HL Deb 03 June 1856 vol 142 cc899-920

Order of the Day for the House to be put into Committee read.

Moved—That the House do now resolve itself into Committee on the said Bill.


Before going into Committee on this Bill I wish to address a few words to your Lordships, not so much with regard to what is contained in it, as having reference to what is omitted from it. The noble Earl (the Earl of Derby) who moved for the Committee upon the Report of which this Bill is founded, advanced, among other reasons why your Lordships should agree to the appointment of that Committee, the manner in which the jurisdiction of this House is exercised with regard to appeals from Scotland, and he stated that it was at present most unsatisfactory. Now, the noble Earl was amply justified in making that statement, and he in all probability expected that a remedy would be provided for that state of things. But what is the state of the case? Why, in the present Bill there is no reference to appeals from Scotland, nor is there any attempt whatever to deal with the grievance so properly referred to by the noble Earl. It is true, my Lords, that in the Report of the Committee there is a reference made to the case of appeals from Scotland, but that expression of opinion is not a satisfactory—perhaps scarcely an honest one. The Report states— That the Committee have paid great attention to the important evidence which they have heard on the subject of Scotch appeals. Nearly all the witnesses who spoke to this part of the subject admit that very material advantages have been derived by Scotland in the course of the administration of the law by the House of Lords, and some of them are of opinion that it is still advisable to keep the appellate jurisdiction entirely distinct from the Scotch Bench and Bar; but, on the other hand, arguments were urged, with considerable force, against the anomaly of the final court of appeal from Scotland being so constituted as never to comprehend a Scotch Judge, or any person necessarily acquainted with Scotch law. It appears that the majority of the Bar, and the writers of the Signet in Edinburgh, are in favour of one of the members of the appellate court being a Scotch lawyer. It is not proved that this is the opinion either of the mercantile classes or of the community at large in Scotland. The Committee are of opinion that no fixed and invariable rule should be adopted on this subject. Now, I confess I do not know what is meant by that expression. Does it mean that matters are to remain as they have been for 150 years, or does it mean that there is a prospect of a change? Several witnesses, my Lords, and particularly the Lord Justice General, the Lord Advocate, the Dean of the Faculty, and many of the witnesses examined were in favour of the introduction of a Scotch Judge into your Lordships' House. For my own part I think that that would be an entirely inadequate remedy. It might obviate some evils, but it would, I think, be attended with others quite as important as those for which it provided a remedy. I have often expressed the opinion, and I still adhere to it, that the only way to fully remedy the existing evil would be to remove the Scotch appeals altogether from the jurisdiction of your Lordships' House, and to establish a court of final appeal in Scotland, composed of persons of great weight and authority. This, I am aware, my Lords, may appear to be a somewhat revolutionary suggestion; and I know very well that the opinion very generally prevails in this House, and perhaps, also, out of it, that your Lordships' weight, influence, and authority, in the constitution very much depend upon the preservation of the appellate jurisdiction of your Lordships' House as at present exercised. I confess that, as regards myself, I look at that opinion with considerable doubt, for I believe this House to be quite as much respected in its political character as in its judicial capacity. It is all very well for noble Lords to compliment each other, and to flatter themselves that everything is going on well; but allow me to say that, while that is going on within the House, it is just possible that there may be just grounds for complaint on the part of the profession and on the part of the appellants. What I wish particularly to refer to at present is the appellate jurisdiction of your Lordships' House as regards Scotland. We have been told, upon the very highest authority, that the assumption of an appellate jurisdiction at all by this House was altogether an act of usurpation; but, whether that be so or not as regards England, it most unquestionably is the case as regards Scotland. It is a remarkable fact, that in the Act of Union with Scotland, no mention whatever is made of any appeal to your Lordships' House. The Nineteenth Article of the Act of Union expressly stipulates, that all the judicature of Scotland shall be preserved entire, that no sentence of the Court of Session shall be subject to be reviewed by the Court of Chancery, or the Court of Queen's Bench, or by any of the Courts of Westminster, but not one word is said of an appeal to Parliament, still less to your Lordships' House. I know that by the Scotch Claim of Right in 1688, it was declared to be the undoubted privilege of the subject to protest for a remeid of law to the King and Parliament against the sentence of the Court of Session, provided that the execution of that sentence was not meanwhile stayed. Considerable doubt has existed as to the meaning of the term "protest for remeid of law;" but it has been laid down over and over again by Lord Stair—a very high authority and a person by no means likely to do anything to abridge the privilege of the Crown—being, as your Lordships know, a principal supporter of the Revolution in Scotland, that the protest thus allowed was only a protest in cases in which the Court of Session had exceeded its legitimate power and authority. Others maintain the same opinion, but it is not at all clear what is the precise meaning of the phrase "protest for remeid of law;" and in the twenty years which elapsed from the Revolution to the Union the people of Scotland appear to have been satisfied with having asserted their right, for during that period only six protests were presented to Parliament.

