HL Deb 16 April 1875 vol 223 cc1081-105

Order of the Day for the Second Reading, read.

Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)


hoped 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 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 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 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 regard to the measure now before the House.


said, 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 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 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.


said, 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 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 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 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.


said, 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 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.


said, 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) 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.


wished 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 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 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.


said, 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 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, 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; 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.


said, 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, 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 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 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 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, 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 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 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 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.


said, 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.