§ [MOTION FOR ADJOURNMENT.]
§ MR. T. M. HEALY, Member for North Louth, rose in his place, and asked leave to move the Adjournment of the House for the purpose of discussing a definite matter of urgent public importance—viz., "the refusal of Her Majesty's present advisers to recognise the just claim of Ireland to representation in the Final Court of Appeal for the three Kingdoms, and the breach of constitutional usage involved in the appointment of an English Judge to the vacancy created by the resignation of the Irish Law Lord"; but the pleasure of the House not having been signified, Mr. SPEAKER called on those Members who supported the Motion to rise in their places, and not less than forty Members having accordingly risen:—
MR. T. M. HEALY
I venture to submit that this question is one of considerable importance, not only to Ireland, 594 but also to the constitutional arrangements which govern the three countries. It affects not only Ireland, but Scotland and England, quite as much as it affects ourselves, and I think I shall be able to demonstrate from the quotations and speeches of ministers, and from the statutes themselves, that the action of the Government on the present occasion is a breach of constitutional practice, and involves a needless and gratuitous departure from that practice. This should be considered, I submit, not from a personal point of view, and not from the point of view of the prerogatives of the judiciary, but it should be discussed from the higher standpoint of constitutional right. I propose to refer for a few moments to the history of the position, and the relation in which Ireland stands to the House of Lords itself. By the Treaty of Union, both for the people of Scotland and of Ireland, it was provided that final appeals should lie to the House of Lords in the conjoint Parliament. Mr. Disraeli, in his speech in 1873, relied upon that provision as a reason against the abolition of the House of Lords as the Judiciary for the three kingdoms by Mr. Gladstone's Government. In 1873 Mr. Gladstone brought in and passed into law a measure abolishing the House of Lords as the final Court of Appeal for England alone, but the Government dared not attempt to abolish the Lords appeal for Scotland or for Ireland, because the Irish and Scotch people were protected by the Articles of the Treaty of Union from being obliged to resort to a merely English court of law. Mr. Bouverie, the Member for Kilmarnock, brought forward a resolution on the 1873 Bill that the final Court of Appeal should embrace both Scotland and Ireland as well as England. A debate then arose as to whether this would not involve a breach of the Treaty of Union between Scotland, Ireland, and England. And what happened? A most remarkable thing happened. Seeing the absurdity of abolishing the House of Lords as a final Court of Appeal for England and leaving it intact for Scotland and Ireland, Mr. Gladstone, pressed by Mr. Disraeli, said he would yield to the contention of Mr. Bouverie, and the very words of the Amendment I have proposed are the words which came from Mr. Gladstone's own lips, namely, "the recognition of the just claims of Ireland" to representation in this final Court of 595 Appeal for the three kingdoms. As the result of Mr. Bouverie's motion these words were inserted in the Statute of 1873, providing for the nomination of Irish and Scottish Judges in the new Court of Appeal—And such three other persons as Her Majesty may be pleased to appoint by Letters Patent; such appointment may be made either within one month before, or at any time after, the day appointed for the commencement of this Act, but if made before shall take effect at the commencement of this Act.Mr. Gladstone said that not only would he appoint these three ex officio gentlemen who should hold official appointments, but he said he would provide for ex officio appointments from Ireland and Scotland, and that was done in the very same section which provides—Besides the said ex officio Judges and ordinary Judges, it shall be lawful for Her Majesty (if she shall think fit) from time to time to appoint, under Her Royal Sign Manual, as additional Judges of the Court of Appeal, any persons who, having held in England the office of a Judge of the Superior Courts of Westminster, hereby united and consolidated, or if Her Majesty's Supreme Court hereby constituted, or in Scotland the office of Lord Justice General or Lord Justice Clerk, or in Ireland the office of Lord Chancellor or Lord Justice of Appeal, or in India the office of Chief Justice of the High Court of Judicature at Fort William in Bengal, or Madras, or Bombay, shall respectively signify in writing their willingness to serve as such additional Judges in the Court of Appeal.What were the judges from Ireland, Scotland, India, Madras, and Bombay appointed and created for under this section unless this Act was intended to be what it was called at that time, namely, a great Imperial Court of Appeal? That was clearly the intention of the Act. But what next happened? In consequence of the strong representations made against the abolition of the House of Lords as the final Court of Appeal when the Liberal Government went out of office at the beginning of the year 1874, and Mr. Disraeli's Government came in, the new Ministry determined to preserve the ancient form and locus of this Appeal Court. Mr. Disraeli had throughout resisted the attempt to abolish the judicature of the House of Lords, and after the Tories came into power he brought in a Bill restoring the judicature of the House of Lords and repealing the Act of 1873. That Act did not pass in the first year that it was intro- 596 duced, but finally it became law in the year 187G, and the Court was constituted as originally agreed upon, and consisted of representatives both from England, Scotland, and Ireland. The principles agreed on in 1873 as to the personnel of the tribunal were not changed, but merely the title of the place in which it should sit. Let me quote from Hansard for 1873, when this first great revolution in English legal procedure was brought in, to show the policy then adopted, which was in no wise quarrelled with in 1876. On the 9th of June, 1873 (Volume 216, Third Series, page 651), the Attorney General of the day, in moving the Second Reading of the Bill, described this purely English measure, which did not in any way deal with the judiciary of Ireland or Scotland, as follows—And three others—an ex-Lord Chancellor or Judge, and certain Scotch and Irish Judges if they thought fit to come.Now what was the intention of this? Dr. Ball, afterwards Lord Chancellor and the then ex-Attorney General, made a speech objecting to the constitution of the Court, and objected to the bringing over of Irish judges to concern themselves in English appeals when, owing to the Act of Union, neither Scotch or Irish suitors had the right to appeal to that court. At page 895 of the same volume he said—The Irish Judges and the Irish Bar had passed some resolutions on the subject, the Judges declaring that it was of essential importance that there should be a right of final appeal from the Courts in Ireland to the same tribunal which decided English appeals, and that in the event of a new Court of Appeal being substituted for the House of Lords, a suitable number of Irish Judges, both of law and equity, should be associated with the English members of the appellate tribunal; while the Bar declared that in order to preserve uniformity of decision in the courts of law and equity in England and Ireland, it was essential that there should be the same final Court of Appeal for both countries.The Scotch Bar arrived at the same conclusion, and therefore it was that Mr. Bouverie brought forward the resolution which was accepted by Mr. Gladstone's Government. In accepting Mr. Bouverie's motion on the 30th of June, 1873, Mr. Gladstone said, after referring to the agitation in Scotland and Ireland (page 1563)—That being so, those who represented Ireland and Scotland were not only willing but desirous that the jurisdiction as to Irish and Scotch appeals should be removed from the House of 597 Lords, and that the Bill should be adapted to those altered circumstances, so as to give the measure a character of greater completeness and efficiency.Mr. Gladstone was very strongly pressed upon that day by Mr. Disraeli and Mr. Harcourt to state what were the changes he proposed, and what influx of English and Scotch Judges he proposed to introduce, but he deferred details to a later stage. Mr. Bouverie, however, said upon this occasion—It would be necessary to have a fair representation of the Judges of the two sister countries on the appellate tribunal. He was glad his right hon. friend had acceded to his proposal.Mr. Gladstone, on the 1st of July, 1873 (page 1631), detailed the nature of the proposed changes, saying—It was intended to constitute one High Court of Appeal for the three kingdoms, and he did not think the just claim to have Irish and Scotch Judges upon the Court would be adequately met by the simple addition of ex-officio Judges. It would, therefore, not be wise to make it binding to transfer the three Judges at the moment in the Court of Appeal from the common law Judges. He did not say what proposal it might be the duty of the Government to make as to the number of persons to be put in the Court of Appeal, but the earliest opportunity would be taken of announcing their decision on the matter to the House.Then the Solicitor General of the day, speaking immediately after Mr. Gladstone on the same occasion (page 1633), said—That they might reckon on having to appoint members of the Scotch and Irish Bench or Bar, not with the view of increasing the charge on the public, but simply to provide for carrying out fairly the plan proposed by his right hon. friend the Member for Kilmarnock.On the same date Mr. Gladstone, in a subsequent speech, speaking under pressure from the House, outlined a little more fully what was the nature of the pledge he had given. On page 1640 of the volume of Hansard from which I have been quoting, this is how he met the difficult conundrums put to him. He said—The Government thought it would be necessary to introduce into the Court of Appeal one ordinary member from the legal profession in Ireland and one ordinary member from the legal profession in Scotland. Together with the ordinary members so appointed, it would be right to make an addition to the ex officio members of the Court of Appeal, and this addition would consist of no fewer than one from Scotland and one from Ireland.598 Therefore you have the admission of Mr. Gladstone in proposing this Court of Appeal that Ireland should have two members as members of this Court, and that Scotland should have an equal number. The Attorney General, on the same occasion, said that all the Committee had to do was to consider the constitution of the Court as the English Appellate Court, and that any Scotch or Irish elements afterwards introduced would not alter it. Yet