Lords Sitting of 30 April 1872

MINUTES.
PUBLIC BILLS—First Reading—Pensions* (93); Metropolis (Kilburn and Harrow) Roads * (94).
Second Reading—Supreme Court of Appeal * (77), discharged.
Third Reading—West Indies (Incumbered Estates)* (88), and passed.

TREATY OF WASHINGTON.
TRIBUNAL OF ARBITRATION (GENEVA).
THE INDIRECT CLAIMS.

TREATY OF WASHINGTON.

  CORRESPONDENCE.
  Correspondence with the Government of Canada in connexion with the appointment of the Joint High Commission and the Treaty of Washington: Presented (by command), and ordered to lie on the Table.
  THE EARL OF DERBY: My Lords, I have not given Notice of the Question which I am about to put, and, therefore, it rests entirely with the noble Earl the Foreign Secretary whether he may think fit to answer my inquiry—but, knowing the desire of your Lordships for information on the subject, I beg to ask my
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  noble Friend, Whether the long-expected communication from the American Government has been received?
  EARL GRANVILLE: My Lords, my answer to the noble Earl is a very simple one, but I will endeavour to convey it in a less conversational tone than that in which I replied last evening. The facts as to what I then said about the despatch are correctly given; but the details, not having reached the gallery with distinctness, are not quite accurately stated. In reply to the Question just put by my noble Friend, I have to say that I have been informed by the American Minister that he received the despatch last evening; but it is not very short, and as it has to be copied, and he wishes to make himself master of it, he has not yet communicated it.

APPELLATE JURISDICTION—SUPREME
COURT OF APPEAL.—OBSERVATIONS.
Order of the day for resuming the adjourned debate on the Lord Chancellor's Motion to resolve,
That it is expedient that one Imperial Supreme Court of Appeal be established which shall sit continuously for the hearing of all matters now heard by way of Appeal before this House or before the Judicial Committee of the Privy Council, and that the Appellate Jurisdiction of this House be transferred to such Supreme Court of Appeal,
read.
THE LORD CHANCELLORsaid, that though in accordance with a Rule of the House the Supreme Court of Appeal Bill stood before the Notice for the Adjourned Debate on his Resolution respecting the establishment of a Supreme Court of Appeal, he thought it would be more convenient if his original suggestion of considering the Resolution in the first instance were acted on by their Lordships.
LORD CAIRNShad understood that the debate on the Resolution had been adjourned in order that their Lordships might have the Bill before them and might pronounce an opinion on it; but if the noble and learned Lord on the Woolsack thought it would be more convenient to take the adjourned debate on the Resolution before proceeding with the Motion for the second reading and the Amendment to that Motion, of which he had given Notice, he would address their Lordships on the Resolution, and conclude by moving an Amendment to

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the effect that the House did not think fit to assent to the Resolution, the Supreme Court of Appeal proposed by the noble and learned Lord on the Woolsack not being a satisfactory substitute for the appellate tribunal of their Lordships' House.
LORD WESTBURYsaid, that there would be a great objection to pressing the Resolution before their Lordships knew what they were going to get in lieu of that which they were asked to give up; and he therefore begged his noble and learned Friend to allow the Bill to be considered before proceeding with the Resolution.
THE LORD CHANCELLORthought that the adjourned debate on the Resolution might be proceeded with now that the Bill was before their Lordships.
Debate resumed:—
LORD CAIRNS: My Lords, my noble and learned Friend on the Woolsack, when some days ago he laid his proposal on this subject before your Lordships, entered at considerable length into what I may term a historical review of the appellate jurisdiction of this House. I confess that while it appeared to me that, as a matter of research and curiosity, his investigation was interesting, it really had not much bearing on the question which he was submitting for your Lordships' consideration; but the use my noble and learned Friend made of it compels me to allude to it for a few moments. My noble and learned Friend stated that the appellate jurisdiction of this House had at different times been open to debate and controversy. He made especial mention of the other House of Parliament in connection with those controversies, and suggested that if it should become necessary, in any proposal for the improvement of the jurisdiction of this House, to ask for a vote of money, we could scarcely expect that the House of Commons would readily supply funds for improving the jurisdiction which it had impeached. Now, my Lords, I think it is important there should be no misapprehension as to how this matter of the jurisdiction of this House stands. This House, having been almost from time immemorial a Court of Appeal from the Courts of Common Law, has always possessed jurisdiction in writs of error. That jurisdiction has
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always been exercised—from time immemorial cases were brought here by writ of error to be heard before the Sovereign Parliament. Now, as far as I am aware, that jurisdiction has never been attacked or impeached. Another jurisdiction of this House stands in a somewhat different position. My noble and learned Friend was right in saying that with regard to appeals from the Court of Chancery, the jurisdiction of your Lordships' House cannot be taken to have been established till about 200 years ago. And what was the reason why it was not established before then? The reason was this—that the Court of Chancery itself was an usurper and an upstart, and had had to fight its own way into the possession of a jurisdiction. It was not until the beginning of the 17th century, in the time of Lords Ellesmere and Coke, that it was firmly established, and the Courts of Law acknowledged the jurisdiction for which it had been struggling. While the Court of Chancery was fighting for its jurisdiction, this House had jurisdiction, not only in respect of cases coming from the Courts of Common Law, but in respect of certain matters which came before it not by way of appeal. The Court of Chancery had not established its own jurisdiction till the period to which I have just referred, and that is the reason why the 17th century had progressed considerably before the jurisdiction of the House over cases from the Court of Chancery had been fully recognized. But what was it that the House of Commons denied to this House? Was it the right of this House to sit as a Court of Appeal in cases of writs of error or of appeals from Chancery? I do not so read history. As I read history, there were two questions in respect of which the House of Commons entered on the dispute and denied the jurisdiction of your Lordships' House. One was a question on which I am bound to say I think the House of Commons was perfectly right. This House undertook at one time to exercise not only an appellate, but an original jurisdiction in civil cases. It did so in the celebrated case of the East India Company, and the House of Commons challenged its right. This House submitted, and properly submitted. The other question on which the House of Commons came into controversy with this House was quite a

