said, that his noble and learned Friend (the Lord Chancellor), having resumed his seat on the Woolsack, he would now submit the motion of which he had given notice—That no one be heard at the Bar of this House, as counsel for or against any bill depending in this House, who is a Member of the Commons House of Parliament.He was fully aware of the great importance of the question which he was about to submit to their Lordships. He knew the importance of making any addition to, or alteration of the Standing Orders by which their proceedings were regulated, and that no such alteration or addition should be proposed, unless a strong case were made out for its necessity. When, however, such necessity could be established, their Lordships would not hesitate to interfere with the rules of their proceedings. From the votes of the House of Commons, of which their Lordships could take notice, it appeared that some short time back leave was given to an hon. and learned Gentleman, a Member of that House, to appear at their Lordships' Bar, in support of a bill which had been sent up from it for disfranchising the borough of Sudbury. It was not stated that that leave had been granted under peculiar circumstances; it was not stated that it was to be drawn into a precedent, but leave seemed to have been given as a matter of course; and unless their Lordships interfered, there was every reason to believe that the practice would become common; and that in all bills coming from the Commons' House of Parliament in support of, or against which, counsel might be heard at their Lordships' Bar, that a Member of that House would appear as counsel for or against such bills. It appeared to him that such a practice would be extremely inconvenient and injurious; and that it was one which should be strictly prohibited. He rejoiced that, with reference to the case of this nature which was now pending, no party feelings could influence their Lordships in coming to a decision. He had the pleasure of knowing the hon. Gentleman (Mr. Roebuck) to whom leave to plead at the Bar of this House had been given. He bad had opportunities of knowing him in his professional character, and could bear testimony to his great utility, zeal, and learning; indeed, he knew no one who would perform his duty in a more upright and disinterested manner. But they were not then to regard individuals, 732 but to look to the system. There could be no doubt of the power of their Lordships to regulate what class of persons should be heard as counsel at their Bar; this power belonged to all tribunals, high and low, and different courts, at different times, established rules upon the subject. The constitutional powers of their Lordships in this respect had been several times exercised. In the year 1685 a Standing Order was made, excluding the Attorney-general and the King's servants from practising at their Lordships' Bar in certain cases; this rule was modified in the year 1742, and afterwards, in 1797 and 1798, other changes were made. But if certain persons were at one time excluded from pleading at the Bar of their Lordships' House in certain kinds of judicial business, it was still more important that the rule should be strict in matters of legislation. The power of their Lordships upon the point being undoubted, it became a question of expediency whether it was for the dignity and honour of this House, and for the general good, that Members of the House of Commons should or should not be permitted to plead at their Lordships' Bar. With regard to judicial proceedings, he thought that no objections could be taken to granting such permission. In judicial matters this House was the supreme court of justice of the realm. With these proceedings, as such, the House of Commons had nothing to do; and there was no more objection to a Member of the Commons House of Parliament pleading at their Lordships' Bar, while sitting as a judicial body, than there was against such Member pleading in the Court of Chancery, or the Court of Queen's Bench, nor was there any greater objection to a Member of the Commons pleading at their Lordships' Bar at the trial of a Peer upon an indictment of their Lordships; but the case was otherwise when such trial was founded on an impeachment for high treason or misdemeanour brought by the House of Commons, in which case a Member of that House could not appear as counsel at their Lordships' Bar. In legislative proceedings, however, the rule should be very different from that which obtained in judicial business. As a legislative body, they were not administering laws, but making them in conjunction with the other House of Parliament—and there seemed to him to be something decidedly wrong in allowing a Member of the House of Commons to appear at their Lordships' Bar as the counsel 733 for any particular party. As a Member of the House of Commons, his duty was to think and act to the best of his judgment. As a counsel, his private opinion was of no consequence whatever; he must be guided by the instructions of his client, and should do the best he could for the interest of that client, from whom he received his fee. Suppose a bill, began in the House of Commons, for or against which counsel might plead with advantage at their Lordships' Bar, an influential Member of the House of Commons would at once receive a retainer to support or oppose the passage of the bill through their Lordships' House; and could it be said that if this retainer was left at the Member's chambers before the bill came on in the House of Commons, that Member could be called upon to exercise his judgment independently and impartially upon it? He had as great a respect as any person for the order to which be belonged; but lawyers were men, and ought not to be thrown unnecessarily into the way of temptation. If they were ever so pure, would it be satisfactory, he asked their Lordships, that they, with such a retainer, should support or oppose the bill in its progress through the House of Commons? But supposing a bill to originate in their Lordships' House, a similar retainer would be sent, the services of an influential Member of the House of Commons ensured, and how would