we are now told that Ireland is to be denied a vote in the supreme Court of Appeal in these kingdoms, but that unknown gentlemen are to be brought either from India, from Mafeking perhaps, at any rate from the Transvaal and South Africa, from the wilds of Australia, and from distant Canada, and are to be paid by the taxes found by the people of Ireland, as well as by the people of England and of Scotland, in order to smooth and alleviate an ephemeral difficulty in which the Government are placed as regards Australia, and that these four gentlemen are to pronounce their opinions on Irish and Scotch legislation, while the right of Ireland and of Scotland is denied. That innovation is to be made after a century of union, and on an occasion when we are told "the golden moment" has been created for Ireland by the visit of the Queen. I ask upon what pretext does the Government enter on such a course? If our appellate tribunal is to be invigorated by the introduction of Dutchmen from South Africa, Hindoos from India, as well as by Australians and Canadians, I ask are the arguments of Mr. Disraeli to have no weight as regards the introduction of Irishmen or Scotchmen to sit on the then purely English Court constituted by the Act of 1873? Speaking on 3rd July, 1873, Mr. Disraeli suggested, as The Times newspaper has recently done, that the intellect of Ireland was of so mean and poor a, character, so to speak, that the appellate Court would be watered down if any Caledonian or Hibernian blood were allowed to introduce itself. Having attacked the Irish Bar for having had the audacity to make such a demand, he said—In Dublin we have a most extraordinary meeting of lawyers, who pass a resolution the result of which is that they want to keep their own intermediary Court of Appeal, which furnishes them with plenty of business, and enjoy the privilege of having a couple of their 599 members nominated Judges of the Court of Appeal for England.That was his understanding of the bargain, and the fact that he was opposed to it is all the stronger argument in favour of the position I take. He goes on—There is another point with reference to these changes which I. must bring before the consideration of the Committee, and that is the great importance that has always been attached—if we are to have a single Court of Appeal—to this, that that Court of Appeal should consist of first-rate men, and that those who construct and select the Court should have the power and privilege of selecting men for their merits—not because they come from Canada or Western Australia—and for their merits alone, and that nothing but the possession of transcendent qualities as to learning, experience, sagacity, and character should sway the decision.Is it learning or experience or sagacity or character that brings this quartet of gentlemen here to water down the intellect of England, Ireland, and Scotland? Mr. Disraeli went on—he was not a bit too nice in his remarks—There are to be two Scotch and two Irish members of this tribunal.One can imagine the scorn with which Mr. Disraeli uttered these words and how his lip curled. But his shade can rest in peace at Hughenden because there is no longer any Irish member on this tribunal. He proceeds—I do not wish to make an invidious remark—that is generally said when a man is about to make one—but both the Bench and the Bar of these countries at present furnish men quite adequate to this business. But this has not always been the case, for there have been times when neither Bench nor Bar of either Scotland or England could furnish such men.I wonder would the Scotch Lord Advocate back up the statement—There may have been times when we have found it very difficult even in England, with its large area, to find adequate men.Scroggs and Jeffries, for instance.By this new change in the Bill we are no longer to appoint only such men, because so far as four of the Judges are concerned you will select them not for excellence, but for nationality.Why, the whole of Mr. Disraeli's argument applies to the condition of affairs which would arise if the suggestions of 600 Her Majesty's Government are carried out.When these four men have transacted their special business—their Scotch and their Irish business—they will then be deciding English business,—what a profanation!—and therefore, instead of securing in your Court of Appeal those only who have been appointed for excellence, it is quite possible that you may have your appeals from England decided by Scotch and Irish Judges, who have-not been appointed for excellence, but for nationality.He thought the phrase so admirable that he repeated it, there being at that time no rule against tedious repetition. Mr. Gladstone followed the right hon. Gentleman and bade him be of good heart. He said—He contemplates the arrival of a period when it will be necessary for the Prime Minister of the day to till up the vacancies in the Court of Appeal with inferior men from Ireland and Scotland. This doctrine as to the inferiority of Irishmen and Scotchmen is an awkward doctrine. I do not understand what experience has led him to lay down this despairing doctrine.And then he asks whether it is the choice of a Lord Advocate in his own Government that led him to lay it down. We have happily gone a long way from those times. The Government of the day, forgetting all their traditions and finding a vacancy, now think they are entitled to fill it not by an Irish appointment, but may roam at large and put in whom they please. It is not for me to say a word against the distinguished lawyer who has been appointed in the place of Lord Morris. Lord Morris resigned on account of old age, and Lord Lindley has the great advantage of being one year younger. I understand that his lordship is the author of a great work on Partnership. He will now in his leisure be able to revise it, and to- write a chapter on "Predominant Partnership." That is the advantage he and we owe to "Unionist" principles. Let me now make some further citations from the debates which I have quoted. The Bouverie plan was apparently cavilled at by some Irishmen, and Mr. Butt and others held out for the arrangement under the Act of Union whereby Ireland and Scotland were entitled to press their suits to the House of Lords. Mr. Glad- 601 stone, therefore, on 14th July, 1873, praised Dr. Ball, afterwards Lord Chancellor, and attacked Mr. Butt for the view he took. Dr. Ball had stated that he was in favour of the Government proposal, and that he believed it would consolidate the union of the three kingdoms, but Mr. Butt opposed it. Mr. Gladstone patted Dr. Ball on the back for taking up the Unionist attitude, and condemned Mr. Butt for supporting the ancient right of the Irish people to resort to the House of Lords. Mr. Gladstone then used these words, as they are to be found in Hansard, Third Series, vol. 217, page 360—I have no doubt that 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.How has it been made permanent, and how has it been made effectual? Let Lord Lindley's appointment in 1900 to the recent Irish vacancy answer! When the Tory Government repealed these sections of the Act of 1873, and proposed the Appellate Judicature Act of 1876, they throughout accepted the Parliamentary bargain which had been struck. The three judicial persons who wore to sit as Peers from the three nations were constituted for the moment in this way. Lord O'Hagan had been Mr. Gladstone's Chancellor; he had a seat in the House of Lords at that time; he had been in the House of Lords since 1868—and Lord O'Hagan became instantly, by the mere operation of the Act, a member of the new Court of Appeal. The Government took two paid members of the Privy Council, and made peers of them, and the Court so constituted consisted of an Irish, an English, and a Scotch Judge. So it went on from 1876, until one of those members who had been transferred from the Privy Council died in 1882. He was an English member. Mr. Gladstone was then in office, and what did he do? He gave that office in redemption of the pledge which the Government had made in the Bill of 1873 to an Irish Judge, Mr. Justice Fitzgerald, afterwards Lord Fitzgerald, a well-known member of the Irish judicial bench. Lord Fitzgerald continued a member of the House of Lords, in his capacity as an Irish Law Lord, until he died in 1889. What happened then? A Conservative Administration was in office. Did that Conservative Administration 602 then say, "Whether it be an Englishman an Irishman or a Scotsman who shall succeed is a matter of indifference to us. We will appoint whom we please; we will look among our friends and supporters, and give the vacancy thus created by Lord Fitzgerald's death to an Englishman or a Scotsman"? Nothing of the kind. They went to Ireland, and appointed Sir Michael Morris (afterwards Lord Morris), Lord Chief Justice of Ireland, to the vacancy caused by the death of Lord Fitzgerald. Therefore, you have not only the original arrangement of 1873, confirmed afterwards by Mr. Gladstone in 1882 and endorsed in 1889 by Lord Salisbury himself. Now, can a matter of this kind, affecting not merely the judiciary, but the national sentiment of the three kingdoms, be overlooked as a question of no moment? For if such a departure from precedent, principle, and understanding be right and proper as regards Ireland, why should not the same apply to Scotland or England? What would the English people think if the Court of Appeal in the House of Lords was constituted of a number of barristers drawn from the four Courts in Dublin? Practically that is a constitutional possibility, but everybody knows that if a Government were to attempt anything of the kind it would not survive a week after. The only thing that I know of which can have induced this change is that some two years ago when the Irish Members consented to the reduction of the Irish Judiciary; in giving that consent it was provided, upon a proposal I made, that any saving which had been effected would be applied to Irish purposes. Then the Treasury, although they never allow us to see their accounts or to audit their ledgers, wore pleased to earmark the amount of the saving at £10,000 a year. The Treasury, therefore, the moment they got this vacancy, immediately took revenge upon Ireland and seized for an English Judge £6,000 a year out of the savings which were nominally handed over to the Agricultural Department or some other Board in Ireland. I have shown that by the Act of Union it was the right of the Irish people as well as the Scotch people to have their appeals brought in this country to the House of Lords. Up to O'Connell's case, and still theoretically, it is the right of every Irish peer to come into the House of Lords and give his vote on any subject 603 of appeal from Ireland. If these noblemen, in resentment at the treatment of Ireland by the Government in this matter—and I hope they will seize the occasion—were to swarm down to the Palace of Westminster and wait until some high equity question, or