Lords Sitting of 16 April 1875

MINUTES.
PUBLIC BILLS—Second Reading—Supreme Court of Judicature Act (1873) Amendment (No. 2) (48); Building Societies Act (1874) Amendment* (43); Local Government Board (Ireland) Provisional Orders Confirmation* (45).

ROYAL PREROGATIVE OF MERCY—COLONIAL PARDONS.—QUESTION.
THE EARL OF BELMORErose, according to Notice, to put a Question to the Secretary of State for the Colonies as to the conditions under which the power of granting pardons is in future to be exercised by the Governors of those Colonies which have responsible government, and to move an Address. The noble Earl said, that the subject to which he was about to refer was one of, perhaps, not very great interest for their Lordships' House, but it was one, not only of interest, but of very great importance to the Colonies. He would have to refer to both Canada and New South Wales, but he did not mean to express any opinion on the merits of the case of Lepine, and still less was it his intention to criticize the conduct of the Governor General of Canada. He was merely going to show what had been done by that noble Earl, and what had been done by the Governor of New South Wales in respect of the remission of sentences, and he proposed to do this because he thought there was a Constitutional question of considerable importance involved in the contrast between the mode of procedure in the two cases. The Canadian case was shortly this—Mr. Lepine was convicted about November last of having been accessory to the murder of Thomas Scott during the insurrection at Fort Garry some time before, and was sentenced to be hanged. Circumstances caused a good deal of excitement of a party nature, and there was great difference of opinion as to whether that sentence should be carried out. Finally, his noble Friend Lord Dufferin solved the difficulty by commuting the sentence to two years' imprisonment. It appeared that the noble Lord had taken that course on his own responsibility. Now, if Lord Dufferin had remitted the sentence after consulting his Council, he was no doubt doing what every Governor had a right to do in capital cases, even where responsible government existed: but if, as implied by The Times' correspondent, in a letter published on the 5th of November, he had acted as he had done in order to relieve his Ministry of the responsibility of offering advice, either the noble Earl's commission must give him greater powers than his (the Earl of Belmore's) had given him as Governor
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of New South Wales, or else he (Lord Dufferin) must take a much more extended view of his powers than he (the Earl of Belmore) had done. Their Lordships would observe that there was a marked distinction between a Governor acting without the advice of his Council, and a Governor, after having received such advice, exercising his own judgment upon it, though that judgment might be contrary to it. The latter was all that, when Governor of New South Wales, he supposed it to be in his power, or that of any other Governor in similar circumstances, to do. But it would appear that Lord Dufferin claimed the power of acting on his own judgment in cases of supreme importance. He (the Earl of Belmore) was not aware whether that power was disputed, and he thought it was much better that the Prerogative should be exercised in that way than that the contrary practice should prevail of the Governor deferring in all cases to the judgment of the Colonial Ministry—which, he understood, it was proposed should be the rule in future in New South Wales. The Australian case arose in this way. There was a notorious bushranger named Gardiner there, who, a good many years ago, was tried and sentenced, he believed, to a term of 32 years' imprisonment. Soon after Sir Hercules Robinson arrived in the colony he received a memorial for a mitigation of that man's sentence; and having considered the matter, he directed that after a limited period Gardiner should be released on condition of exiling himself from the Australian Colonies during the remainder of his term. That was a very common form of commutation, and one which in New South Wales was regarded as perfectly legal. He deprecated the idea of making any attack on Sir Hercules Robinson, though he could not agree in the decision that Governor had arrived at. When the time approached there was an intense feeling in the Colony against Gardiner's release: the matter of the remission was discussed in the Colonial Parliament, and the Prime Minister explained that the Governor having already some time before promised the man's release, could not then retract his promise. That was quite right. The Prime Minister further explained that Sir Hercules Robinson had acted on his own responsibility after

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consultation with him, but that he had neither offered nor been asked for any advice on the subject. He would not detain their Lordships by following the matter up step by step. It would suffice to say that in the result Gardiner was released on the condition which he had already stated. In consequence of what had passed in the Colonial Parliament, on the occasion to which he had just referred, and of some Correspondence with the Colonial Office which begun during his own administration in New South Wales, it was decided by the Governor and his Council that a change should be made in the mode of dealing with the exercise of the Prerogative of mercy by the Governor. In his (the Earl of Belmore's) time the mode was this—capital cases were always dealt with by the Governor in Council, in accordance with fixed Instructions; the presiding Judge reported to the Governor and was summoned to attend the Council; the Judge did so, and his report having been read, he retired after making any necessary explanations; the Governor then ascertained the views of the Members of the Council and then announced his own decision. Similar Instructions, he believed, applied to all Colonies. No alteration was proposed by Sir Hercules Robinson as regarded that class of cases. But in other cases, a memorial for remission would be sent to the Governor or to the Colonial Secretary; it would be referred for report to the Judge or magistrate who had dealt with the case, and the Colonial Secretary would then send it to the Governor with his initials—generally, without remark, but sometimes with a recommendation. Such was the practice in his time: and on the receipt of the report from the Colonial Secretary, he would have dealt with it on his own judgment—of course, carefully considering any advice offered by the Ministry, but still acting on his own responsibility, and not merely, as in nearly all civil business—in all except where a special duty was imposed by law—ministerially. Now, as he understood the proposed change, it was intended that in future the Governor of New South Wales was in such cases to act merely ministerially. Why was this? The practice which he had explained to their Lordships as having prevailed in his time had worked exceedingly well. In a community among
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whom political changes were frequent, it ensured that an experienced person should deal finally with that class of business for a lengthened period, and it relieved the Minister from a great deal of outside pressure. Something had been made of an expression in a despatch written by his noble Friend opposite (the Earl of Kimberley) to him, in which the noble Earl said he recognized the right of the Minister to give "effective advice." No doubt he did, and very properly; but his noble Friend did not mean, as he understood him, that the advice so given was to override the deliberate judgment of the Governor, or that the latter was not to exercise his own judgment. It might be that in other Colonies all the criminal business was dealt with in Council; but, even if so, he did not think that the Governor was really relieved from a personal responsibility in each case; and he expected to hear from his noble Friend (the Earl of Carnarvon) that he had not sanctioned any such doctrine. The Governor had hitherto stood in the position of the Home Secretary, and the effect of the change proposed would be to transfer the Home Secretary's position to a Colonial Minister. It was to be observed that such an exercise of a personal responsibility by the Government as that which he had explained to their Lordships was quite consistent with a rule that he should never pardon without first having received the advice of his Ministers; but it certainly was opposed to the practice which he had to-day learnt prevailed in South Australia—namely, that no remission should be given to a prisoner without the assent of the Minister, who accepted the responsibility in the local Parliament. He might mention that having had the opportunity of knowing how the business of the Home Office was conducted, he used to consider that the system at that office leant less to leniency than that which was practised in New South Wales. He would now put the Question of his noble Friend, and move the Address to Her Majesty of which he had given Notice.
Moved that an humble Address be presented to Her Majesty for, Copies or extracts of so much of the commissions and instructions to the Governor-General of Canada and the Governor of New South Wales respectively, as relate to the exercise of the Royal Prerogative of Mercy; and also, Copies or extracts of the correspondence

