Lords Sitting of 15 August 1889

FEES OF THE HOUSE.
Table of the Fees of this House now charged in respect of Appeals, Claims of Peerage, and Claims to Vote for Representative Peers; Ordered to be laid before the House (The Chairman of Committees).
LUNACY BILL.
A Bill to consolidate the enactments respecting lunatics—Was presented by the Lord Chancellor; read 1a; and to be printed. (No. 226.)
COTTON CLOTH FACTORIES BILL.
Brought from the Commons; read 1a, and to be printed. (No. 227.)
GENERAL POLICE AND IMPROVEMENT (SCOTLAND) ACT (1862) AMENDMENT BILL.
Brought from the Commons; read 1a; to be printed; and to be read 2a To-morrow.—(The Lord Ker, M. Lothian). (No. 228.)
REGULATION OF RAILWAYS (No. 2.) BILL.
Brought from the Commons; read 1a, and to be printed. (No. 229.)
MERCHANT SHIPPING (TONNAGE) BILL. (No. 174.)
Returned from the Commons with the Amendments agreed to.
PREVENTION OF CRUELTY TO AND PROTECTION OF CHILDREN BILL. (No. 160.)
Returned from the Commons with the Amendments agreed to.
FACTORS BILL (No. 122.)
Returned from the Commons with the Amendments made by the Lords to the Amendments made by the Commons agreed to.
COUNTY COURT APPEALS (IRELAND) BILL (No. 104.)
Returned from the Commons with the Amendments agreed to, with Amendments: The said Amendments to be considered to-morrow.
ARBITRATION BILL (No. 97.)
Returned from the Commons agreed to, with an Amendment: The said Amendment to be considered to-morrow.

BUSINESS OF THE HOUSE.
LORD DENMAN,in moving "That Standing Order No. XXXIII. be suspended until an adjournment for more than two days, or until a prorogation," said, that he did not anticipate much opposition to the Motion, because in consequence of the House not being full enough to sustain a Division it had been necessary to throw over business for a day, in the case of one Bill which had to be re committed, which was inconvenient.
VISCOUNT CROSSdid not think there had been any cause shown for this Motion, as no difficulty of the kind referred to had arisen.
On Question, resolved in the negative.

PRIVATE BILLS (ALTERATION OF MEMORANDUM OF ASSOCIATION.)
Report from the Select Committee considered (according to order).
LORD HERSCHELL: I have to present to your Lordships the Report of the Joint Committee appointed by your Lordships' House and the other House to consider the subject of Bills which involved alterations in the Memoranda of Association of Joint Stock Companies. Your Lordships will remember that the appointment of the Committee arose out of the circumstance that a Bill which had been read a second time and passed in the other House, with the sanction of the Chairman of Committees, in this House did not pass the Second Reading, inasmuch as it was thought that the matter should be considered and dealt with how far Joint Stock Companies registered under the Act of 1862 ought to be permitted to invoke the aid of Parliament to alter their Memoranda of Association. Accordingly, a Joint Committee of both Houses was appointed in order that some uniform system might be laid down applicable to both Houses. I have now to present their Report. They recommend, in the first place, general legislation to enable companies without the necessity of resorting to Parliament, under strictly defined conditions and limitations, which are specified in the Report, to make alterations in their Memoranda of Association with the sanction of the Court, giving full opportunity to all those whose interests might be affected to be heard, and to show cause against any such alteration, and leaving the matter (subject to any opposition) to the determination of the Court. But the Committee, feeling that until any such general legislation is passed it would not be right that there should be an absolute barrier to companies obtaining an alteration of their memoranda, suggest that Parliament should, in the meantime, deal with the matter upon the same lines as those which they propose the Court should deal with it hereafter in the case of general legislation—that is to say, that the alteration, if it involves the creation of new objects, should be only permitted where those objects are cognate with, or ancillary to, the existing objects, and where the necessity has arisen or the application is based upon circum-
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stances which have developed themselves since the time the company was originally formed. I think that with the limitations which have been laid down by the Committee, and which will now have the sanction of a Committee of both Houses, the matter may be safely left in the way they have suggested. I, therefore, move that your Lordships do agree with the Report.
THE EARL OF MORLEY: I should like to say one or two words on this subject, as the action which I took with regard to the Belgrano Gas Company Bill (which is again down for Second Reading to-night) led to the appointment of this Committee. When that Bill first came before your Lordships' House I felt, as my noble Friend has stated, that there were no precedents which would allow me to pass that Bill without the knowledge of Parliament, and, therefore, I was extremely glad, after the Second Reading of the Bill had been suspended, that a Committee was appointed to inquire into the subject generally, and to lay down rules for the guidance of Committees of this and of the other House of Parliament in cases where companies desired to alter their Memorandum of Association. I had the honour of serving on that Joint Committee, and I entirely endorse what fell from my noble and learned Friend Lord Herschell. I think that under the conditions laid down in that Report the House may safely allow these alterations in the Memorandum of Association of companies under special circumstances as described in those conditions. But, my Lords, I venture to express the hope that the general legislation which is suggested in that Report will not be delayed longer than is necessary.
THE LORD CHANCELLOR: This is a very wide subject, and I am very doubtful whether in the present condition of affairs it would be altogether right to assume that these recommendations of the Committee are in accord with the general opinion of Members of your Lordships' House. It must be remembered that the subject with which one is dealing is one very important, indeed, to almost every Member of the State. People embark in a particular company, and they have their views for so doing, and they very often take shares as an investment, and they

