Lords Sitting of 3 March 1876

MINUTES.
PUBLIC BILLS—First Reading—Marriages (St. James, Buxton) * (22).
Committee—Appellate Jurisdiction (5–23).

MALAY PENINSULA. PERSONAL EXPLANATION.
LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY rose, in accordance with a private Notice which he had given to the noble Earl the Secretary for the Colonies, because, notwithstanding his reply to the noble Earl's speech on Monday last, the Press had given credence to the statements made by the noble Earl which he then contradicted. He desired to set right a matter which the noble Earl was led to misrepresent to their Lordships and to the country as to what he said on the occasion o£ the discussion which took place on Monday night, and which the noble Earl represented as an attack on Her Majesty's Army. The only allusion he made to persons bearing arms in the suppression of the disturbances in the Peninsula was to the comments of two Straits newspapers on the acts of some Arabs under the orders of a civil official of the Straits Government—a medley of all nations described in the last number of The London and China Telegraph as "the sweepings of the Singapore gaol." They were headed by a French Canadian, who was a caretaker in one of the Singapore lighthouses. Their Lordships would admit that reflections on the conduct of this peculiar corps in no way touched or affected the credit of the British Army.
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Moreover, his appeal to the memory and celebrated protest of Lord Chatham, and the noble Earl's knowledge of history, should have convinced him that he was not speaking of Her Majesty's regiments—otherwise to name Lord Chatham's protest against the employment of Red Indians would have had no sense. If any imputation was made—if any aspersion was cast upon the British Army—it was by the noble Earl himself, who in his speech had brigaded these ruffians, and associated these brigands with the Queen's troops. He would also observe that there was no probability that while attacking the noble Earl's conduct of affairs he should go out of his way to attack Her Majesty's Army, considering the scrupulous care he had always given to the interests of the Army in all military questions that had come before the House. If their Lordships' debates took place with closed doors, it would be a matter of indifference to him that any noble Lord, in order to avoid giving him an answer, should make a "Rule Britannia" speech and raise a false issue of an attack upon the Army to distract attention from the main question, because he could have relied upon their Lordships' judgment, which would have discerned the weakness of a case which required bolstering up by such rhetorical artifices. But it was different when an attack upon Her Majesty's Army was wrongfully attributed to him, and such an imputation was dispersed over the country; and he could not sit down patiently under it. He did not accuse the noble Earl of resorting to the rhetorical artifice of answering what had not been said in order to gain an advantage in debate; but now that the advantage—perhaps only a temporary advantage, had been gained—he did rely on the noble Earl's sense of justice to retract the imputation in such manner as fully to exonerate him in the estimation of the Army.
THE EARL OF CARNARVONsaid, he hardly knew what object the noble Lord had in view in reviving, under the form of a "personal explanation," the discussion which he initiated on Monday night. The "personal explanation" of the noble Lord was simply an attack on him for a reply he made to a very vehement speech delivered by the noble Lord, He was sure that if the noble

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Lord wished to express some regret for the language he had allowed himself to use in reference to the operations of Her Majesty's troops in the Malay Peninsula, the House would be prepared to listen to it; but if the noble Lord asked him to retract anything he had said in reply to that language, then, however anxious he might be to gratify the noble Lord, he felt unable to make such retractation. What the noble Lord said on Monday would be in the recollection of their Lordships. He spoke of the various military operations which had been carried out in the Malay Peninsula, and spoke of them as having been characterized by burnings, devastations, and considerable excesses. He spoke of the operations in three different parts of the Peninsula; and as the Natives were employed in one only, certainly the inference he drew was that the accusations made by the noble Lord applied to Her Majesty's troops as well as to the Natives. He thought that was not an unnatural inference. The noble Lord's language was so understood even by the noble Earl opposite (the Earl of Kimberley), who felt obliged to rise and express his opinion on the subject. The inference he drew, therefore, was not unreasonable, even though the noble Lord, on consideration, might like to rise and qualify what he had said. He did not object to the noble Lord doing that; but he did not hold that he (the Earl of Carnarvon) was to blame in the matter, inasmuch as he had only placed a reasonable construction on the noble Lord's language. With regard to the detachment of Natives which the noble Lord had likened to the Red Indians employed in America in Chatham's time, no doubt that was a detachment of Native Irregulars; but if a body of that kind was kept in hand, there was no objection to its employment. This particular force was employed at a critical moment, when the services of every available man were desirable; but Sir William Jervois gave a caution to the officer in command to hold them well in hand. After the operations the detachment was praised by the Civil Commissioner in charge of the district; and for himself he could now say that, having looked through all the official Papers, he could find no case of excess or barbarity alleged against it. It was impossible to prove a negative, but all that the official
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Papers recorded of that detachment was to its praise. But granted that the noble Lord's language of Monday last was applied to the Natives and not to Her Majesty's troops, was there not something unfair and unjust in singling out for this accusation a detachment that was composed of men of a different race? He regretted that, under the shelter of a personal explanation, the noble Lord should repeat charges so utterly without foundation and so utterly unjustifiable.