something affecting the Treasury, or the estate duty, or the Finance Act, or something affecting their pockets and the right of the Crown to levy on their estates or the estates of their followers—if they waited outside for a while and then came into the House of Lords and took their places on the benches, and gave their votes against Lord Lindley and the Lord Chancellor, and all the other law Lords, I wonder what face there would be in Downing Street the next day at this so-called departure from constitutional practice. I have some hope that something of that kind may be done. There are a great many Irish Peers. You have placated Lord Londonderry and some of his friends, but there is still Lord Ardilaun lying " outside the breastworks." I have great faith that some of these Irish Peers, when stirred up to a proper pitch, understanding their own wrongs and grievances, will see an obvious way of remedying them. I will now refer to the historical position which Ireland takes in regard to this question of appeal, to show the House that this is not merely a question of a Koolgardie legislature, of some new legislative shanty set up in the wilds of Africa, or in the forests of Canada, but that it is a grave and ancient historical constitutional question, having its roots far back in the centuries. There had been long a question between the Irish and the English House of Lords in regard to the assertion of their judicial powers. Mr. Disraeli referred to it, in the debate which I have quoted, as one of the important questions which had affected the international relations of the two countries. In the Annesley case in 1717, the right of the Irish House of Lords to be the final Court of Appeal on all Irish matters was asserted, and to resist this the English Parliament by the Act of 6 George I., Chapter VI., enacted—Whereas the House of Lords of Ireland have of late, against law, assumed to themselves a power and jurisdiction to examine, correct, and amend the judgments and decrees of the courts of justice in the Kingdom of Ireland; therefore, for the better securing of 604 the dependency of Ireland upon the Crown of Great Britain, may it please your most Excellent Majesty that it may be declared, and be it declared by the King's most. Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that the said Kingdom of Ireland hath been, is, and of right ought to be subordinate unto and dependent upon the Imperial Crown of Great Britain, as being inseparably united and annexed thereunto; and that the King's Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons of Great Britain in Parliament assembled, both, and of right, ought to have full power and authority to make laws and statutes of sufficient force and validity to bind! the Kingdom and people of Ireland. And be it further declared and enacted by the authority aforesaid, that the House of Lords, of Ireland have not, nor of right ought to have, any jurisdiction to judge of, affirm, or reverse any judgment, sentence, or decree, given or made in any court within the said Kingdom, and that all proceedings before the said House of Lords upon any such judgment, sentence, or decree, are, and are hereby declared to be, utterly null and void to all intents and purposes whatsoever.Now, how did the Irish Parliament receive that declaration? The Irish Parliament and House of Lords no doubt for a few years felt themselves bound to. submit to the insult of Irish suitors being compelled to resort to a purely English tribunal, which had no sympathy with Irish sentiment. But in 1782 the Irish Parliament compelled the English Government of the day to repeal that Act, and then when Lord Mansfield had presumed to give an opinion in reference to an Irish appeal, notwithstanding such repeal the Irish Parliament compelled the English Parliament to pass not merely a, repeal but a declaratory Act in 1783. That Act set forth—That no writ of error or appeal shall be. received or adjudged, or any other proceeding be had by or in any of His Majesty's Courts in this Kingdom, in any action or suit at law, or in equity, instituted in any of His Majesty's Courts in the Kingdom of Ireland; and that all such writs, appeals, or proceedings, shall be and they are hereby, declared null and void to all intents and purposes; and that all records,, transcripts of records or proceedings, which have been transmitted from Ireland to Great Britain, by virtue of any writ of error or appeal, and upon which no judgment has been given or decree pronounced before the first day of June, 1782, shall, upon application made by or in behalf of the party in whose favour-judgment was given, or decree pronounced in Ireland, be delivered to such party, or any person by him authorised to apply for and, receive the same.605 And this statute goes on to say—That the said right claimed by the people of Ireland to be bound only by laws enacted by His Majesty's and the Parliament of that Kingdom, in all cases whatever, and to have all actions and suits at law or in equity, which may be instituted in that Kingdom, decided in His Majesty's Courts therein finally, and without appeal from thence, shall be, and it is hereby declared to be, established and ascertained for ever, and shall, at no time hereafter, be questioned or questionable.That is the historic position. I now come to the lowest point of view of this question—the litigant or personal position. What is the excuse of the Government for this English appointment? It is that the appeals from Ireland to the House of Lords are very few. I do not care whether they are only six or seven in the year. If there was not one I do not think it would matter in the least degree for the House of Lords, I must remind the House, is engaged every day in making the laws of the three kingdoms of Great Britain and Ireland and of the whole Empire. I take three great instances which, although not nominally affecting the rights of Ireland, really do affect not merely the rights of Ireland, but of all portions of the United Kingdom. I take the question of habeas corpus decided in Barnardo's case. The question was whether Catholic children could be kept in custody under particular circumstances, and the House of Lords affirmed the rights of parents and guardians and defined their powers. Am I to be told that the decision of the House of Lords in this matter does not go to the homes of the humblest peasants in Ireland as well as to the highest in the land in England or Scotland? I take another question —the question of conspiracy—which was recently decided in the House of Lords in the case of Allen v. Flood. Are there no workmen in Ireland as well as in England or Scotland? And are the rights and privileges of Irish workmen, aye, and of Irish masters, not to be considered by Irish judges acting as constituent members of the final court of the Empire? Does the legislation that emanates from the judicial lips of the Lords of Appeal not affect us in our country as you in yours Take another ease. What is it that causes sometimes the greatest agitation and arouses the keenest legislative conflict? We know, as the Duke of Devonshire said the other day, that it is 606 the question of temperance and the drink traffic. Take the decision of their Lordships in the case of Sharp v. Wakefield. You could not now legislate in this House, or the House of Lords, contrary to the way the Sharp v. Wakefield case was decided. Although it may be that technically the law of Sharp v. Wakefield does not affect Ireland, it affects it indirectly in this way: while the English publican has only a yearly term, inferentially the House of Lords' decision set up that the Irish vintner has practically a durable or permanent claim. In all such decisions and many others Ireland is interested. I do not refer to the land question, the law of ejectment, or the Irish law of bankruptcy. I disdain to consider the matter merely as. regards the differences in the legal systems of the three countries. I think that is putting it upon a low ground, and I decline to do so; but I claim that Ireland, which was bribed out of its own final House of Appeal by the Act of Union, and is compelled to come here and be represented legislatively in this House and the House of Peers, has as good a right to be represented judicially as legislatively in this Parliament of Westminster. That is the position I assume. Now I come to the last question, and possibly the lowest of all, namely, the impossibility at times of obtaining in Ireland men of competence, and the necessity that exists for strengthening the House of Lords. I hope the Scotch Members, when there is a Scotch vacancy, will bear in mind that it is not the law of Scotland or the ancient claims of that kingdom which, according to the new English doctrine, are to be considered when the judiciary is being reconstituted, although when a Scotch vacancy lately occurred you appointed a Scotchman, Lord Robertson, on the death of Lord Watson. Lord Robertson was once Lord Advocate, and sat in this House, and was afterwards a distinguished judge. When the vacancy occurred you at once went up to Edinburgh, obtained his services, and created him a peer. It is only in Ireland that you dare act otherwise in this matter. We have hoard a great deal about the wearing of the shamrock, and we have heard magnificent allusions to the motto, Quis separabit? It seems to me that the shamrock has already been dumped out of the orchid house. I do not think I need say a word 607 for the capacity of the Irish judiciary lately sneered at by The Times. All the men, I think I may say, of that judiciary are opposed to me in politics; but I can say that, although I have often had occasion to criticise them in this House and out of it, no one has received more kindness and courtesy at their hands. The action which I take in bringing forward this matter would probably have come more forcibly from some member of the Unionist party opposite, who may have aspirations to some of those great offices; but I argue the question from the point of view of the national claims of Ireland. I think this is a matter that may properly be brought forward by an Irish Nationalist, as one affecting Irish public rights. I have constantly preached to those Irish lawyers in Dublin in this way: "The moment England gets the chance she will sell you." What is more, they believe it. There is not a man among the Irish Tories, so far as I know, who is satisfied with the position. The best they say is, "Better the devil we know of than the devil we don't." That is the very highest praise you have from them. Was the Irish Attorney General entitled to no consideration at your hands? He served you long and well, but forsooth Lord Lindley had to be provided for. I notice in the "Life of Lord Plunket," the distinguished ancestor of a very distinguished member of the House of Lords, who sat long in this House as Member for the University of Dublin, a very remarkable passage. Lord Plunket had some curious experience of the English bar. He was appointed by