advantage. But this writer in- 379 forms us to-day, in a very long epistle in the leading journal of the country, printed in those colossal proportions which indicate the importance of the writer, that this matter of bankruptcy is the one that entirely decides the question at issue at present. I do not know who is the writer, because style is deceptive, and if I raised the visor of this anonymous knight perhaps I should see only a mask, and on that mask might be perhaps written "Historicus."
Now, Sir, I have put before the House these facts for its consideration. I presume to say that questions of this kind are not to be carried by bluster and by the bravado of rhetoric. [A Laugh.] Yes, I repeat it, they are not to be carried by the bravado of rhetoric. Opinions, however adroitly or strongly expressed, are nothing when you come to questions of law and Privilege. Precedents which do not apply are always ultimately discovered to be what they are—essentially futile and deceptive. "Upon real precedents we alone can rest. I have endeavoured to place before the House what really is the imputed claim of Privilege of the Lords. It is a very large claim—that no Bill affecting the Privilege of the other House shall be introduced into Parliament except in their own House, and when sent down to this House, it shall be susceptible of no change. That is a very large Privilege which I, whether sitting on this side of the House or on the other, would pause long before I should acknowledge. It has been acknowledged with dangerous, I will not say pusillanimous, precipitation, upon the present occasion. No one will deny that, as far as the House of Commons is concerned in relation to this alleged Privilege of the House of Lords, we do not stand as we did a month ago. The right hon. Gentleman has made admissions to-night and before to-night on this subject; and, whatever may be our ultimate decision, at least the ultimate decision of this matter in the Cabinet will be referred to hereafter as a precedent which supported this alleged Privilege. Nor can it be denied that the conduct of the House of Commons has been arrested and altered in this great matter of the reform of the judicature of England by the rumour of the existence of a Privilege of the House of Lords which the Government of Eng- 380 land has acknowledged as valid. The precedents I have placed before the House refer to another branch of the subject. I give no opinion of my own; I am not called upon to give any opinion in regard to the Privileges of the House of Lords. If it fall to my lot to consider them, I will consider them with candour, and in the spirit of truth and justice, and a love for the Constitution. But when a Minister rises and inveighs against the alleged Privilege, and having showered upon you precedents and arguments to prove that the Privilege is entirely visionary, yet at the same time quite changes his conduct in consequence of the mere rumour of the assertion of the Privilege, it becomes my duty to show you that the precedents upon which he depends are utterly futile and vain; nay, more, that were you to proceed in. the course which he recommended, as far as Scotland and Ireland are concerned, you might find yourself in a position which you cannot uphold, and even the Parliament of England might find itself in a false position. These are the remarks which I have to make, and I hope that I may receive, if not at the present moment, on sonic fit occasion an answer to them. I do not think that it is a fit answer to the statements I have made to be told that I have not brought forward a "rag of an argument." In the first place, that is not a polite expression when addressed by the right hon. Gentleman who leads the House of Commons to one who, with all his deficiencies, still, by the kind indulgence of his friends, occupies the position that I now do. But the observation, which is not polite under these circumstances, when it is followed up by the opinions of his own Law Officers that every remark I made deserved attention, and that every point which I put forward was matter for consideration, but that upon the whole they had only a choice of difficulties to select from, ceases to be discourteous and becomes absurd. I commend these remarks and these precedents to the House of Commons. No one can be more deeply interested in the House of Commons, in its honour, its Privileges, and its integrity than myself. When the House of Lords claims a Privilege which I believe to be constitutional and true I should be ashamed not to acknowledge it. But whatever course I may take, this is one 381 I will not pursue—I will not denounce the assertion of the Privilege by the House of Lords, and then yield to it.
§ MR. SPENCER WALPOLE
We have just listened to two very remarkable speeches on the subject of Privilege, although, strictly speaking, the only question before the House is the appointment of a day for the consideration of the Report of the Bill which has just passed through Committee. I take leave to suggest that we shall get ourselves into great difficulty, if on an occasion like the present we proceed to discuss questions not before the House, whether they relate to the extension of the jurisdiction of the Court of Appeal to Scotland or Ireland, or whether they relate to the Privileges of the House of Lords. Both the right hon. Gentleman opposite and the right hon. Member for Buckinghamshire, have assumed that the question of Privilege has been claimed by the House of Lords in a form which requires this House to take notice of it; but I take leave to say that the Question of Privilege has not been raised in the House of Lords in a way that this House either can or ought to notice it at present. It is not merely because a noble and learned Lord, however able and however eminent he may be, may question in the House of Lords upon grounds of Privilege the proceedings in this House—in a way, perhaps, that is somewhat out of order—that any such claim can properly be considered. The only mode in which such claim can properly be considered is when it comes before us in a tangible shape. The right hon. Gentleman who has just sat down has justly observed that this is an unparalleled case in the history of the country, and what I wish to press upon the House is this, that until a claim for Privilege is actually made by either House and communicated to the other, it is impossible to come to any determination upon it. In that, and that way only, the matter may be discussed, and the question may be settled. We had, therefore, better wait until the day is appointed for considering the Bill on the Report, in order that we may have specifically before us any Motion which may be made either as to the propriety of extending the jurisdiction of the new Court to Scotland and Ireland, or as to the mode in which any supposed Privilege of the House of Lords may properly be dealt with. In 382 saying this I beg to disclaim at the same time any intention of doing anything which may tend to maintain a difference between the two Houses of Parliament.
§ Question put, and agreed to.
§ Bill, as amended, to be considered upon Thursday, and to be printed. [Bill 237.]