Lords Sitting of 2 May 1873

MINUTES.
PUBLIC BILLS—Second Reading—Elementary Education Provisional Order Confirmation (No. 3)* (78).
Report—Supreme Court of Judicature* (73–89).
Third Reading—Marriages (Ireland)* (75), and passed.

AFRICA—WEST COAST SETTLEMENTS—THE ASHANTEE INVASION.

  QUESTION.
  THE EARL OF LAUDERDALEsaid, that since he brought the subject of the Ashantee incursion under their Lordships' notice there had been, according to reports in the public newspapers, a serious engagement between the Ashantees and our protected tribes. As to the exportation of arms to Africa, he had seen a statistical paper, which gave 10,000 as the number of arms exported from this country to the West Coast in the month of April last; and that there had been exported during the months ending 31st March 4,000,000 lbs. of gunpowder, and 89,000, stand of arms. Those arms and a very large quantity of powder were consigned to various points, such as the Bonny River, Old Calabar, and other places, all south of the Gambia, and north of the Line. There was a very great trade in arms and ammunition along that coast, and it was of very great importance at the present crisis that

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  every precaution should be taken to prevent them from getting into the hands of the Ashantees. On the other hand, it was reported that our own men had been obliged to give way before the enemy for want of ammunition, and that the ladies at Cape Coast Castle were subscribing money to supply them with powder. It was further stated that no fewer than 30,000 Ashantees were within six hours' march of Cape Coast Castle, and that the only re-inforcements that had been sent were 120 troops and 150 Coolies. Now be thought that wherever we hoisted the British flag we ought to have a sufficient force of native or other troops to resist any attack that might be made on it. The forts which we had to protect on this West Coast extended along a line of coast 60 miles in extent; and to send out European troops was out of the question—they would die as soon as they landed. He wished to ask the noble Earl the Secretary for the Colonies—What measures have been taken to prevent the Ashantees getting supplies of arms and munitions of war; What number of troops we have on the spot to defend and hold the various forts under the British flag, eight or ten in number; And if any of the Colonial troops were engaged in the battle, an account of which has been received at the Colonial Office?
  THE EARL OF KIMBERLEYsaid, he would take the Questions of the noble and gallant Earl seriatim. With regard to the first of them—whether any steps had been taken to prevent the Ashantees from obtaining supplies of ammunition—before he answered it, he would like to explain that as to some of the points to which the noble and gallant Earl had referred as those to which a very large number of arms and great supplies of ammunition had been sent, the Ashantees had no more access to them than they had to the Cape of Good Hope. Those places were not in the neighbourhood of the country of the Ashantees. Of course it was of the last importance that measures should be taken to prevent the Ashantees, whose territory lay at the back of the Protected Territories on the Gold Coast, getting supplies of arms and ammunition, and instructions on the subject had been sent out from the Colonial Office; but it was not necessary that he should read them, because they had been anticipated on the spot by the Adminis-
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  trator, Colonel Harley. On the 8th of February the gallant Colonel issued a Proclamation forbidding all persons within the Settlements and Protected Territories on the Gold Coast, and on the waters, rivers, and estuaries thereof, to sell, barter, give, or transfer, directly or indirectly, any arms, ammunition, or warlike stores to the Ashantees or their allies, or to other enemies of the Protectorate. He also prohibited the importation of arms, ammunition, and warlike stores, excepting at Cape Coast, Elmina, and Accra, and such other ports as the importer might be especially authorized to land them at under a licence obtained from the Collector of Customs. The next question of the noble and gallant Earl was as to the number of troops we had on the spot to defend and hold the various forts under the British flag. Now, in order that their Lordships should understand the position of affairs in that part of the country, he ought to state that this was not British Territory, but British-protected Territory, and he could not do better than quote to their Lordships, Instructions sent out by Mr. Cardwell, which, though dated in June, 1864, were quite applicable to the present occasion. Writing to Governor Pine, Mr. Cardwell said:—
  "The duty of defending the extensive territory included in the Protectorate can only be satisfactorily discharged if the chiefs to whom it belongs are united and resolute in their own defence. If they are not united, and will not take upon themselves the principal part of the exertions necessary, it will not be possible to defend them without exposing the Queen's forces to the risks of a deadly climate, and to the hazard of being virtually defeated by the disastrous consequences of that climate, before they have been able to bring the native enemy to the issue of arms. The proper course, therefore, is to take every possible means for bringing the chiefs to an united and decided system of defence, and for this purpose to give them advice, to supply them judiciously with military stores, and, in concert with the officer in command of the forces, to furnish them with such assistance as he may be able to afford, without exposing his officers and men to any protracted residence in the interior, especially at the unhealthy season, and without weakening his force upon the coast so as to endanger the safety of the settlements themselves."
  The same steps as Mr. Cardwell advised to be taken had been taken by the present Administrator, Colonel Harley, and, from all the accounts which had been received, the chiefs were quite able to

