§ SIR HENRY JAMES
, in rising to call attention to the mode of election of certain Judges having extensive criminal jurisdiction, and to move—That, in the opinion of this House, it is inexpedient that indictable offences should be tried before Judges elected by any representative body,said, he wished to avoid any misunderstanding, as he feared there were some who supposed that the Motion was 1910 brought forward to question the competency of some gentlemen who had been elected to judicial offices, or to curtail the privileges of the City of London; but his only object was to point out that there was an anomaly with regard to the election of certain Judges, and that the system pursued did not afford due safeguards for the administration of criminal justice. He would not conceal from the House that the anomaly to which he referred was entirely connected with the City of London. The nomination and selection of Justices for criminal jurisdiction rested of course with the Crown; but, in one instance alone, that principle was departed from, and virtually and substantially the Commonalty of the City of London had the power of appointment. The House was, of course, aware, that in the City of London a power existed of electing three Judges—first, the Recorder, who was elected by the Court of Aldermen; then, the Common Serjeant and the Judge of the Sheriffs' Court, who were elected by the Common Council. All of them were criminal Judges, exercising a most important criminal jurisdiction, and by degrees their power and duties had been extended, until it reached what it now was. Now, what was the exact position of these Judges? It had been supposed that those who objected to this principle of election thought that these Judges sat by the direct effect of their being elected. Substantially, they did sit by virtue of their election. No doubt, they sat by virtue of the Commission issued by the Crown; but the moment the Recorder, Common Serjeant, or Judge of the Small Debts' Court was elected by the constituent body, the Crown lost all power over the position of that officer. That power was conferred by Statute, and it was not against the customs of the City of London that his Motion was directed, but against that statute, and against legislative interference with the Prerogative of the Crown. A Statute was passed in 1834, which constituted the Central Criminal Court. Up to that time the Court bore the name of the Old Bailey, and had jurisdiction over the City of London and the county of Middlesex in criminal cases. But, in 1834, by the Bill introduced by the then Lord Chancellor (Lord Brougham), it was thought advisable to extend the jurisdiction of the elected 1911 Judges to the most populous parts of Essex, Kent, and Surrey, and the result was, that the jurisdiction of these Judges extended, he believed, over nearly 7,000,000 of people. Before the passing of the Act of 1834, the position of these Judges, he understood, to be this—from ancient times the Recorder of the City of London, who had been elected, in the first instance, as legal adviser to the Court of Aldermen, was made Justice of Oyer and Terminer by Charter. But the Common Serjeant had no position other than that which the Crown's own will chose to confer upon him. He was, no doubt, Attorney General to the Common Council, informations were laid in his name, and he occupied the position of legal adviser to the Common Council in the same way as the Recorder to the Court of Aldermen. The Crown, therefore, whenever it thought right, for convenience sake, did place the Common Serjeant in the Commission of Oyer and Terminer, and sometimes he was found in the Commission, and sometimes not. Then came the Act of 1834. By the 1st section of that Act, it was enacted that in the Commission issued for the trial of prisoners at the Central Criminal Court, among the persons named, the Recorder, Common Serjeant, and Judge of the Sheriffs' Court, should be included. The effect, therefore, was, that as soon as the Court of Aldermen and the Common Council chose to elect their Judges, they did, by this Statute, become Judges of the Central Criminal Court, and the Crown was bound to have their names in the Commission, however unfitted by illness, or age, or infirmity, they might be for the performance of their duties. The Crown, therefore, after that Statute was passed, gave up the exercise of its optional right, and handed over to the Court of Aldermen and the Court of Common Council the power to determine who should be Judges of the Central Criminal Court. Therefore, in the case of a person becoming unfit from age, or otherwise, the Crown had no power to remove him. The first proposition he had to submit to the House was, that these Judges fulfilled very high judicial functions, and that this mode of appointment was anomalous. Under the Act their judicial functions were confined to the graver and more important cases, the minor ones, as a rule, not going before them, being sent to the Quarter 1912 Sessions of Middlesex and the different home counties. The Court had also power to try all offences committed on the High Seas. It now was empowered likewise to try cases which were sent to it, specially on the ground that they would not be tried fairly in other counties; and, in fact, it had become the Central Criminal Court of the country in every respect. In the two years preceding the 1st of May, 1878, no fewer than 2,077 prisoners were tried at the Central Criminal Court for offences, including the gravest the law knew of. Of these, 626 were tried before the Common Serjeant, 597 before the Recorder, 570 before the Judge of the Sheriffs' Court, and 284 before the Judges from the Superior Courts at Westminster. So that the elected Judges tried 1,793 prisoners, as against 284 tried by the Judges from Westminster. Of the 626 tried by the Common Serjeant, 498 were convicted, and sentences of penal servitude, amounting, in the aggregate, to 784 years, were passed by him. Of the 597 tried by the Recorder, 477 were convicted, and the sentences of penal servitude amounted, in the whole, to 676 years. Of the 570 prisoners tried by the Judge of the Sheriffs' Court, 389 only were convicted, and yet he passed sentences of penal servitude amounting altogether to 1,084 years. So that the elected Judges passed sentences of penal servitude which, in the aggregate, amounted to 2,544 years. He might mention that one-fourth of the whole of the prisoners in England and Wales were tried at that Court, and he knew of no duties that had to be so carefully performed as those of these Judges. What, then, were the safeguards that ought to be employed in order to see that these Judges were fully fitted for the performance of such duties? Surely, in the selection of the Judges of such a Court, there should be the calmest and gravest consideration, and the selection should be made by men possessing a knowledge of what was required; not only should a knowledge of the candidates be brought to bear, but every care should be taken that no influences should be allowed to affect the judgment of those who had to make the selection. There was a time, no doubt, when lay Judges administered justice in this country, and administered it in the most insufficient manner; but two of the great privileges obtained by 1913 Magna Charta were—first, that Judges should be sent from Westminster to administer the Assizes in every county; and, secondly, that no one should assist them except the