HC Deb 09 August 1876 vol 231 cc879-86

Bill, as amended, considered.


moved the insertion of a new clause, to provide that— In any cause tried at the Assizes, an application for a new trial or to set aside the verdict or judgment, or to enter any other verdict or judgment, may be made within the first four days of the sittings of the High Court of Justice in Middlesex next after the trial.

Clause (Application for new trial in cases tried at the assizes,)—(Mr. Morgan Lloyd,)—brought up, and read the first time.

Motion made, and Question proposed, "That the said Clause be now read a second time."


objected to the clause, and considered the matter one of procedure, which ought to be left in the hands of the Judges, to be regulated by Rules of Court.


said, that while approving the object of the clause, he agreed with the hon. and learned Attorney General.

Motion and Clause, by leave, withdrawn.


with the leave of the Committee, withdrew a clause of which he had given Notice, giving power to stay execution pending appeal.

Amendment proposed, in page 4, line 3, to leave out the words "in the same manner in all respects as."—(Mr. Charley.)

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

Amendment, by leave, withdrawn.

On the Motion of Sir Colman O'Loghlen, Amendment made, in Clause 8, page 3, line 39, by inserting after "Lords of Appeal," "in the name of the House of Lords."

Amendment proposed, in page 4, line 19, to leave out the words "except so far as may be authorised by orders of the House of Lords."—(Sir Colman O'Loghlen.)

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

Amendment, by leave, withdrawn.


moved, as an Amendment, in page 5, line 21, the omission from the 13th clause of the words relating to the appointment of Episcopal assessors of the Judicial Committee, contending that the Court ought to be a lay Court and deal only with questions of law, and that it ought to be left a tribunal of the same character as was constituted under the Public Regulation Act. Having lately in Committee moved the omission of the provision for providing the Judicial Committee with Episcopal assessors at the hearing of ecclesiastical appeals, he had, as he conceived, been really supported by the independent opinion of the House. It was true that on the division there was a tie, and that according to the etiquette which governed his actions, the Chairman was at that stage compelled to give his voice for the retention of the provision, because another opportunity would be afforded for again considering the question. But in that tie one side was composed of Members voting according to their convictions, while the other was largely made up of the occupants of the Treasury Bench, who had no option as to their votes; with, indeed, the exception of his right hon. Friend the Secretary of State for War, who had significantly walked out of the House. He, himself, had upon that occasion so fully given his reasons why Parliament ought not to consent to a mixed Court of lawyers and ecclesiastics to deal with legal questions, and he had so clearly proved the unanimity of the House upon the matter in 1873, that he would not repeat his reasons. Only he must refer to an argument which he had then overlooked. Under the Public Worship Regulation Act the Judicial Committee stood without Episcopal members or assessors. He did not pretend that he had liked that Act, but Parliament had; and after so enthusiastically passing it, it was bound consistently to carry out its principles, one of which would be violated by the retention of the words of which he again moved the omission.

Amendment proposed, in page 5, line 21, to leave out from the word "Majesty" to the word "Whereas," in page 6, line 3.—(Mr. Beresford Hope.)

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


said, it was not often that he agreed with his hon. Friend opposite (Mr. Beresford Hope) on ecclesiastical matters, and he was glad on this question to be in accordance with him, and he cordially approved of and supported the Amendment to strike out the lay element from the Bill. It was never intended that the Judicial Committee should be regarded as a theological tribunal. The great lawyers knew quite as much of theology as the Bishops. It was almost impossible to have a greater concurrence of opinion than there was on this subject. If the Court should require any knowledge on theological points they would easily be able to obtain it. He could see no reason for not following the arrangement come to in 1874 when they passed the Public Worship Regulation Act.


said, that the movement to reject the Bishops from the Court sprang from those clergymen of the Church of England who desired to disobey the judgments of the Privy Council. If the Bishops were removed, these clergymen would insist that, as the Privy Council was a purely secular tribunal, it had no right to expect obedience from spiritual persons.


wished to explain that the vote which he was now about to give was different from the one which he gave on the previous night on the same question. He was under the impression that the question was between a purely legal tribunal on one side and a mixed tribunal of lawyers and ecclesiastics on the other; but that was not so, as the Bishops were to be merely assessors, and would form no part of the Court. Certain persons in the Church of England supported the Amendment because they made the purely legal character of the tribunal a ground for repudiating its decisions altogether. The presence of Bishops as assessors would go a long way to defeat this objection.


did not think that the presence of the Bishops inspired any additional confidence in the judgments of the Committee of the Privy Council, because they did not sit as Judges with responsibility, but simply as Assessors. For his part, he would rather have the judgment of lay Judges free from the influence of irresponsible Assessors.


held that the presence of the Bishops led to nothing but confusion. He would like to ask the hon. and learned Member for Denbigh (Mr. Watkin Williams) to consider whether any possible constitution of the Court could satisfy those whom it was its object to control, and who avowed that they remained in the Church of England for the express purpose of Romanizing the Church. [Laughter, and cries of "Agreed!"] He claimed the indulgence of the House, which he thought ought to be allowed to him as a layman. He considered the clause a monstrous proposition to bring religious "experts" in to assist the Judges. He could not conceive anything more monstrous. He was glad that the hon. and learned Member for Oxford had come to the rescue of the Constitution.