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  defend the territory if they were willing to do so. Of course, if they were not so disposed, they could not be forced to resist the Ashantees. In a despatch recently received from the Administrator, he stated that the published accounts much exaggerated the number of Ashantees engaged in the incursion. Colonel Harley did not believe it exceeded 4,000—though doubtless it was in the power of the Ashantees to bring up re-inforcements. The tribes under our protection must be at least 10 times as numerous as the Ashantee army, and if they acted with energy there could be no question about their being able to repel the enemy. But there was a difficulty in the way of keeping them properly supplied with ammunition. Unfortunately, they had a foolish habit of firing off an unlimited number of blank charges before they came in sight of the enemy. It was, therefore, impossible to undertake to supply them with an unlimited quantity of ammunition; but a great deal had been sent to them, and also a great number of arms. In addition to the forces which the tribes themselves might be expected to supply, we had on the spot 270 troops of the West India Regiment, 220 armed Houssas, 200 Volunteers, and 150 Native Police, making in all an armed force under the Administrator of 840 men. Then, besides that force, there were at the latest date four vessels of war on the coast. They could not go up the interior, but the men on board would be useful in case of an attack near the coast or on the forts. By the latest ad-vices there was another war ship on her way to the Coast; and since then a larger ship had been sent in the same direction. Writing on the 8th of April, Colonel Harley said:—
  "I may add that a feeling of complete security is felt here and along the coast, which the presence of four of Her Majesty's ships at present in the roads no doubt strengthens."
  He thought that when the Military Administrator spoke in those terms there could be no doubt that confidence was felt in the resources at hand. The attack was serious, but there had been much exaggeration both as to what had occurred and the strength of the enemy. In answer to his noble and gallant Friend's last Question, none of the British troops were engaged in the recent engagement. They had not been
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  sent into the interior, nor was it intended to send them.
  THE EARL OF CARNARVONsaid, that the statement of the noble Earl the Secretary for the Colonies was, as far as he understood it, on the whole, a satisfactory one. But he understood that we were supplying arms and ammunition to a great number of semi-barbarous tribes. He did not know what degree of confidence was to be placed in these tribes, and he wished to know whether any security had been taken that we should get our arms back.
  THE EARL OF KIMBERLEYcould not say that any security had been asked or given. It was not probable that at a moment of such emergency a bargain could have been made with those tribes for the return of the arms; but arms had been supplied on former occasions, and no difficulty had arisen. We never had had any dissension with the tribes whom we were now arming, and there was no reason to think they would turn against us.

APPELLATE JURISDICTION OF THE HOUSE OF LORDS.
  SUPREME COURT OF JUDICATURE BILL.

    RESOLUTIONS.
    LORD REDESDALErose to move Resolutions respecting the jurisdiction of their Lordships' House as the ultimate tribunal of Appeal for the United Kingdom, of which he had given Notice. The noble Lord said, that in these Resolutions his reasons for being opposed to the abolition of the Appellate Jurisdiction of their Lordships' House were pretty fully stated. He thought that the constitution of one Tribunal of Ultimate Appeal for disputed suits from the Courts of all the three Kingdoms was more advantageous than the creation of separate jurisdictions for such appeals. If the principle of having only one such tribunal was departed from, and a claim should arise to property in more than one kingdom on a doubtful point of law, on which their respective Courts of Ultimate Appeal should differ, a legal and social scandal would follow, which could not occur if the last appeal had been to one Supreme Court as at present. Their Lordships' House had long supplied, and was alone capable of satisfactorily supplying, such a tribunal, from which, under the provisions of the Supreme

