§ Order of the day for the House to be put into Committee read.
§ LORD REDESDALE
, having presented Petitions from the Incorporated Society of Solicitors in the Supreme Court of Scotland, and the Incorporated Society of Writers or Clerks to the Signet for the Amendment of the Bill as far as regards appeals from the Scotch Courts, moved the following Resolution—That as it is admitted that this House is preferred by Scotland and Ireland as their Court of Final Appeal to any other which has been proposed, and as a satisfactory Court of Final Appeal has not yet been established for England, it will be expedient, instead of proceeding to create a new Court for all the three Kingdoms, that the provisions of the Supreme Court of Judicature Act of last Session which prohibit appeal to this House be repealed, and that time be thereby allowed for the adoption of such improvements in the constitution and practice of this House in the discharge of its judicial functions as may remove the objections which have been taken to it as a Court of Judicature, and that the Committee on the Supreme Court of Judicature Act, 1873, Amendment Bill be hereby instructed to amend the same in accordance with this Resolution.He conceived that he was quite in Order in moving this Resolution, because if the House went into Committee without some such Resolution, the question of the appellate jurisdiction of their Lordships could not be fully debated He wanted the House to decide in a formal manner, and after full consideration, whether it should give up a jurisdiction with which it had been invested from time immemorial Why should it be given up? Who had asked for its abolition? The legal profession in this 1360 country were not in favour of such a step, and in Ireland and Scotland resolutions strongly in favour of the retention of the appellate jurisdiction of their Lordships' House in respect of the appeals from those Kingdoms, had been adopted by all branches of the profession. The only reason assigned for the present measure was what had already been done in the case of England by the Bill of last year But it was now proposed that a new Court of Final Appeal should be constituted for England. Against the constitution of that Court he had already urged objections on constitutional and other grounds. One of the provisions of the Act was that six out of the nine Judges were removable at the pleasure of the Crown after three years, one of the remaining three being removable at will, which was an entirely new principle in their jurisprudence. He objected to try a new experiment at such a cost, and to tread such dangerous ground. What would be gained practically by the proposed alteration? The present Court had given satisfaction:—why had they superseded it by another and untried tribunal? The noble and learned Lord on the Woolsack had well said that the prestige enjoyed by the House of Lords could not be obtained by any new Court. That prestige had been found eminently useful in securing the satisfaction of the country at the manner in which the House had discharged the legal duties intrusted to it. Scotland had spoken with no uncertain sound against the abolition of the jurisdiction of the House of Lords—a jurisdiction which had existed and worked well and usefully for two centuries. And as to Ireland, where the opinion of the legal profession was equally decided, they ought to take especially care at the present moment. If the scheme proposed by this Bill were carried into effect, the decisions of the Irish Courts would be brought under a purely English tribunal. Now, as the feeling in Ireland was against undue interference by England with Irish affairs, and as the Bar and the people of Ireland had been well contented with the jurisdiction of the House of Lords, was it not inexpedient to run the risk of making a change which was not likely to give satisfaction? He was in favour of allowing a second appeal, because he thought that on the second appeal everything of importance was 1361 brought before the Court in a solemn form, while unimportant points were left out; but he held that appeals from England, Scotland, and Ireland, ought all to be conducted in the same manner Why should Ireland and Scotland have a more expensive system of appeal than that which was devised for England? It had been said that the jurisdiction of their Lordships' House in matters of law had not been a reality. But he submitted that that House was Her Majesty's Supreme Court—in the exercise of its appellate jurisdiction the House discharged its duties in the name of the Sovereign. All the Courts did the same. No doubt it would have been impossible to retain that jurisdiction if the lay Lords continued to take part in hearing appeals; but they did not do so now, and the proposal he would make was in accordance with the ancient custom of appointing "Triers," who as legal Members of the House would act for the House and in Her Majesty's name. In the reign of Charles II., when the jurisdiction of the House was disputed, the great Lord Shaftesbury said—" Your judicature is the life and soul of the dignity of the Peerage in England."——[See Parl. History, iv. 793.] And he might state to their Lordships that the late Lord Lyndhurst strongly recommended him to oppose the abolition of that jurisdiction as a measure most dangerous to the dignity of the House. The noble and learned Lord opposite (Lord Selborne) had changed the opinions he entertained when he was Member of the other House, and he thought it would only have been right if he had stated to their Lordships the reasons he had for having changed his opinion. In 1856, at a time when it was thought the legal element in their Lordships' House was not sufficiently strong to carry on its judicial business, a Bill was sent down to the other House proposing to strengthen their jurisdiction by the appointment of two Deputy Speakers On the second reading of that Bill the noble and learned Lord made use of these words:—He entertained strong objections against the project for removing the jurisdiction of the House of Lords to the Privy Council, or constituting a new tribunal consolidating, in fact, the two. But then he was tempted to ask, after all, was the traditional respect in which the jurisdiction of the House of Lords was held so utterly baseless that no advantage whatever was to be 1362 derived in the administration of justice from the high dignity with which it was associated by being united to one great branch of the Legislature? Did the independence of the judicial system gain nothing by having its root and fountain-head in the House of Lords, where, unquestionably it was unassailable by corruption or by the influence of the Crown, and where it was brought into immediate and close contact with the legislative power, so that the same Judges who administered justice in the House of Lords, might also suggest acts of the Legislature to correct any defects or errors in the law? He confessed he could not divest himself of the notion that the administration of justice did gain something in dignity, independence, and stability from its association with the House of Lords; and he believed also that the opinion which had so long prevailed was not unfounded—which supposed that the House of Lords gained something of dignity, honour, independence, and stability from its association with the administration of justice. … If it be possible to establish a satisfactory Court of Final Appeal in the House of Lords consistently with constitutional principle and the interests of the country, would it not be as well—would it not be better—to do so rather than to annihilate all the prestige of centuries, and all the traditional respect which the country had been accustomed to feel for the jurisdiction so exercised, for the sake of attempting some new experiment the success of which no one could foretell?"—[3 Hansard, cxliii. 458–9.]These were the very grounds on which he (Lord Redesdale) now asked their Lordships not to part with their jurisdiction. He could not conceive what good reasons could be put forward against the question at that time so well taken up by the noble and learned Lord He believed that their Lordships' decisions as ascertaining the law were more frequently referred to than those of any other tribunal; and he believed there was no theoretical objection to their Lordships' jurisdiction which could not without difficulty be removed. It was said that lay Lords might vote on appeals. The last time any suggestion was made for their doing so was in the case of O'Connell; but at that time the Law Lords who heard the case were only five in number, and there were three on one side and two on the other: seven out of the nine English Judges consulted by the House were in favour of upholding the ruling of the Court in Ireland, and as the case was a political one there were, under such circumstances, some reasons for the proposition; but he was glad to say it was not acted upon, and the decision of their Lordships' House was pronounced by the Law Lords only. The judicial strength of the House might be increased by the means which 1363 he suggested last Session; and as he had shown on a former occasion, there was no constitutional objection to the Triers appointed by the House sitting for the discharge of judicial business during the Parliamentary Recess. He thought his noble and learned Friend on the Woolsack had been a little severe in his remarks on the fact that the late Lord Chancellor for Ireland (Lord O'Hagan) did not oppose the Bill of last year. It must be remembered that that noble and learned Lord was a Member of the Government by which that Bill was introduced; besides which, when that Bill was under discussion last year, there had not been such an expression of opinion from Ireland as was now before their Lordships—now, both Ireland and Scotland had agreed in objecting to the establishment of any new Court. The Resolution which he now proposed would not have the effect, as had been stated, of destroying the Judicature Act—its only effect would be to repeal that portion of it which constituted the new Court of Appeal—it would not in any way interfere with any of the other provisions of the Bill, which could without any difficulty be so altered as to refer to the House of Lords instead of to the new tribunal it constituted. This was no party question, neither was the proposal to abolish the jurisdiction of that House a Conservative measure; and, therefore, party allegiance did not require that the Conservative Peers should support it.
Then it was moved to resolve,
That as it is admitted that this House is preferred by Scotland and Ireland as their Court of final Appeal to any other which has been proposed, and as a satisfactory Court of final Appeal has not yet been established for England, it will be expedient, instead of proceeding to create a new Court for all the three Kingdoms, that the provisions of the Supreme Court of Judicature Act of last session which prohibit Appeal to this House be repealed, and that time be thereby allowed for the adoption of such improvements in the constitution and practice of this House in the discharge of its judicial functions as may remove the objections which have been taken to it as a Court of Judicature, and that the Committee on the Supreme Court of Judicature Act, 1873, Amendment Bill be hereby instructed to amend the same in accordance with this resolution.—(The Lord Redesdale.)