said, he was unable to consent to the Amendment. The clause did not make the Archbishops and Bishops Judges of the Court, but enabled Her Majesty to make them Assessors in order that they might, if it should be necessary, give advice to the Court on ecclesiastical matters. For those reasons he thought it better that the whole of the clause should stand as it was. Experience showed that judgments gave more satisfaction to moderate men when the Court had Episcopal assistance.


agreed with the hon. Gentleman the Member for the University of Cambridge (Mr. Beresford Hope). The object of introducing the Archbishops and Bishops as Assessors, was either to assist the Judges in the interpretation of the law, or else for the purpose of modifying the law by the introduction of extraneous matters and opinions not based upon the fair and grammatical construction of the Articles and formulas of the Church. For the former purpose the help of the Archbishops and Bishops was unnecessary, and the latter was objectionable on principle, inasmuch as the tribunal was to declare and not make or alter the existing law. He should certainly support the Amendment of the hon. Gentleman the Member for Cambridge University.


supported the Amendment.


did not see any objection to Bishops sitting as Assessors, so long as they did not influence the judgment of the Court.


was glad the Government had determined to abide by their clause.

Question put.

The House divided:—Ayes 55; Noes 42: Majority 13.


said, that the hon. and learned Attorney General had promised to reconsider the clause increasing the allowance to retired Indian and Colonial Judges attending the Privy Council. He wished now to ask him whether there would be any advantage in raising the salaries of these Assessors from £400 to £1,000 a-year? The hon. and learned Gentleman was proceeding to comment on the subject, when—


pointed out that the hon. and learned Gentleman would not be in Order unless he meant to conclude with a Motion.


said, that in that case he would move to omit the clause. The services of those Judges might not be required, and he did not like to see hypothetical offices with £1,000 a-year created for persons whose services might not be required at all. Such a proceeding would tend to encourage jobs.

Amendment proposed, That the Clause be omitted.—(Sir William Harcourt.)


said, he had considered the subject, and thought that the clause should be adopted. The existing Act contemplated a time when the Lords in Ordinary might not have among their body any Members with special knowledge of Indian and Colonial law. There were now two judicial Members of the Committee of Privy Council who were conversant with Indian law, and there would be no necessity at present to fill up these appointments. These assessors would be appointed not under this Bill, but under the existing Act, and the clause would enable them to receive a more adequate remuneration than £400 a-year by substituting the salary of £1,000 a-year.


said, the principle proposed was an entirely new one. The Government were making this Bill a money Bill—a mere speculative question. The proposal was most unconstitutional and anomalous.


said, a salary of £400 a-year, inserted in the original Bill, was now proposed to be raised to £1,000 a-year. He should have thought that increase of salary was only justified when earned by services. He would appeal to the Chancellor of the Exchequer to say whether it was desirable to raise salaries prospectively for places which were not intended at present to be filled up. When the occasion occurred, the Government could come to the House for the salary. He protested in the name of the taxpayers against a proceeding which was contrary to the whole genius of our finance, and might be fraught with the grossest jobbery.


said, that after the appeals made to him, he would yield his own opinion, and consent to the clause being negatived.

Amendment agreed to; clause struck out accordingly.


said, he must now appeal to the House to read the Bill a third time, as the matter was one of urgency. He would accordingly move the third reading.

Motion made, and Question proposed, "That the Bill be now read the third time."—(Mr. Attorney General.)


said, that, under the circumstances upon which he then addressed the House, at a time when it was laying unhallowed hands upon the principles of the Constitution as embodied in the Common Law, he could scarcely call it a privilege, for he rather thought it a misfortune that he happened to be a Member of it. He had had much experience as a lawyer, and in that House, and he must say that although that subject had been under consideration for some years, he had failed to master it. Four or five years ago the House was called upon to pass a Bill, and it had since been led on from Session to Session until they were now told that unless they passed the present measure all would be thrown into confusion. He appealed from those benches to the Judges of the land, and he exhorted them to persevere in the policy they had adopted of protesting against the ignorant and most ill-considered action of the House in disregarding and subverting the principles of our jurisprudence. For centuries the people of this country had had to contend against the insidious encroachments of those enemies of the Common Law, the jurists and members of the Court of Chancery. Some of these learned gentlemen were no more to be regarded as custodians of the law and liberties of the people than a pack of wolves were to be considered as guardians of a flock of sheep. He entered his protest against destroying a system of law which had no parallel in the history of the world, and which, once destroyed, could not be restored. The result of these efforts would be to reduce the Common Law to the state of the civil law. While entering this protest, he must also express a hope that the Judges would have sufficient strength of character and good sense to adhere to the principles characteristic of the system of Common Law. In conclusion, he could not help bearing his testimony to the ability which the hon. and learned Attorney General had shown in conducting the measure through the House.

Question put, and agreed to.

Bill read the third time, and passed, with Amendments.