§ Order of the Day for the Third Reading read.
§ THE QUEEN'S consent signified.
§ Moved, That the Bill be now read 3a.
THE EARL OF CLANCARTYMy Lords, I am sensible that to object to a Bill for the first time at its third reading is both irregular and inconvenient; but in the present case no option has been afforded me, for although the measure now before the House is the most important that has ever been brought under its consideration, affecting as it does the very principle of its constitution, it has been introduced and carried to its present advanced stage with such unusual celerity, that I have been deprived of the possibility of expressing my opinion upon it earlier. The Report of the Select Committee upon which it is founded having only been issued, and unaccompanied by the evidence, on last Saturday week, I felt assured that the House would have been allowed time to consider the important question it dealt with along with the evidence taken upon it before any further legislative proceeding, and in confidence of this ventured to absent myself, not certainly on Parliamentary duty, but to attend for a few days the Paris Cattle Show. What, however, was my astonishment at learning on last Monday night at Paris, that not only had the present Bill been presented to your Lordships, but that on the previous Friday, within a week of the first issue of the Report, and before its re-issue with the evidence, the House had given it a second reading, and that it was to be committed on the ensuing Tuesday! Under these circumstances it was manifestly impossible for me to record a vote, or express an objection against the Bill or any of its provisions before its arriving at its present stage, I therefore trust I may claim the indulgence of your Lordships for a very few minutes. While, my Lords, I regret, and have, I think, some reason to complain of the apparent precipitation with which the Bill has been hitherto carried forward, I am free to admit that it has met with a very marked acceptance on the 1060 part of the House, and that it has come recommended by a very high weight of authority, for undoubtedly the Select Committee appointed to consider the question of the appellate jurisdiction of this House was chosen with the utmost impartiality, and included, from both sides of the House, Peers of the greatest experience, learning, and influence, and to whose judgment in general the utmost deference is due; but deference has its limits, and may not be yielded against conviction. With an earnest desire to concur in the general feeling of the House in favour of this Bill, I can, truly say that I have examined most carefully into the reasons by which it has been supported; but, admitting the importance of improving the appellate jurisdiction and retaining it in this House in the manner the most satisfactory to the public, I see nothing in the case to call for or warrant the institution of life peerages. It is a proposition at direct variance with a recent Resolution of your Lordships, and with every respect for the high authorities who have united in recommending it, I cannot but regard it as a practical abandonment of the prescriptive title by which the Barons of England have been ever hitherto regarded as the hereditary counsellors of the Crown, and the hereditary guardians of the constitutional liberties of the people. I therefore desire to decline any share in the responsibility of such a measure. It has been represented to me that the peerages for life are to be limited to four, and that the Act will therefore be a restriction upon the Crown against the exercise of any real or supposed prerogative in conferring such dignities upon any greater number; but is that the opinion of those Members of Her Majesty's Government who prepared the Bill? Unless newspaper reports have done great injustice to the noble and learned Lord on the woolsack, he stated to your Lordships that the Royal prerogative had been left untouched, and another noble Lord (a noble Marquess, not now in his place), declared that the Bill would not have had his support if it contained anything binding upon | the future action of the Crown. Therefore, according to the views of those noble Lords by whom the Bill is offered for your acceptance, it must, notwithstanding any seeming limitation to the number of four,—it must still rest with the discretion of Ministers of the Crown to advise or not, as they may think proper, the creation of any greater number of life peerages. Why 1061 not leave the question as it was settled by the late Resolution of the House? What necessity is there for raising in this Bill any question about life peerages? There is nothing in the preamble to justify it, and the improvement of the appellate jurisdiction may be equally well obtained by its omission. Not only is the Bill silent as to any reason for the institution of life peerages, but the Committee, while recommending them in the Report, do not venture to assign the reasons on which they found their recommendation; it is only to be gathered from the evidence of Mr. Malins that an apprehension had been created in the minds of the Committee that, unless the peerages conferred upon eminent lawyers were limited to their own lives, there might be a danger of their successors being very poor Peers, as in the present practice of the law it was difficult to amass large fortunes. I do not think his evidence fully bears out that view of the case, nor, if the fact were even so, does it appear to me that wealth is a necessary qualification for the peerage. The lawyer, who has not been able to earn by his profession what may be termed a competency, would probably not be a man of that professional eminence that would point him out for advancement; but a lawyer whose abilities and learning have brought him into notice is commonly well rewarded by his practice, and in a position, after attaining to the bench, to make ample provision for his family. When it is proposed to elevate those to the peerage who have held high judicial offices, it is probable that such persons would be found, if not in affluent circumstances, possessed, at all events, of fortune sufficient for independence and respectability; and, if appointed to the offices now proposed, of Lords of Appeal in this House, the handsome salaries designed for them, which are not given for the purpose of mounting grand establishments and giving expensive entertainments, but simply as the due reward of public service, would go far towards making provision for those who might come after them in hereditary succession. But if the possible succession of a poor man to a peerage is an evil of such magnitude as to guard against it in the case of peerages held by Law Lords, you cannot stop there. Is there no danger, my Lords, of the introduction of poor Peers by the spendthrift habits of any of the sons of Peers already created? or of such as may be hereafter created with hereditary peerages, 1062 or even arising from the improvidence of existing Peers? These are cases quite as necessary to guard against as those of peerages conferred for judicial services. Desirable, however, as no doubt it is, that the Members of this House should be persons independent in point of income, and possessed of that real property that may give them a direct interest in the well-being of the country, and enable them to exercise a wholesome influence in their respective districts, there are other qualifications for a legislator quite as important, and the argument for life peerages would equally, if not more forcibly apply to insure this House