Lords Sitting of 5 June 1874

MINUTES.
PUBLIC BILLS—First Reading.—Elementary Education Provisional Order Confirmation * (88); Powers Law Amendment* (89).
Second Reading—Supreme Court of Judicature Act (1873) Amendment (56).
Third Reading—Customs and Inland Revenue * (78), and passed.

SUEZ CANAL.

  ADDRESS FOR PAPERS.
  LORD DUNSANYmoved an Address to Her Majesty for Copies of any existing treaties or conventions for ensuring the neutralization of the Suez Canal in war time. The noble Lord said, that great as were our interests, political and mercantile, in the Suez Canal trade, it was remarkable that there was no kind of provision made for protecting our interest by any Treaty in the event of war breaking out. He ventured to think that these interests were imperilled.

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  We had to deal not with a single Power, but with two Powers—namely, the Porte and the Khedive, not to mention M. de Lesseps and his Company. That being so, he thought it necessary that we should have a defined understanding with the parties responsible to us for the non-interruption of the traffic. The Papers for which he moved showed that the dangers that might be anticipated were not chimerical. In fact a total suspension of the traffic had been very recently threatened and had led to great complications: and the Correspondence which had been recently published by the Foreign Office—considerable portions of which the noble Lord read to the House—showed that, even with all Europe on our side we might have to submit to the stoppage of our traffic until we had compromised any matter in dispute. The official intelligence furnished was very meagre; but in these days, through the enterprise of newspaper proprietors, full and accurate intelligence of great public events reached the country much earlier than it did the Government. From the correspondence which appeared in the newspapers it seemed that the Khedive had to threaten M. de Lesseps with the employment of absolute force if he carried out his intention of interfering with the traffic and closing the Canal. The fact that the Suez Canal Company had threatened to close the Canal pending the settlement of any dispute was of itself sufficient to warrant the Government in taking steps to prevent the recurrence of such a danger to our interests, because it was quite within the bounds of possibility that what had been once attempted might be at any moment actually done. There could not be a more favourable moment than the present for buying up the pecuniary rights of the Company, and he did not suppose that there were any other rights which would have to be settled. The serious political difficulties which existed when France claimed the chief influence in Egypt and opposed the influence of this country did not now stand in our way; but those obstacles, or similar difficulties, might spring up if we missed the present opportunity.
  Moved, That an humble Address he presented to Her Majesty for Copies of any existing treaties or conventions for insuring the neutralization of the Suez Canal in war time.—(The Lord Dunsany.)
  THE EARL OF DERBY: My Lords, I quite agree in what the noble Lord (Lord Dunsany) said at the beginning of his observations with respect to the importance of the Suez Canal. It is undoubtedly a great work, and one which has given M. de Lesseps a high and an enviable reputation. It is a work which has benefited all Europe; and contrary to general expectation, and especially to the expectations entertained in this country, it has been of greater advantage to the trade and the administration of the British Empire—to our interests both commercial and political—than to those of any other country, or, perhaps, all other countries put together. So far I quite agree with my noble Friend; but I cannot agree with him when he speaks of our position in regard to the Canal as precarious, and of our interests and rights as unprotected. I will not trouble the House by reading documents, but the Concession of 1856, granted by the Viceroy of Egypt, and sanctioned by the Porte, does define in a very precise manner the rights and duties of the Canal Company, and the position of those who use the Canal;—and I may mention in passing that the concession secures the entire neutrality of the Canal as regards commercial relations. As to what my noble Friend said when he referred to the late dispute between M. de Lesseps and all the European Powers, and the threatened closing of the Canal, no doubt, there was a short period of uneasiness and anxiety. Your Lordships will remember that M. de Lesseps claimed a higher rate of tonnage than the Governments of Europe thought he was entitled to. The question was referred to a Commission, which, acting under the sanction of the Sultan, examined the matters in dispute, and a decision was come to on the claims of the Canal Company. M. de Lesseps at the first moment expressed his intention to dispute that decision; but all the Governments of Europe, including that of France, were unanimous as to the rights of the case. Opinion was brought to bear, representations were made to the Sultan, and the Sultan and the Khedive honourably adhered to the engagements they had entered into; and the result was that the Egyptian Government, acting under the authority of the Sultan, announced their intention to take possession of the Canal if the Company in-