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(if any) with the Secretary of State bearing upon this subject in connexion with the commutation of the respective sentences upon Lepine in Canada and Gardiner in New South Wales.—(The Earl of Belmore.)
LORD LISGARtrusted that their Lordships would favour him with their indulgence for a few remarks, inasmuch as in the Correspondence which had been laid on the Table, in connection with "The Exercise of the Prerogative of Pardon in New South Wales," his own name as a former Governor of that Colony was mentioned more than once, and it so happened that he was engaged in the administration of affairs when Gardiner, one of the convicts mentioned in the noble Earl's Notice, was brought to trial; and in Canada when the unfortunate man Scott was put to death, for which atrocious cruelty Lepine, the other convict named in the Notice, was afterwards made amenable and convicted of murder. He was very glad to gather from that Correspondence that the great concurrence of opinion, the vast weight of authority—namely, that of the two noble Earls (Earls Granville and Kimberley) who had held the Seals of the Colonial Office, as that of the noble Earl opposite (the Earl of Carnarvon) who succeeded them and was now in power, was in favour of maintaining the responsibility of the Governor with respect to the Prerogative of mercy. In the Papers on their Lordships' Table the noble Earl the present Secretary of State for the Colonies laid down the doctrine by stating that—
"The Governor, like the Home Secretary, is personally selected by the Sovereign as the depository of this Prerogative, which was not alienated from the Crown by any general delegation, but only confided as a matter of high trust to those individuals whom the Crown commissions for that purpose."
The noble Earl, therefore, held that while the Ministers were responsible for advising the Governor, the latter could not divest himself of the personal responsibility which was specially entrusted to him. He concurred in that view; and certainly in reference to New South Wales, he quite agreed with Mr. Parkes, the Colonial Secretary, when he stated, towards the close of his Minute, grounds in opposition to Mr. Robertson's view, and to that which he himself seemed to have put forward partially at least. Mr. Parkes remarked—
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"That he entertained grave doubts whether any change at present from the system which had hitherto prevailed would be beneficial to the colony. In a community so small as theirs the distinctions between classes were very slight; the persons entrusted with authority and the relatives and friends of prisoners move closely together; the means of political pressure were easily accessible, and, therefore, a larger share by the Minister in the exercise of the prerogative of pardon would not, in his judgment, be more satisfactory to the public."
He could not indeed say that society as it presented itself to him in Sydney bore out in his opinion the description given by Mr. Parkes, or that he could recognize in the wealthy, educated, and fashionably attired companies with which he had mixed, the friends of convicts. Still he knew that "the means of political pressure were easily accessible" and only too frequently resorted to. When he took up the Government of New South Wales he learnt that under the Governorship of Sir William Denison during the previous four years, at the commencement of which the free Constitution came into play, and during which free representative institutions were in their infancy the pressure for the remission of sentences brought to bear on the new Members of Parliament was well nigh intolerable; during the seven years that he himself was Governor of New South Wales he had not, in any one ease, as far as he could now recollect, omitted to avail himself of the advice of the Colonial Secretary or the Attorney General, and he did not find any difficulty to arise from that practice; but he was not prepared to take the view of Sir Hercules Robinson that the responsibility might be left to devolve upon the Colonial Secretary. Sir Hercules Robinson thought that abuses would speedily pass away after the Colonial Secretary had been invested with that responsibility. He could not concur in that opinion. Undoubtedly, with the formation of a sound public opinion abuses would rapidly cease, but he doubted much whether, if the proposed system were adopted in New South Wales, that colony would not have to pass through the ordeal which the United States had been experiencing for 70 years past, and from which it had not yet emerged. In the United States scarcely one-third of the sentences pronounced were carried out by the authorities, and he ventured to say that the most thinking people in that country would prefer to have the prerogative of

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mercy exercised as it was in the British Colonies, if only they could have it so by some independent impartial authority like a British Colonial Governor, who would prefer the interests of justice and the security of property to the fancied advancement of party or political influences. As to the case of Lepine he differed from the noble Earl opposite, and thought that Lord Dufferin was deserving of high praise. He had come forward at the right time and in the right spirit, and by his mode of action put an end to what had threatened at one time to be an acrimonious and interminable quarrel between the French-speaking and the English-speaking population of the Dominion.
THE EARL OF CARNARVON: My Lords, I am glad the noble Lord opposite (Lord Lisgar) interposed his observations between the speech of my noble Friend and the reply I have to make to the inquiries which he made of Her Majesty's Government, because his doing so enabled him to express that well-deserved praise which he bestowed on my noble Friend the Governor of Canada. I shall say as little as possible on the question of Lepine, because I agree with those who think that it touches on most delicate ground, and that any imprudence with respect to it here might conjure up a good deal of the bad feeling which existed in Canada, and which the discretion and prudence and wisdom of my noble Friend Lord Dufferin had succeeded in allaying. My noble Friend found himself in a most difficult position, and he has conducted himself with a tact, ability, and judgment which en-title him to, and have procured for him, general approval. As to the question raised by my noble Friend (the Earl of Belmore), I will refrain from entering upon local matters and local complaints—the matter excited great attention, led to passionate debates, and terminated in the fall of a strong Ministry; but, divested of local details, it is one of considerable importance, if—as I understand it—that question is how the Prerogative of mercy is to be exercised in the larger Colonies. The question may be thus presented—first, whether the Prerogative is to be exercised by the Governor himself; or, next, whether it is to be exercised by the Colonial Minister; or, lastly, whether it is to be exercised by the Governor with the concurrence of the Minister. There
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is at the present some little difference on the practice as between the Australian Colonies. It is not apparently very great, but it is of more importance than appears on the face of it. In three of them—Queensland, South Australia, and Tasmania—the Governor decides in Executive Council—that is, the decision is called the decision of the Colonial Government. In three others—New South Wales, Victoria, and New Zealand—the Governor decides out of Council, but decides after having heard the opinion of the Ministers. The first of those practices makes the decision much more that of the Colonial Government than of the Governor; the second makes it that of the Governor. As to New South Wales, it appears that when Sir Hercules Robinson assumed the office of Governor he found some difference of opinion to exist as to the practice there. There had been considerable Correspondence between his Predecessor and my noble Friend; but Sir Hercules Robinson adopted the practice—as he states in these Papers—of consulting his Ministers, and he states that he did so on a Circular written by my noble Friend opposite (Earl Granville). My Lords, I think if you study those Papers carefully you will find that in reality there is very little difference among those who have held the Seals of the Colonial Office with respect to the responsibility in the exercise of the Prerogative of mercy. In a despatch written by my noble Friend opposite (Earl Granville) on the 4th October, 1869, when he filled the office of Colonial Secretary, writing to the Governor of New South Wales, he says—
"The responsibility of deciding upon such applications rests with the Governor, and he has undoubtedly a right to act upon his own independent judgment. But unless any Imperial interest or policy is involved, as might he the case in a matter of treason or slave-trading, or in matters in which foreigners might be concerned, the Governor would he bound to allow great weight to the recommendation of his Ministry."
On the 1st November, 1871, my noble Friend (the Earl of Kimberley) who succeeded my noble Friend (Earl Granville) wrote thus—
"The Governor, as invested with a portion of the Queen's Prerogative, is bound to examine personally each case in which he is called upon to exercise the power entrusted to him, although, in a Colony under responsible Government, he will of course pay due regard to the advice of

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his Ministers, who are responsible to the Colony for the proper administration of justice, and the prevention of crime, and will not grant any pardon without receiving their advice thereupon."
In the Instructions relating to this matter, which I think have undergone no change during a great many years, three things are required—first, that the report of the Judge be taken into consideration; next, that the Executive Council should give advice; and next, that the decision will be regarded as that of the Governor. The noble Lord (Lord Lisgar) has quoted a passage from my despatch of the 7th of October, 1874, which is quite in accordance with what is laid down by my two noble Friends in the extracts I have just quoted; and as a further proof of the concurrence on the part of myself and my noble Friends, perhaps I may be allowed to read a passage in another despatch of mine to Sir Hercules Robinson written on the same day—
"You will, I apprehend, have no difficulty in conforming to the clear rule laid down in your instructions, which is based on this principle—namely, that on the one hand, the Governor to whom personally the Queen delegates a very high Prerogative, cannot in any way be relieved from the duty of judging for himself in every case in which that Prerogative is proposed to be exercised; while, on the other hand, he is bound, before deciding, to pay the most careful attention to the advice of his Ministers, or that one of them who, in the matter under consideration, may be selected to represent his colleagues."
My Lords, I quite admit that at times the exercise of the Prerogative of mercy may be one of great difficulty. Difficulties will arise in its exercise on the responsibility of the Governor; but, on the other hand, one very great advantage of making him the depository of the Crown in this respect is that he stands apart and is not subject to those influences which have been referred to by my noble Friend who last addressed your Lordships. In the larger Colonies where there is the fullest freedom of political government, nice distinctions will have to be drawn; but I believe that the men who are appointed Governors of those Colonies will be competent to draw those distinctions. No doubt, it may be objected to the system of the Governor consulting the Minister, and still acting on his own judgment, that it sets up a double responsibility. In reply, I submit that in this case a concurrent responsibility is better. On the one hand, the
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Governor will not be relieved of his responsibility to the Crown, and on the other hand the local Government will not be relieved of its responsibility to its own Parliament; so that while the Colonial Parliament may punish the Minister for improper advice, the Crown may punish the Governor for an improper decision. The fact is that, in these matters, we cannot be too logical. In the way I have just indicated, you may reconcile differences and overcome difficulties which cannot be counteracted by logical means. As to the banishment to which the sentence in New South Wales was remitted, I cannot concur with my noble Friend (the Earl of Belmore) in what he said as to that. The Colony, as a part of the British Empire, had no right to transport a criminal to another part of the Empire. The fact, however, is, that, in this instance, action was taken under an existing law which had been sanctioned many years ago; but, at that time, the circumstances were very different. That might have done very well when criminals sent out of a colony were turned like a scape-goat into the wilderness, and nobody was much the worse; but now things are different; flourishing communities have sprung up all around, and the Australian Colonies must find means of detaining their own criminals. I am able to say that the Colonies of New South Wales and Australia have expressed their willingness to repeal this law. As to the Australian case, I shall have no difficulty in producing the Papers asked for by my noble Friend—in fact, I believe those Papers are already before your Lordships. I am not aware of anything that can add to the information already before the House with respect to the case of Gardiner. As to the Canadian case, I am not at present prepared to lay the Papers referring to it on the Table of your Lordships' House. I may remind your Lordships that Lepine was concerned as principal in the murder of a man named Scott, was brought to trial, convicted, and had sentence of death passed upon him. It was a political murder, and Lord Dufferin very wisely commuted the sentence into 10 years imprisonment. My noble Friend (the Earl of Belmore) had observed that Lord Dufferin, in this ease, acted without the advice of his Ministers. But, having to deal with that sentence, Lord

