§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR
, in moving the second reading of the Bill, said: My Lords, it is hardly necessary I should recall to the recollection of your Lordships the circumstances under which that Committee was appointed on whose report this Bill is founded. Your Lordships will recollect that Her Majesty had been advised by Her responsible Ministers to confer the dignity of a peerage for life on the right hon. Sir James Parke, by the title of Baron Wensleydale; and that at an early period of the Session, when that noble Lord proposed to take his seat in this House, your Lordships, after a good deal of discussion, came to the Resolution that he was not entitled to do so. In consequence of your adoption of that Resolution a noble Earl not now in his place (the Earl of Derby) immediately afterwards moved the appointment of a Select Committee of the House to inquire into the subject of the appellate jurisdiction of your Lordships' House. That Committee, which was a very full one, consisting of between twenty and thirty members, examined a great number of persons connected with the administration of justice in your Lordships' House, the most eminent practitioners at the Bar, two distinguished Judges from Scotland, and other witnesses. The object of their inquiry was to ascertain 781 how far the conduct of judicial business in your Lordships' House, as the ultimate Court of Appeal, was or was not satisfactory to the suitors and to the bulk of Her Majesty's subjects. Now, my Lords, I think I am entitled to say, as the result of that investigation, that the general—I might almost say the universal—feeling was, that although there were matters which avowedly required emendation, yet, the administration of justice by your Lordships was an administration by a tribunal for which no substitute would, in the eyes of the public, be equally satisfactory. It is for your Lordships and the public to decide how far that opinion is right or wrong; but that this was the unanimous expression of opinion on the part of the witnesses, I am sure no Member of the House who attended the sittings of the Committee can fail to admit. That being the opinion of those who gave evidence before the Committee—and, I think I may add, of the Committee itself—the question to which we have now to direct our attention is, how far there exist legitimate causes for complaint and for Well-grounded feelings of discontent, as to the mode in which justice is here administered. Whatever opinions may be formed on other parts of the question, I think your Lordships will come to the conclusion that there have been no pains spared to sift the matter to the bottom, by examining those best qualified to give an opinion upon the subject, and who were free from the slightest suspicion of bias in favour of the tribunal as it has hitherto been constituted. The investigation may be said to have led to this conclusion—that although no substantial ground of complaint exists, and although it is felt that the subjects submitted to your Lordships' determination are very fully and very carefully examined, there are, nevertheless, matters of detail which required amendment. Among the most prominent of these is, that the judicial business of the House being conducted, as it necessarily must be conducted, by those who are commonly called law Lords, that is to say, Peers who owe the dignity of a seat in this House to their connection with the profession of the Bar, there is no security what may be the number of persons who may attend for the purpose of hearing appeals, or who those persons may be. The consequence therefore was, that although sometimes cases were investigated by four law 782 Lords, sometimes by three, they were in other instances investigated only by two, and very often even only by one. This was represented to the Committee—and, I think, not without reason—as giving rise to dissatisfaction. It has long been a moot point among persons who have speculated on the subject of jurisprudence, whether the administration of justice by one or by several Judges is the more likely to be satisfactory. On the first blush, any one would think the application of several heads to an inquiry is likely to lead to a more satisfactory result than the application of one unaided mind. But, on the other hand, some of the most eminent jurists have held, that there is always a greater probability of a failure when several minds are directed to an inquiry into a judicial matter than when there is only one; and upon this ground—that in the latter case there is an undivided responsibility which more than compensates for the absence of a number of minds. I must say that to that opinion I have always felt a great inclination to defer. I do feel that the advantage resulting from an undivided responsibility tends very much to compensate for the absence of that greater knowledge which would be attained through the co-operation of many minds. But I do not think that is a matter on which any man's individual views ought to be conclusive; and it was the general opinion of the witnesses examined before the Committee, that the ultimate court of appeal ought to be a tribunal for which the attendance of more than one Judge should be secured. The Committee, therefore, unanimously, I believe, came to the conclusion that that was the arrangement which they ought to recommend. Now, as to the best number for such a tribunal, some of the witnesses represented that five was the number that ought to be adopted; some again thought that it would be better to have only three; and others, who probably would have a good deal to urge in favour of their opinion, recommended that there should be four. These