against the admission of persons unworthy of the privileges or unfitted for the duties of Membership from incapacity, want of education, or from immorality of character. If the present constitution of this House is to be altered by legislation, public opinion will not ratify a measure which provides merely an inadequate security against the inheritance of peerages by persons of small fortune. Innovation cannot stop here, and should the principle of granting life peerages go further, what becomes of the independence of the House? With its independence its influence would be lost, and the abandonment of the principle of hereditary succession in the peerage may even imperil its continuance in the Crown. I cannot pass over another objection which the provisions of this Bill have presented to my mind,—your Lordships can hardly have considered in what position you are proposing to place the most highly qualified Members of the House. Surely, when peerages are granted to men whose learning and abilities have been tested by their having filled the highest judicial offices in the land, and who have been selected on that very account, the dignities conferred upon them should not be in any sense inferior to those of the rest of the peerage, yet from the tenor of the Bill it is manifestly designed that the non-hereditary peerage is invented for those only who are learned in the law. I am, I confess, surprised that such a measure should come before your Lordships recommended and approved of by noble and learned Lords. The legal profession will regard it as a very bad compliment, and I should doubt that, except for the sake of the salary proposed for the Lords of Appeal, any person of real eminence would accept a title upon such conditions. The Bill, I may further observe, is open to the objection 1063 of not providing for any rights of precedence, incident to the life peerage, for the Peer's family; these, though of little comparative value, are not without their importance, and should not be left in doubt. I will not longer trouble your Lordships by urging objections to the Bill, which I am aware must at this stage be unavailing. While I appreciate the importance of having the appellate jurisdiction improved, I cannot regard it as otherwise than most unfortunate that, without any necessity, a most dangerous innovation should have been proposed in the constitution of the House. Practically, the appellate jurisdiction has long since been exercised only by Law Lords, and it may be said to have been formally transferred to them when, in 1844, after the Twelve Judges had expressed their opinions upon the writ of error in the case of the Queen v. O'Connell, the lay Peers, who had formed their judgments upon the opinions then delivered, at the suggestion of Members of their own body consented not to vote, and left the case in the hands of the few Law Lords present. I do not think, under the circumstances, that the House has any great interest in retaining a jurisdiction merely nominal as regards the great body of the Lords, and if it cannot be retained and improved without abandoning the principle of hereditary succession in the peerage, it is better, far better, that it should be given up. I shall conclude, merely observing, that my chief object in now addressing your Lordships has been, for so humble a Member of the House could not hope to do more, to relieve myself from the responsibility of assenting to a measure which I deem to be fraught with danger to the constitution and future independence of this branch of the Legislature.
§ Amendment moved to leave out "now" and insert "this Day Six Months."
§
LORD DENMAN moved, that the Bill be read a third time that day three months. He had listened with much attention and respect, in the last autumn, to an explanation by a noble and learned Lord (Lord St. Leonards) as to the true state of the House as a Court of Appeal, in answer to certain reflections thrown upon it by the Solicitor General; and he now must comment upon the evidence before the Select Committee of their Lordships' House, which appeared to state that there was no faith to be given to appellate Judges, because they walked like Peripatetic philosophers, and to declare that all the wisdom
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was in the wig. He would first, however, read an extract from a letter from his, Father to himself, respecting the O'Counell case, as to which case Sir Fitzroy Kelly, in his evidence before the Select Committee on their Lordships' Appellate Jurisdiction, had said:—
There was scarcely an individual at, the Bar of England, or in the country, who really watched and understood the course of that proceeding, who was not perfectly satisfied that if, instead of Mr. O'Connell, the appellant in that case had been some factory agitator, in a low class of life, from Lancashire or Yorkshire, the judgment of the Court of Queen's Bench, in Ireland, would have been affirmed almost without argument.
Now, it so happened that the late Lord Chief Justice wrote to him, on September 19th, 1844, as follows, in reference to the O'Connell Judgment, in answer to a letter from him:—
And now I must thank you for your remarks on the great case, I am very glad you take the same view of it that I do, and feel the value of your testimony, that I should have said the same, if the case had come on under the most ordinary circumstances. I take some credit for my decided line on the jury question, which must check a most mischievous practice, and will probably lead to the reform of monstrous abuse now established and growing in Ireland. I have received information to this effect from a trust-worthy quarter at Dublin. I am highly amused with the respectable Tory Editor, who laughs at the crotchet of trial by jury; but what does he say to his compatriot Judge, whose language was ten times stronger than mine.
The second point, at first sight, appears to be merely technical, but in truth it goes directly to the security of public justice, and I believe the profession to have become nearly unanimous on that doctrine, throwing aside their first impressions for the opposite opinion, as soon as they really examined the authorities. I have revised the report of what I said, and shall direct a copy to be sent from the House of Lords to you.
He did not believe that their Lordships, would attribute less impartiality to the other noble and learned Lords, and reminding their Lordships that Lord Wharn-cliffe requested the lay peers to abstain from voting, "in order to preserve the appellate jurisdiction of the House;" and that the Earl of Stradbroke would have voted if a noble Marquess had not prevented his doing so, solely on account of his and other noble Lords not having heard the whole of the argument in the case. His Father addressed their Lordships (more strongly than he otherwise would have done, which he afterwards regretted), believing that they would exercise their right to vote; and what did he say relative to the opinion of the noble and learned Lord (Lord Lyndhurst), who now,
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in spite of extreme old age, treats all subjects, especially the present one, with incomparable vigour?—
I heard my noble and learned Friend (said the late Lord Chief Justice) with the admiration I always do, when he laid down the rule on this subject. Whether, in point of principle, certain cases were good law, assuming that they ought to be rejected, if proved to be founded on mistake; nor did any one impugn the right and the duty to examine the legal proposition.