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  terfered to stop the traffic. The good sense of M. de Lesseps and the general unanimity of opinion which prevailed among the European Governments prevented matters coming to extremities. At the last moment the managers of the Canal Company gave way and the traffic proceeded as usual. But, my Lords, if that had not been the case—if matters had been pushed to extremities—no worse consequence would have happened than that the Canal would have been temporarily taken possession of by the Government of Egypt, acting under the authority of the Sultan, and for a time—but only for a short time—inconvenience would have been caused to ships passing through in the absence of the skilled artizans and other persons usually employed on the Canal, and whose places could not at once have been filled. But my noble Friend says that we cannot tell what M. de Lesseps may do in the future—that we cannot tell what may happen if a similar difficulty arose, and that it is desirable to take some course which will prevent the possibility of the closing of the Canal. Now, as to the latter eventuality, we ought to bear in mind that we are accustomed to act on the assumption that persons do not do that which would be manifestly opposed to their own interests; but for my own part I am quite prepared to join in considering any reasonable proposition for preventing a recurrence of the difficulty. At the same time I have not the slightest doubt that if it did arise again it would end as it did the other day. Then my noble Friend asks me whether we are prepared to take over the Canal from M. de Lesseps and his shareholders, and—as I suppose he means—to work it by an International Commission. Well, my answer to that is, in the first place, that it is useless to talk of buying a property which is not in the market. I do not suppose anyone would propose to put pressure on M. de Lesseps and his shareholders and buy the property against their will—indeed, considering that they have had all the risk of the undertaking, that would hardly be fair or generous; but whether it would be fair and generous or not, it would be impossible, because it could not be done without the unanimous concurrence of the European Powers; and I venture to affirm that their unanimous concurrence could not be obtained. So much for compulsory
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  purchase. As to the idea of a purchase to be made with the assent of the shareholders, I think it is sufficient to say that no such offer has been put before us. I hope my noble Friend will not ask me to express an opinion in the abstract on a transaction of that kind; because when a man wants to buy a house, or an estate or anything else, he does not, if he is a man of sense, begin by telling the party who has to sell it that its possession is indispensable to him. If a proposition for the transfer of the Canal to an International Commission were to come before us, framed in such a manner that all the Governments would participate in the advantages of the Canal on equal terms, I do not say that might not be a fair proposal to entertain. But it has not been made, and I have no reason to think it will be made. As to the neutralization of the Canal in time of war, that is a large question, but as my noble Friend has not entered upon it I shall not discuss it. As to the Papers for which my noble Friend has asked, I do not think there are any which correspond with the terms of his Notice.
  LORD HOUGHTONsaid, it was a very unsatisfactory thing that a work of so important a character as the Suez Canal should remain permanently in the hands of an almost insolvent Company. He thought it, too, a great pity that the man who had carried out the greatest enterprise of the present age should not only derive no benefit from it, but really suffer pecuniary loss. He did not think the noble Earl was quite right in supposing that the property of the Company had not been in the market. He believed it had been in the market and that it was in the market now; and he also believed that the shareholders would be very ready under certain circumstances which could not entail any great pecuniary loss either upon this country or others to place the property of the Canal on a more satisfactory position. He did not think the noble Earl was justified in not considering the subject of the neutralization of the Canal in time of war—it certainly pressed much upon his mind. He could not but think it extremely dangerous to leave the Canal in the hands of a private Company. He thought that if the Canal could not be placed under an International Commission some arrangement

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  might be made between this country and the Porte, by which the Khedive might acquire absolute possession of it, and then we should know with whom we had to deal. Depend upon it this country would never permit its commercial or political interests to be interfered with by disputes between M. de Lesseps and other parties as to the use of the Canal.
  Motion (by leave of the House) withdrawn.

SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL.—(No. 56)
(The Lord Chancellor.)
SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL.—(No. 56)