it be with him when the bill on which he was employed came to be sent down to the House of which he was a Member? Would it he contended that it would be proper, or a decorous proceeding, in him to adopt a different course in the House of Commons from that the adoption of which he had urged in the House of Lords? It was not optional when a retainer was sent for the counsel to accept it or not as he pleased. He was bound to accept it. What was the remedy in such a case Should the counsel, because he had pleaded at their Lordships' Bar, be disqualified from voting in the House of Commons? Although be thought that such a practice would find no defenders, yet it might be said that it was the affair of the House of Commons—that that House should consider what was most for its own dignity and honour. In that opinion he could not concur. If a practice in its consequences was injurious to the public, their Lordships had a right to use the power which they undoubtedly possessed against it with the best effect they could; and if this mixture 734 of the duties of a legislature and an advocate was injurious and vicious, they had not only a right, but were bound to interfere and prohibit it. At all events they had a right to consider whether the duties of a counsel could or could not, in certain cases, be satisfactorily performed at their Lordships' Bar; and he thought that a Member of the House of Commons pleading on a bill with which he was, or would be, further concerned in another capacity, could not be expected so satisfactorily to perform the duties of an advocate as a person who was not a Member of the House of Commons, and not connected otherwise with the bill. They expected from a counsel calmness, but zeal—they expected that he should follow his instructions, that he should be guided by his brief, and that he should not exceed his duty. But could they expect at all times that there should be that nice performance of an advocate's duty if the advocate was a Member of the other House, and in that character had opposed or intended to oppose or support the bill. Let him suppose that the Member had introduced the bill—that it was one on which he had staked his reputation —that it was a measure with the beneficial effects and importance of which he was deeply impressed—was it proper, was it satisfactory, that he should appear at the Bar of this House as a counsel to plead against that measure? But if, on the contrary, he came to support it, was there not some danger that he might bring with him a warmth in favour of the measure very natural in an author, but by no means becoming in a mere counsel, doing his duty as an advocate. Suppose the noble Lord, who introduced the Mines and Collieries bill, should be retained by some parties to plead for the employment of females in pits —to enlarge upon the desirableness of the labour, and their own satisfaction in performing it? Could it be supposed that he would ever support or favour such a proposition? or if, on the other hand, lie was retained to plead for his bill, would not the noble Lord's feelings in its favour prevail, and his duties as a counsel be lost in his eagerness to advance the causes which he conceived so replete with justice and benefit to a great body of his fellow-subjects? Therefore, it seemed to him that looking to the dukes of a counsel, they could not expect that they should be performed so satisfactorily by a Member of the other House as by a person unconnected with it. Another point was, that there could not be 735 on the part of their Lordships the same freedom in dealing with a counsel who was a Member of the Commons. Suppose, for instance, that a Member of the other House had pleaded before their Lordships on the question of the Printed Papers Bill, it was obvious there could not be the same freedom in dealing with a Member coming before them as a counsel to support a bill affecting the privileges of the House of Commons as there would be if he could not claim any privilege as a Member of that House. There were, then, he hoped their Lordships would see, grave reasons why the practice in question should no longer be permitted to exist. It was not said that there were any circumstances, to take the case out of the ordinary rules by which it should be judged, or that any other counsel could not do his duty just as well as a Member of the Commons. He would now refer to the precedents on the subject. After very considerable research he could only find three instances in which any attempt of this kind, to mix the two capacities of Members of the House of Commons and counsel, had ever occurred. The first of these was not very generally known; it was the case of Sir H. Thynne, in 1661, who was appointed by the House of Commons, on a bill of his own, counsel to support it before the House of Lords It was an estate bill, and the probability was that it merely went before a committee, attracting no sort of public interest, and that counsel never appeared at their Lordships' Bar at all. That precedent, therefore, could not be entitled to the slightest weight. There was a Standing Order of the House of Commons, which required that when leave was given to a Member of that House to plead at the Bar of their Lordships, that the name of the case should be mentioned—whether it was a writ in error or an appeal; but it seemed never to have been thought possible that a Member of the House of Commons should plead before their Lord ships when the subject was one of a legislative character; and in fact, of ninety instances of leave having been given by the Commons to Members to plead at the Bar of the House of Lords, the case of Sir Henry Thynne was the only one out of these ninety in which leave had been given to plead in the case of a bill. Nothing of the sort occurred after 1693 for more than a century, until the celebrated case of the bill brought in to dissolve the marriage of George 4th with Queen Caroline. Leave was, on that occasion given to his 736 noble and learned Friend near him (then Mr. Brougham), and his noble and learned Friend the Chief Justice of England (then Mr. Denman), to appear at their Lordships' Bar as counsel against the bill. But