Lords Sitting of 23 June 1851

MINUTES.
PUBLIC BILLS.—1a Patent Law Amendment (No. 3); Purchase of Lands Facilitation by Means of Trust Funds (Ireland) (No. 2); Representative Peers for Scotland.
Reported.—Office of Messenger to the Great Seal Abolition; Veterinary Surgeons Exemptions.
3a Highways (South Wales).

PRIVILEGE—THE APPELLATE JURISDICTION.
LORD LYNDHURST, in moving, "that it be referred to the Committee for Privileges to consider and report what course, having regard to the Privileges of this House, ought to be pursued for obtaining the Attendance and Advice of the Master of the Rolls and other Judges of the Court of Chancery upon the hearing of Appeals," &c., said, he was at first disposed to leave this important matter to his noble and learned Friend on the woolsack; but knowing the very arduous duties in which he was engaged, he (Lord Lyndhurst) thought it right to take upon himself to bring it before the consideration of their Lordships. This House and the other House of Parliament had been always jealous of any invasion of their privileges, and it was certainly important (particularly at the present moment, when they saw what was passing around them) that their Lordships should exercise caution and vigilance in the maintenance of their just
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rights and privileges. He had always understood that it was a principle and part of the policy of Parliament that no Bill, affecting in any manner, even remotely, the rights of the Peerage, or of their Lordships' House, the jurisdiction and authority of this House, the manner in which that jurisdiction should be exercised, or the parties employed to sit in that jurisdiction, should originate in the other House of Parliament. That was a principle stated in very distinct terms by Sir William Blackstone (1 Blackstone, 168), and by many other writers who had directed their attention to the subject of the constitution; and in consequence of that principle, he now took the liberty of addressing their Lordships. Their Lordships were aware (it was a matter of perfect notoriety—it had appeared in the Votes of the other House) that a Bill had been brought into the other House for the purpose of improving the administration of justice in the Court of Chancery. He believed that the Bill had been framed under the direction of his noble and learned Friend on the woolsack, and that it was proposed in substitution of another Bill, with which they were threatened at a former period of the Session. If he was right in what he stated, he was sure his noble and learned Friend was entitled to the thanks of the country for the measure which he had prepared; because, from its simple enactments, and from the strength which it would add to the judicial body of the Court of Chancery, he anticipated at no distant period an end would be put to those delays of which there was so much complaint, with reference to the hearing and deciding causes in the Court of Chancery—complaints not confined to isolated instances, but complaints which had been repeated over and over again from the earliest period to which the history of that judicature extended. In that Bill it was provided that the Judges of the Court of Equity should attend for the hearing of appeals in their Lordships' House. He had always thought that a most desirable object. In writs of error from the Courts of Common Law, their Lordships were assisted by all the judicial strength of those courts; but when they came to sit to hear appeals in equity, which related to matters more important in extent, and involving questions of the greatest nicety, their Lordships were obliged to rely upon their own unassisted learning. That was an anomaly which he had always been desirous to see removed, by the attendance of the Equity