Knights of the Shire. In a later clause of the Charter, there was an express provision that no Coroner, Sheriff, or Bailiff should administer Pleas of the Crown. The meaning of this, of course, was that Pleas of the Crown should not be administered by elected Judges, and that the Crown should retain in its own hands the power of selecting them. The only exception in this country to the principle then established seemed to be the office of Coroner; but the Government seemed to think the present mode of electing Coroners was objectionable, as they proposed, by a Bill introduced this Session, to take the power of election from the freeholders generally, and to vest it partly in the magistrates and partly in the elective body about to be established. The Middlesex magistrates, who had some experience, were not allowed to select the Chairman who had to try the prisoners; and he would ask, if they denied the elective principle in such a case, where minor causes only had to be tried, why they should allow it to persons who had had no training whatever fitting them for the duty of election? He did not wish to say anything disrespectful of the Aldermen of the City of London, for he had no doubt they performed their duties faithfully; but it was no disparagement to them to remark that, as most of them followed commercial pursuits, they did not possess an experience of law and the administration of justice that would enable them to determine properly the qualities required in a Judge. They did not come into contact with those from whom they had to select. The result was, either that the selection had to be made in total ignorance of the qualifications of the candidates, or that that must take place which was a greater evil—the candidates for the appointments must descend into the arena of an election contest and canvass from house to house; they must vaunt their own capabilities over those of their opponents, or resort to that most insufficient mode of sending round testimonials, which sprang often from private friendship. Could they believe that a man who would be the fittest man—a great lawyer, occupying a high position at the 1914 Bar, trained with the feeling that the Bench must be pure from the slightest suspicion—could they believe that such a man would enter into the arena of a contest in which he must make an assiduous canvass for votes, and must ask for judicial honour and monetary payment—must say that he was better than his opponent? Would the House believe he would do that in order to obtain the appointment which, in other circumstances he would desire, and the duties of which he was eminently fitted to discharge? It was most important that the holder of a judicial office should be beyond suspicion, and that was almost impossible in a case where his appointment was the result of a popular election. To his mind, the highest judicial honour that could be conferred on any man would be dear at the price that would have to be paid for it. The very fact of this canvass being necessary would drive from the contest a man who was conscious of his merit; whereas a man who was not so sensitive would succeed in obtaining the office. Some hon. Gentlemen who sat on his side of the House might carry their Liberal proclivities so far as to say that all the Judges should be elected—[Mr. BIGGAR: Hear, hear!]—but would the hon. Member for Cavan consent to such a system if there were no check in reserve? It was perfectly true that in some instances the office of Common Serjeant had been conferred without the practice of canvassing having been resorted to—as in the case of Lord Denman; but, even then, the fact was due to political reasons, and was not in every case the result of personal fitness for the office in the gentleman selected to fill it. No one, he thought, could doubt that the practice of electing Judges, which was followed in the City of London, must result in detriment to the public service and a gradual degradation of the Judicial Bench. Another, and, to his mind, one of the strongest grounds of objection to this mode of appointment, was that the Court of Aldermen sought to elect as their legal adviser not only a man to give them legal advice, but to be of assistance to the Corporation, not merely upon the Judicial Bench, but elsewhere; and hence it gave the Corporation of London power to get two paid Representatives in Parliament by electing as Recorder and Common Serjeant two 1915 lawyers who happened to be Members of the House of Commons. A further evil was that the characteristics required by the Corporation were not the characteristics required by a Judge. The time was passing, if it had not entirely passed, when the fact of a member of the Bar being a Member of that House should form a ground of claim to any Judgeship in this country, and the qualifications for a Judge were not to be found alone in a man's Parliamentary position, but in his having passed the severer ordeals in the practice of his Profession. The Corporation also had the power of appointing Judges with a jurisdiction, including not only the City of London, but the counties of Middlesex, Kent, Surrey, and Essex. The position of these Judges appointed by the Corporation was also a matter deserving consideration. In this country, when Judges were selected by the Crown, it was so necessary that the administration of justice should be well maintained that the Legislature had reserved to itself, in case of misconduct, the power of the removal of those Judges by a joint Address from both sides of Parliament; but what power of removal existed in relation to either the Recorder or Common Serjeant? [Sir GEORGE BOWYER: You can remove them from the Commission.] To do that would be interfering with the customs of the City, which he did not think could be done, and it would be exercising that will of the Crown which he was endeavouring to maintain. When elected, this Judge must be put on the Commission, and, if he misconducted himself, there was no power of removal in Parliament or the Crown—there was none except that which was said to exist in common law, and he did not know what that was. It was true that the election of Recorder was vested in the Court of Aldermen, who had had some experience as magistrates, and were a smaller body than the Common Council; but, as a rule, they elected the Common Serjeant, whose natural claim it was an exceptional thing to refuse, so that the election of Common Serjeant was practically the election of the future Recorder by the 206 members of the Common Council. Was there one member to whom they would delegate the power of selecting the Judge? And could there be greater confidence in the 206? On the contrary, the larger number was more likely to feel a less sense 1916 of responsibility, and to depend upon the judgment of others rather than their own. Even after they were on the Bench, these Judges were not entirely free from the influences which attended their election, for the Common Serjeant sat side by side with the Aldermen in whose hands his election to the Recordership would rest, and even the Recorder was not altogether free from the like influences. He might be one whose judicial conduct was marked by the greatest independence, and whose name had become a household word for the purity with which he administered justice; but he could not help looking forward to the day when those sitting beside him on the Bench would perhaps engage in the discussion of his private means and determine