that case could not be considered as a precedent in favour of allowing Members of the other House who had voted for a bill in that House to plead as counsel for it in this House. In the present case it appeared from the votes of the other House that none voted against the bill; therefore a Member of the other House who was present must have voted for the bill, and it was now proposed that one of those Members should be heard in support of the bill at the Bar of this House. In the case of Queen Caroline the circumstances under which Mr. Brougham and Mr. Denman appeared at their Lordships' Bar were very peculiar. Those Gentlemen were the Attorney and Solicitor general of her Majesty; they had defended her from the beginning; they were in her confidence, and it was impossible that she could have transferred her confidence to any others, and no others could so well have discharged the office of council against the bill. But in that case, as he understood, there was a stipulation, that if the bill came to the Commons, those Gentlemen being Members of the House who pleaded against the bill at the Bar of this House should not be permitted to vote upon the bill. He found that Mr. Brougham was reported to have said in the House of Commons—Supposing-an event which he could not anticipate—the bill came down to that House, he should have to request for himself and his learned Friend permission of the House not to vote on any stage of it "—so that there was a pledge and condition. Lord Castlereagh said—He conceived the same privilege should be conceded to the other side, if Gentlemen, Members of that House, were called on to exercise their talents in support of this important bill: in that case it would be proper that the individuals thus selected should exercise their functions in that House with the same reserve and with the same understanding that the Gentlemen opposite would exercise theirs; namely, that they should discuss the question professionally, and not interfere by giving any vote on it.And he moved that his Majesty's Attorney and Solicitor-general should be allowed the same leave as was granted to the Attorney and Solicitor general of her Majesty. Mr. Williams said, that 737The noble Lord had not coupled with his motion any statement that the King's Attorney and Solicitor-general should not vote upon the Bill of Pains and Penalties in that House, if such a bill we-e brought down from the other House of Parliament.Lord Castlereagh said, thatHe had stated at the outset that such was the distinct understanding.So that there was a distinct understanding that no vote should be given for or against the bill by any Member of the House of Commons who pleaded at their Lordships' Bar. This, therefore, was not a case in point as a precedent, because the Sudbury Disfranchisement Bill had come from the House of Commons. The Members of that House had already voted for it, and, therefore, on the principle for which he was contending, they had disqualified themselves from pleading at their Lordships' Bar. But he would go still further. He regretted that his noble Friend near him (Lord Brougham) had, upon the occasion referred to, abandoned his original intention of quitting the House of Commons altogether, in order to plead at the Bar of the House of Lords—a plan of procedure which he considered more satisfactory than that which had taken place. His noble and learned Friend, as well as his noble Friend the Lord Chief Justice, were then very popular, and might have been sure of being re-elected; and he therefore thought it would have been better if they had carried into execution their intention of retiring from Parliament.
The only other case was in 1830—that of Sir Jonah Barrington, the Judge of the Admiralty Court in Ireland, against whom a charge of malversation in his office has been brought by commissioners of inquiry. In the first instance certain resolutions were come to by the House of Commons; those resolutions were communicated to their Lordships with an address to the Crown for the removal of Sir Jonah, in which this House was asked to concur. When the resolutions were communicated to their Lordships, an inquiry took place at the Bar of this House, and the Attorney and Solicitor-general were desired to attend, to examine the instances in which Sir Jonah was alleged to have been guilty of the offence. But that was not a bill of pains and penalties; if it had been, a Member of the House of Commons who had voted for it would not have been allowed to plead in its support at their Lordships' Bar.
, in his History and Practice of the House of Lords, stated, thatCounsel being themselves Members of the other House of Parliament may plead in all matters, except such as are of a legislative character, at the Bar of the House of Lords.He added—The reason of the exception is obvious; in all proceedings of a legislative character Members of the House of Commons have a right to vote, and therefore it is inexpedient for them to act as counsel in either House, which would be inconsistent with that independence and impartiality of opinion which are essential to their position as Members of Parliament.This was written after Sir Jonah Barrington's case. According to authority and precedent, therefore, the practice could not be for one moment allowed. The order of the House of Commons by which leave was given was not binding on this House, and the House of Commons could not object to their Lordships not allowing one of its Members to be heard at their Bar. The order of that House was merely "that he have leave to plead, if he think fit, and if their Lordships think fit to hear him."It would be no want of courtesy on the part of their Lordships to decline hearing him; so that the House of Commons could not have the smallest reason to be offended if leave were refused: and for these reasons he trusted their Lordships would refuse permission. He regretted that a Peer of more experience and weight in the House had not brought this subject before their Lordships; but they would look at the merits of the question itself. The noble and learned Lord concluded by moving the resolution stated at the beginning of his speech.