§ LORD PENZANCE
rose to second the proposition of his noble Friend the Chairman of Committees. The Resolu- 1364 tion of his noble Friend was one asking for time before the abolition of the appellate jurisdiction of their Lordships' House, and the transfer of that jurisdiction to a new tribunal. When introducing the Judicature Bill last year, his noble and learned Friend (Lord Selborne) said—I do not propose to deal by this Bill with the appeals from Scotland or Ireland. Those countries have each their own system of jurisprudence and judicature, with which, so far as their original jurisdiction is concerned, this Bill does not in any way deal. Furthermore, the evidence given before your Lordships' Committee last year by gentlemen conversant with the practice of appeals from Scotland was to the effect that no change was desired in that country. I think the views entertained by the people of Scotland on this subject are entitled to very great respect; it would be an unwise and unnecessary thing to propose changes applicable to that country which the public opinion of that country does not require. As to Ireland, there was also no evidence that any change was wanted. I do not, of course, conceal from myself that if you establish in England a thoroughly good appellate jurisdiction, and find that it works as we hope it will work, opinion both in Scotland and Ireland may probably hereafter tend to the application and adoption of the same system in those countries."—[3 Hansard, cexiv., 318, 319.]If it worked well! Why, it was not in existence yet, nor would it be until November next; and yet after those observations of his noble and learned Friend, made only last Session, it was proposed to extend to Scotland and Ireland this Court which was still in embryo! It could not be said there was any demand for it from either country, because the contrary was the fact. He knew, therefore, of no existing necessity for the removal of the Final Appellate Jurisdiction from their Lordships' House. And here he might remind their Lordships that the change now proposed to be made had never been approved by any Commission or Committee that had inquired into the subject. It was not, so far as he was aware, approved by the Judicature Commission now sitting, nor had he ever heard that any Committee of that or the other House of Parliament had recommended it. The legal jurisdiction of their Lordships' House had recently been working quite as well as at any former period; the legal profession was now largely represented in the House, its decisions commanded, as they always had commanded, the confidence of the country; there were no arrears of business, and yet this was the moment 1365 selected for so great a change. Their Lordships' House carried with it traditions and a moral force which it was impossible for any new Court to obtain. His noble Friend on the Woolsack had described in powerful, clear, and unmistakable language the value of their Lordships' jurisdiction; and his noble and learned Friend (Lord Selborne) in 1856 did so in language equally forcible; but when, on a former evening, his noble Friend the Chairman of Committees quoted that language, he (Lord Selborne), with all the dexterity of one of the celebrated Davenport Brothers, extricated himself by saying that—He did not claim any authority for Ms opinion, but if it had any authority he thought his present opinion was better than his opinion some years ago, and his present opinion was most deliberately his opinion of last year.When a man of his noble and learned Friend's eminence gave such contrary opinions, the question appeared to be, not which of them was of the greater value, but whether either of them was worth anything, seeing that one neutralized the other. He must repeat that what the House was called on to consider last year was not whether their Lordships' House should continue to be the tribunal for hearing the second appeal, but whether there should be a second appeal at all. His noble and learned Friend had been the consistent advocate of having only one appeal. He proposed that to the House last year; and the House having adopted his proposition, it was impossible the House of Lords could be the Court to entertain it; but as the second appeal was now to be restored, the question of the appellate jurisdiction of this House was still an open one. He would not detain their Lordships by reading the recommendations of the Committee of 1856; but as that Committee was in favour of the maintenance of the appellate jurisdiction of that House, he would remind their Lordships that among the Law Lords who were members of it were Lord St. Leonards, Lord Brougham, Lord Lyndhurst, Lord Cranworth, and Lord Campbell, and that several distinguished lay Peers, including Lord Lansdowne and Lord Ellenborough, were also members of that Committee. Another important consideration was this—For England, Ireland, and Scotland an Imperial tribunal was required. Their Lordships' House pos- 1366 sessed that character, for it was a House in which all the Three Kingdoms were represented—and not only theoretically, but practically, for the two sister countries had been of late years represented among the Judicial Members of the House. Now, what had been done in the constitution of the new Court of Appeal to retain this Imperial character? Absolutely nothing. All that was done by this Bill was to amend the Bill of last year, and instead of calling it "the Supreme Court" it was now to be called "the Imperial Court" of Judicature. The name "Imperial" did not carry with it any substance, and the mere fact of giving it such a name showed a consciousness on the part of his noble and learned Friend than an Imperial character was necessary. What good reason, then, had been shown for going forward with this legislation rather than being content to let things remain as they were? The question arose, why was this legislation brought forward? It was on account of the legislation of last year. And what did they do last year? Under the guidance of his noble and learned Friend behind him (Lord Selborne), they proposed to do away altogether with the second appeal, and give only one appeal. It was impossible for the House of Lords to deal with primary appeals, which were between 400 and 500 in the year, and on that footing the jurisdiction of the House could not be retained; but this was an Amendment Bill, and the question now was what was to be done with Ireland and Scotland? The noble and learned Lord on the Woolsack thought it necessary and desirable this year that the case of Ireland and Scotland should be considered. This re-opened the whole question—Why were they to be bound by the legislation of last year? Even if the legislation of last year had taken away the appeal from that House and given it to some other Court, they might properly consider what course they should take in this Imperial matter. The legislation of last year restricted the suitors to one appeal; but the Bill now under their consideration not only brought Ireland and Scotland under its provisions, but repealed the Bill of last year as regarded the single appeal—for if this Bill passed, that restriction to one appeal would be done away with as regarded England. 1367 Therefore, a fortiori, the question was still open to be considered. He was aware that in asserting that this was the effect of the present Bill, he should not have the assent of his noble and learned Friend the late Lord Chancellor (Lord Selborne), for on a former occasion he had been taken to task by him for saying so. But he was prepared to justify and maintain the proposition that the Bill now before the House did create a second appeal for England, and in that important respect repealed the Act of last Session. What was done by the Bill was this—stripping it of all technical language—it dealt with the Appeal Court whose decisions under the Act of last year were to be final in this way. If they were not unanimous the case might be "re-heard," if either party desired it, before another set of Judges who might reverse what the first set of Judges had decided. Now, the noble and learned Lord called this a "rehearing only," and urged that such a proceeding did involve a Second Court of Appeal; but he (Lord Penzance) called it an "appeal," because it involved two things—it involved the decision of one Court and the decision of a second Court, which might overrule the first. He had paid the greatest attention to the statement of his noble and learned Friend on the Woolsack in introducing this Bill on the 7th of May. He said—It appeared to me and to many others, that the arrangements with regard to the Ultimate Court of Appeal were anomalous in this respect, that they abolished any Intermediate Appeal for England, while an Intermediate Appeal would remain for Scotland and Ireland …. We propose, that whenever in any cases heard before the other Divisions of the Court of Appeal the Judges are not unanimous in their decision, the case may, if the parties desire it, be heard before the First Division. In that way there would be virtually a second appeal whenever the Judges on the hearing of the first appeal were not unanimous."—[3 Hansard, ccxviii. 1821–23.]He called this, then, a second appeal. But his noble and learned Friend behind (Lord Selborne) said it was only a rehearing. Well, it was a re-hearing by a different set of Judges after the case had been decided by a former set of Judges. That was an appeal; but if his noble and learned Friend still insisted that it was only a re-hearing, he was welcome to call it by that name, it was plain that under whatever name, it was in substance a second appeal. So much as to the question whether they 1368 were concluded by what was done last year. Now, one word in conclusion with reference to the Court which his noble and learned Friend proposed to substitute for the jurisdiction of that House. He did not think that a Court constructed on the plan of this Bill could be satisfactory. It certainly was a new idea that a Court was to be cut into two halves and that one half was to have the power of undoing what had been done by the other;—it would be better to establish a properly-constituted Court of Appeal. He could see no benefit in the course proposed, except that of following up the legislation of last year; but as this was an Amendment Bill they ought to consider not only what was done last year, but also what was best to be done. This House had a jurisdiction which it had exercised for centuries, and of which their Lordships were guardians. If they gave it up now and afterwards wished to revive it, the answer of the other House would be, "No; the Peers gave it up." Let their Lordships determine, then, whether they had not better revert to the state of things which existed anterior to the Act of last year before they handed over Scotland and Ireland to what was called an Imperial, but what would in reality be an English, Court.