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    Court of Judicature Bill, it was proposed to separate England, at a time when its efficiency had been generally acknowledged, and its jurisdiction retained for Scotland and Ireland as especially satisfactory to those countries. As regarded their Lordships' House, the retention of this jurisdiction was most important, not only on high constitutional grounds, but for reasons connected with the succession to Peerages, which were legal rights; for in the event of a disputed succession to estates in more than one kingdom on a question of legitimacy dependent on a point of law such as might arise on a question of foreign marriage, the heir to which would also be entitled to a Peerage in each of those kingdoms, if the decision as to the right to the estates should be different in the respective Courts of Ultimate Appeal, their Lordships' House, although deprived of its status as a Court of Law, must decide as to the Peerages against the finding of one of those Courts, and a person who might by such decision be declared illegitimate would, nevertheless, continue to hold the estate to which, if illegitimate, he would have no claim, and the person to whom the Peerage should be awarded by this House would hold the same in defiance of the law of the kingdom to which the Peerage belonged, as declared by the Courts of that kingdom. Again, if the principle of the Judicature Bill were extended to Scotland and Ireland, three Courts of Ultimate Appeal would be established in the United Kingdom, and as it was acknowledged that both those kingdoms preferred the Appellate Jurisdiction of the House of Lords to that proposed to be constituted for England under the Bill, and on that account were not brought under it, and as provision was made in the Bill for the rehearing of an appeal, if the Court of Appeal thought fit so to order, and as such cases were likely to be few, and of a character particularly requiring the decision of one Supreme Court, it would be desirable that such appeals should be referred to the House of Lords in like manner as appeals from Scotland and Ireland. He heard with much pleasure last evening the argument of his noble and learned Friend (Lord Cairns) on the injury which the severance of the Lord Chancellor from the Court of Chancery would be calculated to inflict on the office of Lord
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    Chancellor itself. He thought a similar argument applied in the case of the proposal to deprive their Lordships' House of its Appellate Jurisdiction. He believed that the dignity, prestige, and influence of the House itself would suffer by such a measure. He would not submit his Resolutions in one Motion; but would now move the first of them—
    Moved to resolve,
    1st. That one tribunal of ultimate appeal for disputed suits from the courts of all the three kingdoms is more advantageous than separate tribunals for such appeals (The Lord Redesdale).
    LORD DENMANsaid, he should support the Resolution of the noble Lord. From the first he had opposed the proposition to abolish the Appellate Jurisdiction of their Lordships' House. He desired to impress upon their Lordships that their Appellate Jurisdiction had gradually declined through want of sufficient attendance of their Lordships at the hearing of appeals. The opinions of his lamented father, of Lord Brougham, and of other authorities strengthened his convictions in respect to the proposals contained in the Bill of the noble and learned Lord on the Woolsack.
    THE LORD CHANCELLORsaid, he felt he ought not to omit stating to their Lordships the view he took of the propositions of the noble Lord the Chairman of Committees, which, he thought, were really open to answer, both as to matters of fact and of principle. As to the matter of fact, his noble Friend was quite in error. The noble Lord assumed that this House had long supplied, and could alone supply, a satisfactory Tribunal which, being an Ultimate Court of Appeal for disputed suits from the Courts of all the three Kingdoms, prevented the possibility of any divergence in the principles on which their decisions were given. The noble Lord was mistaken. That House had never down to the present time stood precisely in the position which the noble Lord's propositions assumed. It had never been the solo Tribunal of Ultimate Appeal from all the Courts of the three Kingdoms. Until very recently, it was not so in appeals from the Probate Court, which determined all questions arising upon wills and intestacies. Appeals from the Admiralty Court still went to the Privy Council; and quite recently there had been a conflict of jurisdiction in one

