Lords Sitting of 22 June 1871

MINUTES.
PUBLIC BILLS—First Reading—House of Commons (Witnesses)* (198); Glasgow Boundary* (199); Sasines Register (Scotland)* (200); Metropolitan Board of Works (Loans)* (201); Tramways (Ireland)* (203).
Second Reading—Courts of Justice (Additional Site)* (182); Corrupt Practices Act Amendment* (173).
Select Committee—Locomotives* (130), nominated.
Committee—Report— Metropolitan Commons Supplemental (No. 2)* (174); Land Drainage Supplemental* (175); Poor Law (Provisional Orders Confirmation)* (163); Drainage and Improvement of Lands (Ireland) Supplemental* (172); Police Courts (Metropolis)* (125).
Report—Dogs* (191–202).
Third Reading—Burial Law Amendment* (126); Public Health (Scotland) Act (1867) Amendment* (148); Betting* (129); Gasworks Clauses Act (1847) Amendment (No. 2)* (192), and passed,
Withdrawn—Ecclesiastical Courts (84); Ecclesiastical Procedure and Registry* (85).

ECCLESIASTICAL COURTS BILL—(No. 84.)
(The Earl of Shaftesbury.)
ECCLESIASTICAL COURTS BILL—(No. 84.)

  COMMITTEE. BILL WITHDRAWN.
  Order of the Day for the House to be put into Committee, read.
  THE EARL OF SHAFTESBURYsaid, that the accumulation of business in the House of Commons precluded any hope of this measure, and the Ecclesiastical Procedure and Registry Bill, being considered

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  there this Session. He therefore proposed to withdraw those Bills, with the intention of re-introducing them early next year.
  Moved, "That the said Order be discharged."—(The Earl of Shaftesbury.)
  EARL BEAUCHAMPsaid, he had received a statement from Messrs. Moore and Currey, a respectable firm of proctors in Doctors' Commons, with regard to the Purchas case, which, according to the noble Earl (the Earl of Shaftesbury), occupied nearly three years and, although undefended, cost one side almost £8,000. They stated that the facts were as follows:—
  "The cause in the Arches' Court began (by the issue of the citation) in October, 1869, and was argued in the following month, and judgment was given on the 3rd of February, 1870,—i.e., in about four months from its commencement. The judgment in the appeal to the Judicial Committee was delivered on the 23rd of February, 1871,—i.e., within 13 months of the judgment in the Arches' Court. The appeal would have been more speedily disposed of but for the death of the promoter (Colonel Elphinstone) pending the proceedings, which necessarily occasioned delay. As to the cost, it is slated to have amounted to £8,000. The actual expenditure by us as proctors in the original cause and appeal has amounted, exclusive of our own charges, which are not yet ascertained, to £2,200, of which about £1,500 has been paid in fees to counsel, the remainder to witnesses, printers, and shorthand-writers. No further outlay has been incurred in the Courts, and whatever system of procedure may be ultimately adopted, the above expenditure cannot be avoided. It is common to all cases in all Courts where the parties insist upon the employment of four counsel of eminent ability. If the statement is well founded that £8,000 has been expended, the difference between that sum and what is shown above must have been incurred in preliminary inquiries and what is commonly called 'getting up the case.' This cannot fairly be charged to a defect in the existing system, but must have been equally incurred in whatever Court the case was to be ultimately tried."
  THE EARL OF SHAFTESBURYsaid, it was time that he had mis-stated the expenses in the Purchas case. He should have stated that the expenses were £5,000. In mentioning £8,000 he was thinking of another case which really cost that sum, though, like the Purchas case, it was unopposed. He left their Lordships to imagine what the amount would have been had there been opposition. But even if the expenses were no more than £5,000, how important it was that Courts where such costs could be incurred should be re-modelled. It was of vital importance that a Court should be constituted as soon as possible, as cheap
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  and easy as the County Court—for it was manifest that opposition was arising to the judgments given by the Judicial Committee, and the Bishops would be called upon to maintain the law of the land. He appealed to the House whether they could do this while the expenditure of time and money remained what they were at present.
  LORD ROMILLYregretted the withdrawal of the Bill, for had it passed through this House this Session it would have occupied very little time next year, and would have had a fair chance of passing through the other House; whereas he feared that a reform which had been aimed at for upwards of 20 years was now indefinitely postponed.
  THE MARQUESS OF SALISBURYmust confess he had heard with alarm the noble Earl's suggestion that the Courts which were to decide such cases as the Purchas and the Bennett cases should be made as simple as the County Courts. If this was really the object of the Bill it was desirable that it should be made a little more comprehensive. If the noble Earl meant that the law laid down by the Judicial Committee was to be enforced like County Court judgments upon every clergyman in the kingdom, that tribunal should be made a little more tolerable to those subject to its decisions, and a little more consonant with the spirit which governed the other tribunals of the country. That tribunal was one of the greatest grievances of which Churchmen had to complain, for it was the only tribunal of last appeal in this or any other civilized country where the law was not laid down by lawyers. He was aware that there were local jurisdictions of primary instance in which unlearned persons were employed; but in no civil case was the law laid down by a Court of Final Appeal except by persons whose minds had been practised in the study of the law, and whose temperament and disposition had been drilled into impartiality by the long practice which all lawyers obtained. On the Judicial Committee of the Privy Council the law was laid down in part—it might be in great part—by Bishops. Now, nobody would exceed him in reverence for the Episcopal office and all that properly appertained to it; but it was about as sensible to ask a Bishop to lay down the law in the last resort as it would be to ask an Admiral or Commander-in-Chief