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different one. It was not a question of the right of this House to hear appeals, but a question of privilege of the Members of the House of Commons. It was raised in the case of Sir John Fagg, the King's Physician, who was ordered to appear at the Bar. When matters grew very warm, the proceedings of this House was spoken of in the House of Commons as a usurpation; but to show the nature of the question, I may appeal to a disinterested authority, Mr. Hallam, who says—"It was not one as to the appellate jurisdiction of the House of Lords, but one of the personal privileges of Members of the House of Commons." I think, therefore, I may assert positively that the appellate jurisdiction of this House has never been exercised under protest or subject to any infirmity of title. There was another topic to which my noble and learned Friend referred at such length that I do not think it should be passed over in silence. My noble and learned Friend referred to the mode in which the appellate jurisdiction of this House was exercised before 1856 as brought out in evidence before a Committee of this House, and also to the amount of arrears; and he did so in a way which may have led persons to suppose that it is now exercised in the same manner. He alluded to the means adopted for insuring a quorum during the hearing of appeals, and he said that Members of your Lordships' House who were not lawyers had been accustomed to sit with the Lord Chancellor, one or two of them attending day by day for that purpose. He spoke of a case which had been heard under these circumstances by Lord Brougham, and which had attracted much attention; and he mentioned how large were the arrears which had accumulated. I could not myself understand why it was my noble and learned Friend dwelt so fully on the system in which the appellate jurisdiction of this House had been exercised so long ago as before 1856. I imagine—though I can hardly think my noble and learned Friend meant to produce such an effect—that the effect of his lengthened reference to that old state of things was calculated to produce in the public mind the impression that his description of the state of things existing in 1856 was also a true description of the state of things existing at the present time. But, my Lords, nothing
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could be more erroneous than such an impression, and if it exists—as I am afraid it does—it ought to be corrected. I have had some knowledge of the appellate jurisdiction of this House, extending not only over the time which has elapsed since I had first the honour of a seat among your Lordships, but also over the many years during which I practised at the Bar; and as regards the composition of the appellate tribunal, I can say that for the last 15 years I never witnessed a House assembled to hear appeals composed of any other than noble and learned Members. I will not say that no such thing has occurred, but I never saw it. I remember that in a conversation I had with Lord Kings-down, whom I have the honour of regarding as a much-loved Friend of mine, I asked him why he so seldom attended in his place as a Law Lord to hear appeals in your Lordships' House. He told me he thought he was doing better public service in attending the Judicial Committee of the Privy Council, because he found sometimes five, and seldom fewer than four, noble and learned Lords sitting here, and that throughout his experience, which your Lordships know to be very great, he had found three about the best number to compose an appellate tribunal. He thought that when the number was greater there was a division and dissipation of responsibility, and the tribunal was consequently less efficient and satisfactory than when it was composed of three Members. Now, my Lords, with regard to arrears of Business, I will ask your Lordships to observe what is the present condition of the appellate business in your Lordships' House. I think it ought to be known to the public. We have to-day entered on the hearing of the last case which was set down for hearing at the commencement of the present Session. The whole of the cases which remained over for hearing at the end of last Session have been disposed of, and the next case to be proceeded with is the first which was set down this Session. There have been only 18 cases set down during this Session, and now remaining to be heard; and having regard to the progress we have made heretofore, every one of those 18 cases ought to be heard in three weeks. I venture to say that such a statement can be made in regard of no other Court in this country. Now, my

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Lords, such being the actual state of things, I cannot help asking myself why, at this particular moment, this measure of law reform is presented to us, in preference to other measures of law reform which are infinitely more pressing, and which logically ought to precede and not to follow a measure for the improvement of the Tribunal of Supreme Appeal? My Lords, not only is the progress of business such as I have described, but I venture to say there never was a time at which this House possessed so many advantages for the satisfactory discharge of its appellate jurisdiction. The presence of my noble and learned Friend behind me (Lord Colonsay), so long an illustrious ornament of the Scotch Bar and the Scotch Bench, has been, and must always be, of the greatest advantage in the case of appeals from Scotland. Then we have also the advantage of the presence of a noble and learned Friend of mine, the Lord Chancellor of Ireland (Lord O'Hagan), who, when there is any difference between the law of this country and that of Ireland, gives us the benefit of his experience in respect of the law of the sister country. Then, my Lords, with regard to the Judicial Committee of the Privy Council, it is true there has been a considerable arrear of appeals coming from one portion of the British possessions. Appeals from Bengal have multiplied of late years. This increase is only temporary, and is owing to causes which I need not now detail, but which it would be easy to explain. From other parts of India and from the colonies generally there has not been an increase in the number of appeals. My object is to show that the pressure on the Judicial Committee was only temporary, and it has been relieved by a temporary measure which my noble and learned Friend on the Woolsack told us at the beginning of the Session had worked well; my noble and learned Friend adding on that occasion a statement which I think we objected to—namely, that the Government deserved thanks for the way in which they had surmounted the difficulty of the Judicial Committee of the Privy Council. But, my Lords, if the appellate business of the House is in the position I have described, and if the business of the Judicial Committee is in the position described by my noble and learned Friend, I ask why it is that in
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preference to other pressing reforms we are now asked to take up that of the Supreme Courts of Appeal? Two years ago, the Judicature Commission, of which the noble and learned Lord on the Woolsack was a Member, and of which other noble and learned Lords were Members, made a Report in which they recommended the fusion, as it was termed, of Law and Equity; the constitution of one great Court to administer the two systems; and the establishment of a strong Court of Intermediate Appeal; but the Commission, after an attentive consideration of the entire subject, recommended that there should be a right of final appeal to the House of Lords. The Commission, by the establishment of a strong Court of Intermediate Appeal, would have diminished as much as possible the number of appeals to your Lordships' House, and in that manner would have strengthened, as much as possible, the Court of Supreme Appeal. The Commissioners reported—
"We propose further, that to this Court an appeal should lie from all judgments, decrees, rules, and orders in suits or proceedings not strictly criminal, of any Division or Judge of the Supreme Court, with certain exceptions which we shall afterwards specify. It may hereafter deserve consideration, after experience of the working of the Court thus constituted, whether its decisions may not be made final, unless leave to appeal from them be given either by the Court itself or by the House of Lords. In the meantime, we recommend that there should be a right to appeal to the House of Lords."
There was no difference of opinion among the Commissioners on that point; and the year before last my noble and learned Friend brought in a measure in accordance with that Report. That measure was not proceeded with;—but why has not the effort to act upon that Report been renewed? One is tempted to ask why the Report of the Commissioners is suffered to remain a dead letter—why the fusion of Law and Equity which the Commissioners recommend remains unaccomplished at a time when we are presented with a scheme which, even if it were a good one in its details, ought for every reason to come after such improvements as those which were recommended by the Judicature Commission? In like manner, a Commission sat on the Courts of Scotland. It was presided over by my noble and learned Friend behind me (Lord Colonsay), and met the year

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before last; but no measure in accordance with its Report has yet been presented to Parliament. What is the reason that that Report has been entirely disregarded? My Lords, I cannot help thinking a construction will be put on this out-of-doors which will be perfectly natural. There was a considerable outcry in some quarters during last autumn—not for a change in the appellate jurisdiction of this House—but for what was termed the "abolition of the House of Lords" altogether. So strong was the reference to the subject in some quarters that the Prime Minister thought it necessary to take notice of the proposal in a celebrated speech made at the end of the year. He is reported to have asserted that, though some persons recommended the abolition of the House of Lords, he would think once, twice, three times, before consenting to such a proposal. Some persons have been bold enough to doubt whether, after all, that declaration of the Prime Minister is a perfect security for the continuance of the House of Lords. But be that as it may, my Lords, I am afraid that out-of-doors this construction will be put on the scheme of my hon. and learned Friend—that the abolition of the House of Lord would be too strong a measure to propose at the present time; but that this measure would be a step in the right direction, and a preparation for the time when the Prime Minister may be prepared to think once, twice, and even three times. My Lords, for the appellate jurisdiction of this House I have no abstract preconceived idea. I agree with my noble and learned Friend that we ought to have the best Court of Appeal possible. That is what the country has a right to, and we shall be only doing our duty in taking the most effectual means to provide it. I see great defects in the present system, but I see great advantages in it also. I am anxious that those defects should be remedied; and if they cannot be remedied I shall not be deterred from accepting any proposal for a better tribunal of appeal by any preconceived idea that this House ought not to part with its appellate jurisdiction. But, my Lords, before we go further let me invite your Lordships' attention to some other considerations connected with the subject, and to the width of the subject on which we are invited to legislate. My
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Lords, this is not a question which concerns England alone. The question of a Supreme Court of Appeal is often discussed as if it concerned England only; but comparatively England has not a very large interest in it. The appeals from the Courts in England are very few. The appeals from Scotland and Ireland are much more numerous than those from England. And it may be worth while asking the question why the appeals from England are so few. My Lords, I believe it is because the Intermediate Courts of Appeal in England are so strong. Her Majesty's subjects in England have such confidence in the Intermediate Courts of Appeal that when they get the decision of a primary Judge, and afterwards of the Court of Intermediate Appeal, they are satisfied and do not carry the case further. And, my Lords, I believe that just in proportion as you can inspire the other parts of the kingdom with the same confidence in the Intermediate Courts so you will diminish the number of appeals to the Supreme Court. But as regards England, let me remind your Lordships of what took place in 1856, when there was a reference to a Select Committee to inquire—
"Whether it is expedient to make any, and, if so, what, provision for more effectually securing the efficient exercise of the functions of this House as a Court of Appellate Jurisdiction."
Lord Cranworth, who was at that time Lord Chancellor, was Chairman of the Committee. There were also on the Committee Lord Harrowby, Lord Lansdowne, Lord Derby, Lord Stanhope, Lord Carnarvon, Lord Grey, Lord Ellenborough, the Duke of Somerset, Lord Granville, Lord Campbell, the Duke of Argyll, Lord Redesdale, Lord Lyndhurst, Lord Brougham, Lord Abinger, Lord Elgin, and Lord St. Leonards. My Lords, that Committee made a Report, in which one of the first sentences is the one to which I am about to call the attention of your Lordships. Speaking of the number of witnesses examined, the Report states—
"Among these witnesses there appears to be a very general agreement as to the expediency of retaining the appellate jurisdiction of the House, and in this view the Committee entirely concur."
My Lords, use has been made of an introductory chapter to a legal treatise written by Lord St. Leonards, in which that noble and learned Lord points out