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Dufferin found himself on an entirely different footing from that occupied by Sir Hercules Robinson in the case of Gardiner. The case of Lepine rested on wholly exceptional grounds. Those of your Lordships who are acquainted with the facts will remember that the circumstances arose in a particular part of the North-west, which is not a portion of the Canadian Territory. That of itself would have been a distinction. But there was more than that. Everyone is aware of the passionate feelings which the case excited. The case of Gardiner is one which has happened over and over again, and which, in all probability, will happen over and over again; but the case of Lepine is one which has not happened before, and is not likely to happen again in the lifetime of any one of us. But I may go one step further, and say that though, on the other hand, there may not be any formal record in the shape of a Minute of the Colonial Government of any communications between Lord Dufferin and the Colonial Government in reference to the remission of the sentence; on the other hand, full and ample communication did pass between them on the subject. He was perfectly aware of all the information the Colonial Government could give him, and of the opinion which they entertained, just as much as if all this had been embodied in a formal shape. In conclusion, I have only to say that I think my noble Friend Lord Dufferin was fully justified in the course he took, and that I am fully prepared to give him all the support in my power.
THE EARL OF KIMBERLEY: My Lords, I concur with what my noble Friend the Secretary for the Colonies has said as to the inexpediency of producing the Papers on the Lepine case, and I am glad that my noble Friend (the Earl of Belmore) does not intend to press for those documents. I have heard with pleasure the testimony of my noble Friend opposite (the Earl of Carnarvon) as to the way in which my noble Friend Lord Dufferin dealt with this extremely difficult matter. I think that no more difficult question has ever arisen in Canada, or none more trying to the firmness, patience, and discretion of the Governor General. It is gratifying to find that, so far as we can learn from the public sources of information, his
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action appears to have given satisfaction in Canada; and if that be so, he deserves the credit of having relieved Canada from a serious difficulty. I concur with everything said by my noble Friend as to the exceptional nature of this Lepine case. It is so exceptional in its character that no can suppose any general principle will be affected by the action of the Governor General. As regards the general question of the exercise of the Prerogative of mercy by Colonial Governors, that certainly does involve the exercise of one of the most delicate functions of the machinery of Colonial Government, and the noble Earl opposite was quite right in saying that, in matters of this kind, we ought not to be too logical. Constitutional Government in this country has not grown up by means of a rigorous application of the principles of logic, but rather by a happy application of good sense on the part of men who proved themselves equal to deal with emergencies. I think my noble Friend the Secretary for the Colonies has laid down the rule quite correctly in his final despatch. I am glad that he does not differ in any way from my noble Friend (Earl Granville) and myself, and I am happy to express my opinion that the noble Earl (the Earl of Carnarvon) has dealt with it in the right spirit.
THE EARL OF BELMORE, in reply, said, his noble Friend opposite (Lord Lisgar) was mistaken in supposing that he differed from Lord Dufferin in respect to the Lepine case. From his limited knowledge of the case, he was led to believe that Lord Dufferin had acted quite rightly, and had only done what the noble Lord (Lord Lisgar) would have done had he still been Governor-General, and what he himself might probably have done had it been his lot to fill that position. As to what his noble Friend the Secretary of State had said about his (the Earl of Belmore's) misunderstanding his decision as to the course to be pursued in future, that was not so. The fact was, that he did not understand, before his noble Friend's speech, that the Papers had already been presented. He (the Earl of Carnarvon) had been kind enough to send him a copy of them privately, but he did not, when he was speaking, know that he was at liberty to refer to them. As to Gardiner's punishment, there was a difference

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between exile and transportation. Nobody in New South Wales ever supposed that a Governor could transport, but he could pardon on condition of a prisoner's exiling himself for remainder of the term of his sentence. He did not wish to persevere with his Motion, as he understood from his noble Friend that the Papers which were already on the Table would give him all the information that was material.
Motion (by leave of the House), withdrawn.

THE ESTABLISHED CHURCH OF SCOTLAND—THE TEIND SYSTEM.

  QUESTION.
  THE EARL OF MINTO, in asking Her Majesty's Government, Whether they intend to introduce a Bill or to propose the appointment of a Commission or Committee of Inquiry, or to adopt any other means for ascertaining, adjusting, and fixing with greater precision than the existing law admits of, the pecuniary liability of the lands in the various parishes of Scotland for the maintenance of the Established Church, said, that the subject was one of considerable importance. In the matter of tithes, to which his Question related, Scotland had anticipated England by nearly two centuries and a-half, for in the time of Charles the First a measure was passed for the commutation of tithes in that country, which had operated with much greater benefit than people were aware of. Only a few days ago he had read in the columns of The Times a letter from Mr. Clare Sewell Read on the subject of agricultural legislation, in which he stated that no Act of Parliament had been so beneficial to agriculture as the Tithe Commutation Act passed for England some 30 years ago; and he (the Earl of Minto) believed that Scotland was equally indebted to an Act passed more that 200 years earlier for the commutation of tithes in Scotland—based upon the same statesmanlike views that produced the Tithe Commutation Act for England—for the present flourishing condition of agriculture in Scotland. The great principle of the Scotch Act was to abolish the system of exacting tithes from the cultivation of the soil in proportion to the amount of his produce, which checked in a greater or less degree the increase of the production
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  of the land; and it enacted that tithes should be commuted in Scotland at a fixed amount, on the principle of assuming that one-tenth of the produce was represented by one-fifth of the rent. Further, it enacted that all landed proprietors might redeem the tithes on their land by the payment of a sum of money fixed at a certain number of years' purchase. From a very early date this power was largely taken advantage of in Scotland, and in due course in Scotland all the tithes were commuted, and a great and undoubted improvement took place in agriculture in consequence. It was, however, unavoidable in the nature of things that in the long course of years which had since elapsed many defects and abuses should have crept in which it was desirable to remedy. Among other defects, were those relating to the stipend of the ministers. The parochial ministers of the Church of Scotland were to have a stipend of a fixed and moderate amount allotted to them out of the tithes, and they were now entitled to an augmentation periodically of stipend in the event of any fresh tithes being discovered which were not exhausted by the existing amount of the stipend. He (the Earl of Minto) did not deny that this might be a proper provision to make for the clergy; but he could not conceal the fact that it led to a great deal of heartburnings, and to many of the difficulties which had occurred in recent years. In Scotland, as their Lordships were aware, when this Act was passed about 200 years ago, land was worth comparatively little. Since then there had been an enormous increase in its value, and land which was then valued at a sum which would bring in £200 a-year would now bring in at least £2,000. But nevertheless it would be burdened to no greater extent than was imposed by the old Act or one-fifth of the then rental—that was to say that land that was rented at £200 a-year at that time and produced £2,000 a-year now, would be valued for tithe purposes at no more than £40. The result was an enormous inequality in the burdens thrown upon the land, and very much litigation was caused. Those who were interested in discovering that the tithes of parishes had not been exhausted had frequently made out their case, and so invalidated the valuation that had been hitherto in force. In