what amount of pension they should vote to him. The House knew of men upon whom such influences could have no effect; but it was not right that it should be possible to bring them to bear. As to the American elective system, Chancellor Kent and Justice Story would be recognized as entitled to speak with authority, and the Chancellor quoted the Justice as condemning appointment by a deliberate Assembly, because it opened the door to party and local intrigue, and permitted men to accept judicial office without sufficient regard to the general welfare. His hon. Friend the Member for Londonderry (Mr. Charles Lewis) had given Notice of an Amendment, which was based upon the Report of the Royal Commissioners appointed in 1854, and which set forth that "the privilege of electing the judicial officers of the Corporation of the City" having been expressly approved by those Commissioners, the House should declare its opinion that "no circumstances have since transpired which call for the interference of Parliament." But he (Sir Henry James) desired to point out that that Report proceeded entirely upon the efficiency of the officers then existing—upon the undoubted capabilities of the Recorder and the Common Serjeant of the time. Further, it was not a sufficient security for the working of a system, and it should not prevent the House exercising its discretion now. It was strange that this Commission recommended that the election of Recorder should be transferred from the Court of Aldermen to the Court of Common Council. There was another 1917 Report, however—a Report based upon much broader considerations, made by the Commissioners appointed to inquire into the Municipal Corporations of England, and published in 1837. That Report, instead of giving perfunctory reasons as to the capabilities of particular officers, dealt with the broad question, and supported the view which he had endeavoured to maintain—namely, that it was most objectionable to elect officers who had to exercise judicial functions. To the terms of his Motion, as it stood, objection might, perhaps, be taken; but he hoped he had made its object perfectly clear. He did not wish to take from the City of London the power of electing their Recorder and Common Serjeant. What he wished was to attack the legislation of 1854; what he wished was to give to the Crown the power which everyone who valued the Constitution ought to desire to see possessed and retained by the Crown—the power of nominating the Judges; while, at the same time, being answerable to the subject for their due and proper election. He thought the words of the Amendment, of which Notice had been given by his hon. and learned Friend the Member for Durham (Mr. Herschell), to the effect that it was inexpedientthat officers elected by any representative body should, in consequence of their being so elected, be empowered to try indictable offences,would probably express more clearly the views he entertained; and he would, therefore, if the Forms of the House would allow, adopt the words of that Amendment on his original Motion, hoping they would meet the approval of the great majority of the House. It was not for him to criticize his fellow-men; all he wished to do was to criticize the form of an appointment. And, with reference to the subject, he hoped the principle he had laid before the House would be acceptable to the great body of the people. The hon. and learned Member concluded by moving the Resolution as amended.
Motion made, and Question proposed,
That, in the opinion of this House, it is inexpedient that officers elected by any representative body should, in consequence of their being so elected, be empowered to try indictable offences."—(Sir Henry James.)
§ MR. CHARLES LEWIS
, on rising to move the following Amendment:—That the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament,said, that rightly or wrongly, he was led to the conclusion, when the Motion of the hon. and learned Gentleman the Member for Taunton (Sir Henry James) was laid upon the Table of the House, that directly, it was meant, or that indirectly, the result would follow, that an attack would be made upon two hon. and learned Members sitting on different sides of the House, who had recently been appointed to judicial offices of a high character in the City of London. He had placed his Amendment on the Paper without the slightest communication with anyone, still less with the two hon. and learned Gentlemen whose position in high judicial office was more or less involved in the Motion. However, the hon. and learned Member for Taunton said he was in danger of being misunderstood. He (Mr. Lewis) confessed he was one who had misunderstood the hon. and learned Gentleman, and ho thought that, considering the time and the circumstances under which his Motion was placed on the Table, he was excused for misunderstanding him. For what had happened? It was on a Thursday that the election of the Common Serjeant was held, and on the very next Monday the hon. and learned Gentleman put his Notice of Motion on the Paper. He thought he was doing no injustice to the hon. and learned Gentleman, when he believed there was a strong link of connection between the election of Thursday and the Notice of Monday. When it was recollected that the newly-elected Common Serjeant and the Recorder were then about to commence their judicial functions, the Motion seemed as if intended to disparage them by anticipation, and to inflict upon them and their office an injury of the most serious character. The present was an abstract Resolution, and the House disliked abstract Resolutions, and especially such as were directed at the mode of electing to judicial offices, and thus indirectly cast a slur on those on whom the office was conferred. The House 1919 was asked by this Motion to cast a stigma, not only on the mode of the election of officers of a judicial character by the Corporation of London, but also particularly on the persons who were to discharge the duties. He did not dispute that if the hon. and learned Member had obtained leave to introduce a Bill to amend the Act of 1834, he would have been taking a strictly legitimate course in bringing before the House the necessary Amendments he desired to make; but such was not the case, and when it was recollected that that Act of Parliament was the culmination of a system which had gone on for 150 years, and to which the Crown and its Advisers had been parties, the remarks they had heard that evening about the infringement of the Prerogative of the Crown seemed somewhat out of place. It might be inferred, from the speech of the hon. and learned Gentleman, that the original nomination of the Recorder and Common Serjeant was for the performance of strictly judicial duties; but the fact really was that these judicial duties had been forced upon them by the Crown and Parliament, their primary duties being to act as advisers to, and to advocate the special interests of, the Corporation. The City of London and their higher Law Officers were badly served by the hon. and learned Member's attacks relying on what he called the Prerogative of the Crown; and it seemed to him to be an answer to the Motion, that during a long series of years the Crown had been accustomed to include the Recorder and the Common Serjeant in the Commission of Oyer and Terminer at the Central Criminal Court—for it proved that the duties had been performed satisfactorily to the several Chancellors