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are responsible for any calls that are made. Of course, I am referring, when I talk of companies, to what is now almost universal, the turning of various businesses into limited liability companies. People might or might not have adopted the sort of view that they could at all events, without risk to themselves and their future fortunes, invest in a particular speculation. It is now suggested that under certain conditions (what they are I do not at this moment know) the objects with which the company was started may be changed. I do not know whether the Committee recommend that the shareholders should be consulted. In the particular case which has given rise to this Committee it was a very strong case. Practically, every shareholder had given his assent to the change. There was also the question of rival companies, and the rival companies that might have been supposed to be interested in this matter had also not only given their consent, but I think urged that the alteration of the Memorandum of Association should be permitted. Therefore, I am not speaking at all in reference to the Motion which the Chairman of Committees is about to make for the Second Reading of the Belgrano Gas Bill; but I wish to guard myself against being supposed to adopt the general view put forward by both the noble Lords who have addressed your Lordships. I think it may well be that merely to afford opportunity to some shareholder or creditor or rival company to come forward and oppose, would or might not be sufficient guarantee, because everybody who is connected with companies—at least who has had to deal with them in judicial matters—knows perfectly well that what is everybody's business in such matters is certainly nobody's business, and many persons will allow things to be done because they will not take the trouble to interfere, and they might be grievously wronged by being compelled to enter into business of which they had no notion at the time they became shareholders. I do not, of course, wish at all to speak in an adverse view of this Report, which is entitled to the respect which is due to a Report considered by those noble Lords and hon. Members of the other House who formed this Committee. All I wish to do at present,
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having had no opportunity of considering this Report, is to guard myself against being supposed to adopt all its recommendations, and reserve to myself the right of discussing the matter in another Session.
Report agreed to.

ELECTRIC LIGHTING PROVISIONAL ORDERS (No. 2) BILL.
Order for Third Reading read.
Moved, "That the Bill be now read 3a."—(The Earl of Morley).
THE EARL OF CEAWFORD: I do not rise to oppose the Third Reading of this Bill, nor shall I oppose the other Electric Lighting Provisional Orders Bills which are on the Paper; but I wish to say that, although very great care has been exercised in the drawing up of these Bills, still I have no doubt whatsoever that in a certain time we shall have to come to you again for amendments in certain portions of the Bills. The parts that I refer to are those dealing with the meter clauses and the testing clauses which, in my opinion and that of those who have had anything to do with electric lighting, are absolutely unworkable. The whole of them were drawn up in the year 1883, within a year of the commencement of legislation on this subject. They have been copied verbatim almost into the present Orders. We—I speak now for those who are undertakers under the Bill—have at no time attempted to modify them in any way, simply because no person knows how to modify them. They are quite unworkable, and although great care has been disposed upon them, I think it right at this stage to say that they must not be regarded as final.
THE EARL OF LIMERICK: I presume my noble Friend will not expect me to make any remarks on what he has said. He will remember that these were opposed Bills; that they were considered in the Private Bill Committee of your Lordships' House, of which I had the honour to be Chairman. I believe I may say that this question of meter was not raised before the Committee, and I think, as my noble Friend says, it is a question for the future.
Motion agreed to.
Bill read 3a (according to order) and passed and sent to the Commons.

POOR LAW BILL (No. 195.)
Amendments reported (according to order); further Amendments made; and Bill to be read 3a to-morrow.
PALATINE COURT OF DURHAM BILL (No. 71.)
Commons Amendments considered (according to order), and agreed to, with Amendments; and Bill returned to the Commons.
OFFICIAL SECRETS BILL (No. 112.)
House in Committee (on Re-commitment) (according to order); Bill reported without further Amendment; and to be read 3a to-morrow.
PAYMASTER GENERAL BILL (No. 208.)
Amendment reported (according to order); and Bill to be read 3a tomorrow.
REVENUE BILL (No. 209.)
Bead 3a (according to order), and passed.