APPELLATE JURISDICTION BILL.
(The Lord Chancellor.)
APPELLATE JURISDICTION BILL.

  (NO. 5.) COMMITTEE.
  Order of the Day for the House to be put into Committee read.
  Moved, " That the House do now resolve itself into Committee."
  LORD REDESDALEsaid, that the abolition of the Appellate Jurisdiction of their Lordships' House proposed in the legislation of 1873 had caused general dissatisfaction in Scotland and Ireland. That fact made people in this country reflect, and the result was that by 1875 it had become evident that the opinion of the English Bar and the opinion of the Imperial Parliament had changed. The consequence was the Bill now before their Lordships; and by its introduction he was fully justified in the course he had pursued throughout. There had been a great deal of misrepresentation with regard to the provisions of the Bill, and it was said that the introduction of the Lords of Appeal in Ordinary would so modify the constitution of the tribunal that it would no longer be possible to speak of "the Appellate Jurisdiction of the House of Lords." For himself, he was generally satisfied with the proposals of the Bill. He believed that there was nothing in the Bill which would render the House of Lords a less efficient Tribunal of Ultimate Appeal than it had hitherto been. The Peerage which it would introduce was not, as some persons erroneously supposed, a life Peerage; it was an official Peerage, analogous to that which, in the case of the Bishops, had been known to the Constitution from a very early period, and gave to the law a similar representation in the House to that which the