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  to do so. It was a duty which required special training, and it was a grievous hardship to those submitted to the jurisdiction if persons learned in the law were not employed. He believed that the Judicial Committee required in other points the careful supervision of those concerned with the amendment of the law, before its judgments were enforced with the simplicity proposed by the noble Earl. He would urge that it should be a Court of fixed constitution. At present it was often difficult to discover who were the Judges in the particular case. He believed the President of the Council in every case appointed the Judges; but, as he understood, it was practically done by a gentleman for whom all had the greatest respect, Mr. Henry Reeve, the Registrar. This did not seem a satisfactory state of things for a tribunal dealing with matters which excited people's passions and feelings to the highest degree, and on which parties were angrily divided. Nobody conversant with the matter could harbour the unworthy suspicion that the Court was ever packed for the trial of a particular case—he had no apprehensions on that score—but it was because the action and constitution of the Court should be above all suspicion that he would urge the noble and learned Lord on the Woolsack to provide some fixed constitution, so that the Court should not be constituted afresh for the particular case it had to consider. Then, again, the practice of a collective judgment seriously diminished the authority of its decisions, for it was not known whether lawyers or Bishops had given any particular judgment, and one was driven to rely on internal evidence. The weight of all judgments depended on those who delivered them; and great advantage resulted from the practice of delivering judgments seriatim, which prevailed in other Courts. It was of considerable importance whether a decision was unanimous or not, and if not unanimous whether it was the Judges of greater or less authority who gave the decision. These questions required earnest attention if what he should call the disastrous and sinister vitality proposed by the noble Earl were given to this tribunal. He believed that the danger of the Church of England lay, if anywhere, in litigation. It would not fall by attacks from without; but it might be split by the ill-directed
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  energy of friends within. Be this as it might, if the clergy were to be driven to conform in the minutest particulars to the judgment of the Court, it should be a Court formed of lawyers, constituted in a manner above suspicion, and acting in a way common to all other tribunals in the realm.
  EARL GRANVILLEsaid, that his noble Friend the President of the Council was responsible for the composition of the Court, though Mr. Reeve took the principal share of ascertaining what Judges were able to attend, so that a Court might be constituted. Mr. Reeve invariably consulted the Lord President, who on some occasions called a Cabinet Council to consider whether the proposed composition of the Court would be satisfactory and fair. He would offer no opinion as to whether the Court benefited by the assistance of the right rev. Prelates; but the original idea undoubtedly was that it was desirable that the heads of the Church should form part of the tribunal. The question of collective or separate judgments was one more for his noble and learned Friend on the Woolsack than for himself; but he understood collective judgments had always been regarded as a great advantage in the decisions of the Privy Council. The other plan was likely to weaken the authority of the judgment, for it might be said that the two Judges in the minority were men of greater weight than the three who decided a question.
  LORD CAIRNSsaid, it was a mistake to suppose that any right of selecting Judges for any particular case existed. Every member of the Judicial Committee had a right to sit on every matter which came before it. The statement of the noble Earl opposite (Earl Granville) referred, he thought, to other Committees of the Privy Council which were occasionally required for the purpose of hearing appeals as to University statutes, in which cases the composition of the Committee was not laid down by Act of Parliament—so that some action on the part of the Government or the President was necessary. He could testify from considerable experience to the way in which Mr. Reeve performed his duties. The fact was that there was a great unwillingness to attend and undergo the great labour and responsibility of hearing important cases. Mr. Reeve, knowing this, and having an earnest desire to