THE LORD CHANCELLOR
said, he rose at once to follow his noble Friends because he must at once say the Resolution was one which the Government must entirely oppose, and because it involved consequences which apparently had not been anticipated. There was great and urgent expediency that this question should now be settled once for all, and that it should not be left any longer hanging up before the public mind as a question still open and undetermined. He was sorry to commence by making a grave objection on a point of Form to the proceedings of one to whom they were accustomed to look up as the guardian and champion of form and regularity. The noble Lord (Lord Redesdale) did not propose any Amendment on the Motion to go into Committee on the Bill, but he moved an Instruction to the Committee in reference to the Bill. He always understood there were two invariable Rules with regard to an Instruction—one, that its object must be to enable the Committee to do something which without the Instruction it 1369 would not be in their power to do; and, second, that the Instruction must in form be of a permissive and not of an imperative character. These were rules which did not depend upon the practice or caprice of either House—they were inevitable in the nature of the case and the absolute necessity of leaving the Committee free and without fetter. The Resolution, however, asked the House to resolve that the Committee should make a particular Amendment in the Bill; it was already in the power of the Committee to make that Amendment; and if the House now dealt with a question which was already within the power of the Committee every Member who wished to propose an Amendment in this or any Bill might ask the House to decide the point involved by moving an Instruction. If this course had been pursued with the Regulation of Worship Bill, the whole 40 pages of Amendments might have been placed before their Lordships in the shape of Instructions. Again, in Committee the Chairman was obliged to assume that the Committee was free to obey or disobey an Instruction. These were matters which were discussed half a century ago—as might be found in the papers of Speaker Abbot—and the rule had been rigidly adhered to up to a late period. He hoped, therefore, if they were to go to a division that it would be altered in its terms so that it might not appear that the Chairman of Committees moved a Resolution violating the principle of Parliamentary Order with regard to Instructions to Committees. The Resolution asked the Committee to repeal, not the Judicature Act of last year, but that particular clause of it which prohibited appeals being made to this House. What would be the result of such a Resolution, if agreed to? Why, it would be in direct opposition to the decision come to by the Commons when the Bill went down to them last year. Their Lordships originated the Bill and invited the House of Commons to make provision for the salaries and expenses of the new Court. The other House accordingly laid upon the Consolidated Fund a charge of £40,000 or £50,000 a-year, in consequence of their Lordships intimating their willingness to consent that appeals should no longer come to this House. With that charge still remaining on the public Exchequer, their Lord- 1370 ships were now asked to repeal—not, indeed, the whole Act, but that part of it which affected the appellate jurisdiction of their Lordships' House. Was, then, this House now to break faith with the other, and to abandon the proposal on which the other House acted? Could any cause be devised more calculated to bring the two Houses into collision? The Resolution laid down two propositions—first, that no satisfactory Court of Final Appeal had been established; and, second, that it was admitted that this House was preferred by Scotland and Ireland as their Court of Final Appeal before any Court which had been proposed. That the Court of Final Appeal established by the Act of last year was satisfactory to the people of England was shown by the fact that there was not even a division on its provisions in the other House; the opinion of the Representatives of the people this year would be collected at the proper time; but he had not heard of any expression of dissatisfaction out-of-doors on the part of either the people, of the legal profession, or of the Judges, with whom he was in close communication. He knew that the Lord Chief Justice had expressed himself in the strongest possible way in a Paper which was on the Table. But what of the Bar, which was always perfectly ready when it entertained a strong opinion to express it? Last year the Equity Bar differed—and differed rightly—from a provision in the Bill then before Parliament. They held a meeting and expressed an almost unanimous opinion on that point; but no notice whatever was taken of the appellate jurisdiction. A few days ago he received a paper—which was at the service of his noble and learned Friend—signed by some of the most eminent members of the Bar, in which they stated in substance that they wished to express no opinion as to the appellate jurisdiction of this House, but argued in favour of some form of a second hearing of appeals. Therefore, his noble Friend had utterly failed to make out his proposition with regard to England. And now he came to Ireland and Scotland. He (the Lord Chancellor) said last year that it was extremely desirable, before making any change with regard to Ireland and Scotland, that those countries should have ample time to consider these proposals, and he objected 1371 to include Ireland and Scotland in the legislation of last year, because they had not sufficient time to consider how it would affect them. But when they did get time, as they had got now, Scotland and Ireland were perfectly entitled to say, "We prefer that your Lordships should continue to hear our appeals; we do not desire that they should go before any other tribunal;" and if they said so, their representations would be worthy of respectful attention. But if, on the other hand, they said, "We understand you have adopted a new tribunal for England. You may be satisfied with that tribunal for yourselves; but we call upon you to repeal the provisions you have made on the subject, in order that your appeals may go back to the same tribunal as before—the same tribunal as the people of Ireland and Scotland prefer for themselves." If they required that, then they required more than they had a right to ask at their Lordships hands. But, let their Lordships examine what was the opinion of Ireland and Scotland on the subject. He would take Scotland first. He wished to speak with all respect of the Bench, the Bar, and the Solicitors, but he begged leave to say that they did not constitute public opinion, but only an element of public opinion entitled to very respectful consideration. He demurred to the statement that if any number of gentlemen, however respectable, met and passed a Resolution, that was to be taken as an expression of public opinion. Public opinion was to be collected in the ordinary mode in Parliament, or from manifestations throughout the country. As to Scotland, the only opinion expressed was professional opinion, and what did it say? His noble Friend had to-night presented a Petition from the Writers to the Signet—a very respectable body—stating their desire that Scotch Appeals should continue to come to this House. What did the Society of Solicitors practising in the Supreme Court of Scotland say? That Society, by their counsel, sent this statement of opinion—Whatever might have been said in favour of preserving the House of Lords as a Supreme Court of Appeal, which has been deservedly acknowledged by the Profession and the public to have been of great service to the Law of Scotland, it appears to the Council, now that the Judicature Act has been passed, that it is no longer expedient to preserve its appellate jurisdiction in regard to Scotch cases, and that there 1372 ought to be but one Court of Appeal for the United Kingdom. The Council are, therefore, in favour of the principle of the Bill.Then what did they say of the Court provided by this Bill, which, as his noble Friend believed, stunk in the nostrils of the people of Scotland?—The Imperial Court is proposed to be divided into two or more Divisional Courts. To this First Division is appointed the duty of disposing of Scotch Appeals, and in making arrangements under the Act, it is provided that the said First Divisional Court shall sit throughout the year, except during vacation. These provisions seem to the Council to be satisfactory, as affording a strong Appeal Court for Scotch cases.His noble Friend read this Resolution, passed by the Faculty of Advocates no later than yesterday—The Faculty resolves that, having regard to the interests of Scotland, the Bill now before Parliament does not provide a satisfactory Imperial Court of Appeal, and trusts that steps will be taken to retain and continue unimpaired the ultimate Imperial jurisdiction of the House of Lords as hitherto and still existing in that House, until an Imperial Court so constituted as to meet the just requirements of the Empire shall be devised, and of which at least one member shall be a Scottish lawyer.He had great respect for the opinion of the Faculty of Advocates; but it appeared in order to have the new tribunal acceptable to them and satisfactory to all parts of the Empire, it must have a Scotch lawyer upon it. But what was the opinion of the Faculty of Advocates last year, when exactly the same proposals were made? They met on the 4th of July, when they passed the following Resolution:—That in the opinion of the Faculty, it is essential to the due administration of the law that the supreme appellate jurisdiction should be vested, as it hitherto has been, in one Imperial Court, comprising Judges conversant with the laws of the different parts of the United Kingdom; and the Faculty therefore approves of the proposal that Her Majesty's High Court of Appeal should also have jurisdiction in Scotch Appeals, provided that the Scotch element is duly represented in the persons of its Judges, and that the Scotch Bar have the right of practising before it in all cases.He would present his noble Friend, as he was making a collection of Scotch opinion on the subject, with the Resolution passed by the Faculty of Advocates last year, to treasure it up side by side with the Resolution they had passed this year. And now as to Ireland? Only two or three days ago a deputation from the most important commercial and manufacturing town in Ireland (Belfast) 1373 had an interview with the Attorney General—he himself, owing to business in their Lordships' House, not being able to see them—and they expressed their opinion that the change of the appellate jurisdiction was a very good change. But it was said the Bar of Ireland was opposed to the change. Well, no Resolution had been communicated to him this year on the subject, but he had some Resolutions which were passed last year—he presumed, however, that the opinion of the Irish Bar this year was that which had been expressed a few nights ago by his noble and learned Friend the late Lord Chancellor of Ireland. But these were their views in June, 1873. Serjeant Armstrong moved—That to maintain uniformity of decision in the Courts of Law and Equity in England and Ireland, as well as to ensure an efficient Tribunal, it is essential that there he the same Final Court of Appeal for Irish and English cases.Mr. May. Q.C., moved—That as the amount of property involved in many Irish cases did not admit of an appeal to a Court sitting in England, it was desirable that the Local Courts of Appeal should be preserved.Mr. Andrews, Q.C., moved—That a Committee be appointed to report