the King Master of the Rolls. He had been a very distinguished man in his day, but being a mere Irishman, and being appointed Master of the Rolls in England, the English bar met and unanimously resolved that they would not practise before Lord Plunket, and within three days he was compelled to resign his office. Lord Plunket received the office later on of Lord Chancellor in Ireland. In a letter from Lord Melbourne to Lord Plunkot, dated Downing Street, June 6th, 1841, it is suggested that he should resign his office. Why? The letter says—You see the struggle in which we are engaged, and you are aware that many ministerial arrangements must be necessary on the occasion of the approaching dissolution of Parliament. Amongst these it would be most convenient, and we are most anxious, to provide for the Attorney General, which the 608 present state of the courts of law does not allow us to do in this country.They were at it in 1841, and they are at it in 1900. They wanted to provide for the Attorney General, and so they suggested that the Irish Lord Chancellor should make way for him. A mere Irishman should give way to the high and mighty Attorney General of the day to suit the convenience of Ministerial arrangement. There is this to be said, I think, for Lord Morris. I do not believe for one moment it entered into his wildest dreams that the office he vacated would be filled up by the English Master of the Rolls. I am sure that I do Lord Morris justice when I say that I do not believe he knew his office was to be gifted away in that extraordinary manner. Whom have you satisfied and pleased? Is Australia pleased? We, the Irish people, are to have questions under the Land Act decided by a gentleman from the bush in Australia. I may be told that there is no direct appeal from the Land Commission to the House of Lords. But in the case of Westropp v. Elligott, which was decided by the House of Lords on a question of ejectment, the law as laid down by the House of Lords has governed the practice of the Land Commission and the Irish Court of Appeal on Pasture Holdings under the Land Acts for the last fifteen years. In future we shall have the Chief Justice of Coolgardie giving his profound opinion on those intricate questions of Irish law, while Irish Judges, competent and able, are deprived of the position which they are entitled to, not only by reason of their training but by reason of the constitutional arrangement arrived at so far back as the dates I have indicated. The Government have held out to their supporters in Ireland a charming prospect. I don't believe they fear that an Irish Home Rule Government could do worse. Many of them are already thinking with us. I think they will no doubt find, as the clutch of the Treasury Thug tightens, that gradually all the great offices which used to be the prizes of Ireland's intellect will disappear, and that Ireland firmly manacled is no longer a factor worth counting in the international arrangements of the two countries. You have sufficient strength to act in the manner I have exposed, and for that mode of acting no doubt to some extent the Irish Bar and the Irish Judiciary are largely themselves to blame. 609 They stood by while millions of their countrymen emigrated, and they stood by, I may say, almost without a complaint. The Irish Judiciary has gone on administering English law without having regard to the sentiments of the country. They have looked not to the Irish interest but to the English interest, and now England, in the time of trial, has deserted them. That will be the fate of any Irishman, or class, that puts its trust in the English Government. I have often said that considerations of a dunghill in London are dealt with as if they are more important than the entire affairs of the Irish nation. You think half-an-hour thrown away when an Irish topic is introduced. That is the inevitable result of the system which I have assailed, and although perhaps I have undertaken a task which might have devolved on other shoulders, I have great pleasure myself in having brought it forward as a protest and arraignment of the British mode of ruling our country, and therefore beg to move the adjournment of the House.
§ Motion made, and Question proposed, "That this House do now adjourn."— (Mr. T. M. Healy.)
§ THE FIRST LORD OF THE TREASURY (Mr. A. J. BALFOUR, Manchester, E.)
The hon. and learned Gentleman who has just sat down has travelled over a very large number of topics, some of them only remotely connected with the subject he has brought before the House. No inconsiderable portion of his speech, as I understood it, was directed, not against the recent exercise of the power of appointment in connection with the House of Lords, but against a Bill, not yet introduced, dealing not with the House of Lords, but with the Privy Council in this country. I see no connection between those two subjects; I see no relevancy in the observations of the hon. and learned Gentleman upon them; and I shall confine my remarks to that part of the hon. Gentleman's speech which seemed to me directly relevant to the case he brought before us. I shall begin by dealing with an argument which I agree is in some ways the least important of the arguments that may be urged on either side of this question, but which is nevertheless an argument that cannot be passed by altogether. I mean the interest of liti- 610 gants, and the number of the appeals actually brought before the House of Lords from Ireland. The hon. and learned Gentleman said that he did not care whether the number of Irish appeals dealt with by the House of Lords was six, seven, or eight, or anything of that kind. It is nothing like six, seven, or eight at the present time. I understand that the number of Irish appeals adjudicated upon in 1895 was one, in 1896 one, in 1897 two, in 1898 none, and in 1899 two. That is a fact which, although it ought not, in my opinion, entirely to govern, or even in any serious or important sense to govern our action in this case, cannot be left out of our view. May I, though not an Englishman myself, put in a plea for England in this matter?
§ MR. A. J. BALFOUR
Yes, poor England, from the point of view from which the hon. and learned Gentleman advocated the case of Ireland. The appeals heard before the House of Lords are in an enormous proportion English appeals. The Scotch appeals are much more frequent than the Irish appeals, and, of course, they are much smaller in number than the English appeals. I understand that in the House of Lords these English appeals for months past have sometimes been decided by the Lord Chancellor, an Irishman, and a Scotchman. It appears to me that, if England were to take the line taken by the hon. and learned Gentleman, she might perhaps have something to say as to the injustice or inexpediency of such a state of things. For my own part I do not advance that argument. I believe that those gentlemen, although two of them wore not Englishmen, were perfectly competent to deal with the English appeals brought before them. But I leave that argument to go to a far more important contention of the non. Gentleman—namely, that, owing either to Parliamentary pledges or to the arrangements made under the Act of Union, there is a moral obligation upon the Government of the day always to see that one of the Lords of Appeal is an Irishman. With all respect to the hon. and learned Gentleman, I really fail to follow his argument with regard to Parliamentary pledges; he read us long and very interesting extracts from Hansard, which, 611 however, had not to do with the law as it now stands, or with anything which now governs our proceedings, but which had to do with a Bill which is now repealed, and with that clause of that repealed Bill which never came into force. I must say that in those circumstances it seems to me to be of very little importance what Mr. Gladstone said to Mr. Disraeli, or what Mr. Disraeli replied to Mr. Gladstone; the whole of that debate is absolutely irrelevant. What we have got to consider is whether there was any Parliamentary pledge in connection with the Act of 1876, which now governs us, which has been violated either in the letter or in the spirit by the recent appointments. It appeared to me as I listened to the hon. Gentleman that he himself supplied a complete and conclusive answer to his own argument. His argument was that there had been an invariable practice, now broken for the first time; but he himself informed us—he was the person from whom I have learnt the fact—that when the Court of Appeal was first constituted in 1876 there was no Lord of Appeal from Ireland—no Irish life peer from Ireland, or belonging to the Irish Bar, was appointed under the Act of 1876.
§ An HON. MEMBER: There was no vacancy.
§ MR. A. J. BALFOUR
Very well; what does that prove? It conclusively proves that the framers of the Act deliberately intended to launch the Act without an Irish Lord of Appeal. In those circumstances how can you say that the in variable practice since the Act came into force was of the kind that the hon. and learned Gentleman contended? There was no pledge given, and although the hon. and learned Gentleman, whose industry is beyond question, has searched volume after volume of Hansard to find a Parliamentary pledge, he has really read nothing from Hansard relevant to this debate, as far as I can see, except the speech of Mr. Disraeli, which was de- 612 livered in defence of the action the Government took. But why the hon. and learned Gentleman should think it would move us to be told that Mr. Disraeli entertained a view which certainly would have precluded him from regarding himself as invariably bound to appoint a member of the Irish Bar, I really do not understand. Having, as I venture to think, completely disposed of that part of the hon. and learned Gentleman's speech which dealt with Parliamentary pledges, I go back to the wider issues he has raised in connec-tion with the position of the House of Lords. He says, as I understand, that Ireland by the Act of Union had a right to appeal to the House of Lords of the United Kingdom as a final Court of Appeal, and he seems to think the position of Ireland is now worse than it was during the generations which immediately succeeded the passing of the Act of Union. Can that contention be supported in substance? The hon. and learned Gentleman plunged into technicalities into which I do not think he is accustomed to plunge, although some of his profession may be, and told us that this was a safeguard for Ireland, because the Irish representative peers had a right to vote in the Court of Appeal. I am not going to argue the technical constitutional right of the Irish representative peers, or of any other peers, to take part in the proceedings of the House of Lords as a judicial assembly. Everybody knows that whatever the technical right may be it never was a substantial right, it never was exercised. There was, indeed, one famous attempt to exercise it, and as far as I know only one.