He reminded your Lordships that you are not bound to do more than respect in the highest degree, and consider with the utmost care, the opinions which may be given to you by the Judges. But you have a duty of your own to perform. Your consciences are to be satisfied; your privilege affords you the assistance of the most learned men living: but your duty forbids you to delegate your office to them.
The next case mentioned by the late Lord Chief Justice involved a like principle, and the termination of it reminded him (the present Lord Denman) of one of the subjects of grievance laid hold of by the Solicitor General last autumn, and in his evidence; namely, the so-called grievance of the Court being divided, and the judgment of the Court below being thereby affirmed. The late Lord Chief Justice goes on:—
Did my noble and learned Friend (Lord Brougham) feel himself fettered by this unanimous opinion of the present luminaries of Westminster Hall? By a most powerful argument he sought to overthrow their conclusion, and strenuously exhorted your Lordships to dissent from it. Nor did he stand alone; others among us concurred with him in holding the former principles to be just, and the reasoning of all my learned brethren to be insufficient to confute them. Your Lordships have not forgotten the termination of that case. Those of your Lordships who took a part in the discussion were equally divided, the consequence of which was, that the judgment of the Court below stood affirmed, deciding against the dicta of those most venerable and distinguished individuals.
Those great authorities were, Lords Mansfield, Ellenborough, Kenyon, Tenterden, Lord Chief Justice Gibbs, and other learned Judges, and Lord Stowell, on the subject of marriage, and not the slightest surprise escaped his father's lips on such a course of proceeding, as affirming the judgment of the Court below, on the Law Lords being equally divided, although it Was in so grave a case.
§ But there is a heavy charge against the noble and learned Lord (St. Leonards) as to the case of Shortridge v. Bosanquet. Mr. Solicitor General declares in his evidence that he spoke a whole day opening the case in that noble and learned Lord's absence, and that judgment was given by 1066 him without hearing or knowing anything of the leading counsel's opening address; but the evidence of Mr. Roundell Palmer and Mr. Charles Clarke proves that the opening was very short, lasting only two hours (which is proved by a reference to the record of the time which speeches take, being always made), while the speech was so unimportant that the junior had taken no note of it, though the noble and learned Lord tried to obtain one, and no one at the time made the slightest complaint of the case (with which the noble and learned Lord confessedly took great pains) not being fully understood. Perhaps an adverse judgment may have elicited this imaginary dissatisfaction.
§ Much of the evidence before the Select Committee shows great contentment with the present appellate jurisdiction; and if their Lordships would only apply the means in their power of judging—either as a sort of grand jurymen or as lay assessors, hearing the whole of every case—they would form such a Court of Appeal as the world has not seen. Vice Chancellor Stuart, in his evidence before the Select Committee, alleges that he cannot conceive a case in which their Lordships are not capable of doing justice. Such men as the first Lord Wharncliffe, who was considered equal to a Judge, and Lord Lauderdale, who was brought up to the Bar, and as an appellate Judge highly praised by Lord Eldon, still existed among them; and the rising generation might emulate such honours by a legal education. Though he was not bound to say anything in praise of the Lord Chancellor (who has a leaning to the decision of a single Judge of Appeal), he must do him the justice to say that, although an equity lawyer, he thoroughly mastered the difficulties of the common law and of the criminal law, and that he may easily surmount any remaining impediments to his thorough acquaintance with Scotch law. Too great love of technicalities, however, does harm, and English and Scotch witnesses give instances of their leading to erroneous conclusions.
§ The present Bill would not increase the judicial staff of the House; for, although in 1823 [See 2 Hansard, ix. 1322], Lord Eldon proposed that the (£4,000 a year) retiring pension to Chancellors should not be paid unless they attended to hear appeals in this House, yet notwithstanding the increase to £5,000 a year, retired Chancellors are not bound to attend; and three noble and learned Lords have 1067 attended voluntarily for many years, to ensure the uniformity of the law, for which they deserve most hardly-earned thanks. It has been said by one of the witnesses that no future Lords Chief Justices or other sages of the law can, as members of the Bar, ever earn sufficient to maintain the dignity of the peerage; but if one be Attorney General long enough, he may amass as much wealth as his predecessors. One of the best Judges of Appeal (in the Privy Council) is already wealthy enough, and, it is said, has twice refused that dignity. Judges, also, may have private fortunes, combined with great public spirit both in the equity and common law courts. It would be ungracious to make the attendance of retiring Chancellors and Judges (who may be peers) imperative; but unless the Legislature did so, the additional life peers would not constitute a larger judicial body than the present.
§ He should recommend such of their Lordships as in future hear appeals, to begin with a fresh case, and to attend upon it until its conclusion. And now with regard to appeals themselves. His Father always waited to the latest moment with a jury, in order that the verdict might be entered in such a way and such questions be asked of the jury as would render a new trial of any sort unnecessary. He himself had been with his Father till two o'clock in the morning, in Guildhall, waiting for a doubtful decision. And at the present time the Lord Chancellor is so freed from all other duties, except those connected with this House, that neither the sitting with the Lord Justices, nor presiding alone in the Court of Chancery, nor attending Select Committees, need interfere with his presiding at the House of Lords on appeals; and the local knowledge of Peers, as well as their experience and independence, may add greatly to the efficiency of this tribunal.