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Judges, which would put their Lordships, in respect to appeals, upon the same ground as in respect to writs of error from the Courts of Common Law. In former times the Judges were questioned by their Lordships on points of equity as well as on points of law; and there was reason why it should be so, because four of the Judges were not Judges on questions of law only, but on questions of equity also. Their Lordships knew that in former times the Court of Exchequer had an equity jurisdiction concurrent with the Court of Chancery. When the twelve Judges attended, four were Judges of the Court of Exchequer, and their Lordships had an opportunity of consulting them with respect to points of equity. That jurisdiction had for many years been abolished, and their Lordships had been left without any opportunity of obtaining assistance when any doubts arose on any nice or intricate points of equity. He was quite sure the assistance of the learned Judges of the Courts of Equity, on the hearing of appeals, would be received with great satisfaction by their Lordships and by the country at large, and would inspire confidence in their Lordships' decisions, both among suitors and the public. Thus far he concurred in the objects of the Bill. The question which remained was, how this assistance was to be obtained? He was quite sure, with reference to the principle he had before stated, it ought not to be obtained through the medium of any Bill introduced into the other House of Parliament. The Bill to which he had referred contained a provision that certain persons should attend their Lordships' House to hear appeals; that they should be summoned; and that, in accordance with such summons, they should attend their Lordships and give their advice and assistance. Could any thing be more inconsistent with the known privileges of their Lordships' House, than such a provision in a Bill introduced in the other House? It related to their Lordships' jurisdiction—it related to the manner in which that jurisdiction was to be exercised—it related to persons to assist in the exercise of that jurisdiction. Applying those facts to the principle he had before stated, he bogged to say, with some confidence, that it was a direct invasion of the privileges of their Lordships' House. He did not wish to dogmatise on a question of this kind—he did not presume to ask their Lordships to decide upon his statement; but what he proposed was, that it should be referred to a Committee of Privileges of their Lord-
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ships' House to consider and report upon it; and if it was of the utmost importance they should pursue that course. They ought to know in what situation they would stand if the Bill came up to this House containing that clause, and what course they should pursue with respect to it, and if the Committee should report that it was an infringement of their Lordships' privileges, and that report should be confirmed by the House, it would endanger the passing of the Bill, which he should consider a great public misfortune. It might be said he was raising a trifling objection on a great public question; but one encroachment brought on another, and if they suffered this encroachment on the very substance of their power, they would disregard that which had always been considered of the highest importance by their predecessors, and even so considered in the other House of Parliament. He (Lord Lyndhurst) thought the best way to proceed for that purpose would be in the manner that most corresponded with the ancient constitution of their Lordships' House. The persons to whom he referred were summoned by writ of summons at the commencement of every Parliament to attend their Lordships' House. The writ of summons was the same in their case and in that of their Lordships themselves, only that their Lordships were summoned to deliberate and determine—the others, to deliberate and advise; and whenever the House made an order on those parties it was incumbent on them to attend the House. That was the history of the constitution of their Lordships' House, as stated, with great precision and learning, by Sir Mathew Hale and others, who had treated on the subject. The persons who were originally summoned thus were the members Concilii Regis, and consisted of the several officers of State who were not Peers, also of the Privy Councillors, the learned Judges, the Master of the Rolls, the Attorney General, the Solicitor General, and the King's Serjeant. Those were the persons to whom the writ of summons was issued, and who were hound to attend the deliberations of their Lordships' House. In process of time the Ministers of State discontinued their attendance, then the Privy Councillors ceased, and the result was, that for several years past writs of summons were not sent to those persons, the writs being confined to the Judges and to the Attorney and Solicitor General. At one time the Judges were bound to attend from day to day; and, in the records