§ MR. A. J. BALFOUR
I do not profess to have looked up the question. I am speaking, of course, without preparation, but I have never heard myself of any attempt on the part of lay lords since the Union to exorcise any jurisdiction in the House of Lords considered as a final Court of Appeal, except in the famous case of O'Connell, and there the technical right was opposed by a technical plea, and practically the lay lords exercised no influence whatever upon the decision to which the law lords ultimately came. I have not had the time nor the 613 opportunity to look into the matter, but I greatly doubt whether you will find in the first sixty years that elapsed since the Union that Irish lay lords took any important part in the judicial deliberations of the House of Lords.
§ MR. A. J. BALFOUR
Lord Clare must have taken a very small part in the judicial work of the House of Lords since the Union. I am considering, recollect, a period of sixty or sixty-five years, and I say absolutely without hesitation that the position of Ireland in the House of Lords at the time was incomparably weaker than the position of Ireland is at the present moment. I do not think anybody will doubt that. This is not a question merely of members of the Irish Par; it is a question also, as the hon. and learned Gentleman says, of Irishmen, men of Irish blood. The hon. and learned Gentleman expressly made allusion to that point. How many men either belonging to the Irish Bar, or Irishmen in any sense of the word, now take part or have a right to take part in the judicial proceedings of the House of Lords as a final Court of Appeal? In the first place, there is Lord Ashbourne, the Irish Lord Chancellor. There is, in the second place, Lord Morris, who, though no longer a Lord of Appeal, has, of course, still a right to sit in the Court of Appeal. Lord Russell, the Chief Justice of England, whose right to be considered an Irishman will not be disputed, also has a right to sit as a member of the Court of Appeal; and there is Lord Macnaghten, an Irishman, who is actually a member of the Court of Appeal. I challenge the hon. Gentleman who interrupts me—not rudely, but because his interest is so much excited over this matter—I challenge him, with all his historical reading, to find a single period of Irish history, from the Union in 1800 down to 1870, when so many men belonging to Ireland or of Irish extraction had a right to take part in the proceedings of the House of Lords as a Court. Surely if that be so the grievance of Ireland is a grievance which entirely vanishes. There remains the grievance of the Irish Bar. I must say I regret in that connection some observations that fell from the hon. and learned Gentleman with regard to the 614 treatment Lord Plunket received at the English Bar in his day. I should have thought that there was sufficient evidence of the most striking kind in recent years that the English Bar regards with no jealousy these who come to it from Ireland. But I quite understand that when, after two appointments have been made of members of the Irish Bar to the House of Lords, and when the third appointment is given to a member of the English Bar, there should be some feeling among members of the Irish Bar. I hope no member of the Irish Bar thinks that what has occurred is due to any low valuation put on its merits by Her Majesty's Government. Certainly that is not the case. I, at all events, have had sufficient experience of the ability of that Bar never to say a word in derogation of it in this House. It ought to have and it has the respect of all Members of this House and all those who are interested in the legal profession, whether in England, in Scotland, or in Ireland; but do not lot anybody carry away the idea which they might carry away from the hon. and learned gentleman's speech, that because what he regards as an old precedent has been broken, a new precedent has been set up. That is not the case. All that those who have had to advise Her Majesty upon this subject have kept in view is this—that there ought to be liberty to select either from one Bar or the other to fill up vacancies as occasion serves. That liberty, I think, is of great importance. Though I should imagine that probably it will not be very commonly used in the future, it is of the highest importance that it should be maintained. Let me say one word, and it will be my last, as to the comparative position of Ireland and Scotland in this matter. Scotland differs from Ireland in more than one respect, which ought to entitle it to special consideration. Scotland has no Lord Chancellor. Scotland has a separate system of jurisprudence. The jurisprudence of Ireland is almost identical with the jurisprudence of England. Though here and there there are no doubt differences in the laws, they are slight, infrequent, and relatively unimportant, and the two Bars might be amalgamated to-morrow without any difficulty from the point of view of legal training and learning, and with some advantage to both. That is not the case 615 with Scotland. the whole law of Scot-land is derived from a different source to the common law of England and Ireland. Therefore it is peculiarly necessary that there should be somebody in the Court of Appeal thoroughly conversant with the peculiarities of Scotch law. There is one Scotch lawyer.
§ MR. A. J. BALFOUR
The hon. Gentleman is quite right—one Scotch lawyer and one Scotch Lord of Appeal. But even then the share which Scotland has in the Court of Appeal will, after what I have said, be seen to be very much less than the share of Ireland. I, therefore, do not think it rests with Ireland to complain because upon one occasion the Prime Minister has filled up a vacancy with a Gentleman who is not a member of the Irish Bar. In these circumstances I hope the House, by rejecting the motion of the hon. Gentleman, will affirm their approval of the course which the Prime Minister has taken on this occasion.
§ MR. ASQUITH (Fife, E.)
As an Englishman representing a Scotch constituency, I enter this controversy in a perfectly detached and disinterested spirit, but I must confess that I do not think the right hon. Gentleman in the speech he has just made has adequately met the case which has been presented by my hon. and learned friend. Let me say at the outset that I am very glad that no question has been raised—as I am certain no question will be raised—as to the excellence on its merits of the appointment. Every one who has had the privilege of practising at the English Bar knows that it would be a work of supererogation, and most distasteful to the learned Judge himself, that anyone should dilate upon the many and undisputed qualifications of Lord Lindley for the highest judicial post in this country. There is no question whatever, I am certain, in the minds of the Irish Members as to the propriety on its merits of the appointment which has been made. But the case, as I understand it and to which 616 it does not appear to me that the right hon. Gentleman has properly addressed himself, is twofold. In the first place, my hon. and learned friend refers to the declarations which were made in this House at the time when the original Court of Appeal was proposed to be constituted in 1873, but for which the present House of Lords was substituted. Both from the declarations made in reference to the contemplated Court which never came into existence, and from the practice which has been uniformly followed in the case of the Court which took its place, it appears that it was the intention and that it has been the practice of successive Governments that one of these Lords of Appeal should be chosen from the Irish Bar as a representative of the Irish profession. It is quite true that in 1876 when the first appointments were made, as there were only two places vacant, the persons who filled those two places were selected from the English and Scotch branches of the legal profession. As soon as a vacancy occurred and it was possible to give representation to the branches of the three countries, the Government of that day—and I think it was a Liberal Government—appointed Lord Fitzgerald, and when in course of time his term of office came to an end through death, the Government—I think it happened to be a Conservative Government—appointed Lord Morris to take his place. You cannot in the case of a Court of such recent origin go back to the mists of antiquity, but you have a practically unbroken usage. Since it was possible to make an appointment of this kind, one of these places has been reserved for a representative of the Irish Bar. That is the first point, and the Government do not deny that they are departing from that practice. The second point seems to me to be a stronger one still—at any rate, against the present occupants of the Treasury Bench. At this moment you are proposing to recruit the judicial strength of the House of Lords upon the principle of representation — not to add to its strength, that is not the pretext, but upon the principle of representation—and in order to give confidence to our colonial fellow-subjects in a tribunal which is the supreme Court of Appeal for the Empire. That is one of the grounds put forward by the Colonial Secretary. Just at the moment when you are recognising the 617 principle of representation as regards India, Australia, Canada, and the rest of the Empire, you take it away as regards Ireland. That, I think, accentuates and intensifies the sense of wrong felt by Irishmen in relation to these recent appointments. As a disinterested spectator I cannot help sympathising with their feelings in the matter, and I think my hon. friend did well to call attention to it.
