§ Lord Wharncliffemoved the third reading (according to Order).
The Lord Chancellorhad still an objection to make to this Bill, which had just been proposed by his noble Friend. By the Common Law of this country, the appointments were in the Judges of those Courts, and he should now read a passage from Lord Coke, for the purpose of showing that that was the law, and also giving reason for it. The passage was to be found in the Second Institute and had reference to the Statute of Westminster. There it was stated, that, by the Common Law, the Judges of the Courts had the appointment of their officers, and the reason given for this was, that it was more their duty to select proper officers, who would faithfully perform the duties imposed upon them—and if these officers did not do that it would be a reproach to the judges themselves, who were responsible for the proper keeping of the records of these Courts. This was the course in England from the earliest periods, and within the last few years when an Act was brought in, similar to that which was then before their Lordships, it was provided, that the appointments should be in the Chief Justices and Chief Baron. That was the course in England. Why were they to deviate from that course in Ireland? The Common Law of England was the Common Law of Ireland, and until a very late period the practice in this respect was the same in both countries. By 1st of Geo. IV. the appointments were taken from the Judges, and given to the Lord Lieutenant. No reason was stated for doing that; but for some particular purpose, which was not stated on the face of the Act, these appointments were taken from the Chief Justices and given to the Lord Lieutenant. It was rather remarkable that two years ago an Act of Parliament for the purpose of remodelling the offices in these Courts was proposed by the same person who brought in this Bill, and in that Bill there was a Clause corresponding with the law in England, by which the appointments were transferred back from the Lord lieutenant to the Judges of the Courts in Ireland, from whom they ought never to have been taken. Now, however, they had the Bill of two years ago again before them, but by it the appointment of officers were continued to the Lord Lieutenant, and not restored, as they should be to the Judges. Under these circumstances, he trusted that their Lordships would be of opinion that 1650 the Clause ought to be altered, and the Bill made to correspond with the English Act. Why, then, was Ireland to be put on a different footing from England? Were they not continually saying that they would administer the same law and the same justice to Ireland where they could be applied? If, then, they laid that down as a principle of legislation, the moment they made an exception to it, they reflected upon the parties against whom the exception was made. If they did not give to the Judges in Ireland that which the Judges in England had, they said that the Irish Judges were undeserving of exercising that authority—that they would be likely to abuse it—and they drew a distinction between the Judges in England and the Judges in Ireland, who so well performed their duties, and were utterly undeserving of any reflection being cast upon them. In his opinion nothing could be more unwise, nothing could be more impolitic in the present state of Ireland than this, and he might also add, nothing could be more prejudicial to the interest of the United Empire. He proposed, then, that the Clause be struck out. [Lord Campbell said he had a Motion to the same effect.] He had forgotten his noble and learned Friend had a Motion to that effect. If his noble and learned Friend would have the kindness to propose it, he should have great pleasure in supporting it.
Lord Campbellsaid, he had heard with most sincere pleasure, the sentiments which had fallen from his noble and learned Friend, and the irrefragable arguments by which he had supported the views he had expressed. He had likewise with much pleasure heard his noble Friend (Lord Fortescue), who had been Lord Lieutenant of Ireland, cheer the sentiments of his noble and learned Friend. He should move that for the words "Lord Lieutenant or other Chief Governor of Ireland," in the 7th section, should be substituted the words, "Lord Chief Justice of the Queen's Bench, Lord Chief Justice of the Common Pleas, and Lord Chief Baron of the Court of Exchequer, as the same shall be in the Court of Queen's Bench, Common Pleas or Exchequer."
The Lord Chancellorbegged to supply an omission of his, and to state that the Bill went so far as to take away the appointment to some minor offices which had been allowed to remain with the Chief Justices.
§ Lord Wharncliffesaid, it was quite impossible 1651 possible for him to contend against the high law authorities who had addressed the House, but the truth was, that the facts of the case were not as they were stated by either one or the other of the noble and learned Lords. He (Lord Wharncliffe) believed that at no time in Ireland were the appointments in the hands of the Judges of the great Courts. The offices were sinecure offices, and persons were appointed by the holders of them to do the duties, so that the appointment to the duties of these offices was never in the hands of the Judges. The Act of Parliament was twenty-three years old. It had up to this time been acted on, and the present Judges had accepted their situations with a perfect knowledge of the conditions with respect to these appointments. He wished, however, to have time to consult with the law officers of the Crown before he decided upon the proposed Amendments.
The Lord ChancellorIf the appointments are by the Common Law of England in the hands of the Judges, why should not the Common Law of Ireland and of England be the same? Perhaps the authorities of the Crown may have usurped from the Judges what the Law and Constitution gave the latter. I do not deny the possibility,
The Marquess of Clanricardesaid, he had had the honour of having been in communication with some of the high legal authorities at the other side of the water, and their idea as to the Common Law on this point entirely corresponded with the high authority of the noble and learned Lord on the Woolsack. At the same time he must say, that his noble Friend opposite (Lord Wharncliffe) was quite correct in what he had stated. The Crown had the appointment to these great offices. He knew that the learned Judges on the opposite side of the water were most anxious that they should not be placed on a different footing from the Judges in England, and if no strong reason should be shown against it, he hoped their Lordships would in a prompt and gracious manner accept the Amendment.
§ Lord Cottenhamsaid, it appeared to him immaterial whether the appointments had formerly been in the hands of the Crown or of the Judges. If it was proper that a particular course should be adopted for the future, it was no argument against it to say, that a different and an erroneous one had teen pursued for a century or half a century.
Lord Campbellsaid, he would withdraw his Amendment as he understood the noble Lord (Lord Wharncliffe) was prepared to assent to the suggestion made by his noble and learned Friend on the Woolsack.
§ Lord Wharncliffewished to have the Bill now read a third time. He would consult his noble and learned and right hon. Friends and he had no doubt they would be prepared to pay every deference to what appeared to be the opinion of their Lordships.
Lord Campbell, however, said, as the noble Lord could not agree to the suggestion, he (Lord Campbell) would at once proceed with his Amendment.
§ Debate adjourned.
§ The House adjourned.