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of that House, they would find that by order of the Great Seal they were, upon one occasion, severely reprimanded for the slackness of their attendance. It was their duty to frame the different Bills according to the orders they received from the House. The Judges of the Court of Chancery were all Privy Councillors, and he proposed that writs of summons should be issued to them. Every order applicable to the Judges of the Courts of Common Law was applicable to them. That was the course he recommended their Lordships to pursue. The next question that arose was, in what manner the writs of summons were to be issued, and by what authority? Would it be sufficient to issue them by order of the House, or must there be an Address to the Crown for the purpose; or, in case the Crown was not empowered to order the issuing of them, it was a question whether it might not be proper to introduce a short Bill to give the requisite authority to the Crown? Those were grave and important questions, requiring much consideration, and he gave no opinion upon them; but he proposed to refer them to the Committee of Privileges, who would report to their Lordships on the subject. He begged, therefore, to move that it be referred to the Committee for Privileges to consider and report what course, having regard to the privileges of this House, ought to be pursued for obtaining the attendance and advice of the Master of the Rolls and other Judges of the Court of Chancery upon the hearing of appeals, &c.
The LORD CHANCELLORsaid, there could not be the slightest objection to the Motion of the noble and learned Lord. He would not enter into any argument as to whether the Motion was necessary, but he had no objection to it. On the contrary, he was glad the Motion had been made. The Bill was prepared with an earnest desire to avoid all infringement upon their Lordships' privileges. Although it was quite true that the ancient Judges were in the habit of attending that House, they were in truth the persons who prepared the Bills. When the House had resolved that a law should be adopted for a particular intent and purpose, the Judges prepared the Bill; but this practice not being the case in modern times, the Judges only attended when summoned. The purport of his clause in the Bill which gave occasion to his noble and learned Friend's observations was that the Vice-Chancellors and the Master of the Rolls should attend
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in like manner as the Judges of the Courts of Common Law, and should in like manner give advice and assistance by their opinion upon all questions prepared for their consideration. If the clause should be found to interfere with their Lordships' privileges, he trusted it would be so modified as to secure those privileges from any interference whatever.
LORD LYNDHURSTstated, that he had no objection to the substance of the clause; he only wished it to be carried into effect in a constitutional way. It ought not to be introduced into a Bill coming from the House of Commons.
The LORD CHANCELLORsaid, the clause to which his noble and learned Friend objected had been introduced to give their Lordships the power of summoning Equity Judges.
LORD LYNDHURSTwas surprised that his noble and learned Friend should talk of the other House of Parliament giving "power" to their Lordships. If he had had a seat in their Lordships' House as long as he (Lord Lyndhurst) had, such an expression would never have fallen from his lips.
The MARQUESS of LANSDOWNEreminded the noble and learned Lord, when he said that such a clause as this ought not to have been introduced into a Bill emanating from the House of Commons, and that the two Houses carefully abstained from interfering with the privileges of each other, that their Lordships were now in the habit of introducing money clauses into Bills, which, strictly speaking, was a violation of the privileges of the other House. It was a wise course, and one adopted in both Houses of Parliament, to insert in Bills clauses which they could not pass without violating each other's privileges, and which the had no intention of passing, for the mere purpose of showing what was their intention in legislating. He could assure the noble and learned Lord that the clauses of which he complained had not been inserted in the Bill with any view of violating the privileges of their Lordships' House; nor could it be accurately stated that their privileges had been violated until the Bill came up to them containing this objectionable clause. Until the Bill came up to them from the House of Commons, their Lordships were not in a state to say that any clause had been improperly inserted in the Bill by the House of Commons. He had no objection to the Motion.
LORD STANLEYvindicated the course pursued by his noble Friend. The inference to be drawn from the statement of the noble Marquess was that it was the intention of Her Majesty's Government to have the clause expunged. This was an admission that the clause was one which ought not to be adopted, and that if sent up here it would be a violation of their privileges. Now this was all his noble and learned Friend said. But the argument of the noble Marquess was entirely opposed to the argument of the noble Lord on the woolsack, who did not consider the clause one violating their privileges, but one which had been studiously framed not to infringe them in any respect.
The DUKE of RICHMONDclaimed the right of the House of Lords to insert money clauses in their Bills. It was a privilege which they always claimed, although it was contested by the House of Commons. The latter assembly had given directions that any Bill with money clauses inserted should be kicked to the bar by their Speaker. Of late they had not been so uncourteous. But if this Bill came up with the clause referred to contained in it, he would move that the Lord Chancellor kick it to the bar.
The MARQUESS of LANSDOWNEintimated the intention of the Government to have the clause withdrawn.
The DUKE of RICHMONDwas glad to hear the announcement. He did not wish to see the Bill thrown out, nor did he desire to give the noble and learned Lord the trouble of kicking it so far.
LORD LYNDHURSTwished to call the attention of the House to the exact terms of this Motion.
LORD BROUGHAMsupported the Motion of his noble and learned Friend, but at the same time expressed a hope that the example which their Lordships had set would not be followed by the other House of Parliament, for it would lead to great public inconvenience if, the next time their Lordships sent a Bill down to the other House with a money clause in it, some zealous Member should rise and move that it be referred to a Committee of Privileges to inquire, &c. The Committee of Privileges in that House might again he called into action, although he thought it more likely that the House of Commons would not refer the point to that Committee, but would assume at once that it was a breach of privilege, and order the Speaker to kick it out. This would lead to great
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interruption of public business. He thought that the attendance of the Equity Judges in appeals from the Courts of Chancery would be very desirable. Nothing could more entirely meet his views as connected with the appellate jurisdiction of the House of Lords.
LORD LYNDHURSTagain repeated that his object was not to get rid of the substance of the clause, of which he entirely approved, but to get the clause passed in a proper and legitimate manner.
LORD BROUGHAMthought that it would he of great public advantage to add a clause to the Bill commanding the attendance of the Scotch Judges to advise and assist their Lordships in all cases of appeal from Scotland.
Motion agreed to, and ordered accordingly.