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the objections which were made to the manner in which the appellate jurisdiction of this House was exercised many years ago; but it would be a mistake to suppose that he is in favour of transferring that jurisdiction from this House. Many of your Lordships are aware that a domestic affliction prevents Lord St. Leonards being present at this debate; but I had a letter from him this morning in which he expresses himself strongly against such transfer, and says it ought not to be made. As regards the Scotch appeals, the Committee of 1856 examined the Lord Justice General of Scotland, the Lord Justice Clerk, the noble and learned Lord behind me (Lord Colonsay), Mr. Kerr, and Mr. Anderson, all of whom were members of the Scotch Bar. And those gentlemen, who were more competent than most other persons to express an opinion on the matter were unanimously of opinion that the jurisdiction of this House in Scotch appeals was extremely popular in Scotland, and that great dissatisfaction would be felt in Scotland at a transfer of that jurisdiction to any other tribunal. A most remarkable document was sent to the Committee signed at a very large meeting of the Writers to the Signet. I attach more importance to that document because, if there be any class of professional gentlemen who, more than another, have no personal interest in the maintenance of the appellate jurisdiction of this House, it is that of the Writers to the Signet. Appeals coming to the House from Scotland do not come through them, but through Scotch agents in London, who are a different body. Well, what does the document state?—
"That this society fully recognizes the great benefits which have resulted to the Law of Scotland from the exercise of the appellate jurisdiction of the House of Lords, and would deprecate any alteration by which its judicial functions would be vested in any other body."
That is strong testimony; and but only this morning I received a letter from Mr. Anderson, one of the gentlemen I have alluded to as having been examined before the Committee, in which he says—
"My experience since I gave my evidence before the Appellate Jurisdiction Committee in 1856 has only tended to confirm the opinion I then entertained as to the desirability of the House retaining its appellate jurisdiction, and I believe that a great majority of the lieges of Scotland
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concur in that opinion. Any measure to remove that jurisdiction to a separate Court, whether sitting in Westminster Hall or in the Parliament House, would in Scotland be extremely unpalatable. Further than this, I do not presume to say a word on the merits of the Bill now before Parliament."
My Lords, before I leave the question of Scotland, let me remind your Lordships of a view of this subject which I think was expressed by Lord Aberdeen. By our Treaty of Union with Scotland we expressly contracted that under no circumstances were appeals from the Scotch Courts to be sent to any of the Courts in Westminster Hall. I admit that my noble and learned Friend intends that this new Court shall be a Supreme Court; but it may be composed of three Barristers of 10 years' standing, and I do not very well know how a Court composed of Barristers of 10 years' standing will come to be regarded as an Imperial Court, nor how my noble and learned Friend will be able to persuade the people of Scotland that if his Bill passes, the appeals from their Courts will not be taken to a Court in Westminster Hall. They may think that you will be doing in substance, if not in form, the thing you undertook not to do. Now, as to Ireland, my Lords, the subject of the appellate jurisdiction was one that caused very great contests in Ireland in the last century. In 1783, after much controversy and debate, Ireland succeeded in having the House of Lords which then existed in Dublin the tribunal of final appeal for Irish cases; and for that reason, on the Union of Ireland with this country, there was an agreement that Irish appeals should be heard by this House only; but what will the Irish people say if they hear that appeals from their Courts may be brought before three English Barristers of 10 years' standing? Is this a moment—when Home Rule is exciting so much agitation in Ireland—is this a moment for you to open a door which you may hereafter be very glad to shut, and to give those who are agitating for Home Rule an opportunity of saying to their countrymen—"Do not carry your appeals to London, to have them heard by three Barristers of 10 years' standing." Remember, my Lords, when you talk of the "Imperial Parliament," those words have a substantial meaning—they are not words of mere formal description; and I take it that one of the greatest advantages, in a

