§ Order of the Day for the House to be put into Committee read.
said that in 1826 Lord Gifford was created a peer, and in two years cleared all the arrears of appeals in the House of Lords. Besides that of 1856, a Bill for an Imperial Court of Appeal passed their Lordships' House in 1874, but was dropped by the Government in the House of Commons.
§ House in Committee accordingly.
§ Clause 1 (Lord of Appeal may take his seat during prorogation).
, in moving an Amendment on the clauses, said that in the 1060 Statute of Edward III., the Archbishop of Canterbury was one of five Lords of Appeal, but they always reported to the House.
At end of clause, add ("and any Spiritual or Lay Lords shall also be empowered to take the oaths during the sittings of the House of Lords on appeals during the prorogation of Parliament: and if a quorum of three Law Lords cannot be found it shall be lawful for the Lord Chancellor, with the consent of both parties, to nominate one or two Spiritual or Lay Lords who may be willing to sit during the whole of any one case or cases.")—(The Lord Denman.)
§ Amendment negatived.
§ On Question, "That the Clause stand part of the Bill?"
§ LORD ESHER
said, he should certainly have opposed the clause if he had thought that, by its means, under this Bill, there would be a creation of Life Peers. That, however, was, in his opinion, not so, because, as he understood it, the noble and learned Lords who were mentioned were already Peers by virtue of the Act under which they were appointed. If not Peers, they had been enabled to speak and vote, and decide cases while they held the office of a Lord of Appeal only without being Peers at all. The Act said that they were to rank as Barons; and, unless the words made them Peers, they were not Peers at all, and the adjudication of cases in which they had taken part had not been decided by the House of Lords at all, but by persons not Peers. He construed the Act of 1876 as meaning that they were Peers for life for all purposes, but with this fetter—that on their ceasing to be Lords of Appeal they were not to have afterwards a Writ of Attendance; and all that this Bill did was to take off a fetter which that Act imposed not to create Life Peers, but to continue the attendance of those noble and learned Peers in that House after they had ceased to be Lords of Appeal. He, therefore, did not think that the political sarcasm which came from the noble and learned Lord opposite on that subject was well founded. He differed from that noble and learned Lord on the construction of the Act of Parliament, and further supported the clause in the Act because it did not contradict what that House did in the case of Lord Wensleydale. What the House objected to then was an assumed power on behalf of the Crown to make, without 1061 authority given by Act of Parliament, any number of Life Peers. Under the Acts now in question the power is limited, and is a power to act under Statute.
§ EARL GRANVILLE
said, he could not agree with the noble and learned Lord opposite (Lord Esher). Lord Blackburn was a Lord of Parliament exactly as the right reverend Prelates were, and was not a Peer for life. By the present Bill, Lord Blackburn would become a Peer for life, and he was glad that that would be so. If it were not that he desired that the Bill should be passed without delay, he should have asked that the measure might have been postponed, in order that they might have further time to consider its full scope and effect; and he would suggest to his noble and learned Friend the Lord Chancellor that he should consider whether the Bill could not be enlarged.
§ LORD THRING
said, that, in his opinion, from the surroundings of the question, that it was the clear intention of Lord Cairns and the framers of the Act of 1876 that the Lords of Appeal should only sit and vote in the House as such during the time they held Office, and should not be Peers of Parliament. This was clearly stated in the Act, and their dignity was described in the Act as that of a "Lord of Parliament," an expression inconsistent with their being Peers of Parliament.
§ LORD HERSCHELL
said, that he had only put forward the view that was maintained by the very eminent Lord Chancellor who introduced the Act and carried it through their Lordships' House, and by the very able Attorney General of the then Government. If he had erred, he had erred in their company; and, with all respect to his noble and learned Friend opposite (Lord Esher), he thought that, according to the view of those who introduced the Act, this Bill did make a difference. He did not say that the proposal would have been on all fours with what would have been done, if that House had permitted what was proposed in the case of Lord Wensleydale to be done. But he said that in order to meet the views of that House, it was insisted that those Lords of Appeal would be Lords of Parliament only while they held their office, and that they would not sit in that House as Peers, but as Lords of Parliament in right of being Lords of Appeal in Ordinary. The present Bill, however, did make, looking at the views 1062 of those who introduced the Bill of 1876, a great change. The Lords of Appeal were ex-officio Members, and were in the same position as the Bishops. This Bill would give them the position of Peers for life. It made that difference in their position, and he would not say that it was wrong.