  SECOND READING.
  Order of the Day for the Second Beading, read.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  LORD PENZANCEsaid, he did not rise to oppose the second reading of the Bill, which contained many Amendments of the Act of last Session, some of which were necessary, and all unobjectionable. It contained, however, one Amendment of extreme importance—one the importance of which, indeed, could not be exaggerated—he meant the proposition for restoring what always had existed in this country, but which was abolished by the Act of last year—a second, or ultimate, appeal in all cases whether from the Courts of Common Law or of Chancery. So heartily did he agree in the propriety of this Amendment that if the question of restoring the second appeal was the only one to be considered he should not have risen to address their Lordships; but with it arose the question of what the Ultimate Court of Appeal should be. He was well aware that he should be met by the statement that the question as to the retention of its appellate jurisdiction by their Lordships' House was settled by the decision arrived at last year; but he desired to point out that the question was now raised for the first time, and that what had been done last year was no settlement of the question at all. The question now arising—namely, to what Court the ultimate appeal should go—had never been decided either in that or the other House of Parliament. The opinion of the Scotch Judges and that of the Scotch Advocates were in favour of the retention of the ap-
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  pellate jurisdiction in their Lordships' House, and the opinions of the Writers to the Signet were to the same effect; and the opinion of the Bench and of the legal profession in Ireland were unfavourable to its abolition. Thus Scotland did not desire it—Ireland did not desire it—and the great body of the people of England did not desire it. Under these circumstances—and Parliament being about to restore the second appeal for English cases, which had been abrogated by the Act of last year—their Lordships had to consider whether the Court of Ultimate Appeal should be their Lordships' House or some other tribunal constituted for that purpose. There had always existed in this country a first appeal and a second appeal; but the jurisdiction of that House as the Court of Ultimate Appeal had often been a subject of controversy. There had been a time when a few only of their Lordships were fitted by training and previous career to hear appeals coming up from the Courts, but that deficiency could not be complained of now when the profession to which he had the honour to belong was so efficiently represented in the House. From time to time plans had been suggested for strengthening the House as a Court of Ultimate Appeal; but never until last year had it occurred to any one to suggest that the way of solving the difficulty was to get rid of the second appeal altogether.
  LORD SELBORNE: The Lord Chief Justice had suggested it.
  LORD PENZANCEbowed to the correction of his noble and learned Friend, who said the Lord Chief Justice had suggested it; but certainly no Committee or Commission or any other body charged with the special consideration of the question had recommended it. However, it was his noble and learned Friend to whom the country was so much indebted for the able and elaborate Bill of last year, who first reduced that suggestion to the form of a clause in an Act of Parliament, and abolished the second appeal. Let him point out what effect the abolition of a second appeal would necessarily have on the jurisdiction of their Lordships' House. If there was to be but one appeal it was absolutely impossible that that appeal could be to their Lordships' House. Their Lordships were aware that the number of appeals to the first Court of

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  Appeal was very much larger than that to the second. If there were, say, 400 appeals to the first, there would be not more than 40 to the second. There could be no question therefore that if there was to be only one Court of Appeal, their Lordships' House could not be that Court. It was impossible that 400 or 500 appeals could be heard within the Session by the appellate tribunal of their Lordships' House as at present constituted. Consequently, when last year it was decided there should be only one appeal, it was further decided that such appeal should not be to their Lordships' House. Such a conclusion was only the natural consequence of the previous decision. The present Prime Minister, in a speech made by him last year, pointed out that that must be the case. He said that the House of Lords as a Court of Appeal was a popular tribunal, particularly in Ireland and Scotland; and that so long as the appeals were sifted by the Intermediary Courts, so that not more than 50 or 60 came up to that House annually, they were able to deal with them in the most satisfactory manner; but that the moment you terminated the Intermediate Courts, the appeals would amount to 500 or 600, and that the Lords by their constitution would be quite inadequate to transact business of that amount. This, then, was the reason why the jurisdiction of the House was necessarily surrendered last year. It could not be maintained, if the proposition of having only one appeal was to be adopted. But the reason which justified the abolition of the jurisdiction of their Lordships' House would cease to operate when Parliament erased from the Act of last year the clause doing away with a Second Appeal. Well, then, looking at the matter in the interest of the suitors, he trusted his noble and learned Friend on the Woolsack would reconsider this matter. He did not believe it would be possible to construct a Court of Ultimate Appeal in which the country would have the same confidence as it had in their Lordships' House. The alternative of his noble and learned Friend was ingenious, but he did not regard it as satisfactory. What was the appeal to the House of Lords? It was, in legal language, "an appeal to Her Majesty in Parliament;" just as the appeal to the Judicial Committee of the Privy Council was "an
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  appeal to Her Majesty in Council." The Common Law Judges were "the Judges of the land," and every one of them on his appointment received a writ commanding his attendance at the House of Lords when required. Within the last 100 years other Judges had been appointed, and it was true that such a writ did not go to them; but there was no reason why it should not. So that it might be said that when sitting on appeals, the strength of the House of Lords was the whole judicial force of the country. It was said by way of objection that the jurisdiction, though nominally in "the House of Lords," was limited to the Law Lords. Considering, however, that the Lords who attended had, generally speaking, all held high judicial appointments he did not think this a very valid objection. A similar objection might be urged against the jurisdiction of the Privy Council. Though the appeal was to "the Queen in Council," the appeal was not heard and determined by the Privy Council but by that portion of it known as the Judicial Committee. Why was it that no one had ever objected to the Judicial Committee as an anomaly? He did not see why the House of Lords should not be constituted into a judicial tribunal in the same manner that the Judicial Committee of the Privy Council was constituted, and that the Crown should have power to issue writs to the Judges to attend the Court of Appeal, so as to strengthen the tribunal whenever necessary. One objection made to the House of Lords was that it did not consist of permanent Judges, and another that it did not sit all the year round; but to his mind matters of this sort were not to be set against higher considerations—such as how would the Court be first constituted? what was the Court which would most command public confidence and whose decisions would be accepted with the greatest approbation? Now, considering that their Lordships had to settle finally the most delicate and the most disputed questions of the law, and that their decisions were to affect the general law for all future time—it did not appear to him to matter, so long as they settled all causes brought before them within a reasonable time, whether they sat all the year round or not. Now, it was certain that the Court had no arrears of business; so that it had no more business to do than it could get