to the Bar in what manner the Court of Appeal in England could be best adapted to be a Court of Appeal for both countries.He had shown reasons not only for doubting but disputing, that this was a question on which public opinion had been advisedly expressed or on which professional opinion was unanimous. Public opinion was silent or acquiesced; professional opinion was divided. His noble Friend had quoted a passage from a speech delivered by the ancestor of the noble Earl near him—the first Lord Shaftesbury, in which he styled their Lordships' judicial jurisdiction the life and soul of the Peerage. This was a strong and striking expression; but his noble friend had omitted to mention on what occasion it was used. About 200 years ago there was passing through Parliament a measure called the Test Bill, the object of which was that a declaration of passive and implicit obedience to the Crown should be made. Lord Shaftesbury was strongly, and rightly opposed to that measure; but he had a very small following among their Lordships and a still smaller following in the House of Commons, and he, accordingly, adopted a course which was re- 1374 garded as one of the greatest strategic operations ever performed in Parliament. There happened to be three or four appeals in this House to which Members of the House of Commons were the respondents, and Lord Shaftesbury induced the small party who agreed with him in the House of Commons to suggest to that House that it was a Breach of their Privileges to implead any Member of the Lower House at the Bar of the House of Lords. Lord Shaftesbury despaired of defeating the Test Bill, but he thought he could embroil the two Houses in a quarrel and that the obnoxious measure would disappear. In this his Lordship succeeded admirably. When Parliament re-assembled, the Test Bill was renewed, and then Lord Shaftesbury made the speech from which his noble Friend had read an extract. In that speech Lord Shaftesbury told the Lords that the marrow and pith of the Peerage was their judicial power. But could they imagine that Lord Shaftesbury really cared anything about the judicial business or the judicial character of the House—or, indeed, about judicial proceedings anywhere? He hoped his noble descendant would excuse him from saying that he entertained the strongest doubt on the subject, and if his noble Friend (the Chairman of Committees) read the whole of the speech, he would perceive that it contained much that was wild and inflammatory, in addition to the sentence quoted this evening. His noble Friend was opposed to everything which could dissociate the Peers from the Monarchy and the grandeur of their monarchical institutions; but the effect of the change made by the Judicature Bill would be that for the first time the great Court of Appeal for the Empire would be the Queen's Court; whereas, if there were anything in names, it had never been the Queen's Court before. His noble Friend had not submitted an alternative proposal for adoption in the event of the Act of last year being repealed. Neverthless, his noble Friend appreciated some of the objections which had been made to the exercise of the appellate jurisdiction of that House. While agreeing with his noble Friend that there was a considerable anomaly in the way that jurisdiction was exercised by a small number of Peers, he contended that nothing was so calculated to fix public attention on the anomaly as 1375 the proposal of his noble Friend to single out three, four, or five Peers, and to say that the decision of cases should belong to a clique of the Members of the House, and not to the House itself. As to the proposal to create certain high judicial offices into peerages, it should be remembered that the Common Law Judges were at present hardly worked, and that they could not possibly undertake to perform fresh duties. Besides, was it likely that the House of Commons would vote £30,000 or £40,000 a-year for the salaries of Judges who were Members of the House of Lords? Nor did he see how the difficulty about the Vacations was to be got over—for it was of the essence of any perfect system of judicature that the Final Court of Appeal should sit throughout the whole of the legal year. His noble Friend might say that the select body he had referred to might sit in the Long Vacation—but that body would not be the House of Lords. How could that be said to be a perfect Court of Judicature which was shut up for six months of the year? The noble Lord asked their Lordships, absolutely in the dark, to reverse clear, definite, and intelligible arrangements which they had already passed into law, not upon any alternative suggested, but upon a vague promise that something might be discovered if only they would undo what had been already done. He thought, and he knew, that Members of their Lordships' House thought deep and long before they assented to the legislation of last year—he believed the legislation of last year would be productive of beneficial results, and that their Lordships would not undo that which they had already done.
§ LORD MONCREIFF
said, that the Bill of last year constituted a Supreme Court of Appeal for England only; the present Bill proposed to abolish that Court, and to institute an Imperial Court of Appeal, and to transfer to it not only the English Appeals, but the appellant jurisdiction of Scotland and Ireland. The Instruction now moved by the noble Lord, the Chairman of Committees would retain the appeal jurisdiction of their Lordship's House. As the Resolution was for the purpose of upsetting the Act of last year, he doubted whether the subject ought not to have been raised on the second reading. This, he agreed, was not only not a party 1376 matter, but one of great interest, because it touched the tribunals of the country; and the first question he asked himself was, what was the best Court of Appeal, and the next was whether the new Court would meet the wishes of the people of Scotland? This was a most interesting question in Scotland; because its jurisprudence differed from that of England. That raised a most important question—namely, were they to change their jurisdiction and convey over to a new Court the jurisdiction hitherto exercised on the principles of Scottish jurisprudence? He did not know how far the noble and learned Lord on the Woolsack had ascertained the opinion of the profession in Scotland. He did not suppose, unless their Lordships had full information of the opinion of Scottish lawyers, they could ascertain their views, and in 1856 they took the proper way to ascertain it by appointing a Commission. He did not think the professional opinion could be neglected by any one in dealing with this question. The other night he observed that the opinion of the Scotch Judges was in favour of retaining their Lordships' jurisdiction. The Writers to the Signet, it appeared, wished the jurisdiction to be maintained; and he also said that the Solicitors were in its favour. He had, he believed, misrepresented their opinion. The fact was that they expressed regret at the giving up the jurisdiction of the House, but they stated that if the Supreme Court was formed for England it would be a farce to retain the present appellate jurisdiction for Scotland. But what was the fact? They had already excluded Scotland and Ireland from the Act of last year, and there might be those who desired to retain the appellate jurisdiction of their Lordships, even though there was a Supreme Court established in England. No distinct proposition as regarded Scotland had then been made in their Lordships' House, and therefore the profession of Scotland could not be charged with inconsistency in reference to this matter. He now repeated his statement that the appellate jurisdiction of their Lordships' House was made an express stipulation by the Act of Union, and in 1869 it was declared to be the plain right of the people of Scotland to appeal to their Lordships against the decision of the Lords of Session. The Treaty of Union 1377 expressly provided that the Courts of Scotland should remain as there constituted—that causes in Scotland should not be cognizable by the Court of Chancery or by the Courts of Westminster, and that no Court in England save only the House of Lords, should have jurisdiction in Scotch causes. That had continued to be the constitution up to the present time. Now, they proposed to do away with it all. He was surely entitled to say that the opinion and feeling of Scotland were entitled to consideration, and that the cases that came up from Scotland were not to be handed over to the ordinary Courts of the Realm. He should certainly never have taken the course the noble Lord had done on the grounds he had taken, but if he were asked his opinion he should say from his long experience of the manner in which the Scotch appeals had been dealt with, he should prefer to retain a jurisdiction which was of the most august character, and which had existed for centuries, rather than resort to the new tribunal. He thought the Scotch people would indeed be ungrateful if they did not wish for the continuance of such a tribunal. But if the law here was wholly changed, his fear was that no Court could be established which would be so advantageous as a Court of final appeal as this House. On that ground he was in favour of the noble Lord's Resolution; but he doubted whether the plan sketched out in it would be sufficient to maintain the jurisdiction of their Lordships' House in its full dignity. At all events, if the Bill should pass, it was to be hoped that care would be taken to make the new Final Court of Appeal in reality an Imperial tribunal. There was, however, no guarantee at present that the Judges who would preside in it would be conversant with the law which they would be called upon to administer.
, for whom Lord O'Hagan—though called for—gave way, said, that probably his arguments might be so weak that those who wished to hear the noble Lord (Lord O'Hagan) first speak, might find that he (Lord Denman) said more in favour of, than against, the measure which he opposed. He had, since 1856, constantly resisted attempts to destroy the appellate jurisdiction of the House of Lords. Though he would have preferred living in the country, he had come up to 1378 oppose unconstitutional measures. The large sums voted for the Bill of 1873 were voted by a different Parliament from that now sitting, and he believed that attachment to the House of Lords had influenced many constituencies to vote against the late Government. That Government was responsible for the expenses of the Tichborne cause—which, he thought, ought to have been stopped at an early stage. He (Lord Denman) had been on the Bench when Sir William Codrington and General Peel were there, and the Claimant had forgotten the names of those who had (he alleged) been rescued with him from the wreck of the Bella, and said "he would enquire," and this was explained by him to mean looking at night into papers; but, if he had had memoranda in his hand, he would have been obliged to explain, and probably been prevented from using them, and the rate at which that case proceeded was disgraceful. Their Lordships' House now possessed noble Lords—one from the Bench of Scotland, another an ex-Chancellor of Ireland—and each nation was anxious for appeals to be heard by a jurist from their own country. He had already, in 1856, and on the Motion for the second reading of this Bill, refuted the error, that by not voting, any noble Lords had forfeited their right to vote. He believed that the people of Ireland wished to retain the jurisdiction in their Lordships' House, and that the people of Scotland could never have the same confidence in any new Court that they had in the House of Lords.