latter witnesses said, that if four Judges were appointed, as in the case of the courts at Westminster Hall, a majority would always imply a considerable majority; while there would be no considerable majority if there were only two against one, or three against two. Much may be said in favour of all these suggestions, and something also against them; but any attempt 783 to form a tribunal which should never be open to theoretical objection from the number and constitution of the Judges would be evidently chimerical. We can only deal with the subject as practical men. After viewing the question from all points of view, the Committee came to the conclusion that on the whole, three was the best minimum number to take—that is, three who should give their regular attendance, while other law Lords might, if they pleased, take part in the decision of a case. That is the first recommendation of the Committee, and it is one which is in accordance with the opinion of the great body of the witnesses examined. The difficulty then presents itself, how are you to secure the compulsory attendance of three law Lords? The Committee could not but be sensible that that was the great difficulty they had to solve. I am not at all anxious to get rid by a side wind of the decision of the House at the commencement of the Session by recommending the nomination of Peers for life. But I must say, that concurring in the view of all the witnesses, that no tribunal would be so satisfactory to the country as the tribunal of the House of Lords, and remembering the opinion of the Members of the Bar—who, contrary to what might at the first glance seem to regard the dignity of their profession, are very generally of opinion in favour of life Peerages, on the ground that there is reason to think that barristers would not henceforward realise the large fortunes which their predecessors had realised in former times, and which then rendered the creation of hereditary peerages from among the members of the profession perfectly unobjectionable: I must say that I agree with those who think that the creation of life Peers, for the purpose of filling judicial offices in your Lordships' House, is the course which it would be most convenient to adopt. That is the recommendation of the Committee, and in that recommendation it is needless to say I concur. I do not, I confess, see any other mode so satisfactory for recruiting from time to time the judicial strength of your Lordships' House, as enabling Her Majesty to introduce eminent lawyers among you, under circumstances which would not entail upon themselves a ruinous expense, or inflict upon your order a succession of comparatively poor Peers for all time. I have further to state that one of the witnesses examined before the Committee made an observation which 784 every one who has at all attended courts of justice must feel to be well founded; he said that there is but one test whereby you can determine whether a person is fit for the discharge of the duties of the judicial bench, and that is, by actual experience of his capacity for the performance of such functions. It has been remarked, that the most skilful lawyers, and the most eloquent advocates do not always make the most distinguished Judges; and therefore the Committee have recommended that no one should be selected as a Judge in this supreme court of appeal who has not given proof of his capacity for the post by his discharge of high judicial duties elsewhere during at least the period of five years; and they suggest that it would be well if Her Majesty were empowered to select from those who have most distinguished themselves in the performance of those duties, certain persons to fill the judicial office in your Lordships' House. Various proposals have been made as to what should be the status of these Judges. It has been suggested by some, that they should act merely in the character of "assessors;" but that suggestion did not meet with any considerable approval; and the scheme ultimately adopted by the Committee was that Her Majesty should be enabled—supposing, for the sake of argument, but without prejudice to the Sovereign's right, that an enabling power is necessary for such a purpose—that Her Majesty should be enabled to confer peerages for life on certain lawyers, with a view of qualifying them in point of rank for the discharge of judicial duties in this House. The view which the Committee took of the subject was, that there should always be three Judges discharging the judicial functions of your Lordships' House, one of these three being the Lord Chancellor, and the other two being Judges appointed to sit with him. The proposal now made is that Her Majesty shall be enabled to confer peerages for life on any two persons who may have acted as Judges for a period of not less than five years, and that those two persons shall receive a salary of£5,000 or £6,000 for their services as Judges of Appeal in your Lordships' House. The salary recommended by Her Majesty's Government in this case is according to the precedent of the common law courts of Westminster Hall. It is further proposed that these Judges shall be known by the title of "Deputy Speakers" of your Lordships' House; and 785 that it shall be their duty, unless when prevented by illness, to assist the Lord Chancellor regularly in the discharge of his judicial duties; while they should hold their offices during good behaviour like the other Judges, being liable, of course, like them to removal for misconduct on address from both Houses of Parliament. By this means will be secured a permanent tribunal, consisting of not less than three Judges, supposed to be the most eminent judicial functionaries which