§ MR. WILLIAM MOORE
felt bound to say that in some respects he found himself in conflict with the speech of the right hon. Gentleman the First Lord of the Treasury. Although it was unsatisfactory to differ with the right hon. Gentleman, he had no apology to make upon this occasion when he said that if the hon. and learned Member for North Louth went to a division he and every Irish Unionist in the House would follow him into the lobby. He had never disguised the fact that he was an Irishman first and a Unionist afterwards, and while he had been a consistent supporter of the Government, it seemed to him as an Irishman that it was the duty of those of the Irish nationality who shared the views of the Government to protest against what was considered to be an undue interference with the rights of Ireland under the scheme of the Union. He spoke not only for himself but for a mooting of the Irish Bar, which was the largest that had ever taken place in his experience. He also took this opportunity to acquaint the right hon. Gentleman of the fact that the Incorporated Law Society of Ireland had taken precisely the same view, and had denounced the appointment as being an undue interference with the rights of the Irish people, as they considered it. Under those circumstances he should consider it inconsistent with his duty if he did not follow the hon. and learned Gentleman into the lobby. He wished to preface the remarks which he intended to make by expressing his desire to deal only with the matter generally. He heartily concurred as to the admirable qualities of the English Judge who had been appointed to the vacancy in succession to Lord Morris. He also wished to say that from his point of view it was absolutely immaterial what Irish Judge was appointed to the office of Law Lord, or to go into the merits or the intellectual capacity of either the English or the Irish Judge, because the question was 618 not so much who was appointed, but the right of Ireland to be represented in the supreme appellate tribunal of the United Kingdom. Objection was taken by the right hon. gentleman the First Lord of the Treasury to certain remarks of the hon. and learned gentleman for North Louth, with reference to a Bill which never became law; but there were subsequent debates in 1874. Lord Moncrieff said that nothing could be more anomalous than to put Irish and Scotch Judges on appeals from the English Courts. The result of those debates was that immediately after, when the Appellate Act was passed, in 1876, the persons qualified to receive appointments under that Act were the members of the English, Irish, and Scotch Bars of sixteen years standing. More than that, little evidence was required short of a contract in writing. At the time that Act was passed there was a vacancy for two Law Lords, and what was done was to appoint Lord Blackburn for England and Lord Bowden for Scotland. But when there was a vacancy in 1882 the Government elected a member of the Irish Bar. He protested against the idea that, because members of the House of Lords who were members of the English Bar were Irishmen by birth or blood, the Irish litigant or barrister would derive any consolation from their adjudicating on matters brought before them, because what the Judicial Committee of the House of Lords had to do was to decide Irish law, not to make it. Irish law was made up of a long course of Irish decisions; as well as by statutes, and it was the duty of the Judicial Committee of the House of Lords not to lay down the law according to English ideas, but to make, their decision according to the law of Ireland and according to the decisions, that had been made under which titles had passed and which had themselves, accumulated after many years. Had, for instance, the well-known case of Allen v. Flood been decided according to Irish law, the English people would have been up in revolt. It was this state of things that Ireland suffered from. The Law Lords comprised four Englishmen and one Scotchman, and if a question came up from Ireland he did not sec how they could give a decision which would command the confidence of that country. The First Lord of the Treasury had referred to a fact which was not, in 619 his (Mr. Moore's) opinion, a very important one, so far as the question of Irish appeals was concerned. When the Appellate Act was passed the number of appeals from the English Courts was twenty-seven, from Scotland twenty-two, and from Ireland five. But from 1874 the rate of appeals rose, and that disposed of one of the grounds for not giving Ireland an Irish Lord of Appeal. It was perfectly true that there was little, if any, Irish representation from 1833 to 1876, but what had that to do with the present case? It was because that system was so unsatisfactory that the Appellate Act was passed. The right hon. Gentleman also said that Scotland was in a different position to Ireland because they had a separate jurisprudence, the origin of which was essentially dissimilar to that of England. No doubt it was dissimilar, but so was Irish jurisprudence, and whenever an Irishman attempted to get an appointment in the English Courts the great point raised by the English barristers was the great dissimilarity of the law. It was said, "Irish law is so different; you have no knowledge of our system." He would not detain the House further, but in loyalty to his countrymen he thought it was his duty to take the stand which he had taken, and to have regard to old Parliamentary precedent, and, above all, to protest against the theory that Ireland, whose generals were admitted into the councils of the Empire, could not supply lawyers wise enough to be admitted until they had undergone the hardships and the drudgery of the English Bar.
§ * SERJEANT HEMPHILL (Tyrone, N.)
I confess I was disappointed with the tone in which the right hon. Gentleman the First Lord of the Treasury mot the motion of the hon. and learned Gentleman the Member for North Louth. I can assure the House that no question has more excited, I might say, the indignation of not merely the profession but people generally in Ireland than this last appointment on the part of Her Majesty's present Government. As the hon. and learned Gentleman who has just sat down mentioned, at one of the largest meetings of the Irish Bar at which I was ever present in the course of my long experience, a resolution was adopted which I now take the liberty of handing over to the right hon. Gentle- 620 man the First Lord of the Treasury, in which they protested against the violation of the understanding which was come to when the Appellate Act of 1876 was passed. As that resolution has not been put before the House, I beg leave to read it—That the members of the Irish Bar, in general meeting assembled, hereby record their protest against the appointment of a member of the English Bench, however distinguished, to fill the vacancy created among the Lords of Appeal-in-Ordinary by the retirement of Lord Morris. The Bar consider that this appointment is a distinct violation of the understanding hitherto observed, that Ireland should be represented in the Court of Ultimate Appeal by the selection from the Irish Bench or Bar of at least one of the four Lords of Appeal-in-Ordinary.A similar resolution was also adopted by the Incorporated Law Society in Ireland, representing the entire body of solicitors in that country. There are no two bodies which in their majority have been more consistent in what I may call their loyalty to the Unionist party, and therefore any protest coining from that quarter should be received in a very serious spirit. These resolutions rest upon grounds not only of right, but of expediency. It is quite in vain to cry, as the First Lord of the Treasury did, to date the whole question from 1876. We have to consider what the rights of the Irish people were. This is not a Bar question; it is not a mere question as to whether a member of the Irish Bar or a member of the English Bar is or is not to be the recipient of a good salary; it is a question affecting the interests of the Irish people and their independence so far as that independence is consistent with the present constitution of the United Kingdom. The Irish House of Lords up to 1716 had the sole right of entertaining appeals from the courts of law and equity in Ireland. An extraordinary thing took place in 1716. In a certain action which has been referred to, the English House of Lords arrogated to themselves the right of deciding an appeal coming from an Irish Court. Ft being protested against, what did the English Parliament do? It passed an Act in 1716 declaring that the right of appeal should lie from the Irish courts to the English courts. That Act was in operation up to 1782, when in a gleam of independence an Act was passed by the Irish House of Parliament declaring that 621 the right of appeal from the Irish courts of law lay only to the Irish House of Lords. What happened next? Lord Mansfield, in defiance of the Irish Act, and in contempt of the Irish legislature, endeavoured to fall back upon the old practice, and entertained an appeal from an Irish court. That was seen to be a flagrant violation of the constitutional rights of Ireland. At that time the English Government were alarmed at such an infringement of our rights, and in the very next year, 1783, the English House of Commons passed an Act of Parliament declaring that the Irish House of Lords alone had the right to entertain appeals from the Irish courts of law. That existed from 1783 to the time of the Union, and here conies in the question of that Union—the Treaty between two independent countries represented by their respective Parliaments. This is another illustration of the efforts by which the present Government, and indeed latterly all Governments, have endeavoured, on the one hand, to hold Ireland tightly by the Act of Union, and, on the other hand, to escape from the articles of that Act when they bear in favour of Ireland. Just as in the case of the Financial Relations question they endeavour to violate the eighth article of the Treaty of Union, so now by this appointment they are treating us in the very same way. By the eighth article of the Act of Union it was expressly declared that the right of appeal from all Irish Courts should be to—what? To the Parliament of the United Kingdom. That was necessary because the Irish Houses of Parliament were abolished. But what was the Parliament of the United Kingdom? It had the Irish House of Lords incorporated in it. Twenty-eight representative Irish peers were always to be members of that Parliament, and therefore it still retained the Irish element in the appeal from the Irish courts of law. This Act of 1876 would never have been passed or tolerated by the representatives of Ireland except on the understanding that Ireland, by its Bench and Bar, should always be represented in the new Court of Appeal. The First Lord of the Treasury has said that all this history has no application. I deny that altogether. You cannot construe the Act of Parliament, or understand what took place in bringing it about, without bearing in mind what the relations of the two countries 622 were at the time. So far back as 1872 it was found that the right of appeal lying to the House of Peers caused delay; so far back as 1872 an agitation was commenced, and Bills wore introduced to remedy this defect. I must trouble the House by quoting what Lord Redesdale said on one occasion in 1873, when arguing against the abolition of the appeal to the House of Lords—Not only, he might add, had Scotland and Ireland a right to protest against the jurisdiction of the House of Lords being done away with on the score of efficiency, but