§ LORD O'HAGAN
My Lords, no one can fail to see that the task undertaken by the noble Lord whose Motion occupies the House is full of difficulty. He seeks to reverse a recent decision of your Lordships, which was affirmed by the House of Commons, chiefly because it was before affirmed by you, relating to a question on which you are far more likely to be made adverse to him because it touches your own ancient privileges, and is calculated to rouse amongst you a spirit of generous self-negation, and induce a decision too unfavourable to yourselves. You have already abandoned your position as the High Court of Parliament, and I doubt not you are predisposed to ratify the abandonment. But the question does not regard you only. The loss or gain is not merely 1379 personal to you. You have had a trust committed to you for the good of the Realm, and that great trust you are not at liberty to abandon without coercive reason. For myself, like my noble Friend the Lord Justice Clerk, I did not imagine that this controversy would ever be re-agitated. I thought the ruling of last year on the English Judicature Act had probably closed it for ever. But it has been revived. Public opinion has largely declared itself in various districts of the Empire. The discussion is raised again, in new circumstances and under new conditions, by an English Member of your Lordships' House who possesses the highest personal and hereditary claims to your most respectful consideration; and I have felt bound to give the matter again my best attention, and to reach, upon its merits, the soundest conclusion I can form. I have said so much, perhaps unnecessarily, because my noble and learned Friend on the Woolsack seemed to think, when I last addressed your Lordships on this topic, that there was something in the nature of a personal estoppel against my statement of opinion, because, having been Lord Chancellor of Ireland under the late Government, and not having seceded from it, I had given, as he alleged, the weight of my authority to the opposite view. But the Bill now before the House is not the Bill of 1873. It is essentially different, as has been shown by my noble Friend who seconded the Motion, and raises completely now issues as to the Final Court of Appeal. The Act which passed last Session was passed for England only. I took no part in the discussion of its provisions. I was not present at the passing of it; and, if I had been, my interference would have been an intrusion, if it had not been an impossibility. But now Ireland and Scotland urge their common claim, not to have a Court of Ultimate Appeal distinct from that of England, but to induce England to retain her own time-honoured tribunal, which they both prefer to any new invention. The Bill is changed, I think essentially, as to the double appeal, and on a measure so altered—on a case so urged by those whom it aims to affect for the first time—on a Motion made by an English Peer, and sustained, as I am told, by a mass of judicial and professional sentiment in England, I feel 1380 not only at liberty, but bound, with a free and open mind, to form and to express my honest judgment. My Lords, the jurisdiction which the noble Lord asks you to preserve is as old as the Constitution, and has ever been held an essential part of it. It has been maintained for many ages, through all the changes of dynasties and all the revolutions of opinion, and, so far as we have any trustworthy evidence, it is at this moment as respected and as popular as at any period, since it grew into being with the very foundations of the Common Law. The description of its characteristics by Lord Coke, is as true now as it was three centuries ago. He says—Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima: si jurisdictionem, est capacissima.And if this be so, may we not fairly ask what is the justification for its overthrow? By what authority has it been denounced? On what inquiry has it been found unworthy of existence? What trial has been made to correct its errors and supply its shortcoming, before its condemnation to extinction? The burden of proof is surely on those who assail an institution so venerable in its antiquity and so great in its traditions; and that proof should be strong and clear to overbear the presumption in its favour which those things create. But I venture to say that no change so momentous was ever proposed on lighter grounds or accomplished with less deliberation. Various inquiries have boon instituted by your Lordships as to your Appellate Jurisdiction, and not one of them all has issued in a recommendation to abolish it. There were such inquiries in 1813 and 1823, on which I need not now bestow attention; but the inquiry of 1856, before a Select Committee of this House, conducted as it was by Peers of the highest ability and distinction, beyond all others qualified to pronounce on such a question, and aided by the testimony of men of remarkable professional experience and attainments, may surely claim the greatest consideration. A Committee composed of such persons as Lord Lyndhurst, Lord St. Leonards, Lord Brougham, Lord Cranworth, Lord Campbell, and Lord Aberdeen, Lord Lansdowne, Lord Ellenborough, and Lord Elgin, has rarely been matched in either House of Parliament, The wit- 1381 nesses were of the highest and most instructed class, such as Lord Westbury, and my friend Sir Joseph Napier, afterwards Lord Chancellor of Ireland; and that Committee unanimously expressed their entire concurrence with the general opinion of those witnesses as to the expediency of retaining the Appellate Jurisdiction of the House. It is impossible to imagine a pronouncement of greater conclusiveness. Statesmen and Judges, amongst the greatest and the wisest whom England has produced, united in declaring that there was no need of the change which has been wrought; and you are merely asked to affirm their judgment—which no subsequent circumstances have affected, which no subsequent decision has overruled, which, if it was correct in 1856, is equally correct in 1874. The Judicature Commissioners bad not the question of your Lordships' jurisdiction referred to them; and the Committee of this House in 1872, on which I had the honour to serve, did not advise extinction of the tribunal, but that it should be supplemented and strengthened by extraneous aid. This was the last inquiry on the subject, and this the last authoritative counsel given to your Lordships before you were asked to vote for the change of 1873. So that, if I am not mistaken, the judgment of 1856 remains undisturbed; and there is absolutely nothing to bring it into question. And is it too much to ask that that solemn judgment should not lightly be set at nought? Why should it be? Opinion sometimes unduly compels change. It is sometimes too strong for argument,—too masterful for rational resistance. It has its gusts of passion, which obliterate old landmarks, sweep down cherished institutions, and compel reluctant observance of its imperious mandates. But in this case opinion and authority go together. There has been much criticism of the House of Lords as an Appellate Court. Its actual deficiencies have been frequently exposed, and there have been very many and very useful suggestions for its reformation. But I am not aware that England has uttered any outcry against its continuance. I have heard of no popular or professional demand that it should be done away. My noble and learned Friend on the Woolsack has read the Resolutions of 1873 as indicating the opinion of Ireland; but I must 1382 remind him that, in 1874, the Irish Bar have unanimously and repeatedly declared their preference for this House as the Final Court of Appeal, and that the representatives of the Irish solicitors have petitioned your Lordships, affirming, for themselves, that preference. They all recognize the necessity of having the same Final Court for the Three Kingdoms, whatever it may be; but they all desire that it may be what it is, and nothing else. In 1873 they did not meddle with the provisions of a measure not immediately affecting them. In 1874 their declarations are strong and unequivocal. Scotland is of the same opinion. The Judges are unanimous—the writers to the signet are unanimous; and, though there appear to be differences elsewhere, my noble and learned Friend behind me has demonstrated that the feeling of Scotland is effectively with this Motion. Is, then, the pronounced opinion of two Kingdoms to go for nothing? Ought it to receive no respect and command no attention? My noble and learned Friend has said that the opinion of the professions is not the opinion of the people, and that this can only be known through their legitimate representatives. But on a question of this description who are to determine? By whose judgment should the general sentiment be guided? Surely the men who alone have opportunity of observing, and have at once a duty and an interest to observe the conduct of a tribunal, are the true exponents of opinion about it? The masses know nothing, and can know nothing, save through their report; and when they combine for praise or blame on such a subject the multitude must follow them. If the working of any judicial institution has their approval, must it not be held of the highest value? The administration of the law is often as important as the law itself, and when those who administer it command the confidence of the advocate and the suitor, the tribunals they control are beyond impeachment. As to the matter before us, the informed opinion of Ireland and Scotland—and of England also, as I am informed, to a very large extent—whilst it desires reform, protests against destruction, and, if the abolition of the judicial functions of this House be permanently achieved, it will occur, not in response to any public complaint or in obedience to 1383 any public