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  perform the duties of his office effectively—no public officer could discharge them better—was in the habit of making himself acquainted with the arrangements of those who might be expected to attend, with a view—not to decide who ought to attend to hear particular cases—but as to whose services were obtainable, in order that some kind of Court might be constituted. He did not believe Mr. Reeve had ever interfered in any other way, and whatever objections might be made to the composition of the Judicial Committee as an ecclesiastical tribunal, it ought to be understood that no person had any power of selecting some and excluding others, and that the Registrar's endeavour to procure the attendance of individuals had merely arisen from anxiety lest there should be no quorum.
  THE LORD CHANCELLORsaid, he was glad the question had been raised by the noble Marquess (the Marquess of Salisbury), for there could not be a more mistaken impression than that any selection was made with reference to the attendance of members of the Judicial Committee. As his noble and learned Friend (Lord Cairns) had explained, every member had a right to attend, though not bound to do so. At one time, indeed, those who had filled particular offices and were in the receipt of pensions, deemed it their duty to attend regularly; but, in process of time, as was not surprising, years and infirmity prevented them, and—as he recently mentioned—there were now five Judges of experience and eminence who had gradually discontinued their attendance. He did not say there was a formal summons to the members, for this was regarded as insisting on attendance; but great care was taken to ascertain whether all those accustomed to take part were willing to attend. There was no wish to exclude—the difficulty being that of including all those whose attendance would be desirable. With the praise bestowed on Mr. Reeve every one connected with the Committee would entirely concur. He assisted those who were able and willing to attend in finding coadjutors, and there had been no instance that he could recollect of anything but a desire to include as many as were willing to attend. No selection was made. As to the manner of delivering judgments, whether separately or collectively, this House was
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  hardly a precedent, for the judgments delivered in their Lordships' House were, strictly speaking, speeches; a regular Motion was made, on which a vote was taken. But for this question of form there would, probably, as in the Judicial Committee, be a collective judgment. The practice in the Committee was laid down, he thought, by Lord Kingsdown, and for very good reasons. It was desirable, for the information of the Court above, that judgments in banco and in the Exchequer Chamber should be delivered seriatim; but when a matter came to the Court of Final Appeal individual judgments would serve no purpose, but would morely create heart burnings and jealousies—for the law would then have been settled, and could not be altered except by Parliament. Any dissatisfaction with the Judicial Committee, founded on the impression that there was partial summoning or anything like packing, was wholly unfounded, and could only be due to the jealousy always observable when men's passions were excited, and when they were more intent on their own conceptions and ideas than on submitting themselves to the law. The difficulty consisted in the insufficient number of Judges willing and able to attend. A Bill to remedy this had been prepared by him, and, had time permitted, would have been proceeded with this Session, and attention would continue to be directed to that matter.
  THE ARCHBISHOP OF CANTERBURYdesired that there should be no misapprehension as to the position of Bishops on the Judicial Committee. The noble Marquess (the Marquess of Salisbury) appeared to fear that the Church was likely to be subjected to a course of Bishop-made law, and to regret that Bishops should be judges in cases requiring a knowledge of law. Now, he had sat many times on the Judicial Committee, and had never found a lack of readiness on the part of legal members to defer to the Bishops as to matters which, though not theological, necessarily touched on theological points, or of lack of readiness on the part of the Bishops to defer to their colleagues on matters of law. Notwithstanding all he had heard, his opinion remained unchanged—that it was better on the whole that there should be some persons on the Committee acquainted with theology; not that the questions at issue were theological, but