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tripartite country like ours, is that the supreme appellate jurisdiction is exercised by a tribunal composed of Members of this House, which House itself is composed of Peers who represent every part of the kingdom. There are Peers from Ireland and Scotland, as well as from England, and therefore nothing is more easy than for the people of any of the three countries to give effect to their complaints—if they have any to urge, against the way in which the appellate jurisdiction is exercised. But if you take three Barristers of 10 years' standing and shut them up in a room, there is nothing to connect them with any distant part of the Empire. Now let us turn to the Colonies—for we have to deal with them also. We have colonies governed by every system of law under the sun—by Civil, Dutch, Roman, and French law. We have free colonies—colonies with free institutions, and colonies without; we have colonies that we have become possessed of by cession, others that we have got by conquest, and others that we have made ours by colonization. Every one of them, either by charter, custom, or constitution, has become possessed of a system of law by which their appeals are to the Sovereign in Council. They admit that jurisdiction, they are satisfied with it, they are willing to abide by the Orders made by the Queen in Council; but if you alter all this—if by violent legislation you take their appeals away from an Imperial tribunal and send them to a tribunal which may be composed of three Barristers of 10 years' standing, I want to know is that a policy which will give confidence to the colonies and strengthen the connection between them and the mother country? Have the colonies objected to the present system? Have the colonies been consulted on the change you propose to make? There is another point we must bear in mind. My noble and learned Friend told us that while he invited the House to transfer its appellate jurisdiction, he proposed to leave to the House its legal jurisdiction, if it may be so termed, over such matters as impeachments, the trial of Peers for treason and felony, and those legal questions—often difficult and important—with regard to claims to Peerages, which have to be tried by the Committee of Privileges. But, my Lords, what will be the consequence of the transfer of the appellate
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jurisdiction? As long as you have the jurisdiction you have of necessity a body of legal men ready equipped to deal with judicial questions. No matter what Government may be in power, it would feel it to be its duty as long as the jurisdiction remains with your Lordships' House, to see that the staff who are to exercise that jurisdiction are efficient to have men equipped—to use a nautical phrase—for judicial functions. But abolish those functions—do away with the appellate jurisdiction of this House—and what will be the consequence? The legal Members of your Lordships' House will have no judicial duties to perform, and at the end of 10 or 20 years you will have no person skilled in judicial trials, if, unfortunately, any case of impeachment should arise. Between this House and the Supreme Court of Appeal there will be no connection; and I do not think that, under such circumstances, there will be any guarantee for a continuance of the jurisdiction which my noble and learned Friend now proposes to leave with this House. It may be said that the Lord Chancellor will be here, and will be able to guide the House in any questions of that kind. My Lords, I am not at all sure that the Lord Chancellor will be here. I hope my noble and learned Friend on the Woolsack will not think I am alluding to him personally when I say I am not sure the Lord Chancellor will be here. I say so for this reason—what will the Lord Chancellor have to do? I might, indeed, say what will he have to do elsewhere. I am at a loss to know what he will have to do in this place, and certainly he will have nothing to do in the Court of Chancery. If his Bill passes, and he should go into the Court of Chancery he will be turned out as an intruder; and, for the first time in the history of this country, there will be a Court of Chancery without a Chancellor. But what will he have to do in the House of Lords? So long as the House of Lords is a High Court of Appeal the Lord Chancellor has to discharge great judicial duties. Naturally, he is found in this House, and naturally he is elected Speaker of this House; but if the only judicial function he will have will be that of presiding over a Court of Appeal outside this House, will the House consider that it ought to elect him Speaker?
EARL GRANVILLEsaid that, being a Peer, the Lord Chancellor would still be in their Lordships' House.
LORD CAIRNS: Yes; but what I mean to say is this—that I do not see what reason there will then exist for the House to have the Lord Chancellor for their Speaker. Why should the Members of this House act differently in this matter from the Members of any other deliberative Assembly? Why should the President of a foreign Court be withdrawn from that Court to be President of this Assembly also? Nay—why might not that very Court say, why should we have as our President a Minister of State who changes with successive Governments, and who brings into it an element of uncertainty and change when we want certainty and permanence? I say that when you have withdrawn the appellate jurisdiction from this House its other judicial functions will naturally follow. I ask whether you will have strengthened the position of this House when you have made it merely the Second Chamber of a deliberative Assembly, having no connection with the functions of the High Court of Parliament which it has hitherto exercised? And, my Lords, for what alternative is this to be done? What is the alternative with which we are presented in this Bill? Now, without raising any of the topics of controversy in reference to the jurisdiction of this House, I may say at once that I agree to certain objections made to this House as a Court of Appeal. The first objection to which I will refer is, that there are no continuous sittings—namely, that except in the Session of Parliament the House does not sit at all, and that even during the Session it is in the habit of sitting only four days in the week. I take that to be the first objection. The second I believe to be an objection as to form. The third is, that the expense of appeals to the House of Lords is very great; and the fourth is, that there are what may be called two co-ordinate branches of final appeal—one of which belongs to this House, and the other to the Judicial Committee of the Privy Council. The last objection is, that there is no certainty of an adequate number of Judges highly trained and experienced being always present at the argument of appeals. Now, my Lords, I have said I agree in all these objections; they ought to be remedied,
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and, in my opinion, they are perfectly capable of being remedied. There are some of them that may be put out of question at once. With regard to continuous sittings of the House, I believe that every proposal ever made for altering the jurisdiction of this House proposed that there should be continuous sittings for hearing appeals. Then, with regard to the expense of appeals, I believe the expense of appeals can be, and ought to be, lessened. But, my Lords, I take leave to say that the Bill of my noble and learned Friend on the Woolsack contains no provision whatever for lessening these expenses beyond this—that power is given to make rules on the subject. Why, my Lords, this House has already power to make rules upon that subject as well as any other Court which may be constituted. Then, with regard to the form in which judgment should be given, the Bill of my noble and learned Friend leaves that to the Court he proposes to constitute. These—the continuous sittings, the form of judgment, and expense—are minor matters, in which an alteration or improvement of the system could easily be made. But I now come to more important matters. There is the question of two Imperial Courts of Appeal. The way in which my noble and learned Friend stated his objection to the present system was this, he said—You have got the Judicial Committee of the Privy Council, which hears appeals from the colonies where English law prevails; you have also got this House, dealing with questions of English law and appeals from the English Courts; and that there is nothing to prevent these two Appellate Courts from coming on questions of English law to perfectly opposite conclusions. Now, it is not to be forgotten that although these two Courts have existed for a long time, such a thing as my noble and learned Friend suggests has never yet happened; but I quite agree that it is desirable to prevent the possibility of such a thing. How would the Bill of my noble and learned Friend prevent the possibility of such a collision? I find his Bill, to my amazement, draws a hard and sharp line between the two Divisions of the Court he asked your Lordships to approve, and to one of these Divisions every appeal which comes before your Lordships' House is to be referred, and to

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the other Division every appeal which now goes to the Committee of the Privy Council is to be referred; and the members of the two Divisions are to be separate persons, although they are to have the power of asking a member from one Division to come and sit in another Division. So that my noble and learned Friend, who stated strongly his objections to the two co-existing Supreme Courts, has virtually accomplished the very same end by his Bill, and the same thing may happen under it. But I go further. The fifth objection I stated was this—that there is no certainty of an adequate number of Judges highly trained and experienced to dispose of the appeals in this House. Well, now, let us look at the composition of the Court which my noble and learned Friend on the Woolsack prefers. And first, I must begin by saying that in this Court three is to be the number to form a quorum. I do not quarrel with that. How is the Court to be composed? I hope your Lordships will not feel that I am playing on your credulity when I tell you that the first three persons who are to compose the First Division of this Supreme Court of Appeal, to which are to be referred all the appeals from all the Courts of the United Kingdom, are the noble Marquess opposite the President of the Council (the Marquess of Ripon), the noble Earl the Secretary of State for the Colonies (the Earl of Kimberley), and Mr. Lowe, the Chancellor of the Exchequer. That is the proposal in the Bill. These are the first three persons who may form a quorum of the First Division of the Supreme Court, and determine what I may call our domestic appeals. Well, now, I have great confidence in the good judgment of the noble Marquess, and the noble Earl, and the Chancellor of the Exchequer. At the same time, I do not think that they would do otherwise than agree with me in saying it would scarcely be fair to call upon them to decide upon intricate questions of black-letter law. Suppose while they were engaged in hearing a case of abstruse and difficult law, suddenly there comes one of those crises which will occur in political life—the Government perhaps taking offence at some particular measure in the other House which they treat as a question of Confidence, and the result is a change of Administration. There is a new
1996
President of the Council, a new Secretary for the Colonies, and a new Chancellor of the Exchequer. The new Chancellor of the Exchequer hies to Downing Street most anxious to acquaint himself with the Budget he is to bring forward. The Secretary for the Colonies resorts to his Office to make himself familiar with the geographical position of the countries with which he will have to deal. The President of the Council goes to the Council Office to do—whatever the President of the Council does at the Council. They are all met by the permanent officers of their Departments, who say the first thing they must do is to go and sit in the Supreme Court of Appeal, to take up the threads of the intricate black-letter question which their predecessors were so pleasantly engaged in hearing when they went out of office. Yet that is the first quorum my noble and learned Friend recommends. What is the second quorum? Three Barristers of 10 years' standing. No doubt, that is preceded by an enumeration of certain noble and learned Lords in this House. But although we might be content to give my noble and learned Friend our assistance during the Parliamentary Session, it does not follow that we should undertake to give our continuous labour during the Recess also. In that case, what would the second quorum come to? To these Barristers of 10 years' standing. To be sure, a Barrister of 10 years' standing is not fit to sit in this Court unless he is a Peer; but if he is a Peer, so wonderful is the effect of that fact on the 10 years' standing, that he is at once competent to sit in these appeals. Then, with regard to the Second Division, what is the first quorum? Three persons appointed by Sign Manual of Her Majesty. That is the qualification—"any three persons that Her Majesty, by Sign Manual, may appoint," will be fitted under this Bill to dispose of all colonial appeals, all ecclesiastical, and all Admiralty appeals. With reference to the appointment of Members by Sign Manual, my Lords, I remember that upon the eve of the hearing of one of the most important cases ever submitted to the Judicial Committee, the appointment was made to that Committee, under the Sign Manual, of a gentleman of whom I desire to speak with the greatest respect, because I entertain for him great regard—I mean Mr. Bernard.