Westminster Hall can furnish, and who will discharge the appellate duties of which the Lord Chancellor, assisted by one or more of the law Lords, now disposes. This tribunal will, I trust, be found satisfactory to your Lordships and to the public. But I may observe that the recommendations of the Committee were not confined merely to the constitution of such a tribunal, but related also to certain evils of a minor character connected with the administration of justice in this House. One of the most important of those evils is, that it often happens that business which ought to be discharged by your Lordships in your judicial capacity in the course of a single Session, is not so discharged, and that as a consequence cases remain in arrear for future Sessions. At the opening of the Session of 1855, there were no less than twenty-five cases in arrear; but I am happy to say that at the commencement of the present Session that number was diminished to ten. Indeed, so far as my own experience goes, I may state that I think the business of each Session is pretty nearly disposed of within the limits of the Session, and that the arrears only arise from those of former years. The Committee, however, in dealing with the subject, have recommended that this House should be empowered by Act of Parliament, notwithstanding a prorogation, to sit as long as may be necessary for the discharge of its judicial business, to the exclusion of the exercise of its legislative functions. That is the most obvious mode of meeting the evil to which I have referred and goes at once to the very root; and the Bill, therefore, contains a clause enabling the recommendation of the Committee with respect to it to be'carried into effect. I have now adverted to the various propositions which the Committee deem it advisable should become the subject of legislative enactment, and which I have embodied in the Bill under your Lordships' consideration. 786 There are, however, several minor details connected with this question of appellate jurisdiction, which came under the notice of the Committee, but which, as being matters with which it is perfectly competent for your Lordships to deal, they did not deem it necessary to provide for by Act of Parliament. But, although they may appear to be minor matters, they are by no means unimportant. Your Lordships are aware that in order to constitute "a House," it is required that at least three Members should be present. Now, it frequently happens that in cases of appeal the Lord Chancellor sits alone to hear the case, and even when he is assisted by one or two law Lords—who, I need not say, discharge duties quite as important as those of the Lord Chancellor—it has always been thought fit that there should be a quorum independent of those law Lords—because, as they are no more bound to attend than is any other noble Lord, it has not been thought right that they should be taxed to the extent of compelling them to remain constantly in the House in order to constitute the quorum—the result is, that two lay Lords, as they are called, have always attended for the sole purpose of "making a House." Practically, no real impediment has been offered to the administration of justice under the evidence of the system, but it wears an unseemly appearance, and I have seen it commented upon in publications which, no doubt, many of your Lordships have read, as a great grievance, that the rights of Her Majesty's subjects should be decided upon under a form by which one Judge might have heard the opening of a cause, a second be present during its progress, while a third might deliver judgment. Now, if that statement were true in substance, it would no doubt be a great grievance; such, however, is not the fact: every one knows that, in truth, the lay Lords attend only as an idle ceremony and in obedience to the rules of the House, but that they take no part in the proceedings. But at the same time it is desirable that a form of procedure should be dispensed with which wears the appearance of a defect in the administration of justice, which, correctly speaking, does not exist. The evil may be disposed of in either of two ways. In the first place, under the operation of the Bill now before the House, the Lord Chancellor and the two Deputy Speakers will, in themselves, constitute a quorum; and, if that should not be found a sufficient remedy, 787 your Lordships may make any further regulations which you please, as to what should or what should not constitute a quorum. There are other points also to which the attention of the Committee was directed by almost every witness who gave evidence before them. One of these refers to the propriety of giving to your Lordships' House in its appellate capacity as much as possible the appearance of a judicial tribunal; and the Committee have accordingly recommended that the three Judges who are to form that tribunal should always attend in costume. Now that course would no doubt have some advantages; among others the wearing of a costume would prevent those interruptions caused by persons coming up and speaking to one evidently engaged in the performance of an important duty which might otherwise take place. No one would think of talking to a Judge upon the bench, nor ought they to speak to a Judge administering justice in this House. I by no means mean to say that the law Lords who now sit at the hearing of appeals do not give as much attention to the cases brought before them as if their ordinary were exchanged for their professional costume; but, I believe that suitors would be more satisfied that their cases were attended to, if they saw present Judges whose dress indicated that they were engaged in that duty. The