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  many cases this pressed most cruelly and unjustly. They might easily conceive a case of this kind, where a minister making an investigation into the state of the tithes, with a view to claim an augmentation, might fail in the case of nine out of ten proprietors, and succeed in the tenth: the result would be that the one individual whom he succeeded against would have to bear the whole cost of the augmentation of the stipend. Could anything be more unjust or more likely to lead to litigation? The expense incurred in making the investigation was something beyond conception, and he had known cases where the augmentation was only £60, and the agent's charges amounted to between £300 and £400. Sometimes the records of the valuation of a parish were destroyed through accident or otherwise, and then no one could tell with any certainty what the value of the parish in respect to tithes was. A remedy ought to be found for this state of things. He would not trouble their Lordships with details, but would just state some extracts from the evidence which was taken before the Courts of Law Commission upon the subject of the teinds in Scotland. Mr. Logan, Clerk of Teinds, said—
  "Some of our old valuations are in a very bad state. Some of the frailest I do not allow to he inspected except under ray own eye. … they are like tinder; the very air that blows upon them carries off hits of them, and very often very essential pieces. Of late a kind of crusade against the validity of valuations has been made."
  Mr. Clarke Brodie—
  "Thinks it a great discredit on our system that we have questions depending on what has taken place more than two centuries ago, ending, as they not unfrequently do, in the inversion of a possession which has existed during all that period."
  Mr. J. M. Duncan—
  "Litigation is increased of late. Questions in connection with valuations, which for a long time lay dormant, have been stirred—questions as to whether in the old valuations the minister had been called, as to the identity of the lands, and whether certain names applied to certain lands known formerly by other names."
  Seventy years' litigation had taken place for an augmentation of stipend of £40 or £50. In Haddington parish an interim apportionment of the burden of stipend was declared by the Teind Court, and was acted upon for a couple of generations, until 1808, when the Court decided
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  that the following proprietors had been overcharged, and must be repaid by those who had been undercharged:—Sir Robert Stephenson got back £1,804, the Earl of Hopetoun £2,630, Lady Susan Bourke £1,481, Sir T. B. Hepburn £1,103, and the North British Railway £3,003. The following having been undercharged had to refund:—Lord Blantyre had to refund £5,197, the Earl of Wemyss £7,466, the Estate of Monrig £4,018, &c, &c. In a certain parish there were five proprietors whose burdens were as follow:—No. 1 property, valuation £2,038, stipend £65—£1 for each £30 rental. No. 2 property, valuation £1,784, stipend £127—£1 for each £14 rental. No. 3 property, valuation £1,050, stipend £19—£1 for each £52 rental. No. 4 property, valuation £927, stipend £14—£1 for each £61 rental. No. 5 property, valuation £652, stipend 15 s.—£1 for each £870 rental. In Auchterarder parish six large proprietors, having a joint rental of £8,075, paid£140 stipend, being £1 for every £57 rental. Six small proprietors, with a rental of £90, paid £22 stipend, being £1 for every £4 rental. Common agent's expenses for an augmentation of £56 were £344, being at the rate of £6 of expenses for every £1 of augmentation. These cases would show how urgently the law required amendment, and he trusted that answer which he should receive from the noble Duke would be such as to lead him to hope that the subject would be dealt with this Session.
  THE DUCK OF RICHMOND, in reply, said, that the noble Earl had entered so fully into the history of the question of teinds in Scotland that it was not necessary for him to add anything to it. No doubt there was a great deal in the arguments which he had brought forward to show that a necessity existed for the revision of the existing system. He had also shown conclusively that a good deal of inconvenience and possible injury was occasioned by the mode of procedure in the Teind Courts of Scotland. These matters were very distinctly brought forward in the Report of the Law Commission of Scotland of 1870. His right hon. Friend the Lord Advocate had at that moment under consideration the question as to whether he could adopt any improved mode of procedure in the Teind Courts so as to

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  do away to a certain extent with the grievances which the noble Earl complained of. At the present moment, however, he was unable to say that any Bill was in contemplation on the subject, nor could he hold out any hope that the Government would be able at any early period to bring a measure on the subject before Parliament.

SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT (No. 2) BILL.
(The Lord Chancellor.)
SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT (No. 2) BILL.

  (NO. 48.) SECOND READING.
  Order of the Day for the Second Reading, read.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  EARL GRANVILLEhoped their Lordships would not think it presumptuous in him to take part in the discussion of this Bill the subject-matter of which was so important to the House. Some years ago he spoke in that House of his despair at seeing any great measures of Law reform pass. As long as general principles were talked of there seemed a general agreement; but as soon as one learned Lord embodied those principles in a Bill, all the other Law Lords pulled it to pieces. In 1873, however, he received a practical reproof—the noble and learned Lord behind him, profiting by his own labours, and by those of others, introduced a Bill on the subject of Final Appeals to that House. The Bill was not the same as his immediate Predecessor's (Lord Hatherley's); but it received the complete adhesion of a noble and learned Lord who was not now in the House, and in whose bereavement all must deeply sympathize—he meant Lord Chelmsford—and who stated that he had long been of opinion that it would be impossible long to maintain Final Appeals to that House. The noble and learned Lord on the Woolsack gave a most important support to that Bill, and he (Earl Granville) believed the whole country appreciated the entire absence of Party feeling, or anything like personal or professional jealousy, with which the noble and learned Lord gave his whole heart and soul to the measure of his noble and learned Friend. That Bill passed their Lordships' House with not much opposition. It went down to "another place," where it also passed. On
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  its passing, the Prime Minister acknowledged with regret that it had not been found possible to make a satisfactory arrangement with regard to Final Appeal in that House. He, however, supported the Bill strongly, and boasted of the efficient aid the noble and learned Lord had given it, and it ultimately became law. In the following year another measure was introduced for the purpose of continuing and completing the work which had been already done, and that Bill was supported by his noble and learned Friend near him (Lord Selborne), although he was not sure that he approved the whole of its provisions. It was again opposed by the noble Lord the Chairman of Committees, of whom he (Earl Granville) made no complaint, for if—as he undoubtedly did—he considered the best Court of Appeal to be the present one, with or without some little modifications, it was highly creditable to him to do his utmost to maintain the privileges of that House. It was opposed by a noble and learned Lord (Lord Penzance) than whom no one stood higher as a barrister or a Judge, but who would be the first to acknowledge that his experience of the practice in the House of Lords was very small indeed compared with that of the four Chancellors whom he had mentioned—by the Lord Justice Clerk, who certainly represented with great authority the opinions of the legal profession, although he had subsequently somewhat modified that statement—the opinion of the suitors was not so clear, as the able newspaper The Scotsman, with its great circulation, had taken the opposite view. The Bill was also opposed by the late Lord Chancellor for Ireland, who had given his reasons for a vote which had surprised the House, and had based his argument a good deal on the unanimous opinion of the Bench, the Bar, and the solicitors in Ireland. It might, however, be observed that within the last fortnight the statement as to the Irish Bench had been contradicted by an eminent Judge. Notwithstanding that opposition the Bill was easily carried, and went down to the House of Commons, but was not passed for reasons which Her Majesty's Government had stated. It was re-introduced into this House this year. Some proposals of a dilatory character were warmly and properly opposed by the noble and learned Lord. The second

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  reading was passed; but a Notice was given by a noble Duke (the Duke of Buccleuch) on going into Committee. It was impossible for him (Earl Granville) to know previously whether any change had been made in the opinions of some of his political Friends by the canvass in and out of the House, but it was agreeable to him to find that that summons to oppose was numerously responded to by them, and though he could not assert that some of them might have voted with the noble Duke, he was not aware of any one who had done so, excepting those who had voted in the same sense last year. The Motion of the noble Duke was, however, postponed, and on the memorable Monday when the noble and learned Lord, without any Notice to the House, came down, and with an emotion which was easily understood on the part of a strong man, who had worked so hard and with such ability for the attainment of an object of the greatest public importance, he made a statement expressing with great regret his intention to withdraw the Bill. Which he did, although an unprecedented act with regard to a most important measure, at an early period of the Session, and without any adverse vote of Parliament. The Secretary for Foreign Affairs followed, and with unusual warmth, expressed his deep regret, and the noble Duke justly found fault with him (Earl Granville) supposing that he did not feel equal regret with his two Friends. The House knew what was then the opinion of three of the most important Members of Her Majesty's Government. What might be their present opinion was a secret. He trusted that the course which Her Majesty's Government had followed would not be taken as a precedent, for it was most inconvenient that a Bill should be thus withdrawn without Notice, and without the House having the opportunity of showing by their debates and their votes what their opinion was. The responsibility for the action taken rested entirely upon the Government, and could not be laid in any sense upon the House as a body. The subject was one in regard to which the country was most anxious, and he hoped there would be no drawing back on the present occasion. A few days ago in the House of Commons he heard a story told as to the opinion which Mr. Canning held in
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  reference to the veracity of people who said they preferred dry to sweet champagne. With the permission of the House he would repeat to their Lordships a story which, as a boy, he himself had heard from the lips of Mr. Canning. It was the story of a sick man who complained to his doctor of being unwell, and being asked to describe his symptoms, said, "I feel so very empty before my dinner and so very full after it." This story somewhat explained the position of the public in reference to the question of legal reform. They felt empty now, but he would not venture to say that they would feel full when, at the end of the present Session, after their appetites had been so long tantalized by these great law reforms, they found that one had been passed with the substance taken out, as in the case of the omission of the compulsory character of the Transfer of Land Bill, and the other, the subject of the present discussion, from which the provision which formed the very key-stone of such reform, rightly viewed, had been omitted, or at any rate postponed. When the present Government was formed, a person of great Parliamentary experience stated his opinion that its principal characteristic would be timidity. He would not venture upon any such prophecy. The Government was young and strong, and the Prime Minister upon one occasion, when charged with having done little for the public good, replied that the country would see what he would do when he had a majority at his back. The country had waited patiently for the measure, and was waiting still. But an eminent Member of the Government in the other House had told his constituents in the last fortnight that in his opinion the principal business of Parliament was not to legislate, but to vote the Supplies and listen to the grievances of the people. If this was the only answer which could be given to the complaints so generally made as to the want of earnestness and energy on the part of the Government, he was afraid they were departing from their traditions of Parliamentary Government. But he would not dwell on that subject. His object in rising had simply been to take off the shoulders of the House in general and to fix upon the Government the responsibibity for the very abnormal position in which they found themselves with