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  through. The question, then, was whether we could replace a Court of this old, traditional standing by a better Court. He was afraid he could not say the Court proposed by this Bill would be an improvement. The Act of last year provided about 17 Judges; and by his present Bill his noble and learned Friend proposed to form his new Court of Ultimate Appeal out of these 17—the new Court, in fact, was to be a section carved, as it were, out of the Court of Appeal established last year. But, if you were to carve one Court out of another the question arose, why did not you make a separate Court? It was not desirable that one part of a Court should be considered paramount and another part of it subordinate; but it was impossible to avoid that result, where one section or Division of the Court heard appeals from the other, and confirmed or reversed its decisions. The provision that the Judges were to be removed periodically from one Court to the other was one which could hardly be expected to work satisfactorily. As to the general question of the desirability of this House retaining its jurisdiction, for its own sake, he did not propose to argue that question, but he would say that that retention would only be desirable and wise in the interest of the House of Lords so long, and so long only, as the jurisdiction, when exercised, constituted the best form of Court for the suitor that could be devised. The only question was whether any new Court which could be devised would be as effectual and would give as much confidence to the country and as much stability to the law as the jurisdiction which had been hitherto exercised by this House.
  LORD SELBORNEsaid, the question was one that ought to be considered in its relation to the public interest in the administration of justice and the interest of suitors, apart from all partiality or prejudice in favour of an existing tribunal. While no one had a better right than the noble and learned Lord (Lord Penzance) to discuss the details of the Bill, he could not help thinking that the fragmentary discussion of them on the second reading was inexpedient, and that arguments relating to them had better be reserved for the stage of Committee. His noble and learned Friend had said that this House surrendered its jurisdiction in English appeals last Ses-
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  sion, because it was proposed by the Judicature Bill to do away with the second appeal in English causes, and that if this House were constituted the Court for hearing the single appeal, it would be impossible that they could get through the business; and his noble and learned Friend said that, as it was now proposed by the present Bill that there should be a second appeal, the reasons for abolishing the appellate jurisdiction of the House of Lords had disappeared. He (Lord Selborne) demurred to that statement. The multiplication of appeals was a serious evil; but that was a very different thing from the rehearing, by the same tribunal, of a case which called for reconsideration; and it was very desirable that there should be such a safeguard against the accidental miscarriage of justice. There was no tribunal, however exalted, which would not be the better for such a safeguard; and even a review of the judicial history of this House would furnish instances of decisions which might have been reviewed with advantage to the public and to suitors. It was, therefore, quite consistent with the principle of a single appeal that a Court whose decisions were to be final should have the power of reviewing and reconsidering its own decisions. It was not proposed now any more than last year—he was speaking now of England, not of Ireland and Scotland—that there should be an Intermediate Court of Appeal and a Court of Final Appeal. What was proposed was that, in any case which had been heard before the Court of Final Appeal, there should be a power of rehearing by a greater number of Judges, so as to insure the most careful deliberation and the best-considered decision which, under the circumstances, was possible. As far as English appeals were concerned and the principle went, there was no difference whatever between the proposal of the Bill of last year and the Bill of this. But as to the machinery by which it was to be done there was a difference. Last year it was proposed that the Court of Final Appeal should have a discretion to allow a rehearing, in all proper cases, by virtue of its own inherent power. But now his noble and learned Friend, having to provide for Irish and Scotch appeals, had thought it better to regulate the mode in which it should be done; and, in some cases, to make the re-hearing a matter of right. That proposal would,