recommendation, I need not say, is one which may be carried into effect by the House itself whenever it may seem desirable. It has also been suggested that it would be better if the Lord who presides over appeals in this House should, in delivering judgment, instead of rising in his place, and, as it is termed, "moving" his judgment, deliver it from his seat at the table. That, too, is a matter upon which it would be absurd to legislate, and with regard to which your Lordships can yourselves make any rules you may deem advisable. Another point connected with this subject of appellate jurisdiction, and which is deserving of consideration, is that which relates to the expense which attends upon the prosecution of a suit in your Lordships' House. That expense arises partly from causes which are, I believe, entirely beyond your Lordships' control. The cases which come before this House for decision have, generally speaking, been thoroughly sifted before other tribunals, are brought here only in consequence of the importance of the question involved, and are conducted, by 788 the express wish of those who are the parties to them, by the most eminent men in the profession of the law, for whose services, as a matter of course, large fees must be paid. That is an expense against which it is scarcely within your Lordships' power to provide a remedy. There are certain regulations, however, which it lies within your Lordships' province to make, the effect of which would probably be to cause a considerable reduction in the expenses to which I have just alluded. It is now the practice of this House to, require that each litigant should, before his suit comes on for discussion, lodge what is called a "case," which is a summary of his appeal, and of the documents upon which he relies. This "case" must be in print; and with respect to the expense which that necessarily entails, I may remark that in the Court of Chancery it is found that the printing of the "case" is not only more convenient, but even cheaper than if it were simply written. Upon the expense of printing, therefore, I lay no great stress; but in remodelling the judicial tribunal of this House, I think the question how far it is possible to dispense with the "case" altogether is one which is extremely well worthy of your Lordships' notice. The fees which it is necessary to pay to professional men in getting it up would thus he abolished, and a considerable amount of money would be saved to the suitors. Whether the framing of the "case" does not eventually tend to shorten the proceedings, and thus far to diminish the expense, is a point upon which I am not at present prepared to offer any opinion. It—as well as several other points to which I have called your attention—is a subject which must be inquired into and dealt with according to the results of that investigation. To carry into effect, however, such of those recommendations for the improvement of the appellate jurisdiction of this House as require a legislative enactment, this Bill has been framed, which I now ask your Lordships to read a second time; trusting that by its operation your Lordships may be enabled more satisfactorily to discharge the high duties which the constitution has entrusted to your House.
§ Moved, that the Bill be now read 2a.
§ THE EARL OF MALMESBURY
said, as he understood this Bill, the persons on whom life Peerages were to be conferred would, in addition to their high judicial offices, enjoy all the privileges of the Peerage 789 age in common with hereditary Peers, and would be able to sit in the House and vote on matters of ordinary legislation. Now the House had decided that a Peer for life was not entitled to take his seat within its walls, and to exercise the functions of legislation. He should like to know, therefore, whether in the case (no doubt a very improbable case) of one of these life peers being removed from his judicial office for misconduct, in the manner provided by the Bill, he would still be continued in the exercise of the ordinary functions of a legislator, and be able to sit and vote among their Lordships as before? Fifteen years was named in the Bill as the term of service requisite to give a title for a pension, but he would suggest that the term should be ten, as it was provided that each of these Peers should have served five years in some high judicial office before his appointment.
§ LORD REDESDALE
said, that if these life Peers were to be appointed it would be very unwise not to put them in exactly the same position as all the other Members of their Lordships' House, and that they should not occupy the inferior position, which an answer in the negative to the question of the noble Earl would involve. In the case suggested by the noble Earl of a life Peer being removed for misconduct from his judicial office by an Address from both Houses, it would be in the power of their Lordships to follow the precedents which existed, though they were rare, and remove him from his legislative functions by a Bill, which no doubt in such a case would be readily concurred in by the other branches of the Legislature. It might, on the other hand, happen that a Deputy Speaker might become incapacitated by age and infirmity for the performance of his judicial functions, and it might be necessary to resort to an Address from both Houses to procure his removal; but such a state of things would not involve a charge against the moral character of a life Peer as would render his expulsion from the House a necessary step. With regard to the term of service required to earn a pension, the fifteen years, he apprehended, included the service as a Deputy Speaker, and the previous service as a Judge as well.