The change in the constitution proposed by this Bill is very great. From what source does it emanate? from that which proposed to create a judge a life peer in 1852—from a noble Lord whose relative (Lord Minto) still thinks the power of creating life peers of Parliament inherent in the prerogative of the Crown; and when on the subject of the constitution, he might mention the fact that his late Father wished the present Lord Wensleydale to succeed him as Lord Chief Justice of England—who more fit therefore to be a hereditary peer? and to advocate the right of creation of an unlimited 1068 number of peers for life, if such be the prerogative of the Crown? So important did his Father think the appointment of another than the noble and learned Lord, Chief Justice, that he wrote a letter of remonstrance to Lord John Russell against his appointment, not from any ill will, for he was incapable of malice, but on account of what he considered his unconstitutional conduct in the case of privilege in the House of Commons. He (the present Lord Denman) strongly objected to this step, and his lamented Father (from the pressure of disease) was most indignant at his doing so; but still he was ready to incur all the consequences of that act of remonstrance by his Father; and as a noble Earl (Earl Fitzwilliam) had said, on a previous stage of this Bill, that the Resolutions of their Lordships' House might be set aside by other Resolutions (as in the case of Wilkes's expulsion from Parliament) he begged to remind their Lordships that no Resolution of either House of Parliament could stand, unless it were founded on the law of the land; and, that where an enabling statute is required, as it was by the House of Commons in order to the doing of a particular Act, they might, as in the present case, conclude that the Act would not have been legal without such statute. He felt sure that the noble and learned Lord would, if then Chief Justice, have acted as his Father did.
§ The recommendation of the Select Committee as to the continued attendance of lay Peers was quite disregarded, and this Bill would only constitute another Court with a small number of Judges.
§ As their Lordships were impatient to divide, he would refrain from further observations.
§ THE EARL OF DERBYMy Lords, I should be sorry if your Lordships were to proceed to a division before an answer had been given to the objections urged against this Bill by my noble Friend behind me (the Earl of Clancarty). With regard to the objections of the noble Lord who has just sat down, I must say that, though I listened with great attention, I am very nearly as ignorant of their meaning as I was before the noble Lord rose. The arguments of my noble Friend behind me are, on the contrary very clear and distinct, but I trust I shall be able to convince him that they may be easily answered. In the first place, my noble Friend complained that there has been great haste in 1069 forwarding this Bill through the House. It is true that no very great length of time has elapsed since the Committee appointed to consider the question to which the Bill relates presented their Report to your Lordships; but the noble Lord must not infer from that fact that the measure has been hastily adopted. My noble Friend says he places great confidence in the Members of the House to whom the consideration of the matter in Committee was referred; and I can assure my noble Friend that in the whole course of my Parliamentary experience I do not remember any subject which has been more calmly, deliberately, and impartially sifted than this most important question with regard to the appellate jurisdiction of your Lordships' House. My noble Friend must bear in mind that, though no long period has intervened between the presentation of the Report and the introduction of the Bill, the House was placed, by the production of that Report, in a position of increased difficulty in respect to its appellate jurisdiction. It was already sufficiently embarrassing that there should have arisen a controversy which placed this House in apparent antagonism with the Crown on a question of privilege, and which put a noble and learned Lord, whom, from his high personal character and his great attainments, your Lordships would have been happy to receive amongst you, in the anomalous and distressing position of having received from the Crown a title of honour which did not confer upon him those privileges which it was the obvious intention of Her Majesty should accompany that title. But, in addition to these difficulties, the inquiries of the Committee had almost placed the appellate jurisdiction of your Lordships' House in abeyance for a time, because they must have thrown very considerable doubt, not upon the actual exercise of that jurisdiction, but upon the sufficiency of the provision made for its exercise, and therefore must have tended to shake the confidence of the public in its decisions, and placed the law Lords in a situation of some anxiety and embarrassment, from which it was desirable that they should be relieved as soon as possible. It is not to be denied that, while the witnesses examined before the Committee bore willing testimony to the zeal, learning, and ability displayed at all times by the noble and learned Lords who practically exercise the appellate jurisdiction of this House. They also showed 1070 that there is among the leading Members of the Bar a very decided opinion that the composition of the great appellate tribunal of the nation is not on the whole satisfactory. It appears to be admitted on all hands that there are elements of uncertainty, not as regarded the competency of the law Lords in attendance—for on that point there could be no second opinion—but with reference to their number. The unsatisfactory result of this state of things is, that sometimes two noble and learned Lords of equal ability were divided in opinion on the case under consideration, while on other occasions a single noble and learned Lord, who was assisted—I will not say by the opinion, but—by the presence of two lay Peers who took no part in the proceedings, had to perform the delicate and difficult duty either of reversing or of affirming a judgment pronounced by the united Judges of the Court below. The noble and learned Lord (Lord Denman) concurs in an opinion not unfrequently expressed, that it is desirable that lay Lords should take a real and practical part in the appellate jurisdiction of your Lordships' House. Now, I do not mean to undervalue the advantage of Peers not connected with the legal profession directing their attention to the consideration of the law and the investigation of legal questions; but, when the law is to be solemnly decided by way of appeal from the judgments of the highly qualified persons who preside in the various Courts throughout the country, I cannot but think that it is of the first importance that such decisions of the law should rest upon the gravest and most indisputable authority of this House. And I also think that if the lay Lords should take upon themselves to go counter to the opinions of the learned individuals who by their previous professional practice and their high reputation have won the honour of a seat in your Lordships' House, such a proceeding would be highly detrimental to the administration of justice, and would shake all confidence in your Lordships' House as a court of appeal. The question, then, which the Committee had to consider was, how these various difficulties might best be solved. In the first place, there was the difficulty caused by the belief, on the part of the Queen's advisers, that Her Majesty had, by virtue of Her prerogative, the power of conferring peerages for life. A considerable majority of your Lordships' House, however, came to the conclusion 1071 that the Crown's prerogative gave no such power, and that even though it did the exercise of such a power would be exceedingly dangerous. We went into Committee, however, not with the view of ascertaining whether the Crown had or had not that power, but for the purpose of inquiring whether the appellate jurisdiction of the House stood in need of amendment; and, if so, whether