OFFICE OF THE CLERK OF THE PARLIAMENTS AND OFFICE OF THE GENTLEMAN USHER OF THE BLACK ROD.
Second Report from the Select Committee considered (according to order).
THE EARL OF MORLEY: I think it right that I should make a few remarks upon the Report of the Committee on the office of the Clerk of the Parliaments, because it contains matter that is of rather more importance than these Reports usually contain. The House will probably remember that early last Session a Sub-Committee of the Black Rod Committee was appointed with a view to inquire into the emoluments and salaries of the officers of the House. That Committee did not report last year, but the Sub-Committee's Report is embodied in the Report which now lays on your Lordships' Table. I do not think it will be necessary for me to go through the Report in detail. It has been in your Lordships' hands for some days, and perhaps it will be sufficient for me if I mention what are the leading changes recommended. To sum the matter up, the changes will probably in time effect an economy of nearly £7,000 a year in the establishments of the
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House, but I should say that these changes are not intended to affect, and will not affect, any present occupier of any post. It is only intended that they should come into effect as vacancies occur in those posts, the object being to reduce the salaries of certain officers. The economies chiefly effected, I should say, are in the Department of the Usher of the Black Rod, and to some extent in the Department of the Clerk of the Parliaments. The whole of these economies will be seen briefly in the Table appended to the Report. I think that what I have said is sufficient to show your Lordships that the Report has been prepared with considerable care, as the Committee has sat many times; and I trust that it may satisfy critics in another place, who have of late years criticised the Estimates for the House of Lords Offices. If there are any questions which any noble Lord wishes to put to me, I will be happy, to the best of my ability, to answer them; but I think I have explained the object of this Report sufficiently, and I now beg to move that it be agreed to.
LORD DENMAN: It is a great satisfaction to me to see that existing holders are not to be disturbed in the positions which they hold; and I hope that a future Parliament may not be so illiberally disposed as this Report shows the present to be. My respected predecessor relinquished £4,000 a year of his salary and patronage. The Earl of Ellen-borough used to say that his father received £14,000 a year, and that he gloried in doing nothing. I can only tell you that for six years my father granted me a large income—more than the fees amounted to—and be was obliged to maintain me in "that comely Portland Place," as Lord Beaconsfield calls it in his last novel, for six years, and if ever there was an ill-used man on the face of the earth, that man was the Lord Chief Justice. It was said to me by one of the ushers of the Court (who went Circuit with the Lord Chief justice), "The respect shown to Lord Campbell in comparison with your father is as the 'antipodes' of light to darkness," I believe it was the truth that never a more independent Judge sat upon the Bench; and his salary was taken away from him within seven years after it was declared by Parliament; so that he and his family were actually robbed. In

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this case there is notice given, but it must be extremely unpleasant to the holders of the present places to see that what they have is grudged them by anticipated reforms on the part of those persons who, if they came into this House, might accept the title of Lord Clotures.
Report considered (according to Order), and agreed to.

COURT OF CRIMINAL APPEAL.

  QUESTION—OBSERVATIONS.
  LORD FITZGERALD,in rising to ask the Prime Minister whether Her Majesty's Government will take into consideration during the coming Parliamentary Recess the question of constituting an effective Court of Appeal in criminal cases tried in the Superior Courts of criminal jurisdiction or at Quarter Sessions; and, if deemed expedient, present a measure to Parliament during the next Session to effect that object, said: I have to apologise for bringing this matter before your Lordships in relation to the constitution of a Court of Appeal in criminal cases—I mean a Court of Appeal upon the merits, but if your Lordships will refer to the Notice which I have put down you will perceive that it is not calculated nor intended to provoke unnecessary discussion upon the subject, and I do not at all intend to revert to the very prominent case which recently occurred in Liverpool, and which has forced upon the public mind the necessity of considering this question of a Court of Criminal Appeal. Your Lordships may have seen a letter of very considerable ability in the Times of Monday last. It is from Mr. Fletcher Moulton, an eminent Queen's Counsel, and he shows in it a great deal of scientific knowledge, and argues his case most logically. He says:—
  "So long as the constitution of our Courts prevents all appeal in criminal eases, even of the gravest kind, it seems both just and natural that the results of such a trial as that of Mrs. May brick for the murder of her husband should be made the subject of close public criticism."
  I do not intend now to criticise or observe on that case at all, save to deprecate the renewal or continuation of what I may call tumultuous discussion and proceedings out of Court, calculated to bring the administration of justice
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  into contempt, to withdraw from it the veneration and affectionate respect with which it has been ever regarded in England, and I will add also, if it will have any effect whatever upon the case of the unfortunate woman now in gaol, it may be an effect to her prejudice, and can do her no good. My Lords, the broad proposition cannot be controverted that there is no appeal whatsoever provided by the English law in criminal cases upon the merits. I use the expression "upon the merits," for I mean the merits both of law and fact; but perhaps it would be better to say that there is no appeal whatever upon questions of fact. The Judge at the trial may have gone wrong; he may have misconstrued the evidence; he may have misdirected the Jury; the Jury themselves may have taken the most unsound view of the facts of the case, and that unsound view may have led them to a conviction; but for all that there is no appeal; you can have no new trial; there is no mode of bringing the misdirection under control, or under appeal, and in fact (and it is a fact beyond doubt or controversy) with reference to criminal cases we have allowed life and liberty to depend entirely and unprotected upon the decision of the primary Court. I may remind your Lordships that though there is no appeal whatever on questions of fact, there is an appeal on questions of law; a twofold appeal, although in each instance of a very unsatisfactory character; but if that were the only subject of complaint, it would not justify me in coming forward on the present occasion, because, although the appeal in law is defective, yet the appeals on questions of law are very few, and are disposed of in the course of a year by two sittings, I think, for two days only, of the Court for Crown Cases Reserved. They are defective in this respect, that when the appeal is not by Writ of Error, it rests entirely in the discretion of the Judge whether he will reserve any question of the Court for the consideration of Crown Cases Reserved. However, confining my present observations to the absence of an appeal on the merits, I have heard it said that, notwithstanding that singular defect in our criminal jurisprudence, the whole thing has worked satisfactorily, and there is no necessity for the constitution of such