1997
Well, this Bill goes further, because under its operation any number of persons may be appointed by Sign Manual, and any three Judges may constitute the Supreme Court for the decision not only of ecclesiastical and maritime cases, but also of colonial appeals. Then there is a provision in the Bill with respect to the payment of salaried Members. There is a power to appoint as many as 10 salaried Members, with £6,000 a-year each, to the two Divisions of this Court, who may have simply the qualification of being Barristers of 10 years' standing. I own it appears to me that the position under the Bill of Barristers of 10 years' standing will be a very hopeful one. I cannot conceive anything more tempting to induce a Barrister to enter the House of Commons with the view of receiving a reward for his Parliamentary services, than the prospect of promotion to this Court of Appeal, with a salary of £6,000 a-year, besides the chance of being made a Peer. And be it observed, too, that these appointments are to be open not only to English, but to Irish Barristers, as well as to Scotch Advocates. I admire the dexterity with which my noble and learned Friend has dealt with the possibility of the recurrence of any such question as to appointments to the Judicial Committee as that which arose in the present Session; because I find that the definition of the qualification for paid Membership in the Bill is that—
"No Member of the Supreme Court shall he qualified to be a salaried Member unless he has held for a period of not less than two years one or more of the judicial offices herein mentioned as qualifying a Peer or Privy Councillor to be a Member of the Supreme Court."
If the Bill had stopped here we should avoid any such difficulty as occurred in the case of Sir Robert Collier; but we have got one qualification which renders all others unnecessary, and that is that to be a paid Member a man must be a Barrister of 10 years' standing. There is also another observation which I wish to make with regard to the salaried Members. I find, with respect to the Firs Division, there is a statement that a preference in choosing its salaried Member is be given to ex-Lord Chancellors if they are willing to accept the office Now, against that I must protest. It is I contend, putting ex-Lord Chancellor in a position which is entirely unfair.
1998
If they are persons of merit, and persons whom the Government desires to appoint, then well and good—let them get these appointments; but I protest against the idea that they should have any sort of right, in preference to other persons, to have three of those paid offices assigned to them. Let me ask your Lordships to observe the manner in which the present paid Members of the Judicial Committee are dealt with. If I had not read the provisions of the Bill I should have deemed it impossible that they could have been placed in such a position. I do not know whether your Lordships recollect the statement which was made to us by the Government this Session with regard to the appointment of those Members of the Judicial Committee. After the appointment of Sir John Colvile, the Government offered the further appointments to Members of the judicial Bench who they were anxious should accept them; but the offer was in several instances declined. The Government told us that the grounds on which these refusals were based were that the Judges considered they would be losers by accepting the appointments, inasmuch as the salaries of their clerks were not provided for. That being so, it is obvious that the result of fixing the salaries at £5,000, as was done by the Bill of last year, was that we lost the services of certain eminent persons whose services the Government themselves desired to secure in preference to those who were ultimately appointed. At the time the Act was passed several persons warned the Government that the salaries were such as would not tempt the best men to accept the appointments. But what is the proposal which is made in the present Bill? Not having obtained for £5,000 a-year the men whom they were anxious to appoint, they now propose to give £6,000 a-year, which if it had been offered last year, would have secured the services of such men as they themselves admit they would have liked to obtain. We have heard something from my noble Friend the noble Marquess behind me (the Marquess of Salisbury) of stagnation tempered by jobbery; but this I am tempted to call parsimony tempered by prodigality. There are also some other matters in the Bill to which I wish to invite your Lordships' attention. There is one matter which is of transcendent importance with

1999
respect to the criminal law of this country. This Bill proposes to transfer to the Supreme Court which it attempts to create the jurisdiction of a Court which is called the Court of Crown Cases Reserved. Your Lordships are probably aware that this is a Court in which the Judges of the Superior Courts assemble together for the purpose of dealing with any points of criminal law which may have been reserved for their decision at the trial of criminals. There are, I believe, no more important functions than those which the Court for Crown Cases Reserved discharges. There are, I believe, no more difficult functions, and none which it is more dangerous to meddle with. It is proposed by this Bill to take away the jurisdiction which is at present exercised by the criminal Judges, who are every day in the habit of dealing with criminals and of administering criminal law, and to transfer that jurisdiction—to whom?—to three men, any one of whom may never have seen a criminal in his life, or who may never have seen a criminal trial conducted in this country. I own that, though I have been brought up to know something of law, I should entirely refuse to pronounce an opinion on the most ordinary question of criminal law which might have been reserved for the decision of this Court. Here, therefore, you run the risk of endangering the administration of the criminal law of the land. If a mistake should occur with regard to any one of those cases you might let loose the prisoners in our gaols and at Quarter Sessions, and might overthrow the whole system of criminal law which from year to year has grown up in this country. That is a proposal so dangerous that I must, with great respect for my noble and learned Friend, characterize it as being as wild a scheme as was ever submitted to the Parliament of England. I now come to the next blot in the Bill. In it I see the extinction of one of the most wholesome practices which ever prevailed in this House, and one of the most valuable elements in its judicial functions—I mean the attendance here of the learned Judges of the land. No cases have, I believe, been ever so satisfactorily decided by this House as those which have been decided with the concurrence and advice of those learned Persons who have been in the habit of attending the
2000
House as Assessors, and who do not object to lend us their aid in that form. It was only this morning that your Lordships disposed of an extremely important case which came before you, after a hearing before the learned Judges, who were, with the exception of one, unanimous as to the judgment which ought to be given. I concurred in that judgment; but I should have arrived at a decision with comparatively little satisfaction if I had not been fortified by the learning and ability which had been brought to bear by the learned Judges in the case. Now, it is not proposed that they should attend the House to give it the benefit of their advice under this Bill—for it could scarcely be expected that they should attend a Court composed of the two noble Lords opposite, and the Chancellor of the Exchequer, and three Barristers of 10 years' standing. Well, what is the next thing the Bill proposes to do? It proposes to suppress all intermediate appeals—that is to say, all appeals from Intermediate Courts of Appeal in England. In this respect nothing can be more inconsistent than the provisions of the Bill, for it deals with intermediate appeals from Ireland or Scotland, or from the colonies, while it suppresses those from England. It, in this respect, exactly reverses the recommendations of the Judicial Commission, as well as the logical mode of proceeding, and throws upon the Supreme Court a burden which it would be impossible for it to discharge. Take the judicial statistics for 1870. The Privy Council and the House of Lords together disposed of 112 cases—the former 61, the latter 51. That may be taken as the working power of these two bodies for the time they sat. Now it is proposed to throw on the Supreme Court of Appeal, in addition, the work of the Exchequer Chamber, of Bankruptcy appeals, and the re-hearings of appeals in the Court of Chancery. The appeals disposed of by the Exchequer Chamber in 1870 were 56, in Bankruptcy they were 59, and the re-hearings of appeals in the Court of Chancery were 141—making in all 256; and, if I add interlocutory motions in the Court of Chancery, that would be 160 more—giving a total of 416 cases in addition to the present business of the House of Lords and the Privy Council. It would, in my opinion, be highly objectionable that