The Lord Chancellor
said, I trust your Lordship will excuse my troubling you with a few observations on the subject of this motion. I certainly cannot bring my mind to agree to support it. It is not my intention to follow my noble and learned Friend through the extensive details into which he has thought it right to enter on this occasion, particularly the details in the very early part of his speech; because nobody, for a moment, can doubt your Lordships' authority and power to receive or to refuse to hear any counsel at your Lordships' Bar. It is absolutely in your Lordships power to do in that matter what you think proper. I agree with my noble and learned Friend that there is a possibility of inconvenient results arising from hearing Members of 739 the other House of Parliament in support of a bill at your Lordships' Bar. But the Houses of Parliament have sat for a long time, and counsel have appeared at your Lordships' Bar under the circumstances to which my noble and learned Friend has adverted, but no such inconvenience, in point of fact, has arisen. Another argument of my noble and learned Friend was, that if you allow Members of the other House of Parliament to appear at your Lordships' Bar to advocate or oppose a bill pending in Parliament, it may lead to a species of direct bribery; it might lead, according to my noble and learned Friend's argument, to bribery, in the shape of a retainer to Members of the other House, affecting them in the exercise of their legislative duties. Now considering that my noble and learned Friend, is a Member of the legal profession, that he practised in it so long, and with so much distinction, I think he might have known the character of those who plead at the Bar too well to suppose that a case of that description could take place, or to cast an imputation on the Bar generally which it so little deserves. It does appear to me that one inconvenience may arise, that the practice of Members of the other House being heard at the Bar might have a tendency to confine to such persons business of a certain class which ought to be extended equally to all. There may be a tendency to a slight inconvenience of that description, but after the experience of many years we know that no practical inconvenience has been felt, and we may feel doubtful of the policy of adopting any affirmative measure on the subject. I have heard it suggested at different times, that Members of the other House should not appear at your Lordships' Bar, under the circumstances that have been referred to, in support of or in opposition to a bill. My noble and learned Friend referred to instances of exception—remarkable instances, in which no objection was made. One was the case of the Queen's trial. Now whatever passed in the House of Commons on that occasion is no guide to your Lordships. On that occasion Members of the other House of Parliament pleaded on the one side and the other without any objection being urged by your Lordships. I have heard that objections were then surmised, and intimated, and whispered, but so far as public acts are concerned no objection was made. I also heard, and every one of your Lordships may have heard, that the permission to Members of the other House was 740 attended with some inconvenience. I need not allude to the particular circumstances, they are gone by. It may be said that suffering Members of the House of Commons to plead in that case may have occasioned great excitement, and may have led to conduct which was attended with some inconvenience. I answer that I am sure it led to no inconvenience. If your Lordships had objected to those individuals pleading for or against the Queen, the consequence would have been that they would have relinquished their seats in Parliament, and the same individuals would have appeared to conduct the case, in the same manner, with the same temper and spirit as it actually was conducted under the circumstances of the time. That precedent shows that your Lordships have laid down no certain rule for the exclusion of Members of the other House of Parliament in the case of bills pending in this House. Another case alluded to by my noble and learned Friend was conducted much more temperately and calmly. It was in substance a bill, being a proceeding to remove a judge, which can only be effected by an address in which both Houses of Parliament concur. The present Chief Baron of the Exchequer, and the present Lord Chancellor of Ireland—who were then Attorney and Solicitor general—appeared in that case, and without any consequent inconvenience. I am persuaded that careful investigation would discover other instances in which the same proceeding had taken place without any greater inconvenience. If your Lordships think proper to change the rule of the House, do so, but let the change be the result of careful and diligent investigation and inquiry. You should first of all minutely inquire into what has taken place in former times. After such inquiry, if you think fit to lay down a general rule, you will consider maturely what it should be—whether there should be any exception, and, if any, what exception—whether it should extend only to public bills, or to private bills also—in short with what qualifications and distinctions it ought to be adopted. I am quite sure you ought not to proceed rashly or hastily to a decision without considering the subject in all its bearings or without adopting the usual precaution, in cases of this nature, of referring it to a select committee. But, my Lords, I have another objection to the motion of my noble and learned Friend. I do not like a motion of this kind which is general in form, but which is directed against a particular indi- 741 vidual, and intended for a particular occasion. It may be said that it is a general rule, and you wish to lay it down as a general rule for the conduct of the House. It is so in terms, and it is true that the individual is not named; but who will not see that the motion is directed against that individual, and against that individual alone? I call upon your Lordships not to make a rule on this ground. It would be unworthy of the House, unworthy of your Lordships' character and station, to make such a particular case the ground for such an order as my noble and learned Friend proposes. On this ground I oppose the motion. If it be thought proper further to consider the question, I would recommend that it be brought forward early next Session, and that a select committee be appointed for its investigation. I do not wish to see it adopted hastily, on the spur of the occasion; and, above all, adopted with reference to a particular individual. Having stated what I have submitted for your Lordships' consideration, I wish to state facts connected with the employment of counsel in the particular case of the Sudbury Disfranchisement Bill. The moment I was informed that a number of witnesses were to be examined at your Lordships' Bar, I did what every one holding my situation does—direct an application to be made in the usual way to the Treasury for the attendance of counsel. The gentleman named by the Treasury was Mr. Waddington. If my noble Friend the noble Marquess, who has the conduct of the bill, thinks it necessary to have other forensic aid, application should be made for it. Your Lordships will have no objection to the employment of another counsel, but I would suggest to my noble Friend, that in such cases it is usual to be as parsimonious with regard to expense as possible. I have thought it right to give this explanation of the facts, in order that if one gentleman should be preferred, it should not be ascribed to any cause but that Mr. Waddington was appointed before the name of any other gentleman was suggested. I have only to add, that for the reason I have stated I feel it my duty to oppose the motion of my noble and learned Friend.