condemnation, or in satisfaction of any public desire, but against the remonstrance and in spite of the opposition of the classes in, at least, two of the Three Kingdoms, who are most qualified to speak, and best entitled to be heard, on a proposal vitally affecting their profession, their country, and themselves. Well, then, my Lords, if the retention of your jurisdiction be approved by the highest authorities in the Law and in the State; if there be no adverse finding by Committee or Commission; if public opinion be in its favour, why should you cast away a privilege which you hold, not so much for your own honour, as for the benefit of the nations which beg you to retain it? What assurance have you that the thing to be substituted will be bettor than the thing to be destroyed? How has it been demonstrated that you cannot combine continuous judicial action, powerful intellect, deep learning, and wide experience, with the prestige and the dignity incommunicably attached to a tribunal, so venerable in age and so imposing in authority? What are the conclusive reasons which should compel you to abandon your position in the judicial system of the Empire? Consider for a moment the objections which have been raised against the existing arrangements, and whether, even if they be tenable, they he also irremovable? Those objections, as stated by the Committee of 1856, and since repeatedly urged in discussion, were that the attendance of Judges here is uncertain and fluctuating, the adequate number difficult of maintenance, and the period of the sittings limited by the duration of Parliament. Beyond doubt the interest of the suitor is primarily to be regarded, and it is the first duty of Parliament to obtain for him the best available tribunal. To this object must be subordinated all considerations of political convenience and class privilege; and if these things cannot be made plainly to concur with the effective administration of justice, they must be entirely disregarded. But the objections seem to me removable, and by the simplest means. The attendance of the Law Lords is, to some extent, occasional and uncertain, although I believe it was never less so than it has been for a long time past. But the Committee of 1856, and the Committee of 1872 suggested a simple remedy, which should, at least, 1384 have been tried before the evil was pronounced incurable. The Committee of 1856 proposed the appointment of Deputy Speakers of the House, who might have been, of course, judicial persons of the highest class; and who would always, with the Lord Chancellor, constitute a permanent Court, deriving aid and counsel from the ordinary Law Lords. The Committee of 1872 made a somewhat similar suggestion as to the association of salaried Judges with the legal Members of the House, and either of these suggestions, if successfully carried out, would have met the main difficulty, not existing, but possible to arise in the actual state of things. Then, as to the cessation of Sittings prematurely, the Committee of 1856 recommended that the House should be authorized by statute to have its Judicial Committees continued in Vacation, and for this recommendation they had the countenance of Lord Hale in his book on the Appellate Jurisdiction. No one can doubt the power of Parliament to adopt such a course, and so that difficulty might have been removed. But further, we have been told—and this is the most common and popular argument against your Lordships' jurisdiction—that it is a "sham" and an unreality, because the Appellate Tribunal is composed only of legal Peers, and not of the majority of your Lordships. Precisely the same objection would have applied at any period of your long history. Your Predecessors always acted according to the judgment of those who were learned in the law. Lord Hale's treatise demonstrates this in many conclusive passages. He says—The Judges have been always consulted withal, and their opinions held so sacred, that the Lords have ever conformed their judgments thereunto, unless in cases where all the Judges were parties to the former judgment, as in the case of ship money.And, again, of the Judges, he says—Their opinions have always been the rules whereby the Lords do, and should, proceed in matters of law, especially between party and party.And he seems to show the way out of the present difficulty by ancient precedent, when he speaks of the Writs—By which a certain select number of the Lords with the Judges were commissioned by the King to examine, hear, and determine errors in judgments and decisions.The rules of action indicated in these 1385 passages have ever governed the judicial conduct of this House, and it seems to me a mistake to suppose, as was suggested by my noble and learned Friend (Lord Hatherley), that the O'Connell case established any new practice, or involved any novel abandonment of jurisdiction. The Appellate Tribunal is as substantial a reality at this moment as it has been at any time since it came into existence, and the suggestions to which I have referred, and which have been repeatedly made without effect, would, if adopted, in my judgment give it vigour, constancy, and permanence, while preserving the peculiar attributes which have so largely won for it the attachment and trust of the community. The objections we have heard, though formidable in seeming, are not fatal in fact. They may be encountered whilst we stand within the historical lines of the Constitution, adapting ancient principles to modern needs, and they do not warrant the ruin of an institution which, by their removal, we shall be enabled to reform. If it be possible at once to save and to amend, are we not bound to do so? Can any one doubt the value of uniting the legislative and the judicial functions of your Lordships' House? Does not their exercise work a reciprocity of advantages which should not be wantonly relinquished? May not your legislation derive clearness and precision from the trained action of legal minds? Will not those minds be enlarged and enlightened, for the purpose of decision by contact with the work of statesmanship, and familiarity with the great social and political questions which occupy the intelligence of the world? And why should the final judgment in the court of last resort be deprived, if it be not clearly necessary, of the impressiveness and the respect with which it has been clothed from connection with the exalted position and the proud memories of this great Assembly? My Lords, you may not be convinced by the arguments which I and those who think with me deem it our duty to submit to you. You may answer—" jacta est alea," and your decision may be irreversible. If it be so, I shall strive to hope the best; but I shall lament that decision, alike in the interest of justice and legislation.
§ LORD COLERIDGE
said, he did not think it would be quite manly, having 1386 had some very small share in the preparation of the Bill of last year, and a good deal in passing it into an Act in the House of Commons, if he abstained from saying a very few words in support of some of the statements of his noble and learned Friend on the Woolsack, and pointing out that some of the assumptions of noble and learned Friends on the other side were not well founded. It was perfectly true that the Bill had been passed in the House of Commons without a single division upon the point, whether the jurisdiction of the House of Lords should be abandoned. Even in their Lordships' House the only Peer who took a division upon it was the noble Lord the Chairman of Committees. Therefore his noble and learned Friend on the Woolsack was entitled to say that, so far as the Legislature was concerned, it had pronounced in the clearest manner in favour of the transfer of the jurisdiction of their Lordships' House to the tribunal created by the Judicature Act of last year. He was surprised to to hear that this transference had been made without notice to Scotland and Ireland; but if Parliament took away, with the consent of both Houses, the jurisdiction of their Lordships in respect to English tribunals—if that were transferred to a now tribunal—could any man of sense have doubted that before long the rest of the jurisdiction would inevitably follow? Could anybody have doubted that if the judicial strength of the House of Lords was to pass to the now Court of Appeal, Scotland and Ireland would not be content to have a Court of Appeal separate from that which was set up for England? Although, technically, Scotland and Ireland were not affected by the Act of last year, it was in vain to say that Scotch and Irish Representatives did not foresee the inevitable result of what was being done; and, if they had objections, then was the time to have stated them. He could understand the noble Lord who moved the Resolution desiring to retain the jurisdiction of the House on Constitutional grounds, if it were not that no one knew better than the noble Lord what attempts had been made to fortify it failing jurisdiction. For many years past appeals had been heard, not by the full House, but by a few selected Members—by two or three, and sometimes by one, at whose judgments a distin- 1387 guished Judge used to hold up his hands in "respectful amazement." This was a state of things it was impossible to defend. With the object of retaining the jurisdiction of the House, repeated efforts had been made to strengthen it, and the result of the consideration of the matter by a Select Committee in 1872, was that it asked for the appointment of a Judicial Committee, to be composed, not necessarily of Peers, but of men of legal eminence, who were to do the legal business of the House. This was, in plain terms, a proposal to transfer the jurisdiction of the House, and the scheme was substantially undistinguishable from that embodied in the Act of last year and the Bill of this.