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  regard to the measure now before the House.
  LORD REDESDALEsaid, that no blame whatever could attach to the Government for withdrawing the Bill introduced at the beginning of the Session. But he rose to rebut the aspersions cast upon the Committee which was formed last year for the purpose of obtaining the opinion of the Legal Profession in England with regard to the Judicature Bill. He could fearlessly assert that there was nothing in its formation or its action that was improper or objectionable; but on the contrary it had performed most useful service both to Parliament and the country: and so far from being of a party character, the Committee included gentlemen who belonged to the Liberal as well as the Conservative side in politics. He himself when asked to join it had refused to do so, lest his connection with it might lend it an air of political partizanship. In fact, the Profession in Scotland and Ireland having spoken out against the abolition of the Appellate Jurisdiction of their Lordships' House, this Committee—which at first consisted exclusively of professional men—was self-constituted. The only thing he regretted in regard to the Committee was, that its Memorial to the noble and learned Lord on the Woolsack was presented too late:—had the Committee's opinion been expressed before the introduction of the Bill, it might have been attended with more advantage than was actually the case. The Government had been condemned because they had not carried out the Bill of 1873. But that Bill was not theirs at all. Its main feature was that there should be a High Court from which no appeal could be made. Now, this point was one which the noble and learned Lord now on the Woolsack himself pointed out on its first reading that the want of a Second Appeal was a serious drawback to its value; but said that inasmuch as it carried out the great principle of the fusion of Law and Equity he would support it. In the next year a change of Government took place, the noble and learned Lord (Lord Cairns) took his seat on the Woolsack, and at once proposed an intermediate Court of Appeal. Therefore he (Lord Redesdale) contended that the Government had not acted inconsistently in the matter. That they should have proposed
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  to restore the second appeal was perfectly reasonable and only what might have been expected. It was true that nothing had yet been said as to where the second appeal was to go to when the jurisdiction of the House of Lords passed away next year; but it was perfectly obvious that if the present Bill passed, steps must be taken either to continue the jurisdiction of that House, or to constitute an entirely new Court of Final Appeal, for by this Bill the action of the Act of 1873, in respect of appeals was suspended until next year, when it would have to be determined whether the ultimate appeal should continue to be made to this House, or transferred to some other Court not yet heard of. He altogether denied that the country had shown a desire to have the jurisdiction of the House of Lords abolished. On the contrary, he believed not a single public Petition had been presented with that object. Nearly everybody in the country seemed to be satisfied with the manner in which the Appellate Jurisdiction of the House had been carried into effect, and he saw, therefore, no good reason why it should not be continued. Now came the question, what was to be the course of proceeding on the subject next Session. He was glad to think that the view which he took with respect to it was one which was gradually gaining ground in public opinion. He had had his attention recently directed to a statute to which he thought it right on the present occasion to refer. One of the most important alterations required with regard to the Appellate Jurisdiction of the House of Lords was that it should be available during the Recess, when Parliament was not sitting; and he found that more than 400 years ago, in the reign of Edward III., when Parliament used not to sit regularly from year to year, measures were taken in order that there might not in consequence be inconvenient delay in obtaining justice. A statute was accordingly passed—the 14th of Edward III. Stat. 1, cap. 5—to prevent such delay, by which it was enacted that at every Parliament a Prelate, two Earls, and two Barons should be chosen, who were to form a commission to hear and determine causes during the time Parliament was not sitting, with authority to call to their aid the Chancellor, the Justices of the Bench, and others of the King's Council. And

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  to show how distinctly the Parliamentary character of that tribunal was kept up, it was provided that if it seemed to them that the difficulty in any case was so great that it could not well be determined without assent of the Parliament, it was to be brought by the said Prelate, Earls, and Barons to the next Parliament. Here was, he thought, another of those instances in which we would do well to be guided by the wisdom of our ancestors. It was true there were now no arrears, and the work was done satisfactorily; but it might be well to adopt a similar Commission to sit when the Courts were sitting and Parliament was not. He did not know that he had much more to add beyond expressing a wish that no undue pressure should be put on the Government as to the course which they might deem it right to take next Session. He believed the maintenance of the Appellate Jurisdiction of the House to be of the greatest importance. It had a prestige which no other Court of Appeal could possess, and had its duties not been discharged with advantage to the public that prestige could never have been secured. The manner in which appeals had been disposed of late years was entirely free from objection. No complaint could be urged as to the mode in which the business had been attended to, or as to the accumulation of arrears. Not only, he might add, had Scotland and Ireland a right to protest against the jurisdiction of the House being done away with on the score of its efficiency, but because it was a thing to which they were entitled by their several Acts of Union. Was it fair, he would ask, that a solemn covenant should be set aside in opposition to the feelings of those whom it mainly affected? The only remaining question was, why should not England be placed in the same category? Under all the circumstances of the case, he hoped the second reading of the present Bill would be assented to, leaving it to the Government, availing themselves of matured public opinion on the subject, to consider what course they would take next Session.
  THE MARQUESS OF SALISBURYsaid, the debate seemed to have fallen into some confusion—their Lordships seemed to have forgotten that this was an inconvenient time to enter into the question of the retention of the Appellate
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  Jurisdiction of the House of Lords, seeing that there was a clause in the Bill under discussion which proposed to reserve the decision of that question until next year. He wished also to correct what appeared to him to be one or two errors of fact in the philosophic history of the question in which the noble Earl opposite (Earl Granville) had indulged. The noble Earl was pleased to credit the Government with having created a new precedent in the present instance. He was kind enough to hint that the withdrawal of a measure which was not likely to have the general support of their own Friends in Parliament was a thing wholly unknown in our Parliamentary annals. He was, however, surprised to find that the noble Earl's memory was so bad—he should have thought the noble Earl's own experience would have furnished him with abundance of examples. If he could only carry his memory back to some parts of his own political career, or that of those with whom he acted, he might have been able to recollect that some analogous cases of similar misfortune had befallen a Government which possessed a large majority. These cases were abundant enough; but the most remarkable was one in which he believed the noble Earl was himself interested. It happened during the Government of Lord Aberdeen in 1854. A Reform Bill was then introduced with a great flourish of trumpets; but before the date fixed for the second reading it was suddenly and without Notice withdrawn—and precisely for the reason—he was speaking from recollection—that the Government of the day found it would not be supported in adequate numbers by their ordinary followers. It was no doubt a great misfortune and a great source of annoyance to a Ministry to find themselves in such a position, and Her Majesty's Government did not conceal from themselves that that was so in the present instance; but when that not only in one, but in both Houses of Parliament, there was no probability that a measure which they had introduced could be passed into law, it was, he thought, their duty rather to withdraw it than by pressing it on amid a conflict of opinion which might lead to the inconvenient result, that either House might find itself pledged to a course from which it might afterwards find it difficult to retreat. The great