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  Church had so long enjoyed. He did not mean to say that it would not be very inconvenient to have a great number of official Peerages; but the number to be created under the Bill was limited to four, with large salaries, which would render further increase impossible. It was urged by way of objection that on ceasing to hold office the Lords of Appeal would lose their privilege of sitting and voting in that House, though they would still retain the title of Baron. But this was not new, because if a Scotch Peer who sat in their Lordships' House during one Parliament was not re-elected as a Representative Peer in the next Parliament, he lost his privilege of sitting and voting, though he remained a Peer in every other respect. He need scarcely remind their Lordships that the Lord Chancellor of Great Britain or the Lord Keeper was President of that House ex officio and took his seat on the Woolsack as President although not a Peer. As to the tribunal being no longer the House of Lords, he contended that it would continue to be so under the Bill. For a long time the Lay Lords had not interfered in judicial proceedings; in other words, the House had, with most commendable good sense, accepted the decision of the Law Lords, who alone were competent to advise in such matters. That was just what he trusted the House would continue to do under this Bill. He hoped the measure would be received with general assent.
  Motion agreed to; House in Committee accordingly.
  Clauses 1 to 3, inclusive, agreed to.
  Clause 4 (Form of Appeal to House of Lords).
  THE LORD CHANCELLORmoved the omission of the words "under this Act," which were used with reference to appeals, and said he proposed that the same words should be struck out in subsequent clauses were used in relation to appeals.
  Clause amended, and agreed to.
  Clause 5 (Attendance of certain number of Lords of Appeal required at hearing determination of appeals) agreed to.
  Clause 6 (Appointment of Lords of Appeal in Ordinary by Her Majesty).
  LORD NAPIER AND ETTRICKwished to offer some obversations upon the Bill, particularly in reference to the interests of Scotland. In that country it would give great and general satisfaction that a new and definite tribunal should be established and recognized as the last Court of Appeal identical with and included within the foundation of the House of Lords. The provisions of that Bill would be very acceptable to Scotland. The term of "the House of Lords "commanded a degree of respect which would not be accorded to any other designation. The House, indeed, stood in the place of the ancient Parliament of Scotland, and in their Lordships' House, by usage, if not by actual judicial functions, the whole of the ancient laws of Scotland were perpetuated and reproduced. It might be said, indeed, that this was a matter of sentiment; but sentiment in matters of this nature was not altogether to be disapproved, and there was no country in the world in which traditional jurisdictions were more respected and preserved than among the people of Scotland. Then, the special provisions introduced to strengthen the judicial faculty of the House were equally acceptable in Scotland. The Lords of Appeal were appropriated exclusively to service in this House and in the Privy Council. They did not in any way resemble a Court in Westminster Hall, and therefore did not offend the letter or the spirit of the Treaty of Union. Under the provisions of the Act, a Judge of the Court of Session could be created a life Peer and a Lord of Appeal, and he could sit in the Judicial Committee of the Privy Council, from which he was before excluded. So much was gained, and the Scotch owed a debt of gratitude to the noble Lord the Chairman of Committees. That provision of the Bill, however, which made a practical advocate of 15 years standing qualified to be a Lord of Appeal seemed objectionable. It was to be supposed that the selection would be invariably fall to some Scottish Judge of the highest judicial eminence; but the fact of 15 years standing being deemed sufficient to qualify was of itself calculated to lower the dignity of the office. Moreover, as a Scotch advocate had few means of obtaining legal experience except in Scotch Courts, he thought there would be found few, or none, at the Scotch Bar really qualified for so high a position.

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  If any member of the Scotch Bar should happen to be appointed, the appointment would be immediately attributed to political partizanship. At the same time, he thought the Bill would be highly acceptable to the people of Scotland, and he tendered his thanks to the Lord Chancellor and the Government on their behalf for its introduction. He now came to the second part of his observations, which were perhaps the more important of the two. The present constitution of the Judicial Committee of the Privy Council contained all the elements of an excellent Court of Appeal, and for that they had the authority of his noble and learned Friend (Lord Hatherley). It contained four paid members, whose exclusive services in the Court were secured, since they were to vacate any other judicial appointment on nomination. They were sufficiently remunerated and pensioned to command high ability. They were, or they might be, specially qualified, for the mere fact of having been Chief Justice in one of the three Indian Presidencies entitled a person to hold the appointment. Now, how would the Court be eventually constituted under this Act? It failed in two of the elements referred to. There would be still four paid members in the Judicial Committee of the Privy Council, including the four Lords of Appeal in the House of Lords; but their services were not secured to the Privy Council, they would have their duties in the House of Lords; and the performance of their duties in the Judicial Committee were specially subordinated to the performance of their appeal duties here. They were first Lords of Appeal and secondly Judges in the Privy Council, which had only a claim on the residuum of their ability. Under the new Bill the Committee would not possess the special qualifications desirable. The four paid members of the Court of Appeal would probably be the acting and working members of the Judicial Committee; but the Indian Judges could not become Lords of Appeal; the definition of "high Judicial Officers" did not include them. They were not likely to get there by their qualification of 15 years standing. They were, therefore, practically excluded. This was very objectionable. The tribunal of Indian appeal should certainly be one which would possess the confidence of our Indian fellow-subjects.
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  But it might be said that the Indian Judges could sit and serve in the Judicial Committee without being Lords of Appeal. They might be appointed Members of the Privy Council and then of the Judicial Committee, and their services in that Committee remunerated by a moderate allowance in addition to their pensions. Well, although this might be an encouragement, it was no security. These retired Judges were only volunteers, and their remuneration insignificant. Besides, you only secured retired Judges in this way; you did not secure Judges in the prime of life and strength. But by having paid Members of the Judicial Committee of Privy Council solely appropriated to do that duty, you secured everybody. He could not but think that this was an unfortunate feature of the Bill, and that for the interests of India it would have been better to have preserved the two Courts distinct—one for the United Kingdom, the other for the Colonies, or at least for India. But if this was impossible with a view to uniformity of decision, then it would at least be desirable to make the Indian Chief Justiceships qualifying offices for the position of Lord of Appeal, and appropriate the person so named practically and habitually to the service of the Privy Council. The one great defect of the Judicial Committee was its want of permanence; and he thought they should remedy this in the present legislation by providing for Members in succession to the present Judges.
  Clause agreed to.
  Clauses 7 to 14, inclusive, agreed to.
  Clause 15.
  THE EARL OF POWISasked the Lord Chancellor whether any provision would be made for placing on the Privy Council Members of Indian experience to deal with appeals from India. As the noble Lord opposite (Lord Napier) had pointed out, Chief Justices in India were not eligible for appointment to the office of Lord of Appeal. True, a barrister who had been a Judge in India might become qualified for nomination to that appointment by promotion to the English Bench. Such promotion was very unlikely. They had known the case of a colonial Bishop appointed to the Episcopal Bench in England; but he did not think there was any case of an Indian Judge being elevated to a seat on the English Judicial