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  that there were legal questions which, touched persons holding certain opinions, and that the greatest lawyers might make mistakes unless they had the assistance of theologians. In proof that this view was borne out by the lawyers themselves, he would mention that in certain cases not arising under the Church Discipline Act the Bishops had no right to sit. But in the first case, in which he took part, he was summoned, and Archbishop Sumner, to be present as assessors. Their presence was not legally necessary; but the Court thought it right to summon Bishops as assessors—apparently a declaration on their part that it was well to have the advice of persons acquainted with the theological points in the questions at issue, even when the law did not strictly command their presence. The Judicial Committee was sometimes very unpopular; but he had observed that it was generally unpopular with those against whom it had decided, and he believed this was no peculiarity of this particular tribunal. He had sat upon it in cases in which it was very popular, because the person condemned had no large following; but if it happened that the person condemned had a large following, the Court was for a time very unpopular. He could not help thinking there was a good deal of unworthy agitation in this matter when such an argument was brought forward. When he first sat on the Episcopal bench there was a great scheme for radically reforming the Judicial Committee by turning all the lawyers out of it. The idea was that there should be only Bishops. Years went by, and at last it occurred to a certain number of persons that, if the Bishops could only be got rid of, the decisions of the Court would only be the opinions of lawyers, and might be represented as having nothing to do with the Church, which might be considered quite independent. Now, till the persons who objected to the present Court had some definite idea what they wished to substitute for it, he—though fully convinced that the Court, like all human institutions, was capable of great improvement, but having never heard a proposal for a better plan—was content to put up with the present tribunal.
  THE EARL OF CARNARVONremarked that judgments often derived weight from the persons who delivered them,
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  and a considerable and increasing difficulty was likely to arise with regard to cases in which it was impossible to tell how far the Bishops on the Judicial Committee coincided with the judgment. He believed that the two Archbishops and the Bishop of London were the only Prelates who sat on the Committee. He was not aware whether they did so by virtue of the sees they held, or as Privy Councillors. In this respect the Judicial Committee laboured under a serious disadvantage as contrasted with the old Court of Delegates. The latter enjoyed the right of selecting any person, lay or clerical, civilian or layman, to take part and give counsel in important questions; but since it had been superseded by the Judicial Committee, the choice of the Crown was limited to Privy Councillors Now, there might be cases which were theological as well as legal, yet, under the present constitution of the Court, it was impossible for the Crown to select the ablest theologian or highest casuist in the country to bring his judgment to bear on the matter. Were Bishop Butler or Jeremy Taylor now living, they could not sit on the Committee. As to collective judgments, not only this House but every other Court in the country except the Judicial Committee, allowed its members the option, at all events, of expressing an opinion separately, and it deserved consideration whether the Judicial Committee should not adopt the same course.
  THE EARL OF SHAFTESBURYsaid, that the constitution of the Judicial Committee formed no part of his Bill. He disclaimed any desire of promoting litigation in ecclesiastical matters, and he believed that were the Bill passed very little litigation would arise. The noble Marquess (the Marquess of Salisbury) must be aware that it was the character of Englishmen to struggle hard for a right, and having got it, often-times not put it into execution. The knowledge of the existence of such a power, however, would operate as a restraint on a great number of the clergy who were giving way to pedantic proclivities. To refuse justice by making it expensive and dilatory was not wise or statesmanlike. The ecclesiastical laws of the realm were among the statute laws of the land, and people had a right to enjoy full access to and benefit from them. As to those gentlemen who

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  were resisting the law, their course would be to do all they could either to amend the law, or to amend the formation of the Judicial Committee; but they did neither one nor the other; they must then obey the law as it stood, or secede from a Church to which they could not conform.
  Motion agreed to; Order discharged accordingly; and Bill, by leave of the House, withdrawn.

  ECCLESIASTICAL PROCEDURE AND REGISTRY BILL. [NO. 85.]
  Order of the Day for the House to be put into Committee, read, and discharged, and Bill, by leave of the House, withdrawn.

  TRAMWAYS (IRELAND) BILL [H.L.]
  A Bill to amend The Tramways (Ireland) Acts 1860 and 1861—Was presented by The Lord CAIRNS; read 1a. (No. 203.)
  House adjourned at half past Six o'clock, till To-morrow, half past Ten o'clock.