said, I deem it my duty to add, that my clear and unhesitating opinion agrees with what my noble and learned Friend has just stated. Undoubtedly my noble and learned Friend who made this motion stated, and I most willingly 742 and entirely believe him, that he was fully aware of the gravity and importance of a proposition of this description for altering or extending a Standing Order. But I am sure it is only because my noble and learned Friend asserts this that I believe it, for I do not perceive in the course he has taken, any, the slightest, indication of his being aware of the gravity, the importance, or, permit me to say, the delicacy, of the question which he has undertaken to bring before the House. But as my noble and learned Friend has informed your Lord-, ships that he is aware of it, of course I am bound to believe him, and I do believe that at least he thinks so; but his conduct is entirely at variance with any possibility of having been so aware. My Lords, to propound a Standing Order in any generally important matter is one of the rarest, and permit me to add, one of the most difficult tasks which any of your Lordships can take upon you to perform. I had the honour of sitting in this House, in the place now much more worthily occupied by my noble and learned Friend (the Lord Chancellor), for four years. My noble and learned Friend who succeeded me was there upwards of five years. My noble and learned Friend who sat on the Woolsack during the intermediate period sat altogether during, I believe, six sessions of Parliament. Not one of us, with a single exception, during the whole of that period, during the twelve or thirteen years that we filled the place of Speaker of this House, ever thought it becoming that we should so far go out of our way as to alter or extend any of your Standing Orders. The exception to which I allude furnishes an illustration of what has been said both by my noble and learned Friend on the Woolsack and myself. I had the honour of proposing a set of Standing Orders in the year 1837. I did not get up and give notice on Friday that I should move them on Monday in consequence of some circumstance which just then became known, and afterwards postpone them for a few days only in consequence of the illness of the Lord Chancellor. The subject was fully opened to your Lordships, There was much consultation held with all the Members of your Lordships' House who take a part in law cases. There were private consultations on them before proceeding further. The result of that deliberate consideration was explained to your Lordships, but I did not move their immediate adoption. Such propositions become law 743 by a single act. Without going through the stages of different readings, committee, and report, they acquire immediately and by a single step the force and authority of law. That immediate legislation was not proposed in 1837. But that is the course which my noble and learned Friend, being aware, as he says, of the gravity and importance of the occasion— that is the course which, to show that lie is so aware, and that he is acting under the influence of that feeling, and under the control and restraint which it is calculated to impose, has thought meet to propose for your Lordships' adoption. What was done in 1837? The subject was discussed in this House. A select committee was appointed to consider it and report their opinion to the House. It was attended by my noble and learned Friend, by the noble Duke opposite, and by all accustomed to take a part in such proceedings. The committee, after full deliberation, made a report. The report was circulated amongst your Lordships, and your Lordships, having again considered the matter, did at last adopt those Orders. On another occasion a similar course was taken. In 1715 it was referred to a committee to consider the Standing Orders generally, and the judges were summoned to attend it, so important and so difficult was it felt to interfere with the Standing Orders. Now, my Lords, I really cannot see anything so much a matter of course in the present proposal—I cannot think it such an exception to all proposals of this description as to induce men to depart from that cautious, circumspect course which your Lordships have always adopted in dealing with such questions. I think, if I were to go over the whole speech of my noble and learned Friend, and take one after another of his instances and his arguments, I can hardly conceive that stronger reasons could be urged, or stronger instances cited, for the purpose of inducing your Lordships to negative the motion of my noble and learned Friend, than such a recapitulation of my noble and learned Friend's own speech would exhibit. Does my noble and learned Friend not perceive — with his acuteness on all other subjects, which is so great where his mind is not unhappily warped by some preconceived idea, some feeling of a kind of necessity from which he cannot escape, of meddling with the Standing Orders and propounding new ones—does he not, with his acuteness, 744 never until now at fault—perceive that every one of his arguments applies to a different question, to a different matter from that which is before your Lordships, and to another place than your Lordships' House? He says, if a Member of the House of Commons comes here to argue a bill, whether about to be sent to the House of Commons from this House, or brought up thence, the greatest inconvenience and most mischievous consequence must ensue. How? Where? To whom? To this House, where alone your Lordships have anything to do with the consideration of mischievous consequences? Not at all. My noble and learned Friend does not affect to say so. He cannot descry the most remote or distant glimmering of such an inconvenience. He said a Member appearing at this Bar, upon a bill about to go down to the other House, might have his judgment as a legislator warped with regard to it. If it were a bill about to come up from the other House, a Member might likewise be unduly affected by having a retainer in his pocket. Whose concern is that? It is the business of the House of Commons. It is for