§ EARL GREY
said, he did not object to the Bill now before their Lordships, so far as it related to the creation of additional legal offices to render that House more competent to discharge its functions as 790 the highest court of appeal in the country; but he must say that he regarded it as most unfortunate that the Government in framing the Bill should have departed from the recommendations of the Committee. He, as a Member of the Committee, had been of opinion, and he still considered that a person who had been Lord Chancellor for five years was well qualified for the office of Deputy Speaker, and he had understood the Committee to express the same opinion. It was true a division had been taken as to whether, in the case of the Lord Chancellor, a shorter period of office should qualify him for selection for the office of Deputy Speaker than that which the Committee thought desirable in the case of the other Judges, and they decided that the shorter period should not confer the qualification. It had also been proposed to fix the salary at£6,000, instead of£5,000 a year. If the latter salary only were affixed to the office of Deputy Speaker, it was useless to expect that any ex-Chancellor would undertake an office which, though it gave him additional labour, gave him no increase of salary. If the ex-Chancellors could be got to undertake these duties at salaries of £6,000, their pensions as ex-Chancellors would be thereby saved to the public. The point, however, to which he wished more particularly to call their Lordships' attention was that part of the Bill which related to the creation of peerages for life. The more he considered the subject, the more he felt convinced that this. Bill did not deal with that subject in a proper manner. Not withstanding the decision of the Committee of Privileges in the case of Lord Wensleydale, and its subsequent affirmation by the House, he still remained of his original opinion, that this House, in refusing to permit a person on whom Her Majesty had conferred a life peerage to sit and vote as a Peer, had assumed to itself a power and authority which did not belong to it according to the law and constitution of the country, and had set a precedent which would be dangerous for the future. Entertaining that opinion, he objected to that portion of the Bill which related to life peerages, because it virtually affirmed the propriety of the decision of the Committee of Privileges, which declared the creation of such peerages to be beyond the limit of the Royal prerogative, and carried it into effect for the future. He had never expressed any approval of the manner in which the prerogative 791 of the Crown had been exercised by Her Majesty's Government in the case of Lord Wensleydale. They certainly were guilty of a great indiscretion in the course which they pursued. It might be highly proper that some means should be taken of regulating the exercise of the prerogative for the future; but if they were to legislate upon the subject, it was not right for that House to abrogate a power which, as he contended, Her Majesty still possessed, without providing for all the cases which might arise for the future. Under the operation of this Bill Her Majesty would be enabled to create life Peers only in the case of persons who were to hold the office of Deputy Speaker; but precisely the same reasoning which applied to that officer would apply to other important State offices. There were several high offices in the Government which, according to invariable custom, were held by Members of their Lordships' House. It had been continually found that it would be desirable to bestow some of the high offices of the State on persons who did not possess a seat in their Lordships' House, and it had been the custom under those circumstances for the Minister of the day to advise the Crown to bestow on those persons the dignity of a peerage. Now, if it were necessary that those peerages should be hereditary peerages, the effect of that check upon the discretion of the Crown would be, as in fact it had been, most injuriously felt. It might happen that the person who was the fittest for an office in the State which was usually held by a member of their Lordships' House might not possess a fortune sufficiently large to justify him in accepting an hereditary peerage, and so to saddle his children with an honour which they would not have the means adequately to support; or it might happen that he was unwilling to do so, although even he did possess sufficient fortune. It was well known that by degrees the House of Commons had become the arena in which the contest of parties took place, and consequently persons who had gained a high position in that House were extremely unwilling to leave it in order to enter into their Lordships' House. It might also happen that a man upon whom it would be desirable to confer high office would be unwilling to accept an hereditary peerage, because, by doing so, a son whose talents gave promise of future distinction, might be too soon removed from the other 792 House of Parliament. In such cases it was very desirable that the Crown should have the power of creating life peerages, accompanied by a seat in their Lordships' House. In former times, when high political offices were conferred upon individuals who were not peers, the Crown had the means of enriching them, and of thus enabling them to support the dignities to which it advanced them. Noble Lords descended from statesmen of former times who were elevated to the peerage, would see that their ancestors were raised to fortune at the same time that they were raised to the peerage. At the present day, however, the power of the Crown to confer fortune as well as dignity was greatly diminished; and it was highly inexpedient that the Crown should be prevented from employing the services of those persons who were otherwise best adapted for filling high office in the State, on account of a difficulty with regard to the fortune of their successors. With regard to peerages conferred for distinguished naval or military services, it was now the common practice, in cases in which a peerage was conferred on a person whose fortune was not large, to invite Parliament to make provision for that person; but, unfortunately, the practice was to bestow a permanent peerage, while the pension was only extended to three lives, and the consequence was that a permanent honour was created, to be provided for by a temporary pension. No doubt there had been cases in which the services rendered had been of so transcendent a character, as those of Marlborough and Wellington, in which, with an hereditary peerage, an absolute grant, sufficient to support the dignity had been made; but it appeared to him that, generally speaking, it would be more desirable that peerages thus conferred should be temporary. He did not think it necessary to go more fully into the subject, because, by the recent change in the mode of proceeding in Committee of their Lordships' House, he had been able to place on record the Amendments which he had proposed, and which fully explained his views on the subject; but there was one point to which he wished to refer. He felt himself bound to express his regret that the Government had introduced this measure in a less formal manner than he believed they ought to have done. By the law and practice of Parliament it had been always usual, when the House was called upon to 793 pass a Bill which limited the prerogative of the Crown, to signify the consent of the Crown; and, as he believed that the Crown at the present moment had the power of creating life peerages which would confer a seat in their Lordships' House, he believed that the consent of the Crown should have been formally signified before their Lordships were called upon to agree to the present Bill.