I admit that in such a state of things it does seem extraordinary that the people of Scotland should have submitted to an appeal to a tribunal perfectly foreign and comparatively ignorant of the law which it was called upon to administer. I can account for it only by a reference to the state of the country at that period. I do not mean to say that the Scotch Judges, always learned, were ever corrupt; yet, there is no doubt that at the time of the Union political influences and the influence of powerful families were not without their weight. I doubt much whether the Duke of Hamilton or the Duke of Argyll in those days would stand on precisely the same level with his fellow-subjects as he does at the present moment. It is possible, therefore, that, the people of Scotland may have submitted at first without resistance to an appeal to another tribunal, however strangely constituted. For your Lordships will remember, that although there is a doubt as to the precise meaning of the term "protest for remeid of law," yet the tribunal to which such protests were made was very differently constituted from the British House of Lords. The Lords and Commons sat together in the same chamber; the Judges of the Court of Session were present on the bench assigned to them in front of the throne; they heard the appeals, and many of them were, in fact, members of the Assembly. At least, therefore, the appeal was made to a tribunal that thoroughly understood the subject with which it had to deal. What is the case now? It is true that we have had some most eminent men in this House who have devoted much time and attention to the study of Scotch law. Lords Hardwicke, Mansfield, and Eldon were, no doubt, able to discharge efficiently all the duties that were expected from them—it is said, indeed, that they had improved the Scotch law by their decisions. Upon that point there may be some doubt; but, admitting it to be so, I submit that that is not the way in which the law of any country ought to be improved. I have no desire to see judge-made law, even by such men as Lords Mansfield and Eldon. If the law is to be improved, let it be done by the Legislature, and not by the decisions of a Judge. Yet it is scarcely possible that it should be otherwise; for, although the noble and learned Lords who have presided in this House have most conscientiously endeavoured to apply the Scotch law to the causes brought before them, they must necessarily have failed to do so on many occasions. It is said, that Lord Mansfield, when he sat to administer Scotch law, fancied himself a judge of the Court of Session, and acted as far as he could in that character. That, no doubt, was a most laudable desire, and one which I presume, has been shared by every noble and learned Lord who has exercised the same jurisdiction; but still it has happened that, when English lawyers have been called upon to deal in this House with a law of which they are not only comparatively ignorant, but which they are in the habit of undervaluing as compared with their own perfection of human reason, they have thought that if they did not administer Scotch law they were, at all events, pretty sure of giving something infinitely better. But that is not the mode in which I think justice ought to be administered to the people of Scotland. I recollect hearing in this House, thirty years ago, a noble and learned Lord who had sat on the woolsack declaring that he was as profoundly ignorant of Scotch law as if he had been a native of Mexico. That declaration of Lord Erskine was, no doubt, very frank, but not quite so prudent as might have been desired from a person in his situation. Still it was the truth, and I do not think we should find fault with him for making it. The noble and learned Lords in this House are extremely ingenious, and may have, very likely, no great difficulty in making "the worse appear the better reason," but I think I may defy them to prove that it can be desirable that a noble and learned Lord who may decide alone the most important causes which can be brought before him should be in a condition to make such a declaration as that to which I have adverted. Yet I heard it myself, and I think it speaks volumes for the truth and weight of the objections which I am now taking to the present system of deciding Scotch appeals in the court of last resort. The inevitable consequence of the uncertainty which surrounds the decisions of this House in Scotch causes is, of course, the multiplication of appeals. The appeal is made not to the wisdom of the House, but to its ignorance. We are told by the witnesses who were examined before the Committee that, in bringing his appeal to the House of Lords, the appellant calculates his chance according as his case is likely to be affected by English law. The Lord Advocate says, that the appeal to this House is regarded as a lottery, and the evidence of the Lord Justice General and the Dean of Faculty is pretty much to the same effect. Such being the case, how is it possible to expect that any satisfaction can be given either to the profession or to the public? The introduction of a Scotch Judge would, in my opinion, be but a very imperfect remedy. It would be open to many serious objections, and the only radical cure for the evils of which I have complained is the removal of the appellate jurisdiction to Scotland. Nay, more, notwithstanding the opinion which I know is very generally entertained among your Lordships, that the preservation of your appellate jurisdiction is essential to the dignity and character of the House, I am not sure that it might not be removed in all cases, whether English, Scotch, or Irish, with advantage to the public and without detriment to the House itself. But I know that is not an opinion shared by many of your Lordships, and I must admit also that in Scotland the sentiments which I have expressed are not generally entertained. I believe, however, that the time will come when the evils of the present system will be move strongly felt; and certain I am, at all events, that the Bill which you are now passing will not tend to diminish the objections I have stated as far as Scotland is concerned; but, on the contrary, will strengthen and increase them. The opinions which I have expressed have by no means been recently taken up. I have entertained them for very many years, and, in fact, talk as you will of the impartiality of the Judges, I appeal to the common sense of your Lordships whether the hearing of Scotch appeals in this House is not liable to the objections I have stated. I have heard Lord Eldon say, a dozen times, that it was a wonder to him that so sensible a people as the Scotch should ever submit to such a monstrous practice as that of bringing their causes to be heard in the House of Lords. Lord Liverpool, many years ago, told me that he entirely concurred in the opinions which I have now expressed; but that, unfortunately, the people of Scotland thought otherwise, and he therefore could do nothing to remedy the evil. Upon the present occasion I will content myself with recording my sentiments on the subject; but I cannot conclude without expressing my conviction that, whether I may live to see it or not, the time will come when Scotch appeals will be banished from this House, and it will require the best care and attention of your Lordships to render it possible for you to preserve your English jurisdiction.