§ LORD SELBORNE
said, he would have been content to leave the matter where it was if he did not feel called upon to take his own share of responsibility. It was difficult to comprehend and appreciate the arguments based on the alleged state of Scotch and Irish opinion; but it seemed to come to this—that unless their Lordships thought that, under the influence of Scotch and Irish opinion, they ought to undo what they did for England last year, and to remodel the Final Court of Appeal for England, the voice of Scotland and Ireland had pronounced in favour of the principle of the present measure. The Lord Justice Clerk had certainly failed to show that the Imperial Court of Appeal would be a Court of Queen's Bench, or of Common Pleas, or any other purely English Court, or anything but a truly Imperial Court, hearing appeals from all parts of the British Empire. Why did not Scotland and Ireland object last year when English appeals were taken from the House of Lords? The Bill was introduced early—it was delayed that it might be fully considered; and the Government were reproached for not pushing it forward with sufficient rapidity. It was then open to Scotland and Ireland to have said—"We object to English appeals being taken from the House of Lords, because the interests of Scotland and Ireland cannot be separated from those of England, and because we prefer that our appeals should go to the House of Lords." What was the explanation of the silence last year of the then Lord Chancellor of Ireland, of the Lord Justice Clerk, of the Scotch and. Irish Judges, and of both branches of 1388 the Profession? They should have protested against the transfer of English appeals before it was made by Act of Parliament, instead of waiting a year, and then asking that what had been done should be undone. Nor did the matter pass without warning, for he (Lord Selborne) stated in his speech introducing the measure that his reason for not proposing to include appeals from Scotland and Ireland was, that he was not at the time informed of the existence of a state of opinion in those countries which would justify him in making the proposal. He added that he would not conceal his opinion that if the Bill were to pass, and the new Court to be successful, a not remote consequence would be that the Scotch and Irish appeals would also be attracted to it. The matter, however, did not rest there; for an expression of opinion did proceed from Scotland and Ireland with much greater rapidity than he expected, and when this House had decided on the question of English appeals, and the Bill had passed into the House of Commons, there came from the profession in Scotland and Ireland a pressure to introduce into the Bill such provisions as might be necessary to give Scotland and Ireland the benefit of the new Court of Appeal, expressly on the ground—for that was the language in Scotland—that it was essential that the same Court of Ultimate Appeal should decide appeals from both countries. And as regarded Ireland, assuredly he was not to understand that the late Lord Chancellor of Ireland held the opinion then which he held now, and thought it right to remain silent. He must say, after the total absence of any expression of dissent, direct or indirect, while the Bill of last year was pending, and after their declaration in favour of participating in the benefits of the new Court, that their Lordships should now be told that Ireland and Scotland wished all that had been done to be undone—not that those countries might remain as they were, but that English, Scotch, and Irish appeals should be inseparably united—was what he could not understand. If, however, their Lordships would not conclude to undo what they had done as to England, they would pass this Bill in order that Scotland and Ireland might have the alternative which they deemed 1389 so essential—namely, the benefit of the same jurisdiction for Scotch and Irish as for English appeals. As to the opinion of the Irish Solicitors, if the public organs of information which he had seen were not erroneous, the Irish Solicitors expressed their opinion by a majority of 15 to 12—a very narrow majority of three in a body composed of 27. The late Lord Derby, Lord Granville, and almost all who took part in the debate of 1856, were agreed that in this matter it was the interest of justice, not the supposed dignity of this House, which ought to be consulted. Well, he (Lord Selborne) would ask their Lordships, in the name of common sense, if they were to create an appellate jurisdiction—and if they passed this Resolution they must do so, because they would destroy that which was now established by Act of Parliament—if they were to create de novo an appellate jurisdiction from all the Courts of this Realm, was it possible—was it conceivable by any human being, that they would think it right, wise, rational, or politic to establish a tribunal which should sit at most only six months of the year, and during those six months should be liable to be interrupted by every Prorogation, Adjournment, and Dissolution of Parliament, and which, during those six months, should sit only four days in the week, because the House did not sit the other two? That was a thing which nobody in his senses would think of recommending as conducive to the due administration of justice. Would their Lordships select for a Court of Justice a place remote, or which would soon be remote, from all other Courts, with no better accommodation for the profession than was provided at their Lordships' Bar? Would they think it right to establish a Court in which there would be no certainty of a continual supply of a sufficient number of fit and proper persons for the administration of justice, a supply which it would be impossible to obtain and keep up unless men were made hereditary Peers whether they had fortunes and inclinations suitable or not? To put these questions appeared almost to reduce the thing to an absurdity. No doubt the antiquity of the institution, the dignity of this House, and the manner in which, on the whole, it had satisfied the requirements of 1390 public opinion, might be pleaded for the continuance of the jurisdiction while it existed. But no one in his senses would have thought of establishing a jurisdiction subject to such embarrassments and inconveniences, or of re-establishing it after its removal. It had been said that the country had been taken by surprise. But the fact was, the subject had been under consideration almost without interruption for the last 50 or 60 years. Lord St. Leonards, before he was a Peer of Parliament, and at a time when it was more easy for him to take an unprejudiced view of the question, reviewed in a book universally known, the mode in which the jurisdiction of the House of Lords was exercised, and he was by no means so complimentary as some of their Lordships might expect. The jurisdiction had been in constant process of change, and had at no time been satisfactory, during the last 200 years. Originally, the Judges were required to attend the House during the whole time of all its sittings, and were reproved by Lord Somers for their laxity in the performance of that duty; and the only period at which no complaint was made, was when the House merely registered, and gave effect to, the opinions of the Judges. In the time of Charles IL, when Lord Shaftesbury described the jurisdiction (which, as to appeals from the Court of Chancery, had been for the first time assumed—he might truly say usurped—in the preceding reign), as so precious a privilege of their Lordships, the same noble Lord, in the very same speech, referred to the practice of canvassing for the votes of Peers on appeals, and to the exercise of Royal and female influence to obtain those votes, as scandalously notorious. During the interval between that time and the present century, there were not a few instances of lay Peers voting, and altering by their votes the decision of appeals; and during many years the appeals to this House were generally heard by a single Law Lord, sitting-alone. No doubt Lord Hardwicke and Lord Eldon were very great men, and did much for the improvement of the law; but, even in their times, this state of things did not commend itself to the general intelligence of mankind. In the last days of Lord Eldon, and in the time of Lord Lyndhurst, who succeeded him, Lord Gifford, 1391 who had never known anything of Scotch law, and but little of English equity, often sat alone to decide both Scotch and English cases; and Sir John Leach, who was not a Peer at all, was brought in, and also sat alone, without being able to open his lip's in the House, being obliged to adjourn to a Committee Room to tell the counsel and parties the reasons for his decisions. Sir John Lefevre, in his evidence before the Committee of 1872, stated that between 1833 and 1856 there were no less than 200 appeals decided by the Lord Chancellor alone, or by a single Law Lord (Lord Brougham), who frequently sat alone; and that about the same number, 200, were decided by only two Law Lords. Nobody could suppose that all the decisions, given under such circumstances, were satisfactory to the suitors, or to the profession; in some cases they were very much the reverse indeed. Lord St. Leonards, in the book to which he had referred, found very great fault with the manner in which the jurisdiction had been exercised before 1849. He criticized not less than 21 decisions as unsatisfactory, and others might easily be added to that number. No doubt there had been, of late years, a considerable improvement, owing chiefly to the greater legal strength which their Lordships' House had obtained, through the unusually frequent changes in the office of Chancellor; but many of those changes had been due to accidental circumstances, which were not likely so often to occur hereafter, and no one could reckon upon the continuance for any long time of such a state of things. He wished as shortly as he could to remind their Lordships of the various inquiries and attempts to improve their jurisdiction which had been made during the present century, always without any result. Before 1830 there were two inquiries, ending in nothing but the introduction of Lord Gilford and Sir John Leach, to which he had already referred. In 1830 Sir Edward Sugden proposed legislation on the subject; in 1833, Lord Brougham again proposed legislation; in 1834, Lord Melbourne again proposed legislation,—all which schemes contemplated essential changes, and all proved abortive. In 1835, Sir Edward Sugden addressed a letter, in the form of a pamphlet, to Lord Melbourne, in which he said— 1392An effective Court of Appeal is a necessity; it can no longer be dispensed with.And this opinion he repeated as late as 1849. In 1836, and again in 1839, Lord Cottenham and Lord Langdale proposed elaborate schemes of legislation on the subject, differing from each other, which also failed. In 1841 Sir Edward Sugden, then in the House of Commons, introduced a Bill of his own, of which the leading proposals were that two salaried Judges should be appointed to assist the House of Lords, and also the Judicial Committee of the Privy Council, in hearing appeals, who were to be at liberty to give reasons for their judgments, but to have no votes, unless they were Peers; and that the Equity Judges might be summoned to attend the House. In introducing this Bill, he said—The general feeling of the country with reference to the system now in force is such that it cannot continue much longer, but must inevitably be reformed; and so strongly is the necessity for this reform felt, that no professional man will conscientiously recommend an appeal to the House of Lords if it appears probable that the same individual will preside in the House of Lords upon the appeal. Such a mode of hearing appeals, in my opinion, amounts to a denial of justice.This Bill, like all its predecessors, failed. Then came the O'Connell case, in 1844, when the lay Peers finally relinquished the right of taking part in the decision of appeals, admitting, practically, that it was not the House of Lords, but a small number of Judges sitting in the House of Lords, in whom the jurisdiction exercised in the name of the House was really vested. In 1851 the noble Lord, the Chairman of Committees, came forward with the same remedy, which he again suggested last year. He moved an Address to the Crown, praying that—For the advantage of the House, and the suitors thereof, and for the honour of the legal profession, Her Majesty will be graciously pleased to sanction the erection of the offices of Lord Chancellor, Chief Justices of the Queen's Bench and Common Bench, and Chief Baron of the Exchequer, into Baronies, which shall entitle the holders of the said offices to writs of summons to Parliament, by tenure of the said offices.The noble Lord did not succeed in persuading the House to agree to that Motion. In 1856 the attempt was made, in the person of Lord Wensleydale, to meet the difficulty by the creation of Peers