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    of those very Admiralty cases, which showed that the inconvenience which the noble Lord supposed could never occur under the present system could and did occur. It was also an error to suppose that the possibility of conflict would be confined to questions arising within the three Kingdoms, because the cases which arose in many of our dependencies would have to be decided by the same law as if they had arisen here. In questions of English law arising in India, the West Indies, Upper Canada, and the Australian Colonies, the Privy Council alone had ultimate Appellate Jurisdiction, and its decisions on all such points were received as authority in all the Courts of the Kingdom. The idea that that species of possible conflict was effectually precluded by the present state of things was, so far, not borne out by fact. Then, with regard to the argument founded on the authority of the House of Lords in matters of Peerage and Impeachment, the House did not sit as a Court of Law in questions of Peerage. A Committee of Privileges was an entirely different tribunal from the House exercising its Appellate Jurisdiction—in fact it was not a legal tribunal at all, because it was consistent with principle and usage for lay Peers to take part in its proceedings. In Impeachments their Lordships acted as the Grand Inquest of the nation; each noble Lord was then entitled to take his place and vote. Under this Bill conflict was not likely to arise on questions of law; if it did, it might be cured by legislation. As to questions of fact, everything depended on the estimate juries might form of the evidence submitted to them in each particular case. If they were in Committee of Privileges to decide on the right to a Peerage in favour of a claimant where a question of legitimacy was involved, there being largo estates depending on the same question in Ireland, he apprehended there was nothing to prevent the possibility of those estates being decided in Ireland to go to the person whom their Lordships held not to be entitled to the Peerage. It was, therefore, not accurate to suggest that every sort of conceivable variation in the result could be absolutely precluded. Of all plans hitherto suggested or tried, that of this Bill, by bringing into one focus, with the greatest authority, all the elements of Appellate
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    Jurisdiction in this country, was, he thought, most likely to preclude accidents of that kind. It was of the very essence of the Bill that the best possible Court of Appeal should be constituted under it, and in order to obtain such a Court it was most important to have in it most of the illustrious men who, having attained the highest position in the legal profession, had become Members of their Lordships' House. But, suppose this Bill to be accompanied by a provision that the very important cases mentioned by the noble Lord might be re-heard by the House of Lords, that very class of persons whose presence was so much wanted would not be available in the Court of Appeal created under the Bill. Impediments would be thrown in their way, because they would also be wanted in their Lordships' House to decide the same questions if brought up from the Court of Appeal. Therefore, by adopting the proposition of the noble Lord, their Lordships would be cutting off a most important element from the Court of Appeal to be constituted under the Bill The noble Lord did not on that occasion put the matter on political, but on judicial grounds; and that being so, the inevitable effect of his proposition would be to embarrass our Supreme Court of Appeal without any adequate compensation in the administration of justice.
    LORD CAIRNSsaid, his noble Friend the Chairman of the Committees was so justly jealous of the honour of their Lordships' House, his mind was so stored with the knowledge of its constitutional history, and his noble Friend himself added so much lustre to the House by the way in which he discharged those very important duties which came under his care, that he felt great pain whenever he was unable to support any proposition presented to the House by him. But as regarded this particular Motion he should have very great difficulty in supporting it. The proposition was an abstract one. It was this—
    "That one tribunal of ultimate appeal for disputed suits from the courts of all the three kingdoms is more advantageous than separate tribunals for such appeals."
    As an abstract proposition, he entirely agreed with that. It represented a state of things which in the abstract would be more desirable than separate tribunals. But, in the first place, if that proposition were affirmed, consequences might

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    flow from it which his noble Friend did not intend. It might be said, "the best thing you can do is to take the Bill now before the House and extend it beyond its present scope, so that the Court of Appeal shall be not only for England, but also for Scotland and Ireland." That would be the logical conclusion from this proposition, but it was one which he would not be disposed to adopt. The proposition was based upon an assumption which he believed to be erroneous. The Resolution of his noble Friend proposed an ultimate appeal from the Courts of the three Kingdoms. Now, although it was true that this House had heard Appeals from England, Scotland, and Ireland, it was also a fact which should be borne in mind that their Lordships in appeals from each of these countries did not sit as one Court to administer one uniform law which applied to all the three Kingdoms. On the contrary, when the appeal was from an English Court, their Lordships sat as an English Court of Appeal, when from a Scotch Court they sat as a Scotch Court of Appeal, and when from Ireland as an Irish Court of Appeal. They had again and again put a construction upon the words of a Scotch will quite different from what would be done in the case of an English one, and had been obliged to say—
    "If these words had occurred in an English will, we should have put a certain construction upon them as sitting in an English Court of Appeal, but, occurring as they do in a Scotch will, where the words receive a different construction, we are obliged to consider the form of words in a different manner."
    Their Lordships, therefore, did not form one Court of Appeal, but three Courts of Appeal, and, therefore, the objection of his noble Friend applied to the present constitution of things. At the present moment anomalies did occur, and he could not give a better example of them than he had done. Therefore, though in the abstract he should say it was better to have one Appellate Tribunal for the United Kingdom than several, we never had it. But if we were to have regard to abstract Resolutions, he would say it would be much more desirable that we should have one law for the three Kingdoms. Such Resolutions, however, expressed what we never had and never would have. If, after all the efforts which had been made to add strength and dignity to the Court of Ap-
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    peal to be created by the Bill, they were to adopt the course which his noble Friend proposed, they would have thrown away all their trouble, and the new Court of Appeal would be neither one thing nor the other. We could not have two powerful Courts of Appeal one over the other. If they strengthened the Appellate Court as the Bill proposed to strengthen it, then there should be no appeal from that Court. As to cases of importance on which the Court of Appeal under the Bill might entertain different opinions, he would remind his noble Friend that an appeal to that House would be open to the same objection. For these and other reasons he regretted that he could not support the proposition of his noble Friend, and he hoped his noble Friend would see the inexpediency of Dividing the House upon an abstract Resolution.
    LORD REDESDALE,in reply, said, he was so fully convinced of the justice of his propositions, that he felt bound to take the sense of the House upon the Question.
    On Question? their Lordships divided:—Contents 13; Not-Contents 38: Majority 25.