My Lords, as the noble Earl referred to me in the course of his speech, I may be permitted to say a few words in reply to the charges he has brought against the Report of a Committee of which I was a member, and which owed its existence to a Motion which I had the honour to submit to your Lordships. I will not follow the noble Earl into those antiquarian discussions in which he has indulged as to the original mode in which Scotch appeals were transferred to the Parliament of the United Kingdom; nor do I intend to enter into the question whether there might not be a very good reason for carrying Scotch appeals to that tribunal. I will not wound the Scotch feelings of the noble Earl by entering upon the reasons which induced the Scotch to prefer any tribunal, even a foreign one, to their own Court of Session. I am not disposed to lay the same stress as he did on the usages of 150 years ago, though it is not difficult to understand that at the period referred to any foreign tribunal would be preferable to the local tribunals then existing in Scotland. The noble Earl, however, entirely cut the ground from under his own feet when he stated to your Lordships that a very small portion—he might have said an infinitesimally small portion—of the people of Scotland were disposed to abandon that which they believed to be a very considerable advantage—the control exercised over their courts by the appellate jurisdiction of your Lordships' House. The noble Earl objected to that jurisdiction in Scotch cases, yet admits that the sensible people of Scotland are, on the whole, satisfied with the arrangement. For thirty years the noble Earl has held his own peculiar views on this subject. In the Committee he frankly gave expression to those views, and there, as I believe in this House, he found that he stood alone in holding them. I will not, therefore, enter into a discussion of the circumstances attending the transfer of the appellate jurisdiction in Scotch cases to the British Parliament, thinking that a century and a half is quite long enough to enable the people of Scotland to decide whether the jurisdiction exercised by your Lordships is satisfactory or not. My object in rising is simply to notice the allegations with which the noble Earl commenced his speech, and to express my regret that, after the full discussion we had in Committee, he should have been induced to intrude one of the most difficult and delicate questions involved in the subject of the appellate jurisdiction into the consideration of the Bill now before the House. The noble Earl says that, in introducing the Motion for a Committee, I founded my argument for that Motion on the fact that there was no Scotch Judge holding a seat in this House and forming part of the appellate tribunal. The noble Earl, before he could have made such a statement, must have entirely misunderstood my statement. I only stated that as one of certain objections which I had heard taken to the appellate jurisdiction, on none of which did I give any opinion. I asked your Lordships to appoint a Committee to inquire into the nature of those objections, so that if they were well founded, measures might be taken to provide a remedy; but I carefully abstained from committing myself to any of those objections; and though I did say, and say now, that theoretically it does appear extraordinary that Scotch appeals should be heard by a tribunal not necessarily containing any Scotch lawyers, or any Peer familiar with the law of Scotland, yet I did not say that that of itself would be sufficient to necessitate an alteration in the appellate jurisdiction of this House. Now, the Committee went very fully and faithfully through all the objections that were offered to the existing system, and, I must say, I never attended a Committee of your Lordships' House in which there was manifested so strong a desire to arrive at a sound conclusion—at such a conclusion as would relieve the Government and Parliament and the Crown from very considerable embarrassment, and which might lead to an important amendment in the appellate jurisdiction of the House. With regard to the necessary introduction of a Scotch Judge as one of the supreme tribunal, though there was a very strong opinion on that point by lawyers more especially connected with Edinburgh—the writers to the Signet—yet there was considerable difference of opinion both on the part of the witnesses who were produced and their representatives, of the state of feeling in other parts of Scotland, besides Edinburgh. But, supposing his own scheme of taking the appellate jurisdiction entirely out of your Lordships' House to be set aside, I am at a loss to understand what is the object of the noble Earl; for he protested first in