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  a Court. If we look to the cases that have taken place, I think it will be found that that observation is not well founded, and that the contrary is really the fact. I may refer to one or two cases to show your Lordships the proceedings that take place, and how unconstitutional they are. In the ease of Lord Dundonald, in 1814, he was convicted of a conspiracy to commit fraud with three or four others, and he was sentenced to fine, imprisonment, and the pillory. I always thought that case a disgrace to criminal jurisprudence in England. In his autobiography he says—
  "This vindictive sentence of the pillory the Government did not dare to carry out. My high-minded colleague, Sir Francis Burdett, told the Government that if the sentence was carried into effect, he would stand beside me on the pillory, and they must look to the consequences."
  The result of that intimation was that the Government, though anxious to carry out the sentence to the fullest extent, abandoned the pillory, and after a not very long interval, Lord Dundonald's innocence was fully established, not by the Home Secretary, but by independent inquiry. He was restored to all the honours of which he had been deprived, and I myself have often had the pleasure and the honour of seeing him in attendance upon the Queen as one of the officers of the Court. Another remarkable case was that of Mr. Barber, a solicitor, who was convicted of forging a will, or being a party to the forging of a will, and was sentenced to transportation. Four years afterwards he was permitted to return to England with a full acknowledgment of his innocence. In 1850 the House of Commons voted him, by way of compensation, the sum of £5,000. Now all that injury, and all that expense, would have been avoided if there had been a competent Court of Appeal upon the facts of the case. A case always referred to in reference to this desirability of a Court of Criminal Appeal is the case of Dr. Smethurst, who was convicted of the murder of Isabella, his bigamous wife. A Petition was presented to the Home Secretary of the time, and he instituted an inquiry; I believe he even took the step of an independent examination into the case by experts; but the result was to show that
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  the whole proceeding against Dr. Smethurst had been a mistake; that his bigamous wife was not poisoned by arsenic as represented, but that she died of natural causes. His innocence was completely established to the satisfaction of Sir Cornewall Lewis, the then Home Secretary. I think the noble and learned Lord on the Woolsack was one of the counsel in the case, and he will remember that one of the ludicrous mistakes made by the Judge at the trial was to point out, as the motive in reference to which Dr. Smethurst was attacked, that he succeeded to all the property of the lady who was said to be poisoned. She did make a will in his favour, but it was after the illness had commenced which was supposed to be the result of poisoning; so that the view of the Judge that this was a very important feature in the case was that he first poisoned the woman, and then afterwards got her to make a will in his favour. All that would have been avoided had there been a proper Court to enter into and determine the case. Then, again, I may remind the noble Lord opposite of a case that occurred when he was Home Secretary, and which was known as the Penge murder. Five persons were convicted of murder, and left for execution. As to one of them, there was not a particle of evidence beyond that she had led an immoral life. There was nothing else in the case. Upon my noble Friend's examination she was at once—not reprieved, but absolutely discharged; and upon consideration of the remainder of the cases the four persons who where left by the learned Judge for execution, and without any hope whatever, had their sentences commuted, and they were sent to penal servitude.
  VISCOUNT CROSS: My noble Friend, I think, has not quite correctly stated the facts with regard to the last case that he mentioned. The woman who was reprieved was allowed to go on this ground. The question was whether it was murder or manslaughter—it was a case of killing by neglect, and I thought that it was a case of manslaughter. This woman was charged as an accessory before the fact, and she could hardly be guilty of being an accessory before the fact of manslaughter. It was on that ground that she was acquitted.
  LORD FITZGERALD: However, I am quite right in stating that the sentences on the other persons were commuted, on the ground that it was manslaughter if anything, and not murder. But Alice Rhodes had no connection with the bad treatment which the woman received: she had no duty to perform towards her: she happened to be the paramour of one of the parties, and her previous life was the only circumstance upon which she was convicted as in conspiracy with the other parties. Possibly I may have fallen into error, and I am glad to have been corrected by the noble Lord, for I am only speaking from recollection as to what took place on the occasion. These, my Lords, are but three out of a hundred cases that I could have cited for your Lordships' information. It cannot be said that a system which allows of such cases is at all satisfactory; in fact, it has been for years condemned, and condemned by successive Governments. A Commission sat in 1878, composed of very able men. Lord Blackburn, I think, presided over that Commission; Mr. Justice Montagu Smith was another of its members; the present Mr. Justice Stephen was one also, and Lord Justice Barry, of the Court of Appeal in Ireland, represented Ireland upon the occasion. Their conclusion was unanimous, that this blot upon the criminal jurisdiction in England, which did not exist in any other civilised country, ought to be removed; and they actually went so far as to state in detail in the Report which was presented to Parliament the measure that ought to be taken for the purpose of remedying this crying evil. In addition, Sir John Holker, the then Attorney General, and Mr. Justice Stephen, between them prepared a Bill, which was presented to Parliament in 1878; and I believe again, in 1880, the Government of which Lord Herschell was Solicitor General took up the subject, but the Bill was not carried through. Recent circumstances have forced this question upon our attention, and it is in remarkable contrast that whilst life and property are thus left disregarded, and entirely at the mercy of the primary tribunal, we cautiously protect and regard the civil rights of property. I may instance to your Lordships that within the last year a case came before this House in which the whole sum
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  in controversy between the parties was £11. No doubt it involved consequences beyond that, but not beyond that to the parties who litigated it. It commenced in the County Court; the County Court Judge gave the plaintiff a decree; the defendant appealed to the Divisional Court, and the County Court Judge was reversed. The plaintiff then appealed to the Court of Appeal, and the Court of Appeal decided in his favour. Again it was brought before this House; it was argued here for three days, and finally the noble Lords who had charge of the case were upon one point divided in opinion, but upon the merits they disposed of the case affirming the Judgment of the Court of Appeal. Again I may refer your Lordships to Indian cases. One of Her Majesty's subjects in India commences a suit in which the sum in controversy is 500 rupees; he is entitled to carry it through all the various Courts of Appeal that exist there, and finally to come to the Judicial Committee of the Privy Council; and sometimes he succeeds in reversing all that has gone before, and turning various defeats into victory. My Lords, the subject—I do not conceal from myself—is one of very great difficulty; but the difficulties are not insuperable; and all I am seeking now to get from the noble Lord opposite is an assurance that Her Majesty's Government will consider this question during the Recess, and, if they consider it practicable and advisable, that they will be prepared in the next Session to introduce a measure upon the subject. Let me for a moment consider what takes place under the present system when there is an appeal to Her Majesty from any criminal conviction. In some cases it is not an appeal for mercy, because an appeal for mercy, for leniency, for the reduction of a sentence, is one based on the supposition that the conviction is right; and there you go to the Queen in the exercise of her prerogative of mercy, advised by the Home Secretary, to either reduce the sentence or in some way to reduce the punishment, which you consider excessive, within more lenient limits. But there are other cases like the case of Dr. Smethurst and the case of Lord Cochrane, where the appeal was not for mercy, but was for the re-consideration of the whole case in