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  danger was that if this Bill had passed, and it should ultimately result in the Appellate Jurisdiction of this House being retained, it might be retained in a form which might make it a weak and inefficient Court of Appeal. The great object had been, and still was, that whatever Court of Appeal Parliament decided upon having should be a Court that would satisfy the profession and the public, and be as strong as they could well make it. What particular form that Court of Appeal should assume they reserved for the decision of Parliament next year, and he certainly should not now enter into that question. He acknowledged the vexation to which a Government was subject when such a hindrance to its legislation presented itself; but he did not complain of those by whose action that had been produced, because there had undoubtedly been a remarkable modification of opinion out-of-doors on that matter, and he was not the least surprised that persons who in 1873 thought the retention of their Lordships' jurisdiction was hopeless now entertained a more sanguine expectation. The noble Earl opposite (Earl Granville) had referred to a point to which he was fond of adverting in his addresses to the House; contending—namely, that the measures of the Government were all of them feeble, unsatisfactory, and empty. The noble Earl seemed to think that the public stomach should be entirely fed on violent and compulsory legislation, and that it would suffer considerable disappointment, and its appetite would not be satiated by the legislative food supplied by Her Majesty's Government. When the noble Earl asserted that any Member of the present Government had led the public to believe that when they came into office they would introduce measures of the strong and violent kind proposed by the late Ministry he was under a total misapprehension. "Worrying legislation," "harassing legislation," "heroic measures" had been denounced by those who formerly sat on the Opposition benches in either House of Parliament with perhaps wearisome pertinacity; and if any one assurance had been given by those who sat on his side of the House more than another, it was that they would avoid worrying and harassing legislation. If, therefore, after those announcements the noble Earl opposite had really expected such measures
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  from the present Government, he had certainly been building his hopes on a false basis. Violent legislation had always been alien to the spirit of the Conservative Party. Compulsion, on the other hand, was dear to the Liberal Party. Their only freedom was freedom for the majority to coerce the minority. That was not his notion of the legislation that would be either acceptable or useful to the country. Those who sat on his side believed that persuasion was the best and most useful instrument which Parliament could wield, and that compulsion should be adopted only with reluctance and as a last resort. The measures of the Government that were usually referred to by speakers of the school of the noble Earl opposite, who desired to show them that their legislation was feeble, were such measures as the Land Transfer Bill of his noble and learned Friend on the Woolsack, and the Artizans Dwellings Bill, which was now passing through the other House. It was complained that in the one case they did not force the landowners to register their titles, and that in the other they did not force the vestries to rebuild on the sites they required to be cleared; but that in each instance they placed before them the advantages of the course they recommended, gave them every facility for pursuing it, and then left them to be guided by their sagacity and public spirit. The Government believed that that method was more in accordance with the traditions of the country and more consonant with the present feelings of the people than the hasty and violent adoption of compulsory measures before they had ascertained that compulsion was necessary. Of course it might turn out that any persuasive measures which they might adopt might ultimately be insufficient; that they might be unable to persuade those whose feelings they desired to alter and whose course they wished to modify; and that at last there might remain an impracticable minority to whom it might be necessary to apply compulsory measures. But that was an alternative which they ought to put off till the furthest possible time, and if they were driven to adopt it at last, compulsory measures would then be submitted to all the more willingly, because it would be felt that they had not been resorted to until every other method had failed.
  EARL GREYsaid, he wished to recall the attention of the House from the abstract question of whether legislation should be compulsory or permissive to the real point which his noble Friend (Earl Granville) had raised. His noble Friend complained—he thought most justly—of the course adopted by Her Majesty's Government with reference to a Bill lately before their Lordships. His noble Friend said, the country had an earnest desire for the reform of their Judicature; that the Government had proposed a measure to meet that desire; that both last year and in the present Session they had taken steps for that purpose; but that when a measure for carrying out their deliberately adopted views had been read the second time in that House, and was about to go into Committee, their Lordships were suddenly informed, without any Notice, that the Government, in deference to objections brought before them privately and not in that House, intended to withdraw the Bill. The Bill was withdrawn accordingly, and noble Lords who might have objected to its withdrawal were prevented from doing so, through having been taken by surprise. That, he thought, was an unfortunate course for the Government to have pursued. The noble Marquess (the Marquess of Salisbury) had referred to the abandonment of the Reform Bill of 1854; but no two cases could be imagined more unlike than that of that measure and the present one. He spoke from recollection, but he believed that his noble Friend (Lord Russell) who had charge of the Reform Bill of 1854 in the other House, was strongly urged not to proceed with it in the then political situation of the country, a war with Russia then being on the point of breaking out. He had himself in that House then pressed the Government of the day not to go on with the measure under the circumstances; and, in subsequently withdrawing it, Lord Russell complied with the general desire of the majority on both sides in both Houses of Parliament. On the other hand, the Bill so lately withdrawn by the present Government was deliberately brought in to amend and complete a measure originally passed in 1873. Yet, without any public expression in either House of Parliament, or without any objection being taken to the Bill as a whole, the Government suddenly abandoned
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  their measure. From all he could gather, he was persuaded that if the Government had only persevered with the Bill, they had a very fair prospect of carrying it. If the great bulk of the Members on that (the Opposition) side of the House adhered, as he believed they did, to their former opinion, and Her Majesty's Government had continued firm, it was beyond a doubt that sufficient support could have been commanded on the other side of the House to secure the passing of the Bill; and he could not think it right that a measure of so much importance should have been set aside on the plea that they were unable to do so. It seemed to him that the manner in which the Bill had been withdrawn was most unfair.
  LORD DENMANsaid, the present measure could not be too soon sent to "another place," where it could be considered by members of the Bar and many others interested in the administration of the law. With regard to the Intermediate Court of Appeal proposed by the Bill, he did not think it so strong as the Exchequer Chamber, and he believed that by extending the principle of the Exchequer Chamber to Courts of Equity, and by admitting Vice Chancellors as well as the Lords Justices of Appeal to a Chamber which might hear appeals in causes not originated in the Rolls Court, or other Courts of Equity, by those who had not heard the original causes, an uniform system might be adopted. He might remind their Lordships that the Court of the Lords Justices and the Exchequer Chamber had been condemned by a single witness (Mr. Farrer), before the Select Committee of this House—because he wished to skip over all intermediate appeals—but it had always been considered advisable by Law Reformers, including Lord (of Session) Cockburn, to strengthen intermediate Courts of Appeal, in order that the Court of Ultimate Appeal might be relieved. The late Lord Westbury, with the approbation of Lord Colonsay, carried a Bill through their Lordships' House to reduce the amount at which appeals from. Scotland might be submitted to it, always excepting questions of right. With regard to the Appellate Jurisdiction, it had formed a separate subject for a Bill in 1870; and he (Lord Denman) ventured to think that the portion of the Judicature Bill (1873)

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  ought not only to be suspended, but to be entirely repealed; if not entirely, at least until the whole question of a Court of Appeal for the Three Kingdoms might have been considered.
  LORD PENZANCEwished to say a word or two as to the manner in which they had got into their present unpleasant situation, from which he did not believe they would be extricated by the present measure. Beyond doubt, the Act of 1873 dealt in an imperfect manner with a question of great and general importance. Whatever might have been the opinions entertained as to the best Ultimate Court of Appeal, there seemed to have been unanimity in the view that it ought to be a Court of Appeal for the Three Kingdoms. But the provisions of the Act of 1873 applied to only one of the three. His noble and learned Friend the late Lord Chancellor (Lord Selborne) in addressing the House the other night, candidly gave his reason for proceeding in that way. He said that Scotland and Ireland were contented with the House of Lords as a Court of Appeal; that he would have been told this if he had proposed to make the measure apply to them; that he would further have been told the proposal was at variance with the Acts of Union; and under all the circumstances there would have been no hope of success; but while entertaining that view, the noble and learned Lord fully anticipated that before long Scotland and Ireland would seek of their own motion to have the measure extended to them; and in that way an ultimate Court of Appeal for the Three Kingdoms would, he believed, be obtained. Perhaps this was a very adroit plan; but it had always struck him (Lord Penzance) as being a mode of dealing with the subject which prevented it from being fairly discussed. If, when the measure of 1873 was before the House, any Member had introduced the question as to Scotland and Ireland, he would have been immediately told they had nothing at that time to do with these parts of the United Kingdom; and then next Session, when the subsidiary Bill to include Scotland and Ireland was brought forward, Parliament was told—"It is too late to raise the question of the Appellate Jurisdiction of the House of Lords—that jurisdiction has been given up." Was that a fair
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  and reasonable mode of dealing with the subject? The Appellate Jurisdiction of the House of Lords had existed time out of mind, and was generally supposed to have been a benefit to the public. He was sure no one would deny that the moment their Lordships were satisfied that that jurisdiction could not be exercised for the benefit of the public there would be no desire on their part to retain it. But under the actual circumstances, their Lordships—who were merely the guardians of that jurisdiction—were bound in duty to retain it, until they saw good reason to abandon it; and when a question as to its abolition arose, it ought to be fully discussed in all its bearings. The omission of Scotland and Ireland from the Bill of 1873 had led, in his opinion, to all the difficulty which had followed. When the noble and learned Lord on the Woolsack came to consider what ought to be done, he must have seen that he was obliged to take either a step forward or a step backwards. He had either to recede from the legislation of 1873, or seek to bring Scotland and Ireland under the proposed new Court of Ultimate Appeal. Under the circumstances the decision come to by the noble and learned Lord and Her Majesty's Government was not at all surprising. A step which had been taken by a part of the legal profession with regard to this question had been severely criticized. The Committee which had been formed had for its simple object to ascertain the opinion of the profession, and it was the means of demonstrating that an opinion which had been supposed to be that of but few persons was in reality very generally entertained. The Memorial which was got up was signed, he believed, by about 400 barristers, including a majority of Her Majesty's Counsel. What there had been amiss in these proceedings, he was at a loss to conceive. He regretted to learn, from the report of a speech delivered at the Fishmongers Hall the other night, that his noble and learned Friend (Lord Selborne) had selected this somewhat dull subject for an after-dinner speech, and indulging in a certain festive breadth of expression, had spoken of "cliques and intrigues" when commenting on the opposition to his views. He hoped that, in his matutinal moments, his noble Friend would hardly