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  no doubt, require careful consideration; but it was in substance the same power as was given to the Court by the Bill of last year. He could not help saying that there were many reasons, besides those to which his noble and learned Friend who had just spoken had adverted, which led him to a conclusion diametrically the reverse of that of his noble and learned Friend. Agreeing with his noble and learned Friend (Lord Penzance) in making the advantage of the suitor the sole test, he could not agree with him that a Court composed of men entitled to be treated as emeriti, and to be exempt from future service, but who, from public spirit, gave their voluntary attendance to the judicial business of this House, could be superior to such a Court as was constituted by the Judicature Act, whether as agreed on last year or as now proposed to be amended. Of this, he was convinced, that there existed no practical or solid reasons for believing that the judicial power of the new Court would be inferior to that of the House of Lords or the confidence of the public in it would be less. Putting aside, then, all other interests than the interests of the suitors, he could not but think they would tend to shake the confidence of the people in their Lordships' House if they were to take this retrograde step, and undo the work of last Session.
  LORD HATHERLEYsaid, it appeared to him that his noble and learned Friend (Lord Penzance) had fallen into the error of supposing that that which was merely an incidental consequence of the creation of the new tribunal for the hearing of appeals was the cause of that new tribunal being created; and his noble and learned Friend apparently thought he had justified himself in that view—at least, to a considerable extent—by the citation of the opinion of the right hon. Gentleman now at the head of Her Majesty's Government that the cause of this House abrogating its jurisdiction was that it was thought desirable by Parliament that appeals should no longer go from an intermediate to another tribunal, but should be carried to a Court of Final Appeal at once; and his noble and learned Friend argued that because the present Bill varied the Act of last Session in this respect, therefore the appellate jurisdiction of this House should be restored and continued. Knowing from a Notice which had been given by a noble Lord (Lord Redesdale) that
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  their Lordships would have an opportunity of reconsidering the whole matter, he was not going to enter into the argument whether or not this House acted wisely in resigning the jurisdiction which it possessed. But he might be permitted to recall a few circumstances which led to that resignation, and which had nothing to do with the question whether there should or should not be Intermediate Courts of Appeal. In the first place, the jurisdiction of their Lordships' House had not been a reality ever since O'Connell's case, their Lordships having relegated the decision of appeals to a small Committee, which took the duty on itself. There was next the doubt whether an adequate number of Peers could always be secured. Some of their Lordships must remember—as he was old enough to do—when the Lord Chancellor sat to consider appeals from his own decisions, with the assistance of two Lords called in as assessors, who did nothing; and evidence had been given before the Committee of their Lordships' House, which sat on the subject, of a Lord Chancellor coming to a conflicting decision with himself. That was a principal cause of the change which had been made. But there was another. Accident at times would deprive the tribunal, after the case had been heard for the most part, of the attendance of the noble and learned Lords who had heard it, so that Peers who had not heard the commencement of the arguments in the case, heard the argument at its termination—and sometimes vice versâ, those who were present at the commencement had ceased to attend at the conclusion. Again, the vacations of Parliament, being frequent and protracted, caused great inconvenience to suitors. These, among other reasons, induced their Lordships to abandon, after grave consideration, their appellate jurisdiction, and he sincerely trusted they would not now reverse the decision they had arrived at.
  LORD DENMANquoted at large from a speech of the noble Lord on the Woolsack, delivered on 15th April, 1872, which exposed the inexpediency of attempting to create one large Court of Appeal. [His Lordship had objected to the taking away of the Lord Chancellor from the House of Lords.] He (Lord Denman) also stated that in 1838, when great changes were made in the Court of Queen's Bench, the name