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, they were all agreed that the Bill should be passed, and a question arose as to what was intended by the Act under which Lords of Appeal were appointed to their office. He thought that no person was less able to say what was the construction of an Act than the man who drew it; but he would not enter into an academic discussion of the point. The whole question seemed to be, whether a person appointed under the Act was a Peer, or was only a Lord of Appeal; and, whether the House was now asked to do anything inconsistent with what was done in 1876? The discussion with regard to the creation of Lord Wensleydale as a Life Peer was an important but a different question. It was claimed to be in the power of the Crown to create Peers for life; but that the House objected to. This Bill did not appear to him to establish a precedent as to Life Peerages.
THE EARL OF MILLTOWN
said he wished to point out that the Bishops could not sit in that House after they had resigned their sees. By resigning, they ceased to be Members of their Lordships' House; the Lords of Appeal were in the same position, but this Bill would enable them to sit as Lords of Parliament for life. But could any one pretend that that would create Peers who were not Peers before?
§ LORD FITZGERALD
said he would suggest to his noble and learned Friend the Lord Chancellor that the third reading of the Bill should not be proposed until some time next week, in order that they might have that matter discussed more fully with a view to see whether its provisions could not be enlarged. But he now protested against the principle that they were to be guided on the question by what were the intentions of the framers and draughtsmen of the Act of 1876, however eminent they might be. They were to be guided solely by the intention of Parliament as expressed in the Act which it had passed, and that intention must be gathered from the terms of the Act itself.
§ Clause agreed to.
§ Clause 2 (Retired Lord of Appeal in Ordinary may sit in House of Lords).
, in moving an Amendment on the clause, said, he proposed the power of sitting in the House of Commons, which was the right of every Irish Peer, because Mr. Macaulay had voted for a Master of the Rolls being, as before, eligible to sit in the House of Commons and opposed their exclusion, both as a Liberal, and as a Conservative. His (Lord Denman's) attention had also been called to the lamented death of Lord Deas—a retired Lord of Session. His Lordship was well known when at the Bar, engaged in cases in their Lordships' House, but never was eligible for the House of Commons after he became a Lord of Session, or had retired. With regard to the creation of Lord Blackburn, the Prerogative of the Crown decided, and the consent of his Lordship was also requisite.
At end of clause, add ("and if a Lord of Appeal in Ordinary, after he has resigned his seat in this House, should be elected to sit for any county or borough in England, or Scotland, or Wales, it shall be lawful for such Lord to sit and vote in the House of Commons, so long as he may remain a Member of Parliament, and if, ceasing to be a Member, it shall be lawful for him to return to his seat in the House of Lords for the remainder of his life."—(The Lord Denman.)
§ Amendment negatived.
In page 1, line 24, at the end of the clause, to add ("and the expression 'high judicial office,' as defined in the twenty-fifth section of the said Act, shall be deemed to include the office of Lord of Appeal in Ordinary.")—(The Lord Chancellor.)
§ THE EARL OF SELBORNE
said, he thought there were some Members of their Lordships' House qualified to sit and assist in the transaction of Judicial Business, who ought to be brought within the quorum clause of the Appellant Jurisdiction Act, quite as much as those whom the noble and learned Lord (the Lord Chancellor) proposed to bring within it. There was Lord Hobhouse, for example, who had acted for many years to the public advantage in the Judicial Committee of the Privy Council, and who, at present, did not happen to come within the definition of the Act of Parliament as one of the persons having held high judicial office. He 1064 thought the definition should be enlarged, so as to include all those persons nominated to be members of the Judicial Committee by Her Majesty under the Sign Manual, and who, for a reasonable period of time, had acted as Judges of Appeal in Council.
§ LORD BRAMWELL
said, he fully concurred in the suggestion of the noble and learned Earl (the Earl of Selborne). The words in the Act of Parliament referred to would not have included Lord Kingsdown, one of the ablest Judges who had ever assisted their Lordships. He would have been able to sit, but not to be one of the quorum described.
§ Amendment agreed to; words inserted accordingly.
§ Clause, as amended, agreed to.
§ Remaining Clauses agreed to.
§ The Report of the Amendment to be received on Thursday next.