it would be possible to devise, in order to its amendment, any plan preferable to that of creating an unlimited number of non-hereditary judicial peerages. The Committee was, with one exception, unanimous that it was most expedient that the supreme appellate jurisdiction should be retained in your Lordships' hands—that its constitution as an appellate tribunal should be strengthened, and that means should be taken to obviate the inconveniences of our having, perhaps, but a single Judge to reverse the decisions of the courts below, or the still greater inconvenience of our having but two Judges equally divided on the point referred to their consideration. That exception was the noble Earl opposite (the Earl of Aberdeen), who thought that Scotch appeals should be referred to an appellate tribunal in Scotland, or, at least, that the suggestion to that effect was worthy of consideration. With this qualified exception, the conclusion of the Committee was unanimous that your Lordships House should continue to be the great court of final appeal for the nation, and that it should consist of not less than three Judges. Under the present constitution of the House, it was not possible to secure the infallible attendance of three eminently qualified Judges, and hence the necessity for the Bill now under consideration. As things now stand, the attendance of all the law Lords, with the single exception of the Lord Chancellor, is absolutely gratuitous and voluntary. It is not more their duty than that of any other of your Lordships to attend at the hearing of appeals. It so happens that of late years we have had the good fortune of having among us an unusual number of learned men connected with the profession of the law, willing and qualified in every way to conduct our judicial business; but we cannot be certain that this will always be the case, nor should we forget that it has occasionally occurred that owing to the accidental absence of some of the law Lords, appeals have been argued before two, and sometimes even before one, of such Peers; and this 1072 circumstance has given rise to considerable dissatisfaction. It may naturally be asked why the Committee did not recommend an addition to the law Lords holding hereditary Peerages?—a measure which would involve no change in the constitution of the House. But there are manifest objections both to the needless multiplication of hereditary Peerages and to the introduction into this House of an unnecessarily large number of lawyers. And I may further observe, that we have been told by my noble Friend on my right, that the Judges selected for judicial office here are not likely to be qualified for that post, unless they are persons who have realised a fine income by their professional practice; but the attainment of large fortunes is so rare in these days, that year after year there would be a smaller number of lawyers willing to saddle their successors with an hereditary peerage. At the same time, the Committee felt it absolutely necessary that we should have in this House, for the purposes of his appellate jurisdiction, the services of the most eminent lawyers of whom this country can boast. Well, then, it seemed very desirable that these learned persons should be Members of this House, while it was admitted that you could not always persuade eminent lawyers to accept the prospective burden of an hereditary peerage. What, then, were we to do? It appeared to the Committee that the most obvious mode of proceeding was to enable the Crown, as I should say, to appoint a limited number of Peers for life—official Peers—Peers appointed in consideration of the discharge of certain duties, and no more hereditary Peers than the right rev. Bench opposite, who feel that no degradation and no discredit is cast upon them from inability to transfer their peerages by hereditary succession. Now, I can perfectly understand that, if a peerage were conferred as a mark of honour and distinction, there would be a sense of inferiority on the part of such a Peer when created for life only; but when a person receives a seat here for the discharge of a specific duty, in virtue of which, and in order to give additional dignity and importance to his office, the Peerage is conferred, I cannot conceive that there is any degradation in his acceptance of the title for life only. Upon full consideration, it appeared to the Committee that it would be quite sufficient if, in addition to the noble Lord who at the time might occupy the woolsack, there were always two men 1073 of high eminence possessed of these official peerages, and bound to give their constant services to the House and to the public in hearing appeals from the Courts below. It was also felt that it was impossible to bind upon them the obligation of perpetually discharging such important and most laborious duties without an adequate salary, particularly as in the positions they before held upon the bench they would be entitled to a retiring pension. As I have before remarked, the great objection to the present constitution of the court is that the services of its members being voluntary and unremunerated, you are never sure of obtaining the number necessary for the proper formation of an appellate tribunal. That being the case, it was almost the unanimous opinion of the Committee that the Lord Chancellor should be assisted by two Peers, who should be regularly bound to perform the duties of salaried officers. The question then was, how to reconcile the conflicting opinions of those who contended in favour of the prerogative of the Crown to create any number of life Peers, and those who denied the existence of that prerogative? Now, I believe this Bill to be so worded as not to bind either one party or the other to renounce its opinion on the subject. The farmers of the measure on both sides were animated by a feeling of mutual respect, and were not desirous that either the supporters or the opponents of the prerogative should be obliged to alter in any way the views they had previously maintained in the discussion of the question. Our object was not to declare what was the actual state of the law with regard to the creation of life peerages, but to declare for the future with respect to the appellate jurisdiction of this House, and I confess that it would be to me a subject of the deepest possible regret if the Bill which we have recommended for the attainment of that object should not receive the assent of both Houses of the Legislature. It has been agreed to, after a most laborious investigation by persons of different opinions, but imbued with an earnest anxiety to promote the public good, and they have arrived at a conclusion which I may venture to call almost unanimous. They have had exceeding difficulty in framing the Bill so as to effect the object upon which they were all agreed, without at the same time calling in question the recorded opinions of everybody. For my own part, although I cannot go quite so far as the noble and 1074 learned Lord Chief Justice, and say that the decision of the House of Lords in this matter is a final and authoritative statement of the law, I do contend that your Lordships' decision is an authoritative declaration of what the law is with regard to the prerogative, and that nothing short of a contrary judgment by the same tribunal can alter the law as thus laid down. That, however, was not the opinion of the Government, and the question was,—Can we frame the Bill in such a manner as not to call upon the Ministry to pronounce in it a condemnation upon the Vote they previously gave, and, on the other hand, not to commit the body of the House of Lords to a proceeding which might appear inconsistent with the stand they made—and, I think, most wisely made—in defence of the hereditary character of the peerage. The course taken in order to accomplish this end is the introduction of a measure which will practically enable the Crown to grant certain salaries to certain persons qualified in the manner described in the Bill, and to issue to them a writ of summons whereby they will be entitled, so long as they hold the office to which they have been raised, to all the privileges