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  of every officer was placed upon the Act. He declared the Bill re-modelling the Privy Council appeals had been carried after an incorrect assertion as to the qualifications of those who were to sit in order to clear off the arrears. [A laugh.] The noble Lord remarked that it was no laughing matter, and that the Lord Chief Justice of the Common Pleas had not been able, as Attorney General, to destroy trial by jury. He thought from the previous opinions of the Lord Chancellor, his Lordship could not entirely approve of this Bill, though, in order to save the public time, he had done his utmost to make it practicable. He (Lord Denman) denied Lord Hatherley's) assertion, that the House of Lords had abandoned its jurisdiction by leaving to the Law Lords the decision of the O'Connell case; because Lord Wharncliffe had expressly declared that it was in order to preserve the character of the House of Lords as a Court of Appeal and a Court of Law that his Lordship suggested that such of their Lordships as were not Lords learned in the law had not heard the whole case, and could not, therefore, be supposed to be acquainted with the whole of the reasoning upon it, and who therefore were not qualified to pass a judgment upon such an occasion, should abstain altogether from voting. The judgments given by other Law Lords who had not heard the whole of a case, were always founded on a complete study of the case—possibly with the benefit of the advice of the Judges, and with a report of the speeches of counsel before them. It was monstrous for one of their own body to point out defects as irremediable in the constitution of the Court of Appeal. The noble and learned Lord (Lord Hatherley), when on the Woolsack, had taken the name of a magistrate off the commission of the peace for Derbyshire, because he had shown up his fellows in a case in which subsequent events justified that magistrate; but the Appeal Committee was the Committee of the Whole House, and every Peer understanding a case had a right to give his opinion and vote upon it. In the only case in which injustice had been imputed, he (Lord Denman) brought the case before the House, knowing that a noble Lord who had been counsel for the appellant had promised to explain his case; but that noble Lord, though present, said not a
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  word, and he (Lord Denman) found that the case, having been already decided, was inadvertenly re-opened by Lord Brougham—only too great intended kind-ness had been shown to the appellant, resulting in certain defeat, and for it the appellant was much to be pitied. Her Majesty, and several officers formerly in the Guards, had subscribed to relieve the poor man in his old age. He (Lord Denman) would never admit the principle of the Bill, and would oppose it at every stage. In the History of France, they found as to lawyers, that the—
  "Secular Peers and Lords, whom they at first only assisted with their advice, soon yielded to their superiority in those tribunals [Parliament]. Instead of the simplicity and conciseness which characterized the feudal forms of trial…the Judges devoted their attention to the nice discussion of law questions, and encouraged those subtleties which at once perplex and protract, and which throughout Europe so universally disgrace the modern Courts of Justice."
  He (Lord Denman) did not wish to speak disrespectfully of the noble and learned Lords who, having retired, voluntarily, bound themselves to assist the House by their decisions, but felt sure that the diffidence of noble Lords by no means deprived them of their hereditary rights.
  LORD O'HAGANsaid, that there were many points of discussion which had not yet been raised, and especially the point relating to the abandonment of the appellate jurisdiction of their Lordships' House as respected Scotland and Ireland. The opinions of those two countries had really not yet been considered. The Judges of Scotland had expressed their opinion in favour of retaining that jurisdiction; and so far as Ireland was concerned, it was the unanimous opinion of the legal profession, and of all who were competent to form an opinion relating to the retention of the jurisdiction of the House—though that opinion had not been expressed as absolutely as it had been in Scotland—that it was desirable to retain the jurisdiction in their Lordships' House. That matter having been deliberately considered in those two countries—the Bar and the other branches of the legal profession reposing perfect confidence in their Lordships' House as the Court of Ultimate Appeal, and nothing appearing to show that the country desired a change—he asked, whether it was not entitled to consideration at their Lord-

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  ships' hands? With reference to the creation of a new Court of Ultimate Appeal, he was of opinion that the proposal raised an entirely new question, which their Lordships would have to consider, and pronounce their legislative judgment upon, as if it now came under consideration for the first time. The question would come solemnly before them on the Motion of the noble Lord (Lord Redesdale) on going into Committee, and he trusted that it would then be fully discussed, quite unprejudiced by anything that took place last year.
  LORD MONCREIFFsaid, that he did not rise to prolong the discussion, but he wished to say a word or two on the position of Scotland in regard to this question. Both the noble and learned Lords who had spoken had admitted that the position of affairs was changed by the introduction of the new Intermediate Court of Appeal, and that the same reasons did not exist for abolishing the jurisdiction of their Lordships' House as existed last year. There were two matters for their Lordships' consideration—first, whether the Scotch appeals should remain subject to their Lordships' jurisdiction; and, secondly, whether the new Appellate Court would work satisfactorily. As to the first, it was his feeling that though the removal of English appeals from the House of Lords would tend to impair its dignity and efficiency as a high tribunal, yet it would not become him to oppose the alteration on merely local grounds. Yet he thought, in the altered circumstances of the case, that the position of Scotland was entitled to consideration—because the jurisdiction of this House did not rest so much upon an Act of Parliament as upon a Treaty—for this question had been regulated in a very distinct and particular manner by the Act of Union. A materal alteration had now been made in the position of affairs. As long as the Courts of Law had only the one Final Court of Appeal to go to, there was no reason for retaining the jurisdiction of their Lordships' House, but a proposition was now made that there should be an intermediate Appeal. It was thought not undesirable on the part of the Scotch Judges to state their impression on their Lordships' jurisdiction, and they were unanimous in thinking that it was de-
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  sirable, as far as Scotland was concerned in the administration of the law of the country, that the appellate jurisdiction of the House should be retained. That being so, without now discussing the question of the appellate jurisdiction at all, he should consider the subject generally, and give such general support to the Motion of the noble Lord (Lord Redesdale) on going into Committee, as appeared to him to be advisable.
  THE LORD CHANCELLOR: My Lords, with reference to what has fallen from my noble and learned Friend lately Lord Chancellor of Ireland, I wish to remark that last Session Her Majesty's then Government proposed to the other House of Parliament to include appeals from Scotland and Ireland in the measure which was then before Parliament. A meeting of the legal profession was held in Ireland; and they expressed the opinion which they entertained on the subject. I have not that opinion before me, but for the purpose of what I have to say that does not signify. That opinion was within the knowledge of the then Lord Chancellor of Ireland: as the head of the Bench, he must have known what was thought by the Judges and by the Bar of the proposals of the Government of which he was a Member. It was for him to consider whether, by his presence in that Government, he would recommend that proposal with all the weight of his authority. As a continuing Member of the Government, he represented to Parliament that he thought it was consistent both with the interests and with the views of the Bar and the people of Ireland that that change should be made. After that I will say this, and only this—what my noble and learned Friend has said tonight as to the course which he thinks ought to be taken, and which he is prepared to take, I heard with the respect with which I hear everything from my noble and learned Friend; but while I heard it with respect I heard it with surprise. I am not going now to enter upon the general question of the appellate jurisdiction of this House. No Motion was made on the subject on the second reading of the Bill. I own I should have thought that those who desired to raise the question would have found the second reading of a Bill which proposes to establish an Imperial Tribunal a convenient opportunity for raising