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  approve of this language. For whatever else he might think on the subject, he did not believe his noble and learned Friend really imagined there was anything underhand in the conduct of those who objected to the abolition of the Appellate Jurisdiction of their Lordships' House.
  LORD SELBORNEsaid, he thought that at some stage or other of the measure now under consideration it would not be improper for him to state the reasons why he still adhered to the belief that the arrangement of 1873 was altogether better than any which could be substituted for it, and also the difficulties which occurred to his mind in regard to everyone of the alternative schemes which had been suggested. The course of the debate had, however, been such as to make him think that the present would not be the most fitting opportunity for entering into those points. He wished to defer to the general feeling of their Lordships; but, probably, on the Report or the third reading he might have an opportunity of stating his views on the general subject. Indeed, he should not have troubled their Lordships at all on the present occasion but for some remarks made by his noble and learned Friend who had just sat down (Lord Penzance) and by his noble Friend the Chairman of Committees. His noble and learned Friend had alluded to the terms in which he (Lord Selborne) had elsewhere expressed his view of the nature of the external organization and influence brought to bear on their Lordships with reference to this matter. In the first place, he must disclaim the notion that he intended to impute to the persons concerned anything that was dishonourable or inconsistent with the most perfect purity of motive. His words might possibly not have been the best which could be selected, and one word in particular—"intrigue"—he would rather not have used. But with regard to the rest of the language he employed he would remark that he was entitled to his own opinion. As one who was responsible for endeavouring, solely in what he believed to be the public interest, to assist their Lordships in their deliberations on these important subjects, he thought it would not have become him to try to counteract by similar means the influence of the external
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  organization to which he had referred. What would their Lordships have thought if Members of this House, enjoying the consideration which was undoubtedly and justly enjoyed by some of those to whom he alluded, were to go out-of-doors and canvass for a show of professional or public opinion adverse to the retention by their Lordships of the Appellate Jurisdiction? Such, he thought, would have been the most improper course he could possibly himself have taken. So far from being willing to use such means, he had never sought to bring personal influence to bear even on his nearest and dearest friends in regard to their conduct on these questions. They all knew what could be done by means of associations, and how fictitious and valueless was much of the so-called opinion which in that manner was organized. He thought it far from improbable, that as many as 400 barristers, including not a few Queen's Counsel, could have been got to sign a Petition that the Judicature Act might be altogether repealed if they had thought the change in the House of Commons afforded them an opportunity of carrying that point. He did not mean to say that an external organization which endeavoured to enlighten the minds of the people at large on legal or other reforms was not perfectly legitimate; but here, after two Sessions of legislation by their Lordships, this organization was got up in the autumn and was suddenly brought to bear on this matter in an unusual and extraordinary manner, and in a manner which had the effect of removing from Parliament the voice and influence it ought to have in determining the course which Her Majesty's Government should pursue. Then his noble and learned Friend (Lord Penzance) had spoken of the adroit mode of dealing with the subject which had been adopted by him in 1873, in then excepting Scotland and Ireland, and proposing to deal with England only. Now, nothing could be more distinct or direct than the language he used in introducing that measure to their Lordships, fie said—
  "I now come to the subject of the Appellate Jurisdiction. 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,

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  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 verp 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 trust to the application and adoption of the same system in those countries. But I am perfectly content to wait and not to anticipate the time. All I propose is that, in the constitution of the Court of Appellate Jurisdiction, we may make it possible to have the services of eminent Judges who have served in Scotland and Ireland."—[3 Hansard, ccxiv. 348–9.]
  He did not think he could have stated more clearly both the reasons of his abstaining at that time from proposing anything about Scotland and Ireland, and also his expectation that what he then proposed would lead finally to the inclusion of Scotland and Ireland in the plan which he proposed for dealing with final appeals. His noble and learned Friend on the Woolsack then approved the course which he (Lord Selborne) took. He was sure that nothing would have been more absurd than any shortsighted dexterity on his part, for in a very short time it would necessarily have been found out. But the truth was that any of their Lordships who heard that statement must just as easily at that time as at any other time have discussed the question, whether it was right and convenient to make an arrangement as to a Court of Final Appeal for England, which could not at once be extended to the other parts of the United Kingdom; and those who thought it improper and inconvenient to do so, whether Members or not Members of this House, could not excuse their silence during the whole of that Session by any pretence that they were misled. Indeed, what then took place, both in Scotland and in Ireland, most clearly proved that the attention of the legal profession, in both those countries, was distinctly directed to this point. He still thought it would be a very good thing to try the best scheme they could devise for England, even though it might be necessary to postpone its application to Scotland and Ireland;
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  and he had no doubt that in the end Scotland and Ireland would wish that scheme extended to them. He wholly denied that any difficulty was created by any adroit dealing with the subject on his part, with reference to Scotland and Ireland. If there was to be any responsibility in the matter he was quite willing to bear it, and he should rejoice that at the end of his life he had the responsibility of having recommended that measure to the adoption of their Lordships and the other House of Parliament.
  LORD O'HAGANsaid, he was glad that the noble Earl (Earl Granville) had raised the present discussion, for it afforded him an opportunity of explaining the course he had taken with regard to the Bill of 1873, and that before the House. On a former occasion, when he was not present, the noble Duke opposite (the Duke of Richmond) stated that he (Lord O'Hagan) had supported and voted for the Bill of 1873. That was an absolute mistake. That Bill, as their Lordships fully understood, was applicable to England only. It did not propose to include Ireland in any of its provisions; and he did not take part in the legislation of their Lordships upon it. He never advised that Bill; he never expressed approval of it or voted for it; nor, so far as he remembered, was he ever present when there was any discussion with reference to it. So far as his own country was concerned, he had always been of opinion that this House ought to remain the tribunal of Ultimate Appeal. That opinion was never concealed from any one with whom he had to deal on the subject. When the Bill of last year was introduced, he had a different state of things to consider. The Bill of 1873 applied to England only; but the Bill proposed by the noble and learned Lord on the Woolsack last Session applied to Ireland. Moreover, it was a different Bill from that of 1873. If the Act of 1873 had not been materially altered, it would have been impossible to maintain that the final Appellate Jurisdiction should remain with that House; and for the plain reason that, if there was to be only one appeal, it would have been wholly beyond the power of the House to dispose of the 400 or 500 cases which would necessarily have come before them. He had acted with perfect consistency throughout,

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  and it was only fair that that should be understood. It should, also, be understood that the adoption by their Lordships of the Bill of 1873 in no way precluded them from dealing, in a different way, with the essentially different measure of 1875. At that hour he would not go into the general question. As to the conduct of the Government, they were perfectly competent to defend themselves. It was notorious that they succumbed to an opinion which was irresistible. Eight or wrong, he believed the Government had no alternative, and they could not be blamed for giving way to the feeling which had been developed in every district of the United Kingdom, and which they could neither ignore nor control. He did not attribute to his noble and learned Friend near him (Lord Selborne) any blameable "adroitness;" but he thought it would have been much better if a measure embracing all the Three Kingdoms had been introduced in the first instance. Their Lordships would then have stood in a more satisfactory position. He never for a moment imagined that the noble and learned Lord had anything but the purest and highest motives in bringing in his measure. But when his noble and learned Friend, in an after-dinner speech at a City banquet, spoke of the Government having "succumbed to a coterie," and having been "subdued by a clique," he used language which he (Lord O'Hagan) thought was not applicable to the situation at all. His noble and learned Friend should have remembered that the whole of the Irish Bar approved of the course which the Government had now taken: that the Solicitors of Ireland, represented by the Incorporated Society, had petitioned their Lordships against the application of the measure of 1873 to Ireland; and that, as regarded the Bench of Ireland, although if a Final Court of Appeal outside of that House were established for England, they thought that Court should hear appeals from the Three Kingdoms, they preferred that the existing Appellate Jurisdiction should not be interfered with. As to Scotland, the Lord Justice Clerk—who, he was sorry, was not now present—informed their Lordships last Session that the Scotch Bar was opposed to the measure of his noble and learned Friend: the Writers to the Signet had lately
  1100
  presented a Petition in the strongest terms, imploring their Lordships not to abandon their jurisdiction: and the Bench of Scotland was equally opposed to the change. Surely all these adversaries of the measure were not to be flouted as mere cliques and coteries? It was a gross misuse of terms which should never have been applied to eminent persons and important bodies in England, Ireland, and Scotland, combining, with clear right and honest purpose, to champion the time-honoured jurisdiction of the House. The question was a great one, and ought to be settled without regard to Party considerations. All should unite in trying to constitute a good Court of Final Appeal, during the interval of the suspension of the Bill until the next Session. He was himself strongly of opinion that, though it was not advisable to maintain the House of Lords in its present form, and without such changes as he had indicated at large in a former debate, as an Appellate tribunal, they might easily, by adopting such changes, approved alike by ancient tradition and modern authority, preserve to the House its constitutional Prerogative, and provide a perfectly efficient and satisfactory Court.
  THE LORD CHANCELLOR: The noble and learned Lord who has just addressed you has referred to the banquet at Fishmongers' Hall, at which the speakers were in a more favourable position than your Lordships—for they had dined. Notwithstanding, however, the position in which we find ourselves, I think your Lordships will not deem it unnatural that I should be unwilling to allow this conversation to close without making a few observations. I only regret that the noble Earl (Earl Granville) after introducing this subject in a speech of great interest, and having made some criticisms upon myself which he could hardly think would be altogether unnoticed, should have succumbed to the emergency of the situation, and having quarrelled with the Government for withdrawing their former Bill, should have taken what seems to me the still more unusual course of withdrawing himself. I must accept the conversation that has occurred as being in one respect highly complimentary to the present Bill—because I have not heard an observation from the beginning of the evening to the present moment in which has been expressed