Committee, and now in the House, against the necessity of having Scotch cases brought under the jurisdiction of this House, and yet the whole tenor of his speech would lead the House to suppose that he was standing up for his country's rights, and asserting the claim of Scotch lawyers to a seat in the appellate jurisdiction of the House. [The Earl of ABERDEEN: No, no!] That was the ground on which the noble Earl made a charge against me. He said I had made the exclusion of a Scotch lawyer from the appellate jurisdiction the main ground on which I sought the appointment of the Committee, and yet he says, when this Bill comes before your Lordships' House, that it does not contain one single word as to the admission of a Scotch Judge; he says it is notorious to every one that there exists a necessity for introducing a Scotch lawyer, and this he urges as a complaint against me, that the Committee has said nothing on the subject, and that there is not inserted in the Bill a provision for that purpose. But I say that the question has not been left in so vague and indefinite a position as the noble Earl supposes. He does not deny that in the Report of the Committee there is a reference made to the subject. It is there stated that very different views were held upon the question in the abstract by different parties, and that the Committee, after duly considering the question, declined to fetter the decision of the Crown and your Lordships' House by laying down a positive and invariable rule that one of the two Judges who were to be admitted to your Lordships' House, with all the privileges of Peers of Parliament, and with salaries attached to their office, should be necessarily taken from the judicial bench in Scotland. And there might be reasons why such a rule would be inexpedient and improper, and why, as regards Scotland itself, it might be undesirable. It might be that among the legal members of your Lordships' House there would be men already familiar with the law of Scotland, and well qualified to guide the House in its judicial deliberations on Scotch appeals. It might be, also, that the state of the Scotch Bench might be such as to make the removal of leading members of the Scotch Bench injurious, and that you might inflict greater evil by weakening the supreme tribunal in Scotland than would be counterbalanced by any strengthening of the appellate jurisdiction of the House of Lords by the introduction of a Scotch lawyer. But while the Bill does not provide for necessarily placing a Scotch Judge in the court of appellate jurisdiction, it expressly provides that two members of that tribunal shall be persons who have filled some high judicial office for a considerable space of time, and in this provision are especially named the Judges of the Court of Session in Scotland, thereby placing the Scotch Judges, in respect of eligibility for members of the Court of Appellate Jurisdiction, precisely in the same position as the Judges in other parts of the United Kingdom. I think that the Committee, in making that recommendation, and the framers of the Bill in acting upon it, exercised a sound discretion. If it should be necessary, from the circumstances of any particular time, that one of the Judges selected to exercise the appellate jurisdiction should be taken from the Court of Session in Scotland, then the Bill distinctly recognises the claim of Scotland and the Scotch Judges, as persons every way eligible for the office, though it abstains from saying that, necessarily, any of the Judges should come from Scotland. This puts in a stronger light than ever the admissibility of the Scottish Judges as members of the House of Lords and members of the appellate tribunal, and it is an arrangement which I think will be generally satisfactory—though, of course, no proposition that could be made would give perfect satisfaction to everybody—while it is one that will tend considerably to improve the appellate jurisdiction of this House, while it will give Scotland a better chance of being represented in this House by a person having a knowledge of Scotch law than has ever been the case before. I must say the objection to the Bill comes with a bad grace from the noble Earl, who was himself a member of the Committee, and who has had ample opportunities of ascertaining that his opinions are not shared in by any considerable number either of the Committee or of your Lordships' House; and who objects to the measure, because it does not go the length of abrogating the appellate jurisdiction of the House in Scotch cases, and does not insist on a Scotch Judge being necessarily a member of the Court of Appellate Jurisdiction—a proposition which, if made, the noble Earl would be the first to object to.