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  the question. My noble Friend (Lord Redesdale) is, of course, the test judge on that matter. I should have thought the second reading was a convenient opportunity for another thing—because if the Amendment were carried it would be fatal not only to this Bill, but to all legislation with which this Bill is connected. I think my noble and learned Friend (Lord O'Hagan) has not correctly represented the expression of the feeling of the Profession in Ireland on this subject. I look with the greatest respect on the feeling of the Profession; but, at the same time, the feeling of the Profession is not necessarily the feeling of the country, and the legitimate mode in which the feelings of the people of Scotland and Ireland on this subject will have to be ascertained is by an expression of the opinions of their Representatives in Parliament. But as to the feeling of the Profession, I have had communicated to me formal documents in which that feeling has been expressed—I have received private communications and deputations on the subject—and I do not understand that they deprecate appeals being taken from Scotland and Ireland from this House absolutely, but that what they state is this—which is a very different thing—if you will undo the legislation of last year and restore English appeals to this House—which they would like you to do—then we wish Scotch and Irish appeals to be heard here; but unless you restore the jurisdiction of this House as to English appeals, then we prefer that Scotch and Irish appeals should go to the same tribunal to which the English appeals go. I will not go into the question of the appellate jurisdiction of this House; but I believe that the advantage which has been gained from the exercise by this House of its jurisdiction has arisen from two considerations which are somewhat distinct. I believe it has arisen, in the first place, from the traditional dignity and prestige by which the actions of this House have been surrounded. And I believe it has arisen, in the next place, from the character and qualifications of those by whom the legal jurisdiction of this House has been administered. I know and have felt as much as any person that when the jurisdiction of this House in the administration of the law is terminated it will lose the benefit of much traditional dig-
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  nity and prestige which it has enjoyed—I have never disguised that fact; it would be vain to seek to disguise it; and a sense of it has led me to struggle to find out a way in which we might maintain that jurisdiction. Let me now say a word with regard to the character of the Court to which, under this Bill, that jurisdiction will be transferred. I cannot venture to prophesy, and it is impossible for me to say whether we shall have in the future men such as we have known in the past to take part in the highest legal jurisdiction in the country. However that may be, of this I feel certain, that if the present measure be passed, and if the appointments under it be made in a fitting manner, it cannot but happen that the Imperial Court of Appeal will, as regards the men and the elements composing it, be the strongest legal Court that this country could possibly produce. That is all which I have to say upon this subject at present. I will, however, advert to one or two errors that have been apparent in the course of the discussion. I do not agree with my noble and learned Friend who spoke last (Lord Moncreiff) that the object and effect of this Bill is to reverse or repeal the Bill of last year as to appeals. When I introduced the measure I stated that I understood one of the principles of the Bill of last year to be that, under certain circumstances and with certain qualifications, there might, after a hearing before one of the Divisions of the Court of Appeal, be a re-hearing before a greater number of Judges. I do not call that an appeal—I call it a re-hearing it, and, of course, the meaning of such a procedure, after it has been developed by rules, is, not that there will be a judgment, and afterwards a reversal of the judgment, but that before judgment is finally given, and although a decision has been arrived at and expressed, the decision will be subject to review, and the final judgment will be pronounced after such review. The objection which I felt, and which I expressed last Session, was that the power of having this re-hearing was not conferred as a matter of right, but was made optional on the part of the tribunal which in the first instance heard the case; and, moreover, that no definite arrangement was made as to the composition of the Division or tribunal before which the re-hearing should take