as well as to Parliament during a long period of years, and it was really a flattering acknowledgment that the Corporation had invariably shown great wisdom and judgment in selecting their Recorder and Common Serjeant. Without intending any disrespect to the Bar, he ventured to say that a speech quite as righteously indignant as that of the hon. and learned Member for Taunton might have been made on such a Resolution as this—That it is of the highest importance that no appointment to the Judicial Bench should be in any way connected with Party politics, and that no inducement should be offered to Members of 1920 the Bar to go through the dirty avenues of a contested election, in order, by obtaining a seat in this House, to gain a vantage ground from which to step upon the Judicial Bench.He ventured to say that the hon. and learned Member for Taunton would not have made an equally indignant speech in condemnation of such proceedings. The fact was that the appointments made within the last 20 or 30 years in the City of London had caused a great deal of professional disappointment, just as did the elevation of Mr. Justice Blackburn to the Bench some years ago—when, as hon. Members would recollect, an outcry was made by different members of the Bar, and especially by many among the leaders, that a slight had been passed upon them by that appointment. Leading articlesappeared in the newspapers, and there was great indignation in high legal circles, that a humble reporter, without business, should have been put over successful persons at the Bar; and yet, that learned person had been lauded in the House of Lords with the highest distinction it was possible for a Minister to bestow. It was surely quite unnecessary to turn the House of Commons into a mere debating society. Did or did not this Motion refer to recent appointments? If it did not, and he would assume it did not, as the hon. and learned Member wished them to believe, then nothing could be more unfortunate than the time and circumstances under which it had been brought forward. A finger-post, pointing to certain hon. and learned Members in the House, could not have more clearly indicated the individuals to whom the Motion pointed. The hon. and learned Member laid it down as a fundamental proposition that the mode of electing the Recorder and the Common Serjeant did not present a satisfactory guarantee for the due administration of justice; but he had not quoted a single instance of its having been abused. Now, was it not incumbent on an hon. Member to cite such an instance before asking the House to adopt a Resolution like the one before it? It was not sufficient to deal with this question on merely à priori grounds. Hon. Members were not asked to sanction the initiation of a system under which Judges should be so appointed; but they were asked to affirm that a system which had existed for centuries 1921 ought to be altered in consequence of a theory which, however good in itself, had not been enforced by any facts showing that there was any evil to be removed or any insecurity or insufficiency in the administration of justice to be remedied. The hon. and learned Member for Taunton had referred to the Royal Commissioners of 1854–6; but he did not give the full force of their finding upon the question. They reported—It does not appear to us that there is any ground for suggesting that the important privilege justly and highly prized by the citizens of London should be taken from them and vested, according to the precedents of other boroughs, in the Crown.Moreover, no reasons had been given by him to induce the House to believe that the power of the Corporation had been unduly exercised, or that it had produced any discredit to the Corporation; and yet they were asked to take away a power which the Royal Commissioners recommended should be exercised in a more popular form, by its removal from the smaller body of the Court of Aldermen to the more numerous body of the Lord Mayor, Aldermen, and Common Council of the City. Was any credit to be given, apart from politics, to the Report of a Royal Commission, consisting of such men of high culture, long standing experience, and with clear scrutinizing judgment as Mr. Justice Patteson, Sir George Cornewall Lewis, and Lord Taunton? They were not men likely to recommend the extension of the power of election of these officers, unless very careful inquiry convinced them that the mode of election did not work badly. The hon. and learned Member for Taunton had referred to no persons or instances to show not only that theoretically the power vested in the Corporation was a mistake, but that practically it had worked badly in the administration of justice. Were there no facts, however, on the other side? The hon. and learned Member had referred to the case of Lord Denman, who, he said, did not canvass. Well, if that were so, it showed that the Corporation of London were capable, without personal solicitation, of electing a man of the highest type to the post of Common Serjeant. That circumstance told very much in favour of the Corporation, and showed that they might safely be trusted to exercise their patronage in this respect. 1922 Many distinguished individuals had been connected with these offices in former days, including Sir Talathiel Lovell, afterwards a Baron of the Exchequer; Sir Peter King, who subsequently became Lord Chief Justice of the Common Pleas and Lord High Chancellor; Sir William Thompson and Sir Andrew Strange, both of whom became afterwards Barons of the Exchequer; and in later times, also, there had been signal instances of the Corporation selecting men of high standing and capacity. Did not these facts take the edge off many of the abstract arguments which had been urged by the hon. and learned Member for Taunton? With regard to the alleged canvassing—unfortunately, in all times and circumstances, those who had anything to give away would probably be asked to give it, although Lord Bacon had stated that he who sued to be a Judge did not deserve to be appointed. It was quite idle to say that certain judicial appointments were not sought after, and if hon. Members looked at what occurred in private corners of that House, or in Ministers' quarters, they would find that suing to be a Judge was not a wholly unknown operation. It was equally idle to say that appointments to the highest judicial offices were not sometimes made through avenues and channels which would not bear the very closest investigation; but it was a fact highly creditable to the present Lord Chancellor, that in his appointments to the Judicial Bench he had shown his opinion to be that it was not a necessary passport to an office of the kind that a man should be either a Member of the House of Commons or of the Conservative Party. He contended that, while there had been no case made out against the Corporation of the City of London, or its present judicial officers, or those who recently held such appointments, there were abundant reasons for believing that the exercise of patronage on the part of the Corporation had operated with advantage to the State and with credit to the Corporation; and he trusted that the House would not be induced, by passing an abstract Resolution, to injure the administration of justice, or to place, as it were, a ticket of bad character on those who filled judicial offices in the City of London. The hon. Member concluded by moving the Amendment of which he had given Notice.