said, the noble Earl entirely misunderstood what he stated. If the noble Earl had done him the honour of attending to what he said, he would have perceived that he never recommended that a Scotch Judge should necessarily form part of the appellate jurisdiction. What he did say was, that the administration of Scotch law in that House was not satisfactory; and that the appointment of a Scotch Judge had been recommended by persons in Scotland, and several Judges on the Scotch Bench, but he said that in his own opinion there were objections to it. The only thing which he recommended was the entire removal of Scotch appeals from this House.


said, that the noble Earl who began that discussion (the Earl of Aberdeen) seemed to take it for granted that the law Lords in that House, including the Lord Chancellor, were wholly ignorant of Scotch law, and he illustrated his assertion by referring to a conversation he had had with a noble Lord once the occupant of the woolsack (Lord Erskine) who said that he knew as much of Scotch law as he did of the law of Mexico. Now that noble and learned Lord was a Scotchman, and, having to decide on the most important rights of his fellow-subjects, he ought to have known something of the laws of his own country. But he (Lord St. Leonards) was prepared, from his own observation, utterly to deny the statement of the noble Earl. He would undertake to say that every one of those noble and learned Lords who had undertaken to administer the Scotch law in that House within his experience possessed—it might not be a perfect and intimate acquaintance with every portion of that law—but an adequate knowledge of its nature and principles. No man could hope to rise to the woolsack who had not made himself a competent master of Scotch law; for it was impossible that he could have arrived at eminence at the Bar without considerable employment in Scotch cases. An English counsel pitted against Scottish advocates of the greatest learning and ability could have no chance of success, unless previously grounded in Scotch law; and therefore a man intending to practise at their Lordships' bar had first to acquire a competent familiarity with this branch of jurisprudence, so as to be able to meet the arguments of Scotch lawyers. Scotch law agents were fully aware of the pains and study bestowed on Scotch law by English barristers, and they unhesitatingly retained them as advocates. Having had to administer the Scotch law himself, he (Lord St. Leonards) should feel mortified and degraded if he thought that the animadversions of the noble Earl applied to him personally; and therefore after the remarks that had been made, perhaps he might be allowed to say that he had had great practice as an advocate in Scotch suits at that bar, and was once requested by a respectable agent to undertake Scotch appeals generally, with a promise from all the leading agents that if he would do so he should have a brief in every case of that description. Scotchmen must he supposed to know their own interests; and their readiness to intrust them to English advocates was some proof that they did not think those interests were likely to suffer in such hands. Moreover, when a law Lord was elevated to the woolsack, it was not to be supposed that he was plunged all at once into the intricacies of Scotch law without assistance. The questions in dispute had all been sifted before they came up for argument on appeal; and having a general knowledge of Scotch law after an examination of authorities a legal Member of that House was qualified to give a decision calculated to afford as much public satisfaction as a judgment pronounced by any Scotch Judge, however distinguished; and he believed that, in fact, no tribunal could give more satisfaction He deeply regretted the observations of the noble Earl, because, coming from one of his great authority, they must have an inevitable tendency—however remote it might be from his intention—to disgust the Scotch people with the jurisdiction of that House, and to render them discontented with the tribunal to which in the last resort they must come. Every disappointed suitor, relying on the noble Earl's authority, will complain of injustice. The public feeling on the other side of the Tweed was, however, in favour of the retention of this appellate jurisdiction. It was idle now to inquire whether that House, at the time of the union with Scotland, rightfully obtained and exercised the power of hearing these appeals. Than that no point could be clearer; it had been recognised over and over again in Acts of Parliament, and the incontrovertible inference from the section of the Act of Union quoted by the noble Earl, providing that no court in Westminster Hall should have any jurisdiction over the Scotch courts, was that the authority possessed by the House of Lords over English appeals should extend to appeals from Scotland, Every writer on Scotch law acknowledged that benefit, not detriment, accrued to Scotland, from that House taking possession of its inherent right on the passing of the Union, and the people eagerly appealed to that House to review the decisions of their own courts, on which they could not place reliance. Before sitting down he wished to say that he should be the last person to offer a single word in disparagement of Scotch lawyers; and if he opposed the introduction of a Scotch Judge into that House, it was not from any distrust of the ability of such an individual, but from a belief that the amount of his practice would be so limited as to lend to his judgments no greater weight than attached to the decisions of the courts which he would be called upon to over-rule.


said, that he did not put the same construction as had been placed by the noble and learned Lord who had just sat down on the speech of his noble Friend (the Earl of Aberdeen), but as far as he himself understood it he feared that that speech would have a damaging effect on the Bill before them, which the noble Earl had not intended it to have. Undoubtedly, when the Committee sat upon the subject, some of the witnesses had urged strongly that there should be one or more representatives of the Scotch law sitting upon questions of appeal. There was every disposition to support, as far as possible, the national feeling, and he himself went into the Committee with every disposition to support that view; yet the impression of every Member of the Committee was, that this was not the proper remedy to adopt, for if the appellate jurisdiction of the House of Lords as a court of appeal was to remain—an alternative in favour of which the Scotch witnesses spoke very decidedly—it was not possible to prescribe to the Crown the manner in which it should exercise its prerogative in favour of Scotch lawyers. Therefore, the objections of his noble Friend had no reference whatever to this particular Bill, and did not intend to damage the Bill. It should be remembered that it was under peculiar circumstances that the Bill came before them. The Bill was virtually a compromise, which had been unanimously recommended by the Members of the Committee, and therefore it had not been scrutinised as a Bill would have been under other circumstances. A wrong impression on the subject of this Bill existed out of doors, and it was therefore necessary that some explanation should be offered as to what was proposed by this Bill. He had not understood the objections of the noble Earl to apply to the Bill as involving objects either unnecessary or dangerous, nor did he suggest any alteration in the Bill as agreed upon by the Committee. The proposition of the noble Earl was entirely new—namely, that Scotch appeals should no longer be brought before the House of Lords, but that a new tribunal should be created in Scotland for the purpose of these appeals. He had alluded to the opinion of Scotland itself as regarded the question of appeals, and he would now remind his noble Friend that not a single witness among those examined before the Committee had recommended such a project; but on the contrary, the whole of the testimony collected concurred in emphatically declaring that abolition of the appellate jurisdiction of the House of Lords in Scotch cases would be a most unpopular measure. He hoped the speech of his noble Friend would not hurt the Bill, as it was directed to a new and totally different matter—the abolition of the jurisdiction of the House of Lords with regard to appeals from Scotland.