them to protect themselves. That there may be an inconvenience I do not deny—there may be a warping of the judgment—there may be bribery, or what has the same effect, I do not deny it, but it is a matter for the House of Commons to consider. It is for them to keep their Members from anything which may interfere with the discharge of their duty—to take care that the forensic zeal produced by a retainer, may not enter into their legislative deliberations. My noble and learned Friend said, that if a Member of the other House receives a retainer to appear at your Bar, it may influence him here. Why, that is the proper office of a retainer. It is for that it is given. The more it influences his conduct, the more he is under its sway —the more zealously, in consequence of it, he performs his duty, the better. Better for whom? For the client who has retained him, and not the worse for the court before whom his client has sent him to argue. Does it do your Lordships any harm that he shows zeal in consideration of that retainer, and, for aught I know, in proportion to it. No such thing. It is exactly what he is here to do. To turn to my noble and learned Friend's motion—it furnishes an instance of the consequences of that rash and hasty legislation, without 745 the circumspection or caution which I took leave to recommend a few nights ago—an illustration of that headlong impatience for alteration which, where the ordinary guards and preventives of rashness and crudeness are absent—the different stages of first, second, and third reading, committee, and report—and where one motion upon one speech, however eloquent or convincing, acquires in an instant the force of law, may altogether fail to accomplish the object it has in view. My noble and learned Friend, who is so well aware of the gravity and difficulty of the subject, and of the caution and circumspection which it needs, thinks it necessary to prevent Members of the other House from pleading before your Lordships. What is the Standing Order which he proposes? That they shall not be allowed to plead at the Bar. Would this prevent them from going before committees? The same mischiefs and inconveniences might arise before a committee to-morrow, even if this order were adopted to night. Perhaps my noble and learned Friend would be willing to alter and amend his own Standing Order, but what a proof this is of the deliberation with which it has been framed. There was a case in 1792, when a set of Standing Orders were adopted on a short notice, and a short time after it was found necessary to suspend them for the remainder of the Session. that case is a beacon to warn, and not a safe haven to attract. 1 speak with great distrust of my own feelings, but with no distrust of my own recollection, when I come to that part of my noble Friend's statement, in which he made allusion to the case of the Queen. It turns out, at the end of two-and-twenty years-I was not before aware of it—but it does so happen, that my noble Friend thinks we, who were concerned in that case, ought to have adopted another course than that which we did take, and instead of maintaining our seats in the other House, we ought to have quitted them, to discharge our professional duties. My noble and learned Friend has been inconceivably careless in his statement of the facts referring to that occasion, and not less so in the inferences he has drawn from them. First, as to the facts. He says, the reason why an exception was made in granting leave to the present Chief Justice and myself was, that we held the offices of her Majesty's attorney and Solicitor genera!. But my noble and learned Friend is not 746 aware that Dr. Lushington held no office under her Majesty—that Dr. Lushington was a Member of the other House—that he had a common retainer as counsel for the Queen, and that leave was given to him in the same way, and the same words in which it was given to the Chief Justice and myself. So much for the fact. Now as to the inference. My noble and learned Friend would have advised us to vacate our seats at that time. We had not then the benefit of his counsel, and were obliged to act on the light we had. My noble and learned Friend says, we should have been easily restored to our seats. This shows how the most acute and subtle minds who have not taken time to consider a subject may mistake where much humbler capacities by proper consideration can see clearly. My noble and learned Friend says, that I had great popularity, which would have secured my re-election. Great popularity would have been of great use in one of the closest boroughs in all England. In the ignorance which my noble Friend labours under—God knows it is no fault of his—he says, I ought to have retired from Parliament. If 1 had retired from the borough, some one must have taken my place. What would have been the consequence? I could not ask that person to retire again. That being the case, had resolved to go out.I had resolved to retire from Parliament, and announced, on bringing forward certain motions, that I did so with that view. But I had ascertained, that I could not come in again. I announced, too, before the House granted leave, as also had Mr. Denman my intention to refrain from taking any part in the discussions upon any bill which might be brought before the House with respect to the subject upon which I was to be heard at your Lordships' Bar. His noble and learned Friend (Lord Brougham continued) said, that the Queen's Solicitor-general could again be returned if he had resigned before pleading at the Bar—for where?