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  order that justice might be done according to truth and right. And now let us see the anomalous proceeding that takes place. The Home Secretary then has cast upon him the oftentimes terrible responsibility of advising the Queen in those cases. He is not a Judge; he has not the powers of a Judge; he has no power to administer an oath in reference to the case: he carries on the inquiry—or, as I may call it, the re-hearing of the case—as best he can with the aid of the Report of the Judge before whom the trial took place; and when he does come to a decision, he advises Her Majesty upon the subject, and gives no reasons whatever. That proceeding appears to me to be anomalous, illogical, and, in some respects, unconstitutional; and I would substitute for it, if possible, the establishment of a Court of Appeal upon the facts and upon the merits, where, if a mistake had been committed, a new trial might be awarded, or where, at any rate, right might be done according to law and justice. The time seems proper for this. Public attention has been directed to the matter. You do not require any Commission or any inquiry. The materials have been collected, and lie broadcast. You will find them all in the Report of that Commission of 1878 and 1879. I believe that whilst there are difficulties to be contended with and encountered there is not in the public mind a shadow of dissent that the law of England should be, to some extent, altered so as to admit of this appeal. I referred to the Bill which was presented to Parliament in 1878. Probably the fault of that Bill was that it was too extensive and too ambitious. It endeavoured to deal with the whole subject at once, whereas what is required, probably, is a measure confined in the first place to capital cases or to cases of extreme gravity, and hedged round with every possible security. I see no impractibility and no very great difficulty in preparing or carrying a measure of the kind. It ought to be a Government Bill. It would be useless for a private Member of this House to attempt a measure so affecting the criminal jurisprudence—so weighty and so important. It can only be carried by the Government, and I must say that I think we have at present to guide our considera-
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  tions upon questions of law, and Criminal Law especially, in the person of the noble Lord upon the Woolsack, a Member of the Government who is most competent to guide their Councils upon such a subject as this. His great experience and his willingness to deal with law reform have been amply proved; and I venture to predict that if the noble and learned Lord takes this matter in hand he will be able to propose a measure which will be generally acceptable to your Lordships. It has been said that compensation can be made in cases of mistake, and adequate provision can be made for those who have been wrongfully convicted; but there is a class of cases in which there can be no compensation. When life has been taken, when the individual who has been wrongly sentenced lies in a felon's grave, it is absurd to speak of compensation, and it is in that class of cases that it is my great anxiety to have some Court of Criminal Appeal established. I beg to ask the noble Lord the question which I have put upon the Paper.
  THE LORD CHANCELLOR: I cannot but express my regret, notwithstanding what my noble and learned Friend has been good enough to say about myself, that this very important and interesting question should be at the present time the subject of discussion. I know very well from the calm and judicial temper of my noble and learned Friend that I could anticipate no intended allusion on his part to the circumstances of the case now occupying the public mind. At the same time I cannot forbear to point out to him that all people are not invested with the same judicial temper, and that, when he proceeds to point out the defects of the present mode of administering justice, his comments will have a wider operation than he intended. There is no doubt that such questions as these are not appropriately discussed at times of public excitement about them. At a time when we have seen jurors, witnesses, and even a Judge subject to unreasoning and even brutal violence; at a time when persons have assumed themselves to be competent to interfere or justified in interfering with the discharge of the most solemn and serious duty with which a human being can be invested—namely, the determination