To leave out from the word "That" to the end of the Question, in order to add the words "the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament,"—(Mr. Charles Lewis,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. HERSCHELL
, who also had an Amendment on the Paper, said, that the hon. Member for Londonderry (Mr. Charles Lewis) had endeavoured to draw away the attention of the House as much as possible from the discussion of the important principle underlying the Motion—a principle that might be of material interest with regard to the welfare of the country—by referring to the merits of certain persons who, elected by the Corporation of the City of London, had filled the offices of Recorder and Common Serjeant; because he could not help feeling that if he discussed the principle alone, he would find difficulty in meeting the arguments brought forward by the hon. and learned Member for Taunton (Sir Henry James). The hon. Gentleman (Mr. Charles Lewis) had chiefly addressed the House on the question whether this Motion was brought forward at the right time. For his part, he (Mr. Herschell) thought it would have been difficult to find a more fitting opportunity for bringing forward this Motion. About the only time at which the House could be expected to give fair attention to the subject, without being put in an invidious position, was shortly after the election, when the present holder of the office of Common Serjeant had neither shown himself incompetent to fill the office, nor possessed of very distinguished abilities to perform the duties intrusted to him. The hon. Member had not said a single word to show that the appointment of Judges by popular election was likely to lead to beneficial results. He had altogether dwelt on circumstances of a local and temporary character; but the real question was, whether the country was under this system exposed to the risk of appointments which the country would deem 1924 undesirable? It was no answer to this, to say that men were sometimes appointed to judicial offices from political or other motives which were not strictly judicial; and, while he (Mr. Herschell) objected to the mode of election now followed in the City of London, he hoped to see the day when such improper motives for the appointment of Judges would altogether disappear, and when fitness for the office would be the only ground on which a lawyer would be raised to the Bench. He admitted that there were, or might be, abuses in other modes of judicial appointment; but he asked the House whether all such abuses were not most likely to disappear by leaving the appointment of the Judges to a high official who would be responsible to Parliament and the country, who could be called to account, and who would feel the weight of his responsibility for the general administration of justice throughout the country, than by leaving it to 200 or 300 men who could know nothing of the qualities that best fitted for the Bench, or of the men who asked their suffrages? He ventured to think that electioneering arts, which necessarily were of advantage to a candidate when the appointment was in the hands of a body such as they were speaking of, were, perhaps, as little suited as anything could well be to give to the mind a judicial direction, or to preserve that frame of mind which they all desired to see in those who sat on the judgment-seat. Thus he maintained that the qualities which were best suited to secure an election were not those which were most likely to make the best Judge. The hon. Gentleman opposite stated that the Common Council had at times made most excellent appointments, and he spoke of the election of Lord Denman as one which did them honour. But the hon. Gentleman did not say that the Report, to which reference had been made, asserted that the election of Lord Denman was made from political motives. The hon. Gentleman said that the Motion was grounded upon, and caused by, professional disappointment at the recent City elections. For his part, he did not know to what the hon. Member alluded. The observation certainly did not apply to him. This, however, he could not help saying—that the hon. Gentleman seemed to have enjoyed very much the opportunity of defending one or two members of the Bar by throwing aspersions 1925 upon the rest of the Profession. The Motion was not dictated by any miserable feelings of jealousy; and he repudiated, with all the indignation of which he was capable, the suggestion that such a motive actuated him or any other of its supporters. They had been asked, where was the evidence that mischief arose from appointments made in the manner referred to? Well, abuses might arise, and evils exist, which were not of a very glaring character; but the production of the evidence necessary to prove their existence would necessitate a difficult and delicate inquiry, which must inflict pain and cause injury. Everyone knew that there must be differences in the relative capacity of different Judges; and they might have justice administered by an inefficient Judge, whose conduct might lead to many doubtful convictions, or cause a great deal of suspicion, pain, and trouble, and yet there might not be any glaring instance which they could bring before the public. It was a mistake to suppose that every Judge could try a prisoner equally well; and yet it would be a most invidious thing to say—"Oh, show me where such a Judge has failed; what person has been wrongfully convicted before him; what criminal has escaped through his incapacity?" Such an inquiry was entirely out of the question, and the House should not allow itself to be led away by it. Upon the capacity, judicial qualities, judgment, and discretion of the Judge depended everything that was dearer than life itself; and, surely, in a case where jurisdiction extended over 7,000,000 of people, it was of the highest importance, at any cost, and by all means, to secure the Judge best qualified to administer justice. That was what they desired, and it was with that desire that he supported the Motion.
MR. STAVELEY HILL
said, there was scarcely a sentence uttered by his hon. and learned Friend who had just sat down in which he did not entirely concur; but many things he had said had no bearing on the question before the House. They had to consider, first, whether the discussion was opportune? and next, the point raised by the Motion of the hon. and learned Member for Taunton (Sir Henry James). His argument would go to show that neither of these considerations were sustained by the facts of the case. It did not follow, as stated 1926 in the Resolution, that it was in consequence of their election that these two officers tried indictable offences. The Recorder was a high functionary, who gave the authorities of the City counsel and advice under all circumstances; he was also the exponent of their laws and customs; and the Common Serjeant was another high functionary; he might be called the Deputy Speaker of the Aldermen and Common Councilmen, and he gave them advice in and out of council. In fact, the Recorder and Common Serjeant were engaged on behalf of the City of London in the most high and most responsible business that could fall into their hands. What position did these high officials stand in? He made a present of all that occurred before 1834 to the hon. and learned Gentleman the Member for Taunton, and he should go on to inquire—What did they find these gentlemen appointed to do? They were, in consequence of their election, selected by the Legislature, as, amongst others, persons suitable to try indictable offences, and the Act of 1834 empowered the Crown to appoint or not appoint them. The Act left it in the power of the Crown, if they were unworthy to sit as Judges, to omit them from the Commission of Oyer and Terminer; and, therefore, he held it was left in the power of the Crown to put the Recorder and Common Serjeant in the position of Judges, or to omit them if not fit persons. Here, then, was the position. These two gentlemen were appointed by the Corporation, and here was the Act of Parliament applicable to them. In the first or second year of the present Reign a Commission was issued under the Act in which these two were included as Judges. The Commission was issued from time to time, and any person disqualified might be omitted from the Commission. If that were so, how could his hon. and learned Friend defend the Resolution he had placed before the House? All the Aldermen who were similarly elected by the citizens of London were magistrates, and were placed on the same Commission as persons fit to try these offences. He ventured to say that to put forward this Resolution now and to argue it now, was to cast a slur on two gentlemen recently elected, and calculated to diminish their utility at the time when they were entering on their 1927 office. If his hon. and learned Friend the Member for Taunton did not mean to allude to this particular election, he should have brought his Motion forward against the Aldermen as well as the two officers who had been appointed. Did not that very fact show that the Resolution was aimed against the circumstances of this election? He submitted that there was nothing made out which required an amendment of the law of election, or which rendered this Resolution opportune to the present occasion.