§ LORD CAMPBELL rose to express his admiration of the Bill, which went as far as it ought to go, and did not exceed that point. As to any necessity for the previous assent of the Crown, he denied the necessity for any such expression of assent. He had no hesitation in saying gravely and deliberately, that the Bill would add to and not detract from the power of the Crown. The question as to whether the Crown had power to create life peerages which conferred a seat in that House was a res judicata. Their Lordships had formally decided that question, and that decision formed the law of the land upon the subject; and, it was, therefore, absurd to contend that by the operation of the Bill a power which had no existence could be restrained. It was now proposed to give that power to the Crown under certain limitations and restrictions, and to that course he had not the slightest objection. It was, in his opinion, expedient that there should be, to a certain small extent, the power of creating Peers for life with judicial functions; and it was for that purpose that the present Bill had been introduced. He was glad, therefore, that the Bill had been brought in, and that it was confined to peerages granted with a view to judicial objects. He believed that the jurisdiction which their Lordships and their ancestors had so long exercised of superintending the administration of justice in this country, and, in the last resort, of deciding appeals from all inferior tribunals, had been most useful. He was persuaded that the nation had derived great benefit from it, and had been fully satisfied with it; and although some objections might attach to it, such as belonged to all human institutions, he was persuaded that, upon the whole, the appellate jurisdiction of the country could not have been vested elsewhere without detriment to the administration of justice. The preservation of an hereditary branch of the Legislature, independent of the Crown and independent of merely popular representation, had been at times a great prop to liberty in England, 794 and he believed that if the hereditary character of that branch were destroyed the constitution of England could not be preserved. He thought, therefore, that it was a most inexpedient course to tamper with the constitutional character of that House; still, he did not object to peerages, not hereditary, being created to the number of four, as proposed by the Bill, because it was necessary for the appellate jurisdiction that there should be power of granting life peerages to that extent. He should say nothing about the details of the measure until the Bill went into Committee.
§ EARL FITZWILLIAM
was surprised at one expression which had fallen from his noble and learned Friend who had just sat down; and he was the more so because it had proceeded from a person so learned, having so much experience, and so much knowledge of the constitution of the country as his noble and learned Friend. In reference to the question whether a Peer created for life had a right to sit in that House, his noble and learned Friend said that that was no longer a question, but that it was res judicata, inasmuch as it had been decided by a Resolution of that House. But the question could not be considered a res judicata, because one House of Parliament had passed a Resolution upon it. He begged to remind his noble and learned Friend, of the proceedings which had taken place with reference to the Middlesex election in 1768, when Mr. Wilkes was deprived of his seat not by one Resolution of the House of Commons, but by Resolutions over and over again repeated. Nevertheless, the whole of those proceedings of the House of Commons were ultimately rescinded and to the satisfaction, as he believed, of everybody. It would, perhaps, be out of place at the present stage to enter into the details of the Bill, but it seemed to him, with respect to the sixth clause, which regulated the particular mode in which the Crown was to be allowed hereafter to exercise its prerogative, that words ought to be introduced which, while providing for the appellate jurisdiction of the House, would not have the appearance of encroaching upon the Royal prerogative. When the Bill came to be considered in Committee he would move an Amendment to that effect.