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  whether a fellow-creature shall live or die—when persons have felt it consistent with the due administration of justice that it should be so far interfered with, not only with the violence I have spoken of, but that even some of the witnesses should be followed from place to place, not because any imputation was made against their honour, or honesty, or desire to speak the truth, but because they were supposed to be witnesses unfavourable to the accused—I confess I feel considerable regret that it is at this moment my noble and learned Friend should think it right to raise such a question. There are other ways, too, in which resort is had to intimidation and insult, intended, I suppose, to aid the solemn and serious determination at which the Secretary of State has to arrive. In every newspaper the question of what the Home Secretary bas to do, has done, or is likely to do, is the subject of adverse and violent comments. I do say this is not the time to raise such a question here; I do deprecate the House being asked at such a time to consider and discuss such a wide alteration of the law as that referred to. When I turn from the particular case which appears to have given rise to the introduction of this subject, I am afraid I cannot agree with the facts on which my noble and learned Friend relies, or that the suggested remedy would have met the cases he cited, and that the decisions, if erroneous, would necessarily have been corrected by a Court of Appeal. The account of the trial of Lord Cochrane—both what was proved and, what was more important to Lord Cochrane, what he did not prove, but what if innocent he could have proved—raises in my mind a very serious question whether any Court of Appeal would have thought it right to reverse the verdict of the jury. No doubt it was a time of great political excitement; and I am not desirous of going into the matter so far as to raise questions the discussion of which might give pain to some who are still alive. I may, however, say this much about that case—the noble and learned Lord must not assume that all enlightened, educated, legal opinion concurs with him when he says there is no doubt whatever that Lord Cochrane's innocence was conclusively established. The noble and learned
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  Lord referred to the case of Mr. Barber. I do not know whether my noble and learned Friend has taken the trouble to read that case, in which I doubt whether a new trial within six months or a year of the first would have ended in a different result. With respect to the case of Dr. Smethurst, Sir George Cornewall Lewis certainly did not treat it as one in which innocence had been established. I have no hesitation in saying I always thought, and I still think, that Dr. Smethurst was an innocent man; but as I was counsel in the case, my judgment is possibly biassed. Sir George Cornewall Lewis, in granting a free pardon, certainly did not treat the case as my noble and learned Friend suggested—as one in which the question of guilt or innocence was perfectly clear; on the contrary, in stating his final determination, he expressed the extreme difficulty and doubt which was raised by Sir Benjamin Brodie's opinion, which left it so doubtful whether the offence charged had been committed, that it was thought fit to advise the granting of a free pardon, and a free pardon was accordingly granted. With respect to Sir G. Lewis's own opinion on the general question, if my noble and learned Friend will refer to the speech he made in the House of Commons, he will find the subject most exhaustively treated, and his judgment was positively and absolutely against such a Court of Appeal, and adverse to any such change in the law, which, as he pointed out, would render it much more difficult, if there were two verdicts in the same direction, for the mercy of the Crown to be extended upon such doubts as he himself had had in Dr. Smethurst's case. I do not wish, for the reasons already given, to commit either the Government or myself to any abstract proposition on the subject. I only say it is a subject I would rather not discuss now with reference to any future alteration in the law. I trust that my noble and learned Friend will consider that as satisfactory an answer as he was likely to get from Her Majesty's Government.
  LORD HERSCHELL: I entirely agree with my noble and learned Friend that it would be not only inexpedient, but wrong, to make any speech at the present time which would nave any bearing, direct or indirect, upon the particular case which is now agitating the public