2001
such an amount of work, in addition to what these two bodies now have, should be thrown on the Supreme Court, even if it could be done in the usual way. But what does my noble and learned Friend propose? In order to prevent this accumulation of business, he proposes to suppress not only the Intermediate Courts of Appeal, but to prevent there being any appeal at all from what are called interlocutory orders in the Court of Chancery. Perhaps your Lordships are not familiar with what are called interlocutory orders. They comprise the injunctions of the Court. It was only the other day that a primary Judge of the Court of Chancery, for whose judgment I have great respect, granted an injunction against the Great Western Railway to compel them to stop their trains at Swindon in order to enable passengers to obtain refreshment. The Great Western Company were of opinion that the order was erroneous, and they appealed to my noble and learned Friend and the Lords Justices, and next day the Court of Appeal unanimously reversed the decision and delivered the Company from the injunction. But, according to my noble and learned Friend's Bill, there would be no appeal, except with the consent of the Court that makes the order, or of the Supreme Court; so that in order to have an appeal at all you should have a preliminary appeal to know whether there should be an appeal. And that would be the case, although there ought to be an appeal next morning, or else companies might be seriously injured, tradesmen ruined, and the business of the country most injuriously affected. Then the Bill does not allow appeals for less than £1,000, whereas half our colonies have by charter got the right to appeal for sums very much less. I ask, my Lords, is it possible that by this Bill you are going to overthrow these charters? I believe that this measure is a very hurried production. I know the number of matters that take up the time of my noble and learned Friend, and therefore I do not say the fault is his. But, as a great, important, nay, almost, constitutional question is involved, I cannot help pointing out the manner in which this Bill has been prepared. One of the first things that I find in it is this—it proposes to transfer to the Supreme Court which is to be formed all the jurisdiction
2002
of the Judicial Committee of the Privy Council. My Lords, I thought everybody knew that the Judicial Committee of the Privy Council has no jurisdiction whatever. It is a consultative body, and is absolutely without jurisdiction. The curious thing in the Bill, therefore, is that it proposes to transfer from the Judicial Committee what the Judicial Committee has not got. But the jurisdiction of the Queen in Council, who has jurisdiction, it does not propose to transfer at all; and therefore the Bill would in this respect be absolutely inoperative. Nay, more, I find power given to Her Majesty to refer to the Supreme Court any matters which it would be lawful to refer to the Judicial Committee of the Privy Council. But the noble Marquess the President of the Council knows very well that Her Majesty cannot refer. Her Majesty in Council may refer; but Her Majesty in person can refer nothing. What do I find next? I find a provision that this Court may have a colonial Judge, if the person to be appointed has held the office of Chief Justice of any colonial Court. The original salary of such a Judge may be £1,000 a-year; but at the end of a certain time he may retire on a pension of two-thirds not of his original salary of £1,000, but of £6,000—that is to say, on a pension of £4,000 a-year. What do I find next? Something, I own, which startles me—namely, that this Bill is not to transfer to the Supreme Court the original jurisdiction of the Lord Chancellor with respect to persons of unsound mind. I am ashamed to mention these things; but I must say that it is one of the first principles of the law of lunacy that the Lord Chancellor has no original jurisdiction whatever, any more than I have, or than any one of your Lordships has. There is no original jurisdiction in the Lords Justices or the Court of Chancery; the jurisdiction is in the Queen, and it is committed by Sign Manual to any person Her Majesty may please, as a matter of convenience, and the habit is to give it to the Lord Chancellor. I want to know, then, what has become of the Lord Chancellor's own original jurisdiction? I find that nothing in the Act is to interfere with this original jurisdiction; but I suppose it is to interfere with the original jurisdiction in Chancery when it is gone. But if the original jurisdiction of the Court of Chancery is

2003
gone under this Bill, how are the Lords Justices to sit? They sit at present for the Lord Chancellor, to exercise the original jurisdiction which he has not time to exercise; but if that jurisdiction be taken away by the Bill, where is the source of their authority? My Lords, I regret that this measure, both in details and in principle, is one which I cannot for a moment imagine your Lordships would accept as an alteration of the present system of appeal. I believe the present system is open to amendment, and I should be the first to assist in such amendment as is required. If my noble and learned Friend had thought right to move for a Select Committee of this House, to inquire into the whole subject of the Appellate Jurisdiction of this House and of the Privy Council, and had referred his Bill to it as a document, not as a Bill read a second time, I should have been most willing to embrace that proposal. But if I am asked to assent to the second reading of this Bill, or the passing of the Resolution of my noble and learned Friend, I must say that I am unable to do so. And if my noble and learned Friend desires that your Lordships' opinion should be taken upon the adjourned debate, then I shall be compelled to move, as an Amendment, that, in the opinion of this House, it is not thought fit to assent to a Resolution affecting its jurisdiction in writs of error and appeals otherwise than in connection with a measure which shall provide a satisfactory alteration of or substitution for that jurisdiction; and that, in the opinion of this House, the proposals of Her Majesty's Government under this head are not satisfactory.
LORD PENZANCE: No one, my Lords, who has been conversant with the practice of the law can doubt that for many years—for the last 15 or 20 years at least—the decision of appeals in this House has been such as to command the confidence and respect of the country. The same remark is true, in my opinion, of the other tribunal to which attention has been drawn—namely, the Judicial Committee of the Privy Council. The decisions of that tribunal—partly owing to the very distinguished services of some of its Members, now unfortunately dead, and partly to the eminent position which a Court of that kind holds in the country—have also commanded the respect of the colonies.
2004
But though such are the facts, it will, I think, not be denied that from time to time a question has been raised as to whether the construction of the appellate tribunal of this House is one that can properly be defended as likely to work satisfactorily. I will not go over all the objections on that head because they have been stated by my noble and learned Friend on the Woolsack; but to my mind it is obvious that a tribunal not sitting the entire year when other tribunals are discharging their duties—a tribunal which, in fact, only sits half the year, and which, consequently, must delay the decision of appeals—cannot be in a thoroughly satisfactory state. Agreeing, then, that the existing jurisdiction is, in the main, exercised satisfactorily, I also agree with my noble and learned Friend opposite (Lord Cairns) that before the House parts with its jurisdiction it ought to be satisfied that the tribunal to which it is proposed to transfer that jurisdiction shall be such as will remedy the evils complained of, shall also be of the same high standing and entitled to the same respect as the existing tribunal. In making a proposal to remedy the existing evils by the construction of a new tribunal, I think care should be taken, both by the selection of persons highly fit for the office and by the creation of a tribunal sufficiently strong in point of numbers, to give it weight it might otherwise lack. Under these circumstances, I cannot help feeling that many of the provisions of the Bill introduced by my noble and learned Friend require further consideration. Taking the measure as a whole, I recognize the Bill as an honest attempt to constitute a tribunal of adequate strength to meet the exigencies of the case—there is an evident intention on the part of my noble and learned Friend to create a tribunal in every way worthy; but having examined the details of the Bill very carefully, I am bound to say there are many parts of it—especially that relating to Crown Cases Reserved—with which I cannot agree. Into these details I will not now enter; but considering that the existing state of affairs is not unsatisfactory, and viewing the array of opposition on the other side, I would submit to my noble and learned Friend on the Woolsack whether it is not expedient, as my noble and learned Friend who has just sat down suggested, that this subject