§ MR. WATKIN WILLIAMS
said, he must frankly confess that he had been unable to understand the argument of his hon. and learned Friend (Mr. Staveley Hill). A broad, simple, and perfectly intelligible proposition had been laid before the House. He understood the question was, whether judicial appointments should be made by irresponsible popular election or under the responsibility of the Executive Government? He deeply regretted the necessity for a Motion of this sort, more particularly as it touched a Member of that House and of the Legal Profession. But the recent election had given rise to much discussion among Members and at the Bar, and it would be affectation to deny that the Resolution referred to a particular individual. Appointments of this kind could never be tested with reference to the qualification of individuals; but it was well known what evils there were connected with them when they were not made on the responsibility of Ministers who could be questioned in Parliament. He had been glad to see of late a tendency to transfer all appointments in Courts of Law to the Executive Government; for hitherto, if bad appointments had been made, those who were affected by them had been helpless to criticize them. The time had come for a declaration in that House that they preferred the selection of Judges by the Executive Government to their election under a system which induced them against their own feelings to tout for votes. He would be glad to see every office in England withdrawn from the bad system of election by popular vote. He hoped the House would not be deterred by any considerations of a personal nature from coming to a vote on the broad proposition.
§ MR. HARDCASTLE
said, the last speaker had expressed himself more honestly than others, and this was nothing 1928 more nor less than a personal matter. He himself considered the House was indebted to the hon. Member for Londonderry (Mr. Charles Lewis) for the information he had afforded them on the subject of this discussion. The hon. Gentleman had certainly told him what he had not known before, that this question of the quasi-popular election of criminal Judges by the Livery of London had been inquired into by three most eminent men sitting as Royal Commissioners—namely, the late Sir George Cornewall Lewis, the late Lord Taunton, and the late Mr. Justice Patteson, and that they had not found in it, so far as those particular Judges were concerned, anything to condemn. A terrible picture had now been drawn of the evils which might arise from Judges not being insensible to influences—influences under what circumstances? It was suggested that the Common Serjeant, sitting beside an Alderman who had assisted to secure his election, might be influenced by him whilst trying a man for his life. Did Aldermen thirst for blood? Was it when a man's life was at stake, that an Alderman would be likely to interfere. The idea was absolutely absurd. In a civil action, as Aldermen were only human, they might imagine it possible that some influence would be used; but in the other case, never. He was no defender of the popular election of Judges; he admitted this was an anomaly; but their freedom in England was largely due to anomalies; and he did not take exception to the maintenance of this anomaly, which had worked well for 300 years. As a layman, he was disposed to set the opinions of the Commissioners of 1854 against those of the hon. and learned Gentlemen opposite. Lawyers were not as other men, they were in the habit of taking sides, and would as soon defend a murderer as prosecute him. Such a profession must harden a man somewhat, and it must have been the Law Courts' experience of the hon. and learned Member for Taunton which enabled him to say so many things calculated to inflict pain. He was glad that in this respect he differed from him, and looked at this question from a different point of view to that from which they had been invited to regard it.
§ MR. LOWE
Sir, the hon. Gentleman who has just sat down professes to look at this matter from a personal point of 1929 view. As my view is entirely divested of any personality, I hope he will consider it no disrespect on my part if I do not follow him in his view of the subject. Nor do I think my hon. and learned Friend will require me to say anything in defence of the Bar. The question is an exceedingly simple and important one. It is nothing more nor less than this. There is nothing, perhaps, more valuable to us, nothing which tends so much to hold civil society together, as a pure, just, and intelligent administration of justice; and there is no sacrifice that I can imagine which we ought not to be ready to make in order to obtain that in its greatest purity and greatest perfection. The question, then, which we have to settle on this occasion, is simply this—What is the best way of obtaining the purest possible administration of justice? I know no other question than this. I put everything else aside, and I fix my attention solely on that point. Well, it is argued, or, at least, it is suggested, that the right way of obtaining the best possible administration of justice for 7,000,000 of our fellow-subjects is to select, or rather that two persons should be selected, for other functions altogether than the administration of justice; and that, having been so selected, with reference to these functions, by the Corporation of the City of London, having taken care that they should be selected alio in tuitu, we should then, as a matter of course, annex to these offices the highest function connected with the administration of justice, including trials which involve life and death. The nature of the contention is, that to elect a man for particular objects which have nothing to do with judicial functions and then to force these functions on him is the best way to get a good administration of justice. That does not happen to be my opinion. My opinion, on the other hand, is one which I might hope would have some little weight with hon. Gentlemen opposite, because it is founded on long practice in this country, and—what is better than all the argument that can be used—crowned with no ordinary measure of success. I do not mean to say that by this or any other way you will not get a certain number of fit men to administer justice. The French Judges once bought the right to administer justice, and France has enrolled many noble and illustrious men in the annals of her 1930 Jurisprudence. Therefore, I do not mean to say that this elective system will necessarily always produce bad Judges; but I do say, if there is anything about which a country ought to have confidence, it is the taking the best means that can be taken for securing the best administration of justice. How is that to be done? I do not profess to have any new-fangled nostrum on the subject. In this case we have had a very satisfactory lesson from our own history. Ever since the Revolution, ever since Judges were appointed by responsible Ministers having sufficient knowledge to pick out the best men, and having a responsibility to the public which made them afraid of selecting unfit men, we have been blessed for 200 years with what, on the whole, allowing for the natural imperfections of human work, is the most admirable administration of justice, probably, that the world has ever seen. We take the Lord Chancellor, a man who has by great industry and ability risen to the top of