and advantages of a life peerage. Observe that the peerage for life is conferred upon these persons by a writ of summons by the authority of Parliament, and such a creation is consequently not open to the objections we urged against the right claimed by the Crown to constitute these life peerages by its prerogative alone. My noble Friend the Lord President of the Council has recorded Her Majesty's assent to the introduction of this measure; and this assent is equivalent to a declaration on the part of the Government against any supposed abandonment of their opinion that the prerogative of the Crown is to a certain extent infringed by this Bill, because it is a mode of stating that the Crown, on the recommendation of its constitutional advisers, waives that portion of what they consider to be its prerogative. Probably many of your Lordships will agree with me that the Crown had no prerogative to waive, and that, therefore, no Royal consent was necessary; and, undoubtedly, if that consent had taken a more formal shape, and had been communicated to your Lordships as a Message, I, for one, should have experienced great difficulty in receiving such a Message and in consenting to the adoption of an Address in answer thereto, which would appear to 1075 imply a recognition of that prerogative. My opinion is, that the Bill extends within certain limits a prerogative which the Crown never before possessed; Her Majesty's Government believe that it restricts the prerogative of the Crown, but restricts it with the consent of the Crown itself; but whether that prerogative existed before or did not exist, Parliament is free to deal with this question, and we deal with it now in the sense of maintaining inviolate the hereditary character of the peerage in general, subject to this exception—that two individuals, eminently qualified by their judicial position, may have the rights of life Peers upon condition of discharging certain duties, by virtue of which duties they obtain a seat and vote in this House. Such is the conclusion to which the Committee have arrived. It appeared to them that, notwithstanding the eminent abilities of noble Lords who have presided over the appellate jurisdiction of this Honse, an alteration which should secure the attendance upon all occasions of qualified persons to hear appeals in this House would give great satisfaction to the public, and would materially increase the respect paid to this, the highest tribunal in the kingdom. We considered it right that those persons who were thus elected to a Peerage for life should sit and vote in this House, not only upon legal questions, but upon all questions upon a footing of perfect and entire equality with the rest of your Lordships. We thought that in advising the creation of those two peerages for life we should reconcile the various difficulties which existed, that we should relieve Parliament and the Crown from a position of great embarrassment, and enable an individual whose services will without doubt be of considerable value, and who is placed in a most unpleasant position through no fault of his own—for no one can speak of that distinguished personage without the highest respect—to take a seat in your Lordships' House; and, at the same time, we thought we should have secured the hereditary character of the peerage by the exception which we made of those who were entitled to seats in this House in virtue of a character strictly defined and regulated by the authority of Parliament itself. It was acting upon these views that I, for one, cordially supported the Bill introduced upon the part of Her Majesty's Government after the closest consideration of the evidence which was brought under the notice of the Committee; and I must confess 1076 that I should regard it as a matter of great regret that any alteration should be made in the measure which would tend to mar the agreement and unanimity with which the Bill has been recommended by the Committee to your Lordships' House.
THE MARQUESS OF CLANRICARDEsaid, he felt himself bound to express the very strong objections which he entertained to the Bill. The noble Earl, towards the close of his speech, had let out the real difficulty with which the Committee had had to contend, and which had led to the present measure. That difficulty originated in the different opinions on a point of constitutional law which had been expressed on different sides of that House by very eminent individuals, and the result had been that a compromise had been effected in matters which did not form a fit subject for a compromise. He objected to the Bill, upon the ground that it proposed to carry into effect a totally new principle; namely, the payment of Members of that House for the performance of what was in reality a strictly Parliamentary duty. Either their Lordships were fit to discharge the duties of a court of appeal, or they were not. If they were fit, they ought not to pay persons for the performance of those duties. The real fact was, however, that the House of Lords as a body had long ceased to discharge the functions of a court of appeal. They had, in fact, no more to do with deciding appeals than the benches upon which they sat; but so long as the exercise of their appellate jurisdiction continued to give satisfaction to the country, he saw no objection to the maintenance of that form, in accordance with which lay Lords were wont to come down to that House for the purpose of rendering the ceremony complete for proceeding with the administration of justice. It was, however, a dangerous proceeding, and one which, in his conscience, he believed to be calculated to lower the dignity of that House, to pay men for the performance of strictly Parliamentary duties, while that course was taken for the purpose of retaining a nominal jurisdiction in cases in which ninety-nine out of every hundred among their Lordships took no active part whatsoever. But, passing from the question of appellate jurisdiction, he should beg the House to consider the consequences which were likely to follow from the operation of the Bill in relation to the subject of the creation of life peerages. There could, he 1077 thought, be no doubt that under that operation the prerogative of the Crown, with respect to that subject, would be affected, one way or the other. That prerogative would be either extended or restrained; and whichever effect took place, the measure was equally objectionable. It was his opinion, as well as that of Her Majesty's Ministers, that the Crown might lawfully create Peers for life; but if the Bill were to pass, was there one of their Lordships who would contend that the Crown could, for the future, grant a life peerage without the consent of the Legislature? Noble Lords opposite maintained that the Crown had not the power to grant such peerages, and appeared to apprehend the most dangerous consequences from the exercise of such a power upon the part of some future Minister. But what did the Bill propose to do? To give the give the Crown the power of creating Peers for life for certain purposes. Now, let him ask those noble Lords whether they really believed that a step in the proposed direction having been once taken, the creation of life peerages would stop at the point laid down by the measure under their notice? For his own part, he should not only answer that question in the negative, but should further say, that in his opinion the power of such creation should not be so defined. Why, he would ask, should the creation of these peerages be restricted to members of the legal profession? Why should members of the military and naval professions be excluded from the privileges which it sought to confer? or, looking upon it in the light of creating a disability, why was it that the members of the legal profession should be made the subject of that disability, and deprived of the hope they had hitherto entertained, of gaining for themselves an hereditary peerage? For his own part, his objections to the Bill were so strong, that he could not refrain from expressing a hope that it would not pass into a law; but even if it should, he could never believe that it would pass the House of Commons.