2005
should be referred in its integrity to a Select Committee, to take this Bill and the whole subject into their consideration.
LORD WESTBURY: My Lords, when this Resolution was first proposed I took the liberty of pressing upon the attention of your Lordships that it was idle to ask us to transfer our jurisdiction unless we knew what was the tribunal to which it was proposed that that jurisdiction should be transferred. That was so far assented to by the Government that the debate was adjourned in order that the Lord Chancellor might proceed with his Bill. The Lord Chancellor this evening, by giving precedence to the adjourned debate, has produced this result—that the Resolution is discussed on the basis of his Bill, and he prefers to let it be regarded as a Resolution which is to depend upon the merits of his Bill. For my own part, I was from the first well aware that the measure would not bear discussion. I knew very well what would be the damaging effect of proceeding with the discussion upon it; and in the early part of the evening I ventured to entreat the Government to let the Bill be considered before proceeding with the Resolution; my object being that my noble and learned Friend might agree to have either the Bill, or the question which it raised, referred to a Select Committee, and to postpone the discussion of the Resolution until the effect of that reference was ascertained. In order that the end that we have so long endeavoured to arrive at may not be frustrated, I would earnestly repeat my request to the Government to say at once—"Let the whole subject go to a Select Committee, and let the Resolution be indefinitely postponed." Your Lordships must not for a moment entertain the opinion that the present state of things is so satisfactory, of so roseate a hue, that no reform is needed. If there is one thing that is required to establish the House of Lords in the respect and full esteem of the country, it is that the House of Lords as a Supreme Court of Appeal should adequately supply the wants of our vast Empire. It is necessary to ensure that character for the tribunal, to make it a real tribunal and not one in theory only—that such a Court should sit more frequently in the year, and should be capable of dividing itself into two or more Chambers, to meet the
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exigencies of the case. It is necessary that you should have a body of Judges of the highest character accustomed to consider every part of the law which prevails throughout your vast Empire, and capable, therefore, of constituting a Court in such a manner as shall answer any emergency that may arise. That you cannot do at present. I deprecate, therefore, any eulogy on the present constitution of the Court which will cause you to hold your hands and believe you are a perfect body. I am no friend to patchwork. The evil of that sort of work is, that when people find a hold they are content to stop that hole; when they find a rent in their garments, they are content to mend that rent and go on. Having regard to a complete tribunal, I maintain that your Court of Appeal ought to be framed after you have brought the subordinate jurisdictions of the country into the shape in which you are satisfied they should remain. I had not the honour of sitting on the Commission of 1856 which considered the condition of those subordinate jurisdictions. I am not, therefore, conversant with the proceedings of that Commission, but I understand that they recommended an entire alteration of the character, status, and functions of the inferior jurisdictions of the country. If any such design be in contemplation, it is evidently impossible for you to say what ought to be the final position and character of your ultimate Court of Appeal, until you have finally established the nature of the jurisdiction of your inferior Courts. Although, therefore, I entirely agree in the proposal to refer the Bill to a Select Committee, where the last point I have adverted to may be well considered, I do not think you will be able to find a firm basis for your Supreme Court of Appeal, until you have determined whether there shall be any alteration in the jurisdiction and condition of the inferior Courts of Justice in England. This debate, however, must undoubtedly create among those who are interested in the administration of justice, and who are anxious for the character of this House, many painful feelings. Such a result might have been avoided, if the Government had abstained from pressing on the discussion upon this ill-advised Resolution. But when they determined to ask your Lordships to take a leap in the dark, to abandon your jurisdiction, and

2007
accept their substitute, the exposure of the wretched nature of that substitute became necessary. I only hope that the Government now will, without further discussion, accept the proposal to refer the whole matter to a Committee; because otherwise nothing will enable you even to approximate to the mode in which this matter ought to be decided. If your Lordships are required to decide it upon the materials before you, I shall be content, and I think the majority of the House will be content, to vote against the Resolution, and to vote also against the second reading of the Bill.
THE LORD CHANCELLOR: My Lords, I am sure your Lordships will indulge me with the opportunity of giving some reply to the argument—the no doubt able argument you have heard from my noble and learned Friend (Lord Cairns) against the Resolution. My Lords, I can have but one object in view—namely, to ameliorate our judicial system, to rescue it from being a laughing-stock to foreign countries, and make our jurisdiction in this House a reality and not a mere pretence; and if it be your Lordships' desire that a Special Committee be appointed in order to a further inquiry into the whole, I have no objection. I will cordially submit to any amount of inquiry. But certainly I should not myself have suggested any such course, because my impression was that the appellate jurisdiction of this House has already undergone a sifting examination. Three inquiries have already been instituted—in 1813, in 1823, and in 1856; but if your Lordships are of opinion that another inquiry is called for, I shall be most anxious to have the matter again thoroughly sifted, and cannot, therefore, but accede with pleasure to the proposal of a Select Committee. There is usually much difficulty in summoning Committees upon which the attendance of the Lord Chancellor is necessary, his time being so much occupied with other duties; but, as your Lordships have heard, there has been greater expedition in disposing of appeals, and a greater clearance of them than I can before remember. I can say the same of the Court of Chancery, where there are no arrears whatever, and I should, therefore, have time to attend the proposed Committee. As to the speech of my noble and learned Friend (Lord Cairns), he has not grappled with one
2008
single position of mine. My case was this—that if your Lordships really exercised this appellate jurisdiction, I should be the last person to ask you to part with it. But you do not exercise it. Since the Bishop of London's case in 1844 there has been no attempt to exercise it—but, in reality, it has not been exercised since 1780. Bearing this fact in mind, it is not quite right that my noble and learned Friend should attempt to throw a gorgeous robe around the appellate tribunal here, and invest with the sanction and dignity of your Lordships' House a decision come to by a body of four, at the most five, and often three, Peers to whom you delegate these high functions. That is the real state of the case; and my noble and learned Friend will not, I am sure, repel the statement that if your Lordships attempted as a body to exercise these functions and determine judicially what should be the fortunes of any one family in this kingdom, your appellate jurisdiction would not last three weeks longer, and your Lordships yourselves would be the first to abolish it. The question is a grave one, vitally affecting your dignity as well as the due administration of justice, and if that justice is really administered by a small Committee here, it is better that they, and not your Lordships, should bear the blame—if blame there be—arising from any error or miscarriage of justice. As Lord St. Leonards has been mentioned, I may say he has expressed the opinion that, as regards appeals in Chancery, the jurisdiction of this House is a usurpation. However, this House went on entrusting its jurisdiction to the Lord Chancellor himself, assisted by two lay figures, who sat with him on one day, and were replaced next day by two others. That condition of things went on for some time, except on occasions when there were great contested cases upon which the whole House took upon itself to vote—these being certainly not the best decided cases which were heard; and at length it was found so unreasonable, and the delays were so great—occurring as they did in a tribunal which did not, like other tribunals, sit six days in the week or all the year round, excepting the usual vacation; a tribunal fettered in every way by being connected with this House, though not deriving one particle of assistance from it—that in 1813 there was an inquiry,