his Profession, and we give him in the face of mankind the power of making these appointments, holding him responsible for them; and though we sometimes have, or think we have, reason to complain, we have, on the whole, what we want. The question we have to settle to-night is—shall we adhere to this venerable practice of our ancestors, which gives satisfaction not only by its antiquity but by its great and well-recognized success, or shall a Conservative majority put that aside and take up instead the principle of the election of Judges? The question is nothing more nor less than that. It is unnecessary to argue it. The election of Judges, and the corruption that is created in that way, led to the miserable transactions that occurred in New York. Where is there an instance in which the system of electoral Judges has answered? Are you, at this time of day, prepared to give up a system which is in entire accordance with your own history, which left the appointment of the Judges in the hands of the responsible Minister, substituting for it the principle of election? That really is the question to be decided. I cannot really doubt that it does not become a Conservative majority to be the first to set an example, which may easily be spread in these days, of doing away with the plan of appointing Justices by responsible Ministers of the 1931 Crown, and substituting for it a system of election of any kind whatever.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
Sir, I cannot help thinking that the right hon. Gentleman who has just sat down is labouring under some strange misapprehension of facts, when he speaks of the adoption of the system of election of Judges by the Conservative majority. The offices of Recorder and Common Serjeant are ancient offices. There is also the officer called the Judge of the Sheriff's Court. In 1834, one of the first acts of the Reformed Parliament was to pass a Bill, brought in by Lord Brougham, in which these officers were made available as Judges of a new Court, possessed of entirely new jurisdiction. With what degree of accuracy can he describe the defence of that system, which was introduced and passed by a Liberal Administration, as an attempt by the Conservative majority to alter the ancient judicial system of the country? Although that was done by a Liberal Administration, the experiment has proved successful. Is there anything in the conduct of the Court, or in the administration of justice in it, which justifies the new-born zeal of the right hon. Gentleman in favour of ancient institutions. The system adopted in 1834 was approved by the Commission that sat in 1854, of whom two were prominent Liberals and one a Judge, who was so remarkable for impartiality that it was impossible to say to what Party he belonged. The Commissioners reported that there was no ground whatever for any alteration. It is said this Motion is not aimed at an individual, and I abstain from disclaiming such a thing on behalf of the hon. and learned Gentleman who brought it forward, as it would only be an insult to suggest it. But it is impossible, however much hon. Gentlemen may disclaim it, to disassociate the Motion from the fact that two hon. and learned Members have been recently elected to these offices, and that, with no proved incapacity or mal-administration of justice, it has been sought to declare that officers so appointed should not be trusted with the administration of justice. However the Resolution is looked at, it is an attack upon the privileges of the City of London. With reference to one statement which has been made by my hon. Friend the Member for Londonderry, 1932 I must take the opportunity of denying, on the part of the Profession to which I have the honour to belong, that it is a fact that members of that Profession sue to be made Judges; and I can also say that if there has been a cabal against any particular Judge, I have never heard of it. The question must resolve itself into this—What has been the result of the system now assailed? The answer is to be found in the list of distinguished persons who have filled the offices, and of persons who, after inquiry, declined to report against the system. I apprehend an observation made by the hon. and learned Member for Taunton had reference to a transaction in which insolent vulgarity was offered to one whom we have all learned to reverence and respect. But it would be harsh to assume that such an incident as this is at all characteristic of the system of election under which these Judges are chosen, and which I venture to support.
§ SIR GEORGE BOWYER
thought that the present discussion had partaken very much of the nature of that which might have been expected from a debating society, and that the Motion of the hon. and learned Member (Sir Henry James) simply stated what was a platitude. As a general proposition, it was not desirable that indictable offences should be tried before Judges elected by anyone, and Judges ought to be appointed by responsible Ministers of the Crown. At the same time, he could not say that mode of appointment had always been successful. In their own experience, they had known some eminent Judges appointed by Ministers of the Crown; but they had also known some very bad ones so appointed. And as for the responsibility of Ministers, when a Minister had got a good round majority at his back, he might laugh at responsibility. But why did not the hon. and learned Gentleman propose at once that it was expedient and necessary that the Recorder of the City of London and the Common Serjeant should be appointed by the Ministers of the Crown? Instead of that, he brought forward a general proposition which nobody could dispute. The Members of the Liberal Party had always shown a great dislike to the privileges of the City of London. But those municipal privileges were part of the liberties of 1933 the country. The question now before the House was not whether, as a general rule, the Ministers of the Crown should appoint the Judges, but whether the City of London was to be deprived of a privilege which it had so long enjoyed, and which was bound up with the history and the liberties of England? For his own part, he could not vote with the hon. and learned Member for Taunton. If the hon. and learned Member had desired to raise the question honestly, he ought at once to have proposed that the City of London should be deprived of its privilege.
§ MR. BIGGAR
said, that although he sat on the Liberal side of the House, he did not intend to vote for the Motion. The hon. and learned Member had not made out a sufficient case to entitle hon. Members to vote with him. It was all very well to urge that responsible Ministers of the Crown should appoint the Judges; but surely they were no more competent to form an opinion on the fitness of an individual than the Court of Aldermen? The present Ministry were elected because they were in favour of the publicans; but that was no reason why they should be qualified to select Judges to preside over the Assize Courts. A bad selection was made by former Liberal Governments. Lord Westbury was a very able man, but was thoroughly dishonest. He lost his Office because he passed laws to manufacture places, and allowed his sons to sell the places to the highest bidder. That was notorious. One of the Judges at present at Westminster was in the habit of sleeping on the bench. He was selected by a Tory Government.