said, that, if the Bill had been introduced into that House by one of the noble Lords who had voted for the exclusion of Lord Wensleydale from a seat in that House, he could have understood it; but he certainly was surprised that it should have been introduced by the noble and learned Lord on the woolsack, or by any one who had defended the prerogative of the Crown in creating Peers for life. As to the Resolution which they had passed, though they might perhaps have had some influence on the minds of Her Majesty's Ministers, they were worth no more than the paper on which they were written—they had effected no alteration in the law and constitution of the country, and Her Majesty's Government must be as well satisfied of the engagement by the Crown to create peers for life now as when they advised the Crown so to create Lord Wensleydale. There was one point to which he wished to draw attention. It was admitted by all—by those who voted in favour of Lord Wensleydale's sitting in that House and those who voted the contrary—that the power existed in the Crown of creating Peers for life, not having seats in Parliament. But if such Peers were excluded from seats in Parliament, what would be their position in the State? Take, for instance, the case of Lord Wensleydale. Suppose he were to be appointed Deputy Speaker of that House, or one of the Judges of Appeal, and suppose that the noble Lord were to refuse to accept the condition, he might say that he would accept them, if offered to him as to any other Member of their Lordships' House; but when he saw the onerous nature of the duties which he had to perform, and the condition to which they were joined, he might say, "I am old and infirm; I cannot undertake such severe duties." Suppose this case, how anomalous would be the position of Lord Wensleydale? He could sit in neither House of Parliament, and though the Resolutions of that House should prevent him from sitting there, it would not deprive him of the other privileges which attached to his position, and would be in the position of no other British subject. It might, indeed, be said that his position was like that of the Scotch or Irish Peers not having seats in that House; but those Peers might be returned as Representative Peers, or vote themselves for Representative Peers; whereas Lord Wensleydale could not be elected to the other House of Parliament, nor could he vote for a Member of the other House. He did not believe that noble Lords had fully foreseen the consequences when they passed the Resolution. From the moment that they passed the Bill they would cut down the prerogative of the Crown, and place its appointment in an anomalous position. The certain course ought to be not to debar those whom the Crown had raised to high rank from those privileges which every other British subject enjoyed. Although he did not deny that the Bill would effect an improvement in the constitution of their Lordships' House as a court of appeal, still he thought it had been introduced under objectionable circumstances, and that their Lordships ought to hesitate before they agreed to it.


said, he must acquit his noble and learned Friend on the woolsack, and his noble Friends on the Ministerial bench, of any inconsistency in proposing this Bill. They conscientiously believed that the Crown had the right to create Peers for life with seats in Parliament, and they so advised Her Majesty; but it turned out that they were mistaken.[Dissent.] It bad been ordered and adjudged by that House, as appeared from its Journals, that a Peer for life, as such, could not sit in Parliament. That was a declaration of the law of the realm; so long as that Resolution remained upon the Journals they had no choice in the matter, and the Crown could not insist upon a Peer for life being admitted to a seat in that House. If it were necessary that Peers for life should be appointed in order to assist in the judicial business of the House, legislation was indispensable before such persons could occupy seats among their Lordships. With regard to the case of Lord Wensleydale, he (Lord Campbell) regretted, as much as the noble Earl who spoke last, the position in which he was placed; and he had repeatedly implored Her Majesty's Government to exercise the undoubted prerogative of the Crown, and to create him an hereditary Peer. He would be rejoiced to see Lord Wensleydale in such a position; but he must say he thought that noble Lord was by no means in the situation described by the noble Earl (the Earl of Wicklow). Lord Wensleydale was not a Peer of Parliament; he had an undoubted right to represent a constituency in Parliament; he might become a candidate for the City of London, or any other Parliamentary borough; he might be returned, and there could not be the slightest objection to his qualification for a seat in the House of Commons. With reference to the statements that had been made respecting the conduct of judicial business in that House, he had heard the statement of the noble Earl (the Earl of Aberdeen) with great pain. For himself, he could only say that, for a period of nine years before he became Chief Justice, he had devoted himself to the study of the law of Scotland in connection with appeals, and he believed that at no period of his judicial life had he done the country more service, or more satisfactorily assisted in the administration of justice. He might also observe that he had practised for years at their Lordships' bar, and he believed he had more practice in connection with Scotch law than many of those learned individuals who had been created Judges of the Court of Session in that country. He would venture to say that, during the nine years to which he had referred, justice was as satisfactorily administered in their Lordships' House as in any court in Westminster Hall, and he believed that if a Bill were introduced to deprive the House of Lords of jurisdiction in the case of Scotch appeals, and to appoint a Court of Appeal to sit in the Parliament House at Edinburgh, petitions against such a proposal would be presented from every city and borough in Scotland. He would take upon himself to assert that the universal voice of Scotland was in favour of the maintenance of the appellate jurisdiction of that House.