—for Nottingham ! Returned again for Nottingham, after, perhaps, a severe contest had taken place? Could the retiring Member, no longer wishing to be out and again desirous of being in his place in the [louse of Commons, so easily displace his successor? That was a question which he would leave their Lordships to judge of. For his own art he had not the faculty of perceiving that the election was so certain or easy; 747 but, perhaps, it was a question which the successor of Mr. Denman could best decide. "Oh ! but !"said his noble and learned Friend, "what was more easy than to go back and be re-elected?"The present facts, with respect to that borough, would, perhaps, show that it was not so very easy to go back. What atom, what particle of difference would it have made if all those who were engaged in the Queen's case as retained advocates, and had taken part in the judicial proceedings relating to her—what atom of difference would it have made if they had abandoned their seats whilst those proceedings were pending, and returned to them again immediately after by means of a re-election? What difference would such a course have made as to the inconvenience and mischiefs which his noble and learned Friend apprehended ! The only possible difference which he could see was, that in the one case they would have gone out, and that in the other they had remained. The only portion of his noble and learned Friend's argument which related to their Lordships--for that which related to the inconvenience which might arise in another place from Members of the other House pleading at their Lordships' Bar was for that other House to consider—the only portion of the argument which related to their Lordships was, that they might not be able to exercise the same power over those who could plead the privilege as over persons who could not. This, however, he denied. He would stand up for the privileges of their Lordships' House, and he denied that they could not maintain them with the same power, whether the persons heard at the Bar were Members of the other House or not. Let any Member of the other House pleading at that Bar show a want of respect for the privileges of that House, let them presumed, to say or do anything which would not be warranted in an ordinary Member of the Bar, and their Lordships would soon visit the breach of their privileges, either with an appropriate censure or with some other form of their displeasure which they might deem called for. Nay, he would proceed further and say, that they would be wanting in the proper respect which was due to themselves if they failed to show to any Member of the other House who might plead at their Bar that any breach on his part of the privileges of their House would be visited with the same punishment, nei- 748 ther going further nor falling short of that which would be dealt to an advocate who was not a Member of the other House. It would then be seen how little was to be apprehended by their Lordships from that privilege of Parliament which had been so absurdly set up in support of the present motion. For his own part, neither he nor any of those engaged with him at the trial of Queen Caroline presumed on the privilege of Parliament when heard at the Bar of that House. There were the Standing Orders of the other House twice repeated—once in 1693, and again in 1695—prohibiting all Members of the House of Commons from pleading at their Lordships' Bar without the permission of that House; and there would be found on its journals abundant instances, even to overflowing, to prove the rule, by pointing out the particular occasion upon which leave bad been granted. Let the House of Commons then deal with their own Standing Orders. He did not see any harm that could result to that House from the Members of the Commons being there to plead upon bills. At the same time, however, he thought it was ill-advised in the other House to give such permission. In the first place, their doing so was unfair to the profession; and, secondly. it must, almost of necessity, be an interruption of the duties of Members. Unless, therefore, good cause was shown, he thought such leave should not be granted at all; but, at the same time, it must be remembered that this was an affair of the House of Commons, not of their Lordships; that they had nothing to do with it, and ought not to discuss it; indeed, the only points on which he differed at all from his noble and learned Friend on the Woolsack was, that he did not for a moment anticipate a period when the consideration of the subject ought to be renewed in their Lordships' House. One word more, and he would conclude. The noble Lord who brought forward this motion declared, that whilst he raised the question for the more delicate dealing with cases which might immediately occur, he did not intend in any way to direct its application to the particular case of Mr. Roebuck. Now, he could not at all see how it was possible to disconnect the two proceedings—the proceeding of the Commons, namely, with respect to Mr. Roebuck, and the proceeding of the noble Lord with respect to the Standing Order. If, 749 indeed, this motion had been brought forward, not only after Mr. Roebuck's retainer had been sent, and after he had obtained leave to appear at their Lordships' Bar, but after the cause was over respecting which such leave had been granted to him —then there might have been some presumptive proof in support of the noble Lord's declaration; but the fact was, that notice was given of the motion immediately after Mr. Roebuck had obtained leave, and before he could have been heard, and the noble Lord timed the motion just so,—that his noble Friend, the noble Marquess to whom the bill was committed, having given notice that he should move its second reading on Friday night,—what did the noble Lord do but get up and put off his motion, not to a day subsequent to that on which Mr. Roebuck would, in course, have appeared at their Bar, but to this very day, this particular Thursday, being the one day previous to the second reading of the bill and to Mr. Roebuck's making his appearance as counsel in support of it. The evident object, therefore, was to make a sort of ex post facto law to meet a particular case—the particular one, no doubt, of Mr. Roebuck's appearing at the Bar of their House. Whatever might be the noble Lord's design, it was accordingly clear that this motion would have the inevitable tendency of preventing the attendance of Mr. Roebuck, of whom he must say, that a man of more inflexible integrity, public and private, he had never known—in addition to which he might further add, that he had rarely met with one of larger information or of greater ability.