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  mind. But, at the same time, one must remember that in this country it too often happens that it is impossible to obtain attention to the necessity of any particular reform except when the public mind is excited on the subject and by reason of that excitement. If there is no such excitement, a reform of this character, which is not one likely to arouse any great popular feeling, is only too likely to be allowed to sleep, even if it be a desirable one. It seems to me that there are reasons other than those given by my noble and learned Friend—namely, the time of the year and the state of the House—which render it impossible to discuss the question exhaustively at the present moment. I would, however, like to say that it seems to me that this question of the expediency of establishing a Court of Criminal Appeal is one which might well be considered independently of and without reference to the case now occupying public attention, and for this reason, that those who differ diametrically in their views of this particular case may yet be agreed that it would be better if some tribunal existed which would render possible a review of criminal cases. Such a tribunal might go far to arrest, or at any rate diminish, those manifestations of opinion to which the noble and learned Lord has alluded. I do not mean to say that it would be likely to get rid of such manifestations altogether, because there are many persons who would be quite as ready to criticise the decision of a Court of Appeal, however ably constituted, as they now appear to be to criticise, often with very little knowledge or consideration, the decision of a Judge and jury. I certainly entertain the view most strongly that any decision of a Court of Justice, whether it be the decision of a Judge and jury, or of any other tribunal, may be rightly made the subject of public criticism. It is the right of the public to criticise. But those who undertake the task of criticism have a serious duty incumbent on them to be very careful to inform themselves as to all the facts, and exhibit that modesty and self-control which every one should exhibit who differs from those who have seriously considered and solemnly decided any question. While I admit this right of public criticism, I must say that a good deal
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  of language has been recently used which I must unite with my noble and learned Friend on the Woolsack in deprecating. There appears to have been in the minds of some persons a difficulty in distinguishing between criticism and abuse. These persons, possibly more wisely, possibly more foolishly, have arrived at a different conclusion to that arrived at by those who decided this case, and they have on that account indulged in condemnation, execration, and abuse of them, thus exhibiting a state of mind very far removed from that which can produce any wholesome, and useful, and sound criticism. I do not propose to say more than a word or two on the subject that has been brought forward. I have long thought that some change in the direction suggested was necessary and desirable. I admit the difficulties of the question; but it has always appeared to me to be indefensible that while in civil cases, however small, there should be a right of appeal, in criminal cases there should be none. I do not, however, share the view apparently entertained by my noble and learned Friend that the existence of such a Court would prevent the occurrence of erroneous convictions. There are cases in which wrong convictions are obtained, but I believe that this occurs but seldom. I have had a good deal of experience in Criminal Courts, and have watched the administration of justice there with some care, and I believe that it is but seldom that there are wrong convictions, though some undoubtedly there are. But I do not believe that if you had a Court of Criminal Appeal you would always set right these wrong convictions. In many of these cases, upon the materials before the Judge and jury, the conviction was right and would have been affirmed by any Court of Criminal Appeal that might have been established, and it is only by reason of circumstances that afterwards come to light that we learn that there has been a miscarriage of justice. It would, therefore, be altogether misleading to hold out the hope that any Court of Criminal Appeal could secure that in no case should an innocent person be punished. But there are cases where such a review probably might, I believe would, lead to the setting aside of a wrong verdict. In some of the cases to which my noble Friend has re-

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  ferred I am by no means certain that, if the conviction had been reviewed at the time, the conviction would have been altered. I do not think that it would be right to expect as much from the creation of a Court of Appeal as appears to be expected by my noble Friend. At the same time, for the reasons I have given, I hope that the matter will be seriously considered by the Government during the Recess, because undoubtedly there is a widespread feeling that it is not just that in the administration of our Criminal Law alone should be the one decision which is incapable of review, and I believe that any solution of this case with due and satisfactory safeguards would give a general feeling of satisfaction and security to the community.
  VISCOUNT CROSS: My Lords, during the time that I had the honour of holding the office of Secretary of State for the Home Department my attention was naturally enough called very much to this question, and I shall be prepared to state my views to your Lordships when the matter comes up for discussion; but I agree with my noble and learned Friend on the Woolsack that this is not the best opportunity that might have been chosen. I merely rise for the purpose of making two observations. I quite agree with the noble and learned Lord who has just sat down that whatever Court of Appeal may be established you must not expect too much from it. I am not at all certain whether prisoners do not get better treated in the way of getting their sentences remitted or reduced under the present system at the hands of the Home Secretary than they would receive from any Court of Appeal. The Secretary of State is always guided by the view that considerations of mercy, so far as they can be resorted to consistently with justice, should not be lost sight of, and prisoners get the advantage of this view, which they would not get from a strictly legal Court of Appeal. The only other observation I wish to make is this—that whether a Court of Appeal is established or not, it will be absolutely necessary that the prerogative of mercy in the Crown should still be maintained, and not simply as to the diminution of punishment as suggested by the noble and learned Lord who brought forward this discussion, but also as to the question of innocence or guilt; because there is no
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  doubt that it does sometimes happen that, perhaps years after the supposed offence has been committed and the man has been convicted, something is brought to light which shows that that conviction is an error which no Court of Appeal could by any possibility have taken consideration of, and for which there is no remedy except in the prerogative of mercy which must rest in the Crown administered on the advice of the responsible Minister at the Home Office. I know that there is a feeling that that administration of justice by a single Minister is not satisfactory, but in the nature of things it must remain, and the principal reason of my rising to address your Lordships was that I might correct a feeling which is wide-spread upon that point. I think it ought to be clearly understood that, Court of Appeal or no, the exercise of the prerogative of mercy by the Crown must be maintained for the benefit of the liberty of the subject.
  LORD DENMAN: My Lords, the misfortune of the present day is, that the evidence for the prosecutor is published; and perhaps for two or three days the whole public are judging the case beforehand, which is certainly prejudicial to the prisoner. My brother has always sat later than almost any other Judge in order, as far as possible, to avoid this. Speaking to me about a Court of Criminal Appeal he said that the noble Viscount who has just sat down was the best Home Secretary that he had ever had to deal with. I have witnessed the struggles of the present Home Secretary in the case of an unfortunate Jew, who afterwards confessed that he was guilty. The pressure that was put upon the Home Secretary was something extraordinary; and I am quite certain that until we can see clearly a much better system than the present, we had much better not cast a slur upon the existing authority. I am quite sure that if the present Home Secretary will consult with the noble Lord and with Lord Cranbrook, who formerly held the same office, you would have a better Court of Criminal Appeal than any formal Cour de Cassation could possibly be.
  LORD FITZGERALD: I know I am not in order in again speaking, but I am sure your Lordships will give me indulgence to say a word or two in what