for life; but the right of the Crown to confer 1393 seats in this House upon Peers so created was denied; and an inquiry by a Select Committee of this House, moved for by the late Lord Derby, followed. In moving for that Committee, Lord Derby treated one of those changes, which the most experienced witnesses afterwards examined, and indeed all persons who had given their minds to the subject, thought indispensable, as inconsistent with the very nature and substance of the jurisdiction of this House.With regard," he said, "to the fact, that for one half the year the Tribunal of the highest Court of Appeal is closed to the public; this is an objection (if it be an objection) which is inseparable from the primary consideration of whether the jurisdiction should be vested in the House of Lords or not. If vested in the House of Lords, it follows, as of necessity, that that Tribunal can only sit while the House of Lords is sitting, and can only in that way pretend to exercise its functions.Lord Campbell, on the same occasion, advocated the establishment of a Judicial Committee, nominally of the House of Lords, but which should include a certain number of Scotch and Irish Judges, who might not be Peers. Lord St. Leonards and Lord Cranworth warned the House of the difficulties in the way of any such attempts to remove the objections to the jurisdiction. Lord St. Leonards, whose mind had been exercised upon it for above 30 years, said—It is one of the greatest problems that over came before this House, what shall be the alterations made; bearing in mind that you have to preserve your own right, as regards the actual Noting, and, on the other hand, that you want legal assistance, and constant legal assistance. Depend upon it, that the remedy has not yet been hit upon by any human being; for I have examined every one of those suggested.Lord Cranworth said—I am afraid we are instituting an inquiry into a problem which it will be extremely difficult to solve.The Committee, then appointed, examined many witnesses, of great experience in the law; and almost all of them advocated extensive changes, incapable of being carried into effect without legislation. Among them, the present Lord Chief Baron, Sir Fitzroy Kelly, said—I cannot but think, speaking with all the respect which I unfeignedly feel for this Judicial Tribunal of the House of Lords, its days are numbered, unless some great change takes place in its constitution.1394 In May 1856, that Select Committee made its report. It stated, that there was—a great preponderance of opinion in favour of some change in the manner in which the appellate business of the House is at present conducted.and it recommended, that there should be two salaried Law Lords, who should be deputy-speakers, qualified by having held high Judicial office in the United Kingdom for not less than five years—that they should have power to sit during the Prorogation of Parliament—and that Life Peerages, not exceeding four in number, should be created. A Bill was consequently introduced by the then Government, which was allowed to drop in the House of Commons, not because there was not time to proceed with it, but because it was manifestly unacceptable to the House. It was strongly opposed, among others, by the late Sir James Graham; whose tone held out no prospect of any consent, by the House of Commons, to arrangements not devised for the purpose of establishing the best possible system of appeal, but for that of enabling the House of Lords to retain the name of a jurisdiction, which, in substance, it could not satisfactorily exercise. The noble Lord at the Table had referred to some words, which he, (Lord Selborne), had himself used in the House of Commons, when supporting that Bill. These words were very sincerely spoken; but they were spoken in the hope, that something would really be done, to remove the objections to a jurisdiction, which a sentiment, of which he had no reason to be ashamed, made him, like so many others, then unwilling to part with. But nothing was done; and nearly 20 years more passed away, and still nothing was done. The subject was necessarily revived, when the rest of the judicial system of the country came under revision, and when the Judicature Commission made its first Report. In 1871, and 1872, his noble and learned Friend (Lord Hatherley), then Lord Chancellor, introduced two successive measures upon the subject, both in vain. The last of them was referred to a Select Committee of this House; before which Lord Hatherley himself proposed to substitute, for the scheme of his Bill, another plan, by which the House would, even in form, have relinquished its jurisdiction; and, 1395 though that plan was not adopted, the Select Committee reported in favour of another plan, proposed by his noble and learned Friend now on the Woolsack, (Lord Cairns), which would have retained the jurisdiction in name only, while really relinquishing it in substance. According to that plan, a number of Judicial Lords were to have been created, with power to vote upon Appeals only, and not upon political questions. Those recommendations received no support, either from the House or from the country; and what was then left to fall back upon? What, but the opinion, which had been deliberately expressed by so great an authority as Lord Chief Justice Cockburn in 1871, when criticizing, in a published pamphlet, the Bill then before this House? He (Lord Selborne) had quoted that passage last year; but the House would excuse him for now quoting it again—The scheme for the creation of a new Appellate Jurisdiction appears to me," said the Chief Justice, "to labour under the radical defect, that it is founded on the basis of retaining the jurisdiction of the House of Lords. Surely the time has come, when the House of Lords may be asked to give up a jurisdiction, which it has only in name, which the House itself does not and cannot exercise, and which, although exercised in its name, is, in reality, committed to three or four Law Lords. It may be hoped that in furtherance of the public interest the House would without any great difficulty, he induced to part with so shadowy an authority.In one way or other, it was absolutely impossible, last year, to avoid dealing with the subject. The Judicial system could not in other respects be re-modelled without at least some attempt to place the Supreme Appellate Jurisdiction of this country upon a footing, which might satisfactorily and permanently accomplish those objects, for which such a jurisdiction ought to exist. Never was any proposition made after a longer course of preparation, a more prolonged series of inquiries and tentative measures, all resulting in a practical demonstration, that the jurisdiction of the House of Lords could not be substantially retained, and at the same time substantially changed. When he brought forward the measure of last year, he consulted all the Judges: not one of them, that he could remember, so much as suggested, that the jurisdiction of the House ought to be preserved; more than one of them, certainly, expressed a very 1396 decided approval of the proposal, that it should cease. That proposal was supported by public opinion out-of-doors; and it was assented to, in a manner which did their patriotism and public spirit great honour, by their Lordships themselves. Their Lordships recognized the fact, that their true dignity, and real political power, would not be increased, either by maintaining an imperfect Tribunal of Final Appeal for political rather than Judicial reasons, or by creating—if that had been possible—a new constitutional fiction, for the sake of retaining an old one. His noble and learned Friend (Lord Penzance) said that this subject had never been inquired into by any Commission. It was not a subject which any Ministry could have appointed a Commission to inquire into, unless at the express instance of their Lordships, without forgetting what was due to the honour and dignity of this House. Last year, even the initiation in the House of Commons of any legislation on such a subject, not already assented to by their Lordships, was resented—though on grounds with which he did not himself agree—as a violation of their Lordships' Privileges. Nor was there any need for such an inquiry. The greater part of this century, as he had already shown, had been occupied with inquiries and attempts at legislation, which really exhausted the subject. And now, what was the practical meaning of the noble Lord's proposal? Were we to undo what was done last year, and to do nothing else? Or, if something else was to be done, what was it, and by what authority was it to be clone? The noble Lord seemed to think that we might revert to the original system of Triers of Petitions, such as he supposed it to have been in the infancy of this jurisdiction. But he could hardly intend that this House should, by its own sole authority, take upon itself to revise institutions practically obsolete since the days of the Plantagenets, and introduce new modes of exercising the Supreme Appellate Jurisdiction, without the authority of an Act of Parliament. A jurisdiction, resting on a new Statute, would not be the present jurisdiction of this House. What greater reason was there now for supposing that Parliament would create such a now jurisdiction, and make this House the seat of it, more than there 1397 was at any other time within these last 50 years? And what possible ground could there be for supposing that any such system would work for the purposes of justice better than, or as well as, that which was agreed to last year, and which the Bill now before the House proposed in some details only to modify? Had those, who thought it would be possible for this House to delegate to the Law Lords the duty of hearing appeals throughout the year, considered how that would work? In the first place, it would withdraw the Lord Chancellor entirely from the Court of Chancery. The other Law Lords, whose services must be relied on, were Ex-Chancellors, not bound to that duty by any strict legal obligation; some of them were men far advanced in years, and a perpetual succession of such wonderful octogenarians as we had lately seen could not be expected. Such men had been found willing and able to take part in the hearing of appeals for four days a week during the six months, or less, in every year, that the House now sat. But did it follow that they would be equally ready and equally able to meet the demand which would be made upon their physical strength and public spirit if they were required to sit daily throughout the year, except during the legal vacations? It might be suggested, as it had been so often before, that some of the Judges, though not Peers, might be called in for the assistance of the House. Had those, who made that suggestion, really considered the extent of the interference which it must involve with the other, not less urgent and important, duties of the Judges, if they were to give the House a real and effective, and not only a nominal assistance? There were already, and there had been often in past times, very eminent Judges, who were Peers; but it had not been found compatible with their other duties for them to give any substantial aid to this House in the hearing of appeals. The House already, once or twice in every Session, had the benefit of the attendance on certain appeals of many of the learned Judges; but it could only be given for a few days at a time, at rare intervals, and then not without inconvenience. In the new Court of Ultimate Appeal would sit the very same men who would otherwise have administered justice in their Lord- 1398 ships' House, and they would be reinforced by many others. The present measure was nothing but the complement of the Act of last Session, which everybody saw must come. Would it really be for the interests of their Lordships' House, after this question had been so often debated and considered, after every attempt for so many years to apply a remedy for the better hearing of appeals had turned out fruitless, and after their Lordships, in a manner which reflected the highest honour upon them, had voluntarily made a concession of one of their ancient privileges in the interest, as they believed, of justice, to endeavour to grasp back what they had voluntarily relinquished, and thus throw their powers and privileges into the political arena as matters of party contention? Nothing, in his opinion, could be more unwise or disastrous. He was convinced their Lordships would be influenced only by what they considered best for the interests of justice; and, in his judgment, that consideration should lead them to adopt the proposition of his noble and learned Friend on the Woolsack.
§ On Question? Their Lordships divided:—Contents 23; Not-Contents 52: Majority, 29.
§ Resolved in the Negative.
§ Then it was moved that the House do now resolve itself into Committee; Motion agreed to; House in Committee accordingly: House resumed: House to be again in Committee on Tuesday next.