My Lords, I shall give my support to this Bill, because I understand it has been recommended by the Committee for the purpose of effecting an object which all parties agree to be most desirable—namely, to provide against an existing evil and to apply an adequate remedy. Your Lordships should not go beyond the necessity of the case, nor seek, by means of the present Bill, to pronounce an opinion on the general question of life Peerages—a matter which has given rise to much controversy, but one in respect of which I still retain the same sentiments that I have from the first expressed. If the Bill had declared an opinion binding the Crown for the future upon a subject relating to its own prerogative, nothing should have induced me to support it; but I do not believe that such has been its intention; nor can I think that such will be its effect. All lawyers will concur in saying that, had the Bill been designed to bar by law the future action of the Crown, it would have been drawn up in a very different manner from that in which it has been framed. Where a prerogative of the Crown is taken away, it must be done in express terms; for everything that is doubtful must be construed in favour of the prerogative. For my own part, I acquiesce in the measure because it has been so constructed as to limit its provisions to the particular machinery necessary for the purpose of introducing into your Lordships' House two persons qualified to assist in the administration of justice in that House, regarded as a court of appeal; and after making the necessary provisions for that purpose, it leaves the general question of the prerogative of the Crown exactly where it found it. As for the Resolution whereby it has been sought to exclude Lord Wensleydale from this House, it has not received the sanction of the three branches of the Legislature, and cannot, therefore, have the force of an Act of Parliament. It is nothing more than a declaration of opinion, which, having been promulgated to-day, may be as easily abrogated to-morrow. There are numerous instances on your Lordships.' Votes of declaratory Resolutions, which at one time commanded your cordial approval, and at another were as emphatically rejected. Your three conflicting decisions in the matter of the "Banbury Peerage," and your reversal of your decision with respect to the prerogatives of the Scottish Peerage may be cited as cases in point, and prove most conclusively that declaratory Resolutions, such as that now in question, never had, nor pretended to have, the force of law.


said, that by the Bill, as he understood it, the House agreed to grant to Her Majesty an extension of Her prerogative beyond that which, according to a former decision of their Lordships, was supposed to exist; but in granting that extension of the prerogative they placed upon it a limit by providing that not more than four of those life peerages should be created at any one time. It was with that view that he gave his support to the Bill.


said, he still thought that the Bill would not affect the general question of the prerogative of the Crown in reference to the creation of life Peerages.


said, he wished to avoid making any declaration which would operate injuriously on the prerogatives of the Crown; but he believed that if the Bill should pass, the Crown would not have the power of creating any life Peerages beyond those whose creation it expressly authorised.


said, he considered that the object of the framers of the measure was merely to provide a special remedy for a special evil; and if it had not been so framed as to leave the Royal prerogative untouched, there was a manifest defect in its construction.


said, the noble Earl had declared that the Bill extended the prerogative of the Crown, while the noble Lord the Chairman of the Committee said that it diminished that prerogative.


I said that it extended the prerogative, but limited the exercise.


he did not apprehend that the object of the Bill was either to extend or to diminish the prerogative of the Crown. The Resolution which they had passed went to this—that the Crown had no such right to grant Peerages for life as would enable the grantee to sit in Parliament. He did not believe that his noble and learned Friend (Lord Campbell) would have used such language in Westminster Hall as he had used in that House on the subject. In Westminster Hall he would have told the advocates or the jury that the case had long been decided by opinion—that it had been affirmed by legal judgment over and over again. If the learned person whose peerage formed the subject of discussion insisted upon taking his seat, how could they prevent him? Why, that House was the Queen's House. When they talked of building the House, they did not talk of the House of Lords, but of the Queen's Palace at Westminster; and although the place in which they sat was popularly called "the House of Lords," it was, according to the Constitution, only the apartment in the Queen's Palace in which she chose to convene the Council. They had got into a great difficulty, and they must get out of it as they best could, but they must not think that when they sent the Bill to the House of Commons they had got out of the difficulty of adjudicating on the prerogative of the Crown.