because it was a tiling to which they were entitled by their several Acts of Union.On an earlier occasion, when the same question was agitated in 1872, Lord Cairns, in arguing against abolishing the House of Lords as the Court of Appeal for Scotland and Ireland, is reported in Vol. CCX. of Hansard [Third Series], page 1990, to have said—Now, as to Ireland, the subject of the appellate jurisdiction was one that caused very great contests in Ireland in the last century. In 1783, after much controversy and debate, Ireland succeeded in having the House of Lords, which then existed in Dublin, the tribunal of final appeal for Irish eases, and for that reason, on the union of Ireland with this country, there was an agreement that Irish appeals should be heard by this House only; but what will the Irish people say if they hear that appeals for their Courts may be brought before three English barristers of ten years standing?That was the proposition of the Bill then in question.Is this a moment—when Home Rule is exciting so much agitation in Ireland—is this a moment for you to open a door which you may hereafter be very glad to shut, and to give those who are agitating for Home Rule an opportunity of saying to their countrymen— ' Do not carry your appeals to London, to have them heard by three barristers of ten years standing.' Remember, my Lords, when you talk of the 'imperial Parliament,' those words have a substantial meaning—they are not words of mere formal description; and I take it that one of the greatest advantages in a tripartite country like ours, is that the supreme appellate jurisdiction is exercised by a tribunal composed of Members of this House, which House itself is composed of Peers who represent every part of the kingdom.That is the principle which was embodied in this Act of 1876, and you must take the whole history, and what occurred between 1872 and 1876, in order to put a fair construction upon the Act in question. Then came the Act of 1876. It so happened that there was an eminent member of the Irish Bench, Lord O'Hagan, who was then 623 ex-Lord Chancellor, and who therefore was able to, and did constantly, attend in the House of Lords. The original Bill of 1876 appointed only two Lords of Appeal, it being understood that on certain events happening two more would be added. The Government added Lord Blackburne, the English Lord of Appeal, and made the Lord Advocate, Lord Gordon, the Scottish Lord of Appeal. Lord O'Hagan sat as representing the Irish element in that Court of Appeal, because by the Act ex-Lord Chancellors were made members of the Court. Lord O'Hagan continued to attend during the whole of his life, and he did not die until after the appointment of Lord FitzGerald as the Irish representative, who was succeeded by Lord Morris, who has just retired. Therefore we have this unbroken succession—the appeal to the House of Lords for the earliest period of Irish history up to 1876, and in 1876 on the new tripartite tribunal was an English, a Scotch, and an Irish representative. That went on until, for some reason that no one can fathom, though about which there may be various conjectures, the Irish Bench and the whole of the Irish Bar are treated with contempt and indifference, and a member of the English Bench, no matter how distinguished—I have not a word to say in disparagement of the noble lord—is promoted. That is most unjust and unreasonable. I have spoken thus far on the grounds of right and of constitutional principle. But on the ground of expediency is it not clear to everyone that there are great distinctions between the English and the Irish law? There are branches of the Irish law of which English lawyers know nothing, and which it is not their province to learn. English lawyers have quite enough to do to learn their own business without travelling into the wild regions of Irish law, which would rather puzzle them and perhaps divert them from more lucrative and profitable pursuits. There is the Landlord and Tenant's Code altogether peculiar to Ireland. There is the Local Government Act, which in principle is altogether different from the English Act. That Act bristles with difficulties; it is dependent altogether on the Grand Jury system in Ireland, which, as everybody knows, is peculiar to that country. Questions must constantly arise in which the purely English trained judicial mind, no matter how brilliant, will be more or less 624 a novice. What has taken place is unfair not merely to the Bar of Ireland, but to the people of Ireland. They want judges who know the peculiar law and customs of the country. The very language of the people—I am not speaking of the Celtic language, but their ordinary phraseology—their peculiar customs, the peculiar traditions, and the failings and the virtues of the race—of all these matters it is necessary to have some knowledge in order that an adequate opinion may be formed on cases which may arise. Why, then, is it that on this particular occasion a new Law Lord, who probably has never set foot in Ireland, is substituted to represent the Irish element on this judicial tribunal? It cannot be said that at this moment there are not on the Irish Bench men who would be an ornament to any Bench in any community, and who would add brilliancy even to the Court of Appeal in the House of Lords. It is a slight to them and to the Irish Bar, and one, as I said on another occasion, they deserve, because they have always sacrificed the natural tendency and aspirations of Irishmen in their anxiety to uphold and to conciliate first the Tory and now the Unionist party. And behold! their reward.
§ MR. BIRRELL (Fifeshire, W.)
If we were at liberty to consider this most important question simply from the point of view of the interests of the suitor and the benefits to jurisprudence, I believe we should all, whether we be Englishmen, Scotchmen, or Irishmen, at the bottom of our hearts be in cordial agreement with Mr. Disraeli—not indeed in his humorous aspersions (as I am quite sure they were intended to be) upon the Scottish and Irish intellect, but in thinking that when the Crown has to appoint men to such positions as the one under discussion, it is a thousand pities that it should not be free to choose those of the finest intellectual calibre instead of having to consider the question of their birth and breeding. We may in this House have the utmost confidence in the principle of representation, but in matters of law I protest that I do not know any principle which appeals less to me. What we want in the Court of Appeal are men of the highest intellectual calibre, and I am sure a Scotsman would far sooner have his case tried by an Irishman of that character than by a Scottish judge for whose intel- 625 lect he had a supreme contempt. But unfortunately, in this matter we are, in my judgment, bound hand and foot. You cannot have a federation, and you cannot have all the glory and charm that are supposed to belong to a number of federated countries, without making very considerable sacrifices, because these countries will not willingly join in these federations unless it is distinctly understood that some of the spoils of office are reserved respectively for each, and not thrown into hotchpotch where only the best men can get them. Although the right hon. Gentleman the First Lord of the Treasury seemed to think it was very irrelevant of my hon. and learned friend behind me to introduce the topic of impending changes in our Court of Final Appeal, it seemed to me that his observations were perfectly relevant. But, however that may be, speaking as an English practising barrister of twenty-five years standing, during the whole period which has elapsed since 1873 I do not think there ever was a member of the Bar who either followed the various legislative changes which took place between 1873 and 1876, or listened to the traditions and talk of the profession, who had it not firmly embedded in his mind that it was part of the bargain, understanding, or arrangement, that Ireland should always have in the House of Lords, as the final Court of Appeal, an Irish Lord sitting there, not because he happened to have been born in Ire-land, or because he happened to have some Irish blood in his veins—I hope we all have a trace of that blood—but as an Irish judge or barrister. Therefore I submit it is entirely irrelevant to turn now and ask us to look at the pedigree and to examine the circumstances of the birth of noble Lords sitting in that assembly. We are told that Lord Macnaghten is an Irishman. All I can say is that when I came to the Chancery Bar I found him in chambers in New Court, Lincoln's Inn; apparently he had been there a long time, he enjoyed a lucrative practice, and I gazed upon him with envy. He sat as leader in one of the Chancery Courts for a long time, and we regarded him as an English Chancery barrister. We might occasionally guess from his peculiar humour that either he or his mother before him must have resided in Ireland, but the source from 626 which a member of the English bar gets his wit—or his dulness—must remain to most of us a matter of complete indifference. Lord Macnaghten was an English barrister, brought up in all the traditions of the Chancery Bar, and it was as such that he was called to the House of Lords. It is, therefore, not fair to say to the Irish people, "Well, it is quite true that in the place of Lord Morris we have appointed Lord Lindley, but if you look round the House of Lords you will find several Irish gentlemen sitting on those scarlet benches." That is not the point. The point is that they are not there as Irish Judges or barristers, but simply as talented and distinguished Irishmen who have left their own country and made fortunes elsewhere. I say we ought carefully to preserve this tradition, and certainly this was a most unfortunate time to choose to depart from it. Although I do not think this federal way of choosing persons from far-off bits of country whom you wish to conciliate is altogether the best mode of getting the finest legal intellect into one room, still we all know that the Irish legal intellect is of the very finest order. But the real mischief of our system is— and I shall always consider it a scandal— that appointments of this character to the very highest judicial office it is possible to conceive should be of a party and political character. It is no disrespect to the Irishmen who have sat in that final Court of Appeal during the last ten or fifteen years to say that it is notorious that they are inferior in intellect and legal calibre to the judges sitting on the Irish Bench. There were men in Ireland better fitted, had it been a mere question of judicial eminence, to occupy these positions, and that will always be so while you allow appointments of this kind to follow political lines. Each party has always somebody to reward, some services to repay. The man who is so paid is not rewarded because he is more fit than anybody else for the office, but because he has done political service for his party. Therefore, if you want to get over any difficulty which attaches to this federal system of representation, to make it stronger than it is, you will never do it unless on both sides of politics those appointments are not made as a reward for political services. But, on the question which has been raised, I entirely agree, speaking 627 as an English barrister, with my hon. and learned friend behind me. The view of the profession has always been, since that Court was constituted in 1876, that an Irish and a Scottish Judge or an Irish and a Scottish barrister of great standing
§ should be there to represent the jurisprudence of those countries.
§ Question put.