§ MR. GRANTHAM
said, that the hon. and learned Member for Taunton had given many reasons why the City of London was likely to elect bad Judges; but he did not mention a reason why it was likely to elect good ones—and that was, that it was its own interest to do so. The Court of Aldermen would not be likely to appoint anyone who was not capable of giving them the legal assistance they required, and the Court of Common Council might be expected to be actuated by the same interested motives; and, if they appointed men fit to hold the offices of their legal advisers, it was very strange if they should be unfit for the trial of offenders. He did not see, therefore, why Lord Brougham, 1934 and others who followed him, should not have come to the conclusion that those who might be elected to the offices of Recorder and Common Serjeant would be fit to try the prisoners brought before them. The right hon. Gentleman the Member for the University of London (Mr. Lowe) seemed to think it was an anomalous thing that persons appointed for one duty should have another thrown upon them. But a great many of the Judges appointed to the Queen's Bench, Common Pleas, or Exchequer, had never had anything to do with criminal business in their lives, until their names had been put in the Commission for trying criminal offences; and it must be remembered that they were not appointed Judges for the purpose of trying prisoners, but Judges of the various Courts of Common Law, and, as such Judges, they were afterwards put in the Commission for trying prisoners. The best answer to the Motion was the speech itself of the hon. and learned Gentleman; because, although he had shown that 2,000 persons had been tried, and he forgot how many thousands of years of penal servitude ordered, by way of sentences, he had been unable to refer to a single instance in which an injustice had been done. It was not long ago that the principle of the appointment of civil servants, in the person of Mr. Pigott, by the responsible Ministers of the Crown, was called in question, and appointments made by those Ministers were condemned in no measured terms; while, shortly before that, the legal appointments—namely, the official referees appointed actually by the Lord Chancellor and the Judges combined were made the subject of direct attack and attempted censure in that House. By whatever body, therefore, appointments were made, hon. Gentlemen opposite were displeased. Why, then, should these appointments, with which no one was able to find fault, be held up to ridicule to-night? Before the appointment was made, and when the number of candidates who were going up for it was generally remarked in the House and in the Press, no one ventured to suggest that the mode of making that appointment was wrong; but the moment it was made, and an hon. and learned Member on one side of the House was appointed well known for his Conservative opinions, another hon. and 1935 learned Gentleman of eminence hastened to put on the Paper a Motion which showed that he was actuated by some other motive than a desire to change the mode of election. Why, his hon. and learned Friend the Member for Taunton (Sir Henry James) was in such a hurry to censure the appointment directly it was made, that from the terms of his Motion it was clear he did not know what the appointment was, or how it was the Common Serjeant had to try prisoners, until his hon. and learned Friend the Member for Durham came to the rescue a few days afterwards and pointed out that the duty had been cast upon the Common Serjeant by Lord Brougham, the great Liberal Chancellor. He should, for these reasons, certainly oppose the Motion.
§ MR. WADDY
ironically expressed himself so perfectly satisfied with the arguments of hon. Members opposite, that he could see no reason why so excellent a system, should not be applied to the whole country. It was a scandal and a disgrace that advantages of this land should be kept to the Metropolis. If the Town Council of Leeds, for example, were to elect their own Recorder or their own Chairman of Quarter Sessions, it might be possible to say whom they would select.
§ SIR. HENRY JAMES,
in reply, said, whatever might be the result of the division, he was perfectly satisfied with the course of the discussion. Every hon. Member who had spoken in that debate, except the hon. Member for Cavan (Mr. Biggar), approved the abstract proposition that Judges ought not to be appointed by a representative body. No one, not the Solicitor General, had ventured to say he disapproved of the abstract proposition. He declined to follow the hon. Member for Londonderry through the personal questions into which he had entered; but he wished to say a word as to his contention that the Motion was inopportune. His hon. and learned Friend the Member for Durham (Mr. Herschell) had shown that, of all the times for bringing it forward, it was the most opportune. When would it be opportune, in the opinion of those who raised that objection to bring forward a Motion of that kind? When a bad Judge was sitting on the Bench? If a Motion were brought forward complaining of the appointment of a particular 1936 Judge, someone would defend, and others would complain of, his appointment. It would be said that it was an unconstitutional course to make such an attack on the appointment; and then the House would have to resort to the passing of an abstract Resolution, that in future Judges should not be appointed by a representative body. The hon. and learned Member for West Staffordshire said the Crown had the power of excluding the Recorder, the Common Serjeant, and the Aldermen from the Commission.
MR. STAVELEY HILL
What I said was that the Crown would, under the Act, be within its right in issuing the Commission to them, or any of them.
§ SIR HENRY JAMES
The words of the Statute were specific—that these Judges, including the Recorder, the Common Serjeant, and the Aldermen, should form the Court. The House could not attack the City of London, but they could attack the legislation by which that state of things was brought about. Though that legislation proceeded from a Liberal Government, he could not be accused of inconsistency in attacking it.
§ MAJOR NOLAN
did not think it was opportune, just after a Member of the House had been appointed to a Judgeship by a representative body, to bring forward this Motion, which looked very like a Party move. He thought that popular control in the appointment of Judges should be extended instead of being diminished.
§ Question put.
§ The House divided,:—Ayes 57; Noes 102: Majority 45.—(Div. List, No. 131.)
§ Words added.
Main Question, as amended, put.
Resolved, That the privilege of electing the judicial officers of the Corporation of the City of London, vested in that Corporation, having been expressly approved by the Royal Commissioners appointed in 1854, this House is of opinion that no circumstances have since transpired which call for the interference of Parliament.