My Lords, I am perfectly aware of the difficulty of the position in which the whole of this question has placed the House; but I trust that the discovery of the way out of it is not so hopeless as my noble Friend behind me (Earl Fitzwilliam) appears to suppose. The facts of the case are these:—the noble Lord at the head of Her Majesty's Government, receiving information which has been justified by all that has transpired in the Committee and by its recommendations that the appellate jurisdiction in this House is not in a satisfactory state, thought it desirable to reinforce this House with regard to the numbers of law Lords who are accustomed to attend to the judicial business of the House. Being aware, as many most eminent men have for years been, of the inconvenience of increasing the number of hereditary law Lords—they not being in all cases able to provide for their families, so as permanently to strengthen your Lordships' House—and being advised that it was entirely within Her Majesty's prerogative to create life Peers, he took it upon himself to recommend Her Majesty to confer such a peerage upon a noble Lord, who was to be introduced into this House. I think that that course was a wise one; and I believe that if it had not been disputed it would have added much to the strength of this House, and would have led to no inconveniences whatever. This, however, was not the opinion of the House. As soon as the fact of this creation of a Peer for life was known, notices were given, and it was stated that to such a course there existed objections of both a legal and a constitutional character. I do not intend to renew that discussion; but I may, perhaps, be allowed to state that my individual opinion remains unchanged, and that I still think that the House was wrong both in substance and in the mode of doing what it did in the case of Lord Wensleydale. I cannot, however, shut my eyes to the fact that, whether right or wrong, the House came to that conclusion—that the whole party opposite, without one exception, a large portion of the persons who sit in the middle of your Lordships' House, and are supposed to belong to no party, and a considerable number of our own supporters on this side of the House, came to the conclusion that Her Majesty's Government had taken an unwise and an injudicious course. I am obstinate enough to remain of the opinion that we were perfectly right, and very much regret that that decision was come to. But it was come to. Your Lordships in the most formal manner came to the conclusion not to admit Lord Wensleydale to take his seat. The Queen might have created such a number of hereditary Peers as to change the result of the vote, but I think no one would have advised the adoption of such a course. My noble and learned Friend (Lord Campbell) frequently recommended that we should at once get out of the difficulty by creating Lord Wensleydale an hereditary Peer. I appeal to your Lordships whether the pursuit of such a course would not have been a complete abandonment of the question? The course which Her Majesty's Ministers were induced to take was this:—Thinking that there was something like a collision between the Crown and this House, and that even the appearance of such a state of things was an anomaly which it was very desirable to remove, they thought that by appealing to the patriotic feelings of the Members of this House a means might be adopted of settling the difference by the best possible means, viz., with the concurrence of the Crown and both Houses of Parliament. With that object they acceded to the wish expressed by a noble and learned Lord, and afterwards by a noble Earl (the Earl of Derby), that the House should go into the whole question of the appellate jurisdiction, and should see what arrangement could be made which should be really beneficial to the public and should strengthen instead of weakening the character of this House. We went into that Committee, and I am bound to say that there was very little party feeling shown on either side. Although on certain points there was great difference of opinion, yet all manifested the same desire to come to a satisfactory result. I think one of the points on which we all felt most anxiety was, that we should avoid doing anything which should throw blame upon the course which had been taken either by the Crown or by this House. When the noble Earl (Earl Fitzwilliam) expresses his surprise that Her Majesty's Government should have anything to do with this Bill, and complains of the unfortunate position in which Lord Wensleydale will find himself placed by it, I must ask him to consider in what position Lord Wensleydale would be if no Bill of this sort were passed, unless—which I presume he would not recommend—the Government had entirely withdrawn from the question, and created that noble and learned Lord an hereditary Peer. As it is, the principle of having some life Peers has been fully admitted. I should have infinitely preferred that no limitation should have been placed upon the Crown in regard to this. The reason which most weighed with your Lordships, however, was the fear that in different days an abuse of this prerogative might take place, and that it was therefore thought right to place some limit to it. As Her Majesty's Ministers have never thought it desirable that this prerogative—which they still believe the Queen to possess—should be abused by the creation of a large number of Peers, they thought it worth while to make it the subject of a satisfactory arrangement by consenting to a limitation. We have, I think, by our recommendations, done that which will strengthen the appellate jurisdiction of this House, and which will—if I may be allowed the expression—at the same time exclude poverty from it. We shall see Lord Wensleydale sitting in virtue of his life patent, and we shall have come to this decision in a dignified manner, which will rather do good than harm to the House of Lords in the opinion of the public, and will show that we have been actuated by a practical desire to come to a satisfactory conclusion upon this subject. I have thought it necessary to state thus much, because I should be sorry that any one should entertain the opinion that we were wrong in the course which we took, still less that we admit that this House can by its Resolution bind the Crown.


said, he could not resist rising to express his entire concurrence in the tone and manner of the statement just made by the noble Earl. The noble Earl had expressed himself with that fairness and straight-forwardness which had characterised him throughout the whole proceedings of the Committee on this subject, and he had placed the arrangement entered into between the two sides of the House exactly in the light in which he (the Earl of Derby) himself had viewed it. There was no difference of opinion between them as to the desirability of coming to some general concurrence on this subject, and he entirely agreed with the noble Earl as to the nature of the Bill now before them, which he hoped would receive the speedy assent of both Houses.

Motion agreed to: House in Committee accordingly.

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