THE EPISCOPAL AND CAPITULAR ESTATES MANAGEMENT BILL.
The EARL of CARLISLE(as Chairman of the Select Committee) moved, pursuant to notice—
"That Leave be given to the Petitioners praying to be heard by counsel against the Episcopal and Capitular Estates Management Bill to be heard before the Select Committee on the Bill, whose petitions were presented on the 15th, 16th, 19th, and 22nd of May, and 2nd, 6th, and 19th of this instant, June."
The noble Earl referred to various precedents—cases in which this course had been taken.
LORD PORTMANsaid, that the course proposed by his noble Friend was a most unusual one. In the present instance, such was the composition of the Committee, which was one of inquiry as to the best mode of effecting the object contemplated by the framers of the Bill, that all parties who were interested either one way or the other were adequately represented upon it, and any one could be examined before it as a witness. There really was no necessity for counsel appearing before the Committee, which was of a character the least likely to be influenced by them. Counsel, too, would represent parties having extreme views on the subject, and such a course would not tend to the Committee's arriving at a concordant opinion upon it. He must, for one, say "not content" to the Motion.
The EARL of HARROWBYsupported the Motion, urging that the petitioners had an interest in the question to a very considerable extent.
The BISHOP of SALISBURYdefended

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the course taken by the Committee, which found itself placed in the position of dealing with the personal interests of parties who wore not in any degree represented before them. The interest the right rev. Bench took in the matter was no more than that which must be taken by every conscientious member of the Church, in a scheme which proposed to improve the mode of administering the revenues of the Church.
The DUKE of RICHMONDsaid, that if the Motion was carried, the only fair way of dealing with the case would be to cast aside the evidence now taken, as the witnesses bad not been subjected to cross-examination, and for the Committee to begin again de novo. He saw no reason why, after the evidence bad been taken, counsel should not be heard at the bar.
After some words from Earl MINTO in support of the Motion,
The EARL of MALMESBURYexpressed his deep sense of the importance of pursuing such a course as should not trespass upon the high reputation their Lordships' Committees had always enjoyed, of allowing no private or personal interests to sway in the most trifling manner their decisions.
LORD CAMPBELLthought that the adoption of the Motion would place the House in a most anomalous position.
EARL NELSONthought the course recommended by the majority of the Committee, of which he formed a part, was the only one consistent with fairness which could be pursued.
After a few words in explanation from the Earl of HARROWBY and the Bishop of SALISBURY,
The EARL of CARLISLE, concurring in the expediency of the views expressed by the Bishop of Salisbury, consented to withdraw the Motion.
EARL FITZWILLIAMhoped their Lordships would come to a clear understanding on this subject. He presumed it was the wish of the noble Mover that the Committee should hear witnesses on both sides?
The EARL of CARLISLEsaid, the Committee would be at liberty to pursue the course they had chalked out for themselves.
Motion, by leave, withdrawn.

REGISTRATION OF ASSURANCES BILL.
Amendment reported (according to order).
LORD LYNDHURSTsaid, he would not oppose the Motion provided the noble Lord (Lord Campbell) consented to withdraw the clause which had reference to the deposit of maps.
LORD CAMPBELLconsented to accede to the suggestion of his noble and learned Friend.
LORD LYNDHURSTsaid, the deposit of the double certificate, provided for by the Bill, would amply secure all parties; and in this commercial country it was most important that that security should be afforded.
LORD BROUGHAMexpressed the gratification he felt at finding the clause relative to the maps withdrawn, for it would be absolutely impossible for years to come to carry such a provision out.
A further Amendment made; and Bill to be read 3a To-morrow.
House adjourned till To-morrow.