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  Bench. Ever since the Judicial Committee had been established, two Indian Judges either as assessors or as Members had formed part of it. As the Foreign Secretary had said on the first day of the Session, it was a dependency which was itself an Empire; with increased intercourse Indian suits would multiply, and it was most important that Indian suiters should have some security for the proper decision of their cases.
  THE LORD CHANCELLORsaid, he took the opportunity on a former occasion of submitting to their Lordships the reasons that seemed to him conclusive as to the great advantage of establishing an intimate relation between this House as the Tribunal of Ultimate Appeal in home cases, and the Judicial Committee of the Privy Council as the Court of Ultimate Appeal in Colonial and Indian cases. He wished to speak with the greatest possible respect of those who occupied high positions on the Judicial Bench in India—the Judicial Committee of the Privy Council enjoyed a great advantage at the present time in having among its Members two learned Judges who had been on that Bench; but at the same time, he was bound to admit that if their Lordships were going to lay down a qualification which was to last for all time in the case of those who might be appointed to the office of Lord of Appeal, looking to the variety of persons who had filled the office of Judge in India and to the fact that a large number of the leading members of the English Bar would decline such a post, he did not think the post of a Judge in India would be a good and safe qualification for a Lordship of Appeal. He regarded it as a great advantage that the Judicial Committee of the Privy Council should be assisted by persons having knowledge of Indian law. He did not know that there was any great advantage in having it assisted by those who had only a knowledge of the administration of the law in India, though the Judicial Committee had that kind of assistance also. But it had the very great advantage of the presence of one who in every sense was a most eminent man. One of the most able and attentive Members of the Committee was Sir Lawrence Peel, who had not received a remuneration anything like worthy of his eminent services. By an Act of Parliament brought in by Lord Brougham,
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  it was provided that the Privy Council should be assisted by two retired Indian Judges, who were to receive £400 per annum in addition to their pensions as an indemnity for the expenses to which they might be put in attending; and, subsequently, the Committee appointed by their Lordships to inquire into the question of Appellate Jurisdiction recommended that that sum should be increased to £1,000 per annum. He thought that the precedent should be followed in the present instance. He had made no such proposal in the Bill because at present the Privy Council was well supplied with advisers well skilled in the Indian law in the persons of Sir James Colville and Sir Barnes Peacock; but if the necessity should hereafter arise provision for the appointment of such Assessors could be easily made.
  Amendment agreed to.
  Clause, as amended, agreed to.
  Remaining Clauses agreed to, with Amendments.
  The Report of the Amendments to be received on Friday next; and Bill to be printed, as amended, (No. 23.)
  House adjourned at a quarter past six o'clock to Monday next, a quarter before Five o' clock.