The Marquess of Clanricarde
believed he must take it to himself that any necessity had arisen for discussing this motion, for in undertaking the charge of the Sudbury Disfranchisement Bill in their Lordships' House, he had thought it desirable that some one should attend at the Bar to support it, and after concert with others it seemed to him that Mr. Roebuck was a very proper person to hold the brief. He (Lord Clanricarde) had, however, certainly never contemplated the difficulty which had arisen, but it having occurred, he was bound, after mature consideration, to say that he did not see that any reason had been shown why their Lordships should interfere. The matter seemed to him to be peculiar to the Commons, and he thought that branch of the Legislature should be left to deal with it as they pleased.
in reply, observed that he had, with respect to this motion, a very formidable opposition to encounter in the combination of the noble Lord, the Lord High Chancellor, on the Woolsack, and the noble ex-Chancellor who sat behind him. When their Lordships recollected, however, that both those noble Lords, being then Members of the House of Commons, had on a former occasion been the very parties to appear as counsel in a criminal proceeding at their Lordships' Bar, he did think that they would not look upon them as very high authorities on this subject, but that they would rather consider their judgment to be warped by their position than to be perfectly and entirely impartial. He had been severely censured by both the noble Lords for what they termed his precipitation with regard to this motion. It had been said, in the first place, that he should have moved for a select committee. Surely, however, no select committee was required to consider a Standing Order. His order would be, perhaps, of three lines in length; there would be nothing complicated about it, nothing opposed to precedent, nothing that their Lordships might not consider and decide on in the course of a few minutes. Where, then, was the necessity for a select committee, which was only usually appointed in cases of extreme difficulty, or where research or consideration was made peculiarly desirable? But then it was said, he was acting with disrespect to Mr. Roebuck, and that he ought to have waited until that gentleman's case had been heard. As to the disrespect, he disclaimed any such intention as that imputed to him, but, on the other point, what would have been the consequence if he had waited until Mr. Roebuck had been heard? Why, the mischief would have been done; the very fact that he had appeared at their Bar would have been construed into a precedent, and would have been an irresistible argument against his motion. The noble Lord the ex-Chancellor of England was, in his own person, the self-constituted guardian of the purity of the House of Commons; no one, even among the very Members of the lower House, was so seemingly anxious for the purity of that House as the noble Lord. Now, let him ask the noble Lord did not he think it would be indecent and indecorous for any Member of that House to vote on a bill concerning which he had received a retainer, and must therefore be taken to be an interested party? Would not the noble Lord assist in putting 751 down such a practice if he saw it acted on? and would not their Lordships exercise their undoubted right of interposing where they saw a public evil following from such a practice? But the noble Lord said, why interpose in this particular case? why not have taken such a step before, or else why not wait until this case bad been heard? He (Lord Campbell), replied to this, that up to the present time there never had been an instance parallel to the present. In the Queen's case it was distinctly declared by the resolution of the Commons that the Members named should have leave to attend.Under the peculiar circumstances of the case; but,"it was added, "such leave is not to be drawn into or construed to be a precedent.The noble Lord, indeed, himself set this part of the question at rest, for he had owned to them that he intended to resign his seat for Winchelsea, but that a difficulty having arisen as to his getting reseated for that borough, he had made a point of obtaining leave of the Commons to appear. The fact, therefore, of the noble Lord's being likely to lose his seat for Winchelsea seemed to have been the cause of his change of opinion. If he could readily have got in again when the trial was over, he would not have appeared at their Lordships' Bar in the joint character of the Queen's Attorney-general and a Member of the House of Commons. But there was still another strong point with reference to this part of the case. An express stipulation was made in the Queen's case that the counsel engaged should not vote upon the bill; but in the case adverted to, Mr. Roebuck had voted on the bill. According to all established usage, no man could be judge and advocate in the same cause. In the Queen's case the noble Lord was not to be a judge, but in this case Mr. Roebuck had absolutely acted as a judge already. With respect to the other cases, Sir Henry Thynne's was the case of a private bill; Sir Jonah Barrington's was the case of an address from the Houses of Parliament for the removal of a judge. Looking at all the facts and precedents, therefore, he must say that he thought he had made out a case for the adoption of his motion; but whether their Lordships were inclined to agree to it or not, one thing he must beg them distinctly to bear in mind, and that was, that if they did not now adopt the Standing Order, the opportunity of doing so would soon for ever have gone by.
§ Motion negatived.