would not presume to answer the observations of the noble Earl, but he might be allowed to say, by 795 way of explanation, that he did not rely upon a Resolution of either House of Parliament. Neither branch of the Legislature by Resolution could alter the law of the land; but, by the constitution of England, the House of Peers was the only tribunal to determine whether there had been a just and valid patent of peerage granted by the Crown, and when that question was decided by the House in the exercise of its judicial function it did become res judicata.
considered this question as one not only relating to Life Peerages, but as also involving the abandonment of all influential share in the judicial proceedings of their Lordships' House, and the delegation of their authority to certain law Lords. When first the question of the life Peerage was debated, he was informed that Her Majesty's Ministers would have a majority of thirty, and therefore, believing that Lord Wensleydale would soon take a seat among their Lordships, he had only intended to record his vote for inquiry, on principle. Afterwards, wishing to give effect to the slightest doubt on the question of the legality of life Peerages, he gave his proxy to a noble and learned Lord who at one time had a doubt on the subject; but now he (Lord Denman) felt no doubt of their illegality. He thought that, if Lord Coke had wished to affirm the authority of the Crown to create life (Parliamentary) Peerages, instead of bringing on the subject after the instance that women might be ennobled for life, by marriage—as in the case of Duchesses—he would have introduced the subject in a substantive and different manner. He (Lord Denman) rejoiced to tell their Lordships that he had in his veins some of the blood of a Lord Chief Justice in the time of Queen Elizabeth, of whom it is said (in page 107 of a book called Grandeur of the Law)—That he was not a time-serving Judge may be seen by his conduct in the case of Cavendish, where he resisted the Queen's claim to appoint to an office which she had no authority to grant; and also by his resistance to other acts of power.The measure before the House is needless, as one something like it, in the time of Lord Eldon, was; and he (Lord Denman) would quote an observation of Lord Erskine on that occasion, in which he says that—He for one could not consent to any change to the manner in which the House should exercise its jurisdiction. For his own part, he was so well satisfied with the manner in which the 796 judicial business of the House was conducted by his noble and learned Friend on the woolsack (Lord Eldon), assisted by another noble and learned Friend (Lord Redesdale), he professed he could see no remedy for the evil but impounding him in that House."—[2 Hansard, ix. 1322.]He (Lord Denman) would also quote a passage from a speech of his father's, in 1823, on the same Bill, in which he said—He trusted the Commission for inquiry into the administration of the law in Scotland would supersede the necessity of adding to the law the ignoble officer alluded to. He would never vote one farthing for paying such an officer, and he called upon his hon. Friend (Mr. Hume) to oppose any grant for that purpose. He objected also to the appointment of that officer because it would increase the judicial patronage.—[2 Hansard ix. 1525.]He (Lord Denman) was very sorry that the name of Lord Wensleydale had been bandied about as it had been. He did not know whether that noble Lord would accept a deputy Speakership or not. The Master of the Rolls, Sir John Romilly, in his evidence before the Select Committee, spoke strongly about the value of the services of Lay Lords, in a Court of Appeal, and even declared that some of their Lordships might be worthy of a salary of£6,000 a year, (at one time contemplated by the Select Committee), but for himself, he assured their Lordships that (even if his services were of the greatest value) he never would receive any remuneration for this branch of his duty, but should at all times be happy to attend in that House, when his presence might be needed to make up a quorum. He considered the power to sit during the legal year likely to be advantageous, and had made his observations solely on public grounds.
§ EARL GRANVILLE
said, that in supporting the Bill, he wished to guard himself against being supposed to have altered the opinion which he expressed when the subject of life peerages was last under their Lordships' consideration; it would be out of place to re-open the discussion of that question now, but he still retained the opinion that the creation of a life peerage conferred the right to sit and vote in the House. He did not, therefore, wish it to be understood that in supporting this Bill he did so upon the grounds stated by the noble and learned Lord Chief Justice. With regard to the objection that the assent of the Crown to the Bill ought to have been obtained, he certainly was inclined to think so too, though he could not 797 concur in the opinion that the assent should have been advised and sent down in the shape of a formal Message from the Crown. It would he quite sufficient if, at some future stage of the Bill, the assent was signified by one of the Ministers in their Lordships' House.
After a few words from Lord ST. LEONARDS,
§ Motion agreed to.
§ Bill read 2a accordingly, and committed to a Committee of the whole House on Tuesday next.
§ House adjourned to Monday next.