§ EARL GRANVILLEsaid, he should not have thought it necessary to add anything to the very accurate statement which had been made by the noble Earl opposite (the Earl of Derby) of the course taken by both parties in the Committee, were it not for some observations which had fallen from the noble Marquess who had just sat down. It was difficult to understand what was really the objection of the noble Marquess 1078 to this Bill in connection with life peerages, he having himself voted that the question of life peerages should be referred to the Committee for Privileges. Apparently the noble Marquess objected to the Bill strongly upon two grounds; but upon neither of these grounds had he been able to gather very accurately what the noble Marquess's own views were.
§ EARL GRANVILLEThe first objection urged by the noble Marquess was the prejudicial effect which he imagined the Bill would have upon the manner in which their Lordships would for the future discharge their functions of appellate jurisdiction. He was not sure whether the noble Marquess would desire the immediate removal of the appellate jurisdiction from the House or not; but he thought that his argument seemed to be in favour of its removal. The noble Marquess said, "You are now going for the first time to confer salaries upon some Members of this House for discharging Parliamentary duties." But there were certainly two Members of that House—the Lord Chancellor and the Chairman of Committees—who discharged Parliamentary duties of the most important character, and who received salaries for their services.
§ EARL GRANVILLEwas not quite sure how the case was with regard to the Lord Chancellor; but he thought that the Act of Parliament diminished the salary of the Chancellor by £4,000 a year as long as he was paid that sum for the performance of his Parliamentary duties as Speaker of the House of Lords; and he was reminded by his noble and learned Friend near him (Lord Campbell) that Lord Eldon had for a time received £4,000 a year as Speaker of that House. Exactly the same thing occurred in the House of Commons—the Chairman of Committees there was paid for duties purely Parliamentary; and, whatever doubt there might be about the Lord Chancellor there could be none that the Speaker was paid purely for Parliamentary duties. The noble Marquess also objected to the Bill because it destroyed the fiction of the whole House exercising the functions of appellate jurisdiction. It was true that the Bill would put an end to the hitherto necessary fiction of having three Members to form a House, although 1079 two of them were Peers who only came down, probably, day by day, hearing a bit of the argument now and then, and confessedly having nothing to do with the decision. In place of that, however, it would ensure a quorum of men whose opinions were entitled to the greatest possible weight; and he thought that that was an improvement upon the custom under which one law Lord alone could decide. With regard to the question of peerages for life, he must say that the Government had by circumstances been placed at a considerable disadvantage. With all their strength and industry the Government had endeavoured to fight the battle of the Queen's prerogative with respect to the creation of life peerages; but they had unfortunately been deprived of all legal assistance on the occasion; while many of those who usually supported the Government, with their votes and speeches, were prevented from giving them their good offices. The noble Marquess, however, voted in the division which referred the question to the Committee for Privileges, and he (Earl Granville) had always seen, after that division, how difficult it would be for the Government to persuade the House to stultify itself by treating the decision of the Committee as of no avail. What then happened? The opponents of life peerages obtained a position from which, without having recourse to the most violent measures, which, he was sure, every one of their Lordships would have condemned, it would have been impossible to dislodge them. The question was as good as settled, and that, too, in a manner which placed the Crown, the House of Lords, and Baron Wensleydale himself, in a situation of the utmost difficulty and delicacy. In those circumstances, the Government thought it was worth while to see whether, the ground having been, as it were cut beneath their feet upon the abstract question, they could not attain the practical results of the step which had been taken in advising Her Majesty to create a life Peer. The chief objection to that measure was, that it introduced a principle capable of almost infinite extension; that Her Majesty might be advised to create not one but twenty life Peers, and that there was no security against the House being swamped by such creations. He need not say that, as far as the Government were concerned, that objection was entirely unfounded. What they wanted was to strengthen a little the number of law Peers in the House by means of life 1080 instead of hereditary peerages, and they also thought that a slur would be cast upon the Crown if Baron Wensleydale were not allowed to take his seat in virtue of the patent granted to him by Her Majesty. Although the Opposition objected to the creation of life peerages by the Crown, they were fully alive to the importance of preserving the appellate jurisdiction of the House, and expressed their willingness to facilitate the arrangements of the Government in that respect, provided they consented to limit the number of life Peers. He maintained that the Government had secured the great object which they had in view when they advised Her Majesty to confer a life peerage upon Baron Wensleydale, and had secured it, moreover, without making any but the slightest possible change in the constitution of the House. They had strengthened the appellate jurisdiction of the House by securing that, at all times, there should be present a sufficient number of persons able to perform judicial functions; and when the noble Marquess came forward at the last moment, but not till then, to attack the Government for what they had done, it would, perhaps, have been as well If he had told their Lordships what he himself would have proposed. No doubt there was something objectionable in the doctrine that life Peers ought to be created by the authority of Parliament; but when it was admitted on all hands to be desirable to have a certain number of such Peers, and when there was an actual collision between the Crown and the House of Lords on the question, he could not conceive any more constitutional mode of removing the difficulty than by the two Houses of Parliament, with the concurrence of the Crown, deciding what should be done. He admitted, without hesitation, that the present Bill did limit the prerogative of the Crown; but he submitted that a slight limitation of the prerogative was not too high a price to pay for a measure which removed an anomaly and subserved the interests of the public by strengthening their appellate jurisdiction without weakening the House itself.