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  I may call self-defence. I commence by saying that I agree with every word that has been spoken by Viscount Cross. Now, my noble and learned Friend on the Woolsack has thought it necessary to read me rather a severe lecture for the indiscretion I have shown upon this particular occasion. He seems to have forgotten that I commenced by deprecating any discussion of, and that I told the House that I should not make a single observation or comment upon, the case that now occupies public attention save to deprecate the tumultuous proceedings which have taken place, which were injurious to the very unfortunate person whom they were intended to serve. And all through the course of the few observations that I made your Lordships will recollect that I adhered to what I said at the commencement, and not a word dropped from me in reference to the case now pending. My noble Friend has said that discussion of any kind upon the present occasion is indiscreet. Now, my notice was put upon the Paper on Monday last; and the noble and learned Lord knows me well enough to know that if he had conveyed to me the slightest hint that in the opinion of Her Majesty's Government, or in his individual opinion, the discussion was injudicious, I should have been the last one to press it forward. I should have left everything that I have said unsaid, and withdrawn the notice I had given. But I received no such intimation. I cannot conceive, notwithstanding all that I have heard from my noble and learned Friend upon the Woolsack, that I have been guilty of any indiscretion. My question points, not to the present but to the future—to something that is to be done by the Government during the Recess in order to remedy what is a grave and patent error. I wish only to add that the answer of my noble and learned Friend upon the Woolsack on the part of the Government has been so highly unsatisfactory—holding out no hope even of consideration—that, driven into a corner, if it become necessary, and should I be (to use an Irish expression) "to the fore here," I will even undertake the introduction of a Bill myself on the subject, though possibly I will receive little support from Her Majesty's Government.

  ELECTRICAL LIGHTING PROVISIONAL ORDERS (METROPOLIS) INQUIRY.
  THE EARL OF CRAWFORD,in rising to move—
  "That the Minutes of Evidence and Proceedings in the local inquiry on the Electric Lighting Provisional Orders (Metropolis), held by Major Marinden, R.E., by direction of the Board of Trade, be laid before the House,"
  said: I gave notice of this Motion two or three days ago for this reason—that upon this evidence has practically been based the action of the Board of Trade in bringing forward and promoting the Electric Lighting Bills which your Lordships have read this evening a third time. There has naturally been a very great desire by all those interested in this new branch of industry to obtain the facilities of seeing the evidence and of knowing thoroughly what went on during the 18 days that Major Marinden sat hearing the evidence. I am sorry to say that I have received a courteous letter from the Board of Trade saying that although they have no objection from a Departmental point of view, nevertheless the evidence, such as it is, is very voluminous; and therefore they think it desirable that it should not be printed on the score of expense. They also say that that evidence and the appendices were printed from day to day, and that any persons might have had a copy upon payment. It is perfectly true that any person might have had the evidence if he had chosen to pay for it; but he would have had from the commencement, to enter into an undertaking to take the whole of the evidence from beginning to end, and each copy of that book cost the unfortunate holder of it £37 16s. Very few copies, as your Lordships may imagine, were printed; I think not more than about 45, of which my business absorbed 10. The consequence is that there is a very large demand for this evidence which it is impossible to supply, and my impression was that it would have been an economy of the Board of Trade to allow this evidence to be printed, because I feel pretty confident myself that the possession of the evidence would save the Department very largely in the future by giving absolute guidance to those who will promote Provisional Orders in the future. However, as the Department do not feel disposed to

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  grant my request, I will not press the Motion.
  THE EARL OF LIMERICK: My noble Friend has stated the reason of the Department for deprecating this Motion. There is no Departmental objection to it: the objection is solely on the ground of expense. The evidence lasted 18 days, and there were 1,300 pages of printed matter, and it was considered that unless a very strong case was made out of this large mass of matter being printed and circulated to your Lordships it would be incurring a very heavy expense indeed without sufficient cause.
  Motion (by leave of House) withdrawn.

  POST OFFICE SITES BILL.
  Brought from the Commons; read 1a; to be printed; and referred to the Examiners. (No. 230.)
  House adjourned at a quarter before Six o'clock, till To-morrow, Four o'clock.