  1101
  disapproval of any provision contained in the measure. I hail that as, at all events, an expression of opinion by this House that, whatever may have been said as to the withdrawal of the former Bill, the measure which has replaced it meets with general assent. I listened with great interest to the speech of the noble Earl (Earl Granville); but the interest did not arise from the charm of novelty, because I happened to have heard just the same speech from him last night. It was the speech on the Agricultural Holdings Bill adapted to the Judicature Bill. My interest in the speech was derived from a different source. It has been a fancy of mine—looking as I do with considerable wonder and admiration at the productions of the Press of this country—to conjecture from what quarters the various extremely clever and pointed articles constantly found in the Press may be supposed to come. They are anonymous, but now and then we are enabled to trace the authors. I read the speech of the noble Marquess the Leader of the Opposition in the House of Commons at Fishmongers' Hall, and when I had done so I said—"Why, this is the article I read a few days ago in the columns of a very interesting weekly paper, commenting upon the course taken by the Governtment." "Of course," I said, "it is impossible that the Leader of Her Majesty's Opposition in the House of Commons could have derived his speech from an article in a newspaper, and it must be that he was the author of the article. This is one of the cases I have always been anxious to find out." But fancy my disappointment when, on hearing the speech delivered by the noble Earl (Earl Granville) last night, I was surprised to find the article again. I asked myself—"Is this the author of the article, or is it the case that this is an article composed after the fashion of some modern French novels, where the authors write in couples and both are responsible for the ideas conveyed in them?" I am, however, ready to accept the view that this is so good a criticism that it cannot be pronounced too often. We have had it last night, again tonight, and I dare say before the Session is over we shall have it again. But, in the prospect of that repetition, it is desirable to have it as accurate as possible,
  1102
  and I will, therefore, correct one mistake it contained. The noble Earl said—
  "Look at the Land Transfer Bill. If there has been a cardinal principle in the measure for the transfer of Land, it is that it should be compulsory; but the Government abandons that principle altogether."
  I should like to know where my noble Friend finds any measure on the subject which has either become law, or has reached the stage at which it was on the point of becoming law, and which contains the principle of compulsion. We were in Committee on the Land Transfer Bill not long ago in this House, when my noble and learned Friend (Lord Selborne) advocated a proposal to make it compulsory in a most effective speech. I endeavoured to state my objections to the proposal; and, as well as I remember, the noble Earl (Earl Granville) did not favour us on that occasion with a single argument in favour of compulsion. I never heard of the principle until, in 1872, my noble and learned Friend introduced it into a measure which never proceeded even to a second reading. Following his example, and endeavouring to give effect to it, I, in the first instance, introduced it into the Bill of last year; but before the Bill left this House I found the arguments against it so strong, and the legitimate opposition to it throughout the country so great, that I was obliged to introduce into the measure a qualification limiting the compulsory registration of titles to properties of the value of over £200; and this, practically, was fatal to the principle of compulsion. Compulsion was not in the Bills of 1859; it was not in Lord Westbury's Act; it was not recommended by the Royal Commission of 1868. But the noble Earl (Earl Grey)—who has also withdrawn—demurs entirely to the assertion of my noble Friend (the Marquess of Salisbury), that the withdrawal of the Judicature Bill was in pursuance of the precedent which the noble Marquess mentioned. I endeavoured to appreciate the distinction between the two cases, but the only difference I can find is that in the first instance the noble Earl (Earl Grey) himself advised the withdrawal of the measure, and in the second he did not. I agree that this may probably make a great difference in the mind of the noble Earl, but that is all the difference

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  I am able to discover. Both the noble Earls have given us comfortable assurance that if the Government had gone on with the former Bill and supported it with all their power in both Houses the measure would have been passed. It is very difficult to test what would have been done if something had occurred which did not occur, and I should be the last person to speculate upon what the result of the division might have been. But I cannot help referring to something which occurred before my eyes, and of which your Lordships were witnesses, in connection with the former Bill. Notice had been given of an Amendment for the Committee on the Bill in connection with the appeal to the Supreme Tribunal. There was a considerable attendance here to discuss that question, but by mere accident the discussion and division upon the Amendment were postponed. Well, I looked at the assemblage on the side of the House which was understood to be prepared to support the Bill in its original form. I have a most lively recollection of the appearance it presented. Where were the hosts and battalions which we were assured were at the beck and call of my noble Friend (Lord Granville) to support the Bill of the Government? They certainly did not make their appearance in this House. I cannot charge my memory with having seen upon those benches behind the front seats 10 men upon whose support, in the way of voting for the Bill, the Government could have relied. I must now say a word with regard to the withdrawal of the Bill. The noble Earl (Earl Grey) said it was quite contrary to precedent and rule to withdraw a Bill which was fixed for a particular day without giving Notice of its withdrawal beforehand. Now, I should be the last person to maintain any point which was not entirely in accordance with the Orders of this House; and I quite agree that it is not according to the practice of this House to withdraw a Bill without Notice. But I must remind your Lordships of what occurred on the occasion in question. I came down to the House—I believe it was on a Monday—to state the course which the Government meant to pursue. The Bill had been fixed for a later day in the week—at all events, it was to come on some days afterwards; and I made my statement beforehand simply in order
  1104
  that your Lordships might be aware of what was going to be done. Well, several speeches were made, and my statement was perfectly appreciated—whether it was approved is another matter—on all sides of the House. I recollect that the Clerk at the Table came to me and said—"Do you move the withdrawal of the Bill?" It was open to any Member to object on the point of form. I paused and looked around to see if any objection was to be made—but there was none; and the Question having been put, it was taken as a case of withdrawal, no person objecting. If an objection to such a course is made, by even one person, it is fatal; but if no objection is made, the assent of the House is taken for granted. That is the whole history of the proceeding, which has been described as something like treachery on the part of the Government, with regard to the withdrawal of the Bill. There are only one or two other points to which I wish to refer. The late Lord Chancellor of Ireland (Lord O'Hagan) misunderstood entirely the Lord President if he thought reference was made to any vote given by him in connection with the measure of 1873. The whole intention of the noble Duke was to observe that the Government of that time were the authors of the Bill. Nothing more was meant than that. With regard to the Memorial which has been spoken of once or twice, I may say I would much rather that it had not been addressed to me, because it is inconvenient for Memorials to be addressed to Members of the Government. I could do nothing with it but keep it, which I may say I have done to this day. What I have more particularly to say, however, is that I do not think the general feeling of the Bar is for the repeal of the Judicature Act. So far as my observation has gone, I think the Bar are entirely in favour of its continuance, and I must say every communication I have had on the present measure approves it. Of the Committee—or, as they style themselves, the League—for the maintenance of the Appellate Jurisdiction of this House, no person has greater cause to speak with asperity than myself; because undoubtedly the whole action of that body has been directed to defeating the measure for which I was responsible. Well, I am bound to say I have never looked with

  1105
  the slightest degree of asperity upon that Committee, and I have never joined in the observations made that they have done anything at all open to reproach. There have been instances in which similar organizations have been directed to good objects—witness the Corn Law League, and the League for the Repeal of the Paper and Insurance Duty. I do not speak of organizations of this kind with sympathy, because they are not to my taste, and I think Members of the Legislature have higher functions to perform than joining them. But they are perfectly legal and ought not to be condemned as improper. These are all the observations I have to trouble your Lordships with. I regret they have extended to such length, but I thought it would be unbecoming in me under the circumstances not to make them.
  LORD WAVENEYsaid, he would not enter into a criticism of the opinions of those noble Lords who had that evening spoken against the Bill; but he fully appreciated the regret which the noble and learned Lord on the Woolsack must experience in witnessing the virtual destruction of the magnificent system of jurisprudence inaugurated by the Act of 1873—which seemed to him (Lord Waveney) elaborated with so much care and so great perfection. As to the present Bill, he was prepared to support the second reading.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House, on Friday next.
  House adjourned at Nine o'clock, to Monday next, Eleven o'clock.