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  place. What is now proposed is merely an enlargement and not a repeal or alteration of the principle to which I have referred. As to the terms and occasions on which a re-hearing should be allowed, that is but a matter of detail. I should propose that it be allowed when there is a difference of opinion at the first hearing. Your Lordships may think proper, however, to give a still greater licence in the matter. My noble and learned Friend (Lord Penzance) talked of this measure as very anomalous, because it carved one Court out of another; but the principle of a re-hearing will be found laid down in the Report of the Judicature Commission, on which the Act of last year was based; and in practice it exists, for example, in the Court of Exchequer Chamber.
  LORD REDESDALEsaid, he had given Notice of a Motion on going into Committee which would raise the whole question, and therefore he would not enter upon it on the present occasion; but a strong argument against the Bill was to be found in the admission of the noble and learned Lord on the Woolsack that the House would lose its traditional dignity and prestige by having its appellate jurisdiction taken from it.
  THE LORD CHANCELLORexplained that the noble Lord had misapprehended his meaning. What he had meant to say was that the traditional dignity and prestige which attached to the House in the exercise of its appellate jurisdiction would be lost to the new tribunal; not that the House itself would suffer.
  LORD REDESDALEsaid, at all events the noble and learned Lord admitted that he had struggled to maintain the jurisdiction of the House. With whom, he might ask, had the noble and learned Lord had to struggle? Two of the three Kingdoms had openly declared that they would rather have this tribunal than any other; and he believed that if the opinions of the Judges of England were obtained it would be found that they were nearly unanimous in favour of retaining the House as the Ultimate Court of Appeal. Nobody had asked for the removal of the appeals from this House—never had there been a legislative change made with so little occasion for it. With regard to the proposed new Court of Appeal, one great objection
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  he had to it was that the Judges would be appointed for only a limited time—namely, for three years. At the end of that period they might or might not be re-appointed. This he regarded as a most unconstitutional proposal, for it would make the appointments depend practically upon a continuance of the favour of the Crown. Then it appeared that there would be a different tribunal for Scotland and Ireland and for England. In the latter case there would be a re-hearing only, while Scotland and Ireland were to have appeals, and were, therefore, as it seemed to him, placed in an inferior position. The noble and learned Lord (Lord Hatherley) had stated that since O'Connell's Case the appellate jurisdiction of this House was not a reality. He (Lord Redesdale) contended that it was. Just as under the name of "Her Majesty's Courts," "Her Majesty's Ships," the great Monarchical principle was involved, so the association of the appellate jurisdiction with the House gave it an authority and a prestige at which the Bill would strike a fatal blow. He would only add that he meant to press the Resolution of which he had given Notice on the Motion for going into Committee to a division, when he hoped every noble Lord who entertained the same views as he did on the subject would vote with him. If they only had the courage of their convictions, he felt satisfied there would be found to be a large majority in favour of retaining the appellate jurisdiction of the House.
  THE EARL OF FAVERSHAMsaid, he was strongly in favour of the retention of the appellate jurisdiction of the House, not only for Scotland and Ireland, but for England. At no time, he maintained, were their Lordships more competent to discharge that jurisdiction than at present, when they numbered among their Members so many eminent lawyers. The country and the legal profession, he maintained, had the utmost confidence in their Lordships' decisions as a Court of Appeal—and the feeling of the people in the Three Kingdoms was in favour of their retaining their jurisdiction—and he begged the noble and learned Lord on the Woolsack to pause before he struck a final blow at what must be regarded as a great constitutional privilege of the House.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

  ELEMENTARY EDUCATION PROVISIONAL ORDER CONFIRMATION BILL [H.L.]
  A Bill to confirm a Provisional Order made by the Education Department under "The Elementary Education Act, 1870," to enable the School Board for London to put in force "The Lands Clauses Consolidation Act, 1845," and the Acts amending the same—Was presented by The LORD PRESTDENT; read 1a. (No. 88.)

  POWERS LAW AMENDMENT BILL [H.L.]
  A Bill to alter and amend the law as to appointments under Powers not exclusive—Was presented by The Lord SELBORNE: read 1a. (Mo. 89.)
  House adjourned at a quarter before Eight o'clock, to Monday next, Eleven o'clock.