2009
to which, no allusion has been made by my noble and learned Friend. It was then found that 380 appeal cases were in arrear; but the only suggestion was that a Vice Chancellor should be appointed, so that Lord Eldon should be able to attend here. In 1823 there was another Committee, and the principal remedy then suggested was that there should be a ballot for the attendance of Peers, who should be fined £50 for non-attendance. Was not that a ridiculous mockery of justice? Two lay Peers were to be compelled to attend each sitting of the Appellate Court, and there write letters, read the newspaper, or do anything else that took their fancy, under a penalty of £50. In 1856 another Committee, composed of some of the most distinguished and thoughtful Members of this House, admitted the grievances which existed, and said that the remedy was to appoint two paid Members of the Court, at a salary of £6,000 a-year, and a Deputy Speaker, and it was suggested that they should be Peers for life. These paid Members, however, were never appointed. That Committee sat 16 years ago, and not a single step has since been taken for the improvement of the appellate tribunal. My noble and learned Friend commented on the proposal that Barristers of 10 years' standing might be appointed—thinking, apparently, that he could best entertain the House by ridiculing that feature of the Bill. He invests the Judges hero with every possible dignity, and speaks of Irish and Scotch Peers watching over appeals relating to their respective countries; while in contrast to that he describes Barristers of 10 years' standing as Judges. Now, with the exception of a noble and learned Lord (Lord Colonsay), who gives us the benefit of his assistance, and of the Lord Chancellor for Ireland, has any Peer from Scotland or Ireland watched the proceedings of the Committee to see that those countries had justice? I must complain grievously of my noble and learned Friend for representing as the effect of the Bill the appointment of three Barristers of 10 years' standing—a class of men from whom some of the best Judges who ever sat on the Bench have been selected. He did not attempt to deal with the anomaly of this House really doing nothing, and of the Law Lords—sitting, if necessary, with the deficiency in number made up by lay Lords, taking
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no interest in the matter—with the evil of the want of continuous sittings and of the increased expense attendant on a Court with all these adornments. My noble and learned Friend cannot understand my reference to the state of things in Lord Eldon's and Lord Brougham's time, unless I wished to make your Lordships believe that that state of things still exists. That was hardly an expression worthy of him, or of what I venture to say he thinks of me. Transported by his eloquence, he could not believe that I introduced that observation except with the view of prejudicing the existing state of things. Now, I introduced it simply because it was true. He has never known an instance of a layman sitting to form a quorum, but in my own shorter experience I have once sat with a Bishop, because none of my noble and learned Friends were present to assist. These things are, no doubt, the result of accident; but the recurrence of such accidents will be prevented by an effective Court. Then it is said we are going on well. I believe at present eight learned Lords—who have been actively engaged in the legal profession—sit in your Lordships' House. Two of them have not once attended the sittings since I have sat here, being engaged in Courts of their own. Five have occasionally sat; and a sixth (Lord St. Leonards) I should be delighted to see sitting, if his age and strength permitted him. Of the Lords who usually attend, four are over 70 years of age. Is there sufficient security of their continuing to attend to justify your Lordships in saying that no necessity of improvement exists? I will not follow my noble and learned Friend in entering into the details of the Bill, but one or two points I am bound to notice. My noble and learned Friend on the other side of the House (Lord Cairns), referring to the possibility of conflicting decisions by the Judicial Committee and this House, said the error was perpetuated under this Bill by the division of the Court into two Divisions with co-ordinate jurisdiction. Now, though I propose two Divisions, there would be a full Court, and whenever an important point of law arose it would meet—so that the error is completely corrected. With regard to the noble Lords who might be called in to deal with colonial questions connected with special legislation, and how far an Act was within the powers of the colonial

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Legislatures, it has been my lot to sit with, those distinguished personages on questions of that kind. It was because such eases might occasionally arise that the Bill provided for them, and my noble and learned Friend should not have amused the House by leading it to suppose that there was the slightest notion of those noble Lords being called in, except for that particular purpose. They would not be among the salaried Members of the Court, who are to sit continuously. Had we gone into Committee I should have been ready to enter into all these details; but I do not see, with my noble and learned Friend on the right, that we could have discussed the Bill better without first considering this Resolution. I have only one object in this matter. I wish to see justice so administered as not to bring discredit on your Lordships' House. At the present moment we have a tolerably sufficient body to hear these cases; but there is no security for that continuing to be the case. I am old enough to have over and over again seen a Lord Chancellor sitting with two lay Lords, who could take no part in the proceedings, and indeed changed from day to day. There is no safeguard against the recurrence of that. I wish to see these evils corrected and to create a real, substantial Court of Justice—not a sham Court, with a sham Bench, under the veil of your Lordships' name and sanction. I have no objection to the proposed inquiry being directed both to the Judicial Committee and to this House, in order to see whether any and what improvements can be made in the constitution of these Courts, or in the appellate jurisdiction generally, and whether the Bill is referred to the Committee or not I do not care. All I want is that the facts should come out; and when they are once out it will be seen that considerable changes must be effected to satisfy those who desire to see justice satisfactorily administered. I must beg pardon of the House for noticing what was thrown out by my noble and learned Friend (Lord Cairns) as to this Bill being the first step to the abolition of the House of Lords. I hope we are all of one mind in desiring to remedy existing defects and to have an effective Court. Any sinister object of abolishing this House, or weakening its influence, hardly requires to be disclaimed; and, so far from the Bill having
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such a tendency, I believe the transference of this jurisdiction will be a most effective means of strengthening this House.
LORD CAIRNSsaid, he desired to remove an impression which his words had apparently made on his noble and learned Friend. What he had said was that he was sure his noble and learned Friend had no intention to use this proposition as a means of weakening the influence of the House of Lords, or of leading to further alterations in it; but that it would be, and indeed had already been, understood in that sense. This was the feeling out-of-doors, which he was anxious to prevent. The Order of Reference he would propose was this—
"That a Select Committee be appointed to inquire into the appellate jurisdiction exercised by this House, and into the working of the system of appeals to Her Majesty in Council, and to inquire what changes or improvements should be made with reference thereto."
It was his intention that the Order of Reference should be as large as possible.
EARL GRANVILLEsaid, he was not aware that, either in speeches or in the Press, it had been represented that the proposed action would weaken the House of Lords; indeed, it was supposd it would rather have a contrary effect.
LORD CAIRNSsaid, the expressions of opinion were not confidential, and he would take care the noble Earl was put in possession of them.
LORD HOUGHTONsaid, he was confident that on his side of the House many Peers would agree in the opinion that their Lordships' jurisdiction was a solid and important reality, which he trusted the House would not lightly part with.
After a few words from Lord DENMAN, The said Motion (by leave of the House) withdrawn.

APPELLATE JURISDICTION—SUPREME
  SUPREME COURT OF APPEAL BILL [H.L.]
  Order of the Day for the Second Reading, read, and discharged.

  APPELLATE JURISDICTION.
  Moved, That a Select Committee be appointed "to inquire into the working of the Appellate Jurisdiction exercised by this House and into the working of the system of Appeal to Her Majesty in Council, and whether any and what changes or improvements should be made in reference thereto."—(The Lord Cairns.)
  Motion agreed to; and Committee appointed accordingly.
  House adjourned at a quarter before Eight o'clock, to Thursday next, half past Ten o'clock.