§ The House divided: — Ayes, 99; Noes, 144. (Division List No. 127.)629
|Abraham, Wm. (Cork, N. E.)||Gourley, Sir. Edward Temperley||O'Connor, Arthur (Donegal)|
|Archdale, Edward Mervyn||Gurdon, Sir William Brampton||O'Connor, James (Wicklow, W.)|
|Arnold-Forster, Hugh O.||Haslett, Sir James Horner||O'Connor, T. P. (Liverpool)|
|Austin, Sir John (Yorkshire)||Hayne, Rt. Hon. Charles Seale-||O'Malley, William|
|Barlow, John Emmott||Hedderwick, Thomas Chas. H.||Pickard, Benjamin|
|Birrell, Augustine||Hemphill, Rt. Hon. Charles H.||Pickersgill, Edward Hare|
|Blake, Edward||Horniman, Frederick John||Reckitt, Harold James|
|Bramsdon, Thomas Arthur||Howell, William Tudor||Redmond, John E. (Waterford)|
|Broadhurst, Henry||Humphreys-Owen, Arthur C.||Redmond, William (Clare)|
|Burns, John||Labouchere, Henry||Rentoul, James Alexander|
|Burt, Thomas||Lambert, George||Rickett, J. Compton|
|Butcher, John George||Lecky, Rt. Hn. William Edw. H.||Roberts, John Bryn (Eifion)|
|Caldwell, James||Leng, Sir John||Roberts, John H. (Denbighs.)|
|Cameron, Sir Chas. (Glasgow)||Lewis, John Herbert||Shaw, Thomas (Hawick B.)|
|Campbell, J. H. M. (Dublin)||Lloyd-George, David||Souttar, Robinson|
|Carmichael, Sir T. D. Gibson.||Lonsdale, John Brownlee||Steadman, William Charles|
|Channing, Francis Allston||Lyell, Sir Leonard||Sullivan, Donal (Westmeath)|
|Clarke, Dr. G. B.||Lyttelton, Hon. Alfred||Tanner, Charles Kearns|
|Colville, John||Macaleese, Daniel||Tennant, Harold John|
|Commins, Andrew||MacDonnell, Dr. M. A. (Qu'n'sC)||Thomas, Alfred (Glamorgan, E.)|
|Crilly, Daniel||MacNeill, John Gordon Swift||Trevelyan, Charles Philips|
|Crombie, John William||M'Calmont, Col. J. (Antrim, E)||Wallace, Robert|
|Curran, Thomas B. (Donegal)||M'Crae, George||Walton, Joseph (Barnsley)|
|Donelan, Captain A.||M'Dermott, Patrick||Wanklyn, James Leslie|
|Doogan, P. C.||M'Ghee, Richard||Wason, Eugene|
|Douglas, Charles M. (Lanark)||Maddison, Fred.||Weir, James Galloway|
|Duckworth, James||Mendl, Sigismund Ferdinand||Williams, J. Carvell (Notts.)|
|Dunn, Sir William||Molloy, Bernard Charles||Wilson, H. J. (York, W. R.)|
|Evans, Samuel T. (Glamorgan)||Moore, Arthur (Londonderry)||Woodhouse, Sir J. T. (Hudd'rsfd.)|
|Farquharson, Dr. Robert||Morgan, J. Lloyd (Carmarthen)||Young, Samuel (Cavan, East)|
|Fenwick, Charles||Morley, Charles (Breconshire)||Yoxall, James Henry|
|Foster, Sir Walter (Derby Co.)||Moss, Samuel||TELLERS FOE THE AYES—|
|Gladstone, Rt. Hn. Herb. John||Nussey, Thomas Willans||Mr. T. M. Healy and Mr.|
|Goddard, Daniel Ford||O'Brien, Patrick (Kilkenny)||William Moore.|
|Aird, John||Chaplin, Rt. Hon. Henry||FitzGerald, Sir. Robert Penrose|
|Allsopp, Hon. George||Charrington, Spencer||Fitz Wygram, General Sir F.|
|Arrol, Sir William||Chelsea, Viscount||Fletcher, Sir Henry|
|Baird, John George Alexander||Clare, Octavius Leigh||Forster, Henry William|
|Baldwin, Alfred||Coghill, Douglas Harry||Foster, Colonel (Lancaster)|
|Balfour, Rt. Hn. A. J. (Manch'r)||Cohen, Benjamin Louis||Foster, Harry S. (Suffolk)|
|Balfour, Rt. Hon. G. W. (Leeds)||Collings, Rt. Hon. Jesse||Fry, Lewis|
|Banbury, Frederic George||Colomb, Sir John Chas. Ready||Galloway, William Johnson|
|Barnes, Frederic Gorell||Cook, Fred. Lucas (Lambeth)||Garfit, William|
|Beach, Rt. Hn. Sir M. H. (Bristol)||Corbett, A. Cameron(Glasgow)||Gilliat, John Saunders|
|Bethell, Commander||Cubitt, Hon. Henry||Goldsworthy, Major-General|
|Bhownaggree, Sir. M. M.||Currie, Sir Donald.||Gorst, Rt. Hn. Sir John Eldon|
|Blundell, Colonel Henry||Curzon, Viscount||Goschen, Rt. Hn. G. J. (St. Geor.)|
|Bowles, Capt. H. F. (Middlesex)||Dickinson, Robert Edmond||Goschen, George J. (Sussex)|
|Bowles, T. Gibson (King's Lynn)||Dixon-Hartland, Sir Fred Dix'n||Gray, Ernest (West Ham)|
|Brodrick, Rt. Hon. St. John||Donkin, Richard Sim||Haldane, Richard Burdon|
|Bullard, Sir Harry||Doxford, Sir. William Theodore||Hamilton Rt. Hon. Lord George|
|Carlile, William Walter||Drage, Geoffrey||Hanbury, Rt. Hon. Robert W.|
|Carson, Rt. Hon. Sir Edw. H||Dyke, Rt. Hn. Sir William Hart||Henderson, Alexander|
|Cavendish, R. F. (N. Lancs.)||Elliot, Hon. A. Ralph Douglas||Hickman, Sir Alfred|
|Cavendish, V. C.W. (Derbysh.)||Faber, George Denison||Houston, R. P.|
|Cayzer. Sir Charles William||Fellowes, Hon. Ailwyn Edward||Howard, Joseph|
|Cecil, Evelyn (Hertford, East)||Fergusson, Rt. Hn. Sir J (Manc'r)||Hozier, Hon. James Henry Cecil|
|Cecil, Lord Hugh (Greenwich)||Finlay, Sir Robert Bannatyne||Hudson, George Bickersteth|
|Chamberlain, Rt. Hn. J. (Birm.)||Firbank, Joseph Thomas||Hutton, John (Yorks, N.R.)|
|Chamberlain, J. A. (Worcester)||Fisher, William Hayes||Jebb, Richard Claverhouse|
|Jenkins, Sir John Jones||Morrell, George Herbert||Smith, Abel H. (Christchurch)|
|Johnston, William (Belfast)||Morton, Arthur H. A. (Deptford)||Smith, J. Parker (Lanarks.)|
|Keswick, William||Murray, Rt. Hn. A. Graham (Bute)||Smith, Hon. W. F. D. (Strand)|
|Kimber, Henry||Murray, Charles J. (Coventry)||Stanley, Edw. Jas. (Somerset)|
|Knowles, Lees||Newdigate, Francis Alex.||Strutt, Hon. Charles Hedley|
|Laurie, Lieut.-General||Nicol, Donald Ninian||Sutherland, Sir Thomas|
|Lawrence, Sir E. Durning-(Corn)||Pierpoint, Robert||Talbot, Rt. Hn J. G. (Oxf'd Univ.)|
|Lawrence, Wm. F. (Liverpool)||Pilkington, R. (Lancs, Newton)||Thorburn, Sir Walter|
|Llewelyn, Sir Dillwyn- (Sw'ns'a)||Platt-Higgins, Frederick||Thornton, Percy M.|
|Lockwood, Lt.-Col. A. R.||Plunkett, Rt. Hn. Horace Curzon||Tollemache, Henry James|
|Loder, Gerald Walter Erskine||Powell, Sir Francis Sharp||Tritton, Charles Ernest|
|Long, Rt. Hn. Walter (Liverpool)||Pryce-Jones, Lt-Col. Edward||Vincent, Col. Sir CEH (Sheffild)|
|Lopes, Henry Yarde Buller||Quilter, Sir Cuthbert||Vincent, Sir Edgar (Exeter)|
|Lowles, John||Rankin, Sir James||Welby, Lt.-Col. ACE (Taunton)|
|Macartney, W. G. Ellison||Remnant, James Farquharson||Welby, Sir C. G. E. (Notts.)|
|Macdona, John Cumming||Renshaw, Charles Bine||Williams, J. Powell- (Birm.)|
|M'Iver, Sir Lewis (Edinb'gh, W)||Ridley, Rt. Hn. Sir. Matthew W.||Wilson, J. W. (Worcestersh, N.)|
|M'Killop, James||Ritchie, Rt. Hon. C. Thomson||Wortley, Rt. Hn. C.B. Stuart-|
|Manners, Lord Edw. Wm. J.||Royds, Clement Molyneux||Wylie, Alexander|
|Maxwell, Rt. Hn. Sir Herbert E.||Russell, Gen. F. S. (Cheltenham)||Wyndham, George|
|Middlemore, John Throgmort'n||Sandon, Viscount||TELLERS FOR THE NOES—|
|Milward, Colonel Victor||Shaw-Stewart, M. H. (Renfrew)||Sir William Walrond and|
|More, Robt. Jasper (Shropsh.)||Sidebotham, J. W. (Cheshire)||Mr. Anstruther.|
§ SUPPLY [9TH ALLOTTED DAY].
§ Considered in Committee.
§ (In the Committee.)
§ (Mr. J. W. LOWTHER, Cumberland, Penrith, in the Chair.]