    CONTENTS.

    Bathurst, E.

    Headley, L.

    Beauchamp, E.

    Northwick, L.

    Bradford, E.

    Oranmore and Browne,

    Lauderdale, E.

    L.

    Redesdale, L. [Teller.]

    Denman, L.

    Sheffield, L. (E. Shef-

    Egerton, L.

    field.) [Teller.]

    Ellenborough, L.

    Stanley of Alderley, L.

    NOT-CONTENTS.

    Selborne, L. (L. Chan-

    Gloucester and Bristol,

    cellor.)

    Bp.

    London, Bp.

    Saint Albans, D.

    [Teller.]

    Belper, L.

    Boyle, L. (E. Cork and

    Lansdowne, M.

    Orrery.) [Teller.]

    Ripon, M.

    Brodrick, L. (V. Midle-

    ton.)

    Camperdown, E.

    Carysfort, L. (E. Carys-

    Dartrey, E.

    fort.)

    Fortescue, E.

    Castletown, L.

    Granville, E.

    Crewe, L.

    Kimberley, E.

    Ettrick, L. (L. Napier.)

    Morley, E.

    Foley, L.

    Stanhope, E.

    Foxford, L. (E. Lime

    Waldegrave, E.

    rick.)

    Greville, L.

    Gwydir, L.

    Eversley, V.

    Hanmer, L.

    Halifax, V.

    Hatherley, L.

    Sydney, V.

    Lawrence, L.

    1403

    Lisgar, L.

    Romilly, L.

    Lyveden, L.

    Sundridge, L. (D. Ar-

    Methuen, L.

    gyll.)

    Ponsonby, L. (E. Bess-

    Wrottesley, L.

    borough.)

    Moved to resolve,
    2d. That this House has long supplied and can alone satisfactorily supply such tribunal, from which, under the provisions of the Supreme Court of Judicature Bill now before the House, it is proposed to separate England at a time when its general efficiency is acknowledged, and its jurisdiction retained for Scotland and Ireland as especially satisfactory to those countries:
    3rd. That if the principle of having only one such tribunal is departed from, and a claim shall arise to property in more than one kingdom founded on a point of law on which their respective courts of ultimate appeal shall differ, a legal and social scandal will follow, which could not occur if the ultimate appeal had been to one supreme court, as at present:
    4th. That as regards this House, the retention of this jurisdiction is most important, not only on high constitutional grounds, but for reasons connected with the succession to peerages, which are legal rights; for in the event of a disputed succession to estates in more than one kingdom on a question of legitimacy dependent on a point of law (such as may arise on a question of a foreign marriage), the heir to which would also be entitled to a peerage in each of those kingdoms held under similar limitations, if the decision as to the right to the estates should be different in the respective courts of ultimate appeal, this House, although deprived of its status as a court of law, must decide as to the peerages against the finding of one of those courts, and thus a person who may by such decision be declared illegitimate will nevertheless continue to hold the estate to which, if illegitimate, he would have no claim, and the person to whom the peerage shall be awarded by this House will hold the same in defiance of the law of the kingdom to which the peerage belongs, as declared by the courts of that kingdom:
    5th. That if the principle of the Judicature Bill is extended to Scotland and Ireland, three courts of ultimate appeal will be established in the United Kingdom, and as it is acknowledged that both those kingdoms prefer the appellate jurisdiction of the House of Lords to that proposed to be constituted for England under the Bill, and on that account are not brought under it, and as provision is made in the Bill for the re-hearing of an appeal if the Court of Appeal think fit so to order, and as cases which it is desirable should be re-heard are likely to be few, and of a character particularly requiring the decision of one supreme court, it will be desirable that such cases shall be particularly determined and referred to the House of Lords in like manner as appeals from Scotland and Ireland (The Lord Redesdale).
    SUPREME COURT OF JUDICATURE BILL [H.L.]—Amendments reported (according to order); further amendments made; Bill to be read 3a on Monday next; and to be printed as amended. (No. 89.)
    House adjourned at Seven o'clock, to Monday next, Eleven o'clock,