THE EARL OF WICKLOWthought that that the Bill would, to a certain extent, improve the appellate jurisdiction of the House, although its advantages in that respect had been greatly overrated, for the new life Peers would no sooner be created than the old law Lords would cease to perform the duties which they 1081 had hitherto discharged. But he charged the Government with having carried their compromise to the extent of sacrificing the prerogative of the Crown, and nothing which he had yet heard had tended in the smallest degree to weaken that objection to the Bill. He regretted that Her Majesty's Ministers did not hold a higher tone on the Committee, one consequence of which was the introduction of this paltry measure, by which the prerogative of the Crown was in no small degree lowered.
§ LORD DENMAN rose to reply, amidst loud cries of "Order!" and "Divide!"
§ EARL GRANVILLEsaid, the noble Lord was quite out of order, as by the twenty-first standing order of the House no Peer could speak twice on any one stage of a Bill.
§ On Question, that ("now") stand part of the Motion, their Lordships divided:— Content 44; Not-content 4: Majority 40.
§ Resolved in the affirmative: Bill read 3a accordingly: Amendments moved and negatived: a further Amendment moved and negatived: Amendments made.
§ On Question that the Bill do pass,
THE MARQUESS OF CLANRICARDEsaid, he would take that opportunity of replying to the observations of the noble Earl (Earl Granville), and of explaining why he had delayed the expression of his views on this subject until now. The fact was, the Government ought to have put him on the Committee if they had been anxious to learn his opinions of the matter, and the Government, and not himself, were to blame that he had not been able to propound them before. It was the Government, and not he, who had shirked the question of life Peerages, by what was called the "compromise" effected by the Bill—for the Bill not only evaded that question, but it did not even embody the recommendation of the Committee. The Committee recommended that steps should be taken to reduce the expense of appeals, that especial attention should be devoted to Scotch appeals, but this Bill did not contain a single word upon either of those subjects. But the noble Earl, the President of the Council, said the Bill had been framed to meet the case of Lord Wensleydale; but it would do nothing of the sort, unless Lord Wensleydale consented to become a Deputy Speaker, and even then the noble and learned Lord would assume more the position of an officer than a Member of the House.
§ EARL GRANVILLEsaid, he must disclaim any responsibility with regard to the omission of the name of the noble Marquess from the Committee. It was usual for any noble Lord who moved for a Committee to prepare the list of its Members. His noble and learned Friend opposite, who moved for the Committee on this subject, submitted to him the list of names, and he believed he made one suggestion with reference to it, but he certainly would not have thought it his duty to propose the addition of the name of the noble Marquess who had voted in opposition to him. The noble Marquess had entirely misrepresented the recommendation of the Report—there was no recommendation about the saving of expense or improving the manner of conducting Scotch appeals. Nevertheless, he regretted that the noble Marquess was not on the Committee, because they might in that case have obtained a still better measure.
LORD CAMPBELLthought their Lordships had reason to complain that the noble Marquess had concealed within his own bosom some plan better than that proposed by the Government. He would say to the noble Marquess—
Si quid novisti reetius istis,Candidus imperti; si non, his utere mecum.He felt it right, at the close of the proceedings upon this Bill, to allude to the favourite scheme entertained by those out of doors who disapproved this measure—namely, to send all appeals before the Judicial Committee of the Privy Council. That would be a most unconstitutional course, because the members of that Committee held their offices during the pleasure of the Crown, and many questions arose between the Crown and the subject, which it would be very improper to refer to such a tribunal. Another objection to such an arrangement was, that although the members of that court were well able to get through the business now allotted to them, it would be utterly impossible for them, in addition, to dispose of the appeals which now came before their Lordships. If such a scheme were adopted, it would be necessary entirely to remodel the Judicial Committee of the Privy Council, and great expense would be entailed upon the country. By this Bill the public were called upon to pay £10,000 a year, in order to add to the judicial strength of that House; but three times £10,000 would be required if the Judicial Committee 1083 of Privy Council were remodelled, and enabled to dispose of the legal business now brought before their Lordships. The only plan that had been suggested for creating an appellate jurisdiction would be most unconstitutional, most impracticable, and much more costly than that proposed by the present Bill.
THE LORD CHANCELLORsaid, he wished to correct an erroneous impression that had got abroad, with respect to what he had said as to the Bill interfering with the prerogative of the Crown; what he really did say was, that whether it did interfere with the prerogative or not would depend on the construction given to one of the clauses. He did not say what that construction would be, but one of the two constructions put upon it would undoubtedly have the effect of depriving the Crown of a prerogative which, in his opinion, it had heretofore possessed.
§ LORD ST. LEONARDS moved the omission from Clause 2, which declares the qualification necessary for the office of Deputy Speaker, of the words "Judge of the High Court of Admiralty of England, Judge of the Prerogative Court of the Archbishop of Canterbury, Judge of the Prerogative Court in Ireland." The Resolution of the Committee contemplated that the choice of the Deputy Speakers should be made from persons who had held high judicial offices for a period of not less than five years; but it was never intended that the circle of selection should include the Judge of the Admiralty Court, or the Judge of the Prerogative Court in either country, whose qualifications did not extend to the branches of the law comprehended within the appellate jurisdiction of their Lordships. The noble and learned Lord then moved his Amendment, in order that it might appear on the journals, but said he should not trouble the House to divide.
THE LORD CHANCELLORsaid, that the intention of the Committee, in inserting the names of these Judges, was not that they should be selected, but that they should be eligible for the offices referred to. The desire was to secure judicial experience and talent, and in his opinion those qualifications might sometimes be found in persons who were administering the law, though perhaps not that branch of it which generally demanded their Lordships' consideration. If it were not so, the argument in favour of introducing the Scotch element would fall to the 1084 ground. He hoped their Lordships would not agree to the omission.
§ Amendment negatived.
§ Bill passed, and sent to the Commons.