§ LORD HERSCHELLThe reason I ask the question standing in my name is, that if it be the case that any question of law raised on the trial at Bar could be conclusively determined by the majority of Judges who take part in the trial, it seems to me to suggest a very serious question whether it is expedient in the present case that the trial should be by means of a trial at Bar. If it were tried before one Judge, then any question of law that arose could be argued before, and determined by, the whole of the Judges. I have seen from the ordinary sources of information that it is proposed to raise some points of law which might give rise to some difference of opinion. I am not able to form the slightest opinion on this, but at all events it is conceivable and possible that difference might arise. I cannot help thinking it would be unfortunate if a point of law of some substance, involving perhaps a matter of great and far-reaching importance, should stand for conclusive determination by so small a tribunal, when there might be a difference of opinion and no mode of having the case further considered. For that reason I ask Her Majesty's Government whether, if the indictment of Dr. Jameson and others is tried, as at present proposed, at Bar, any question of law which may arise would be finally determined by a majority of the three judges before whom the trial took place, without any power to reserve it for argument before, and decision of, all the Judges of the Queen's Bench Division?
§ THE LORD CHANCELLORThe question of how the trial should take place is one in the unfettered discretion of the Attorney General, who is the great Officer of State to whom the law has accorded the right, if he thinks proper, to demand a trial at Bar. I understand, from the same sources of information, that my noble and learned Friend has referred to, that he has asked for it, and that the Court has made an order for trial at Bar. Therefore, the question whether it should be a trial at Bar or not has already been determined, and I should be sorry if at this stage there should be any suggestion that this is not a satisfactory mode of trial. Her Majesty's Government have nothing to do with the question; I am the only Member of Her Majesty's Government to whom such a question would be likely to be addressed by the Attorney General, and the Attorney General has made no communication of any sort to me on the subject. It is his duty to form his judicial opinion as to whether there ought to be a trial at Bar or otherwise. The Attorney General has decided; and I cannot concur in the suggestion of my noble and learned Friend that this is not a proper case for trial at Bar. I think it is eminently one that ought to be tried at Bar. It is one of the most important forms of trial known to our Jurisprudence; there are three Judges who preside, but there may be more. Trial at Bar is a somewhat technical phrase. It is a trial by the Court of Queen's Bench; the whole Court is trying it, and instead of having a trial by a single Judge, and having reference to the Court, the Court itself is, by the hypothesis, sitting and trying. Whatever be the number of Judges, whether three or more, if it is in the Queen's Bench, there is no power of reserving a case for the Court of Consideration of Crown Cases Reserved. That cannot be done, and it has been so decided. I cannot help expressing my very deep regret that by the legislation of 1873 and 1876 it was thought proper to deprive this House of any jurisdiction to decide upon any points of criminal law. I think it was a great misfortune. Some important historical cases had been brought before this House as the highest Court of Appeal, but for some reasons known only to themselves, the authors of 518 these Acts thought it best to exclude from your Lordships' jurisdiction any points of law reserved in criminal cases. I think this particular case is eminently one for trial at Bar, because I cannot help feeling one of the most important questions is in regard to evidence. The jury cannot wait to be directed by the Court for the consideration of Crown Cases Reserved, as to what should be admitted as evidence, but should have a prompt decision. It has been recently decided that in a criminal case any improper evidence admitted vitiates the trial, and therefore it is most important that there should be three Judges presiding over the proceedings, to decide there and then what should be admitted and what rejected. The three Judges of the Court of Queen's Bench seem to me an admirable tribunal for trying such an important case. ["Hear, hear!"]
§ LORD HERSCHELLI do not propose to discuss the question, but my silence might be taken to signify assent. I am quite unable to adopt the view my noble and learned Friend takes, that this is a matter entirely for the Attorney General. I think that on a question of a prosecution of this sort the Attorney General is the Law Officer of the Crown, who, no doubt, is the adviser of the Government of the day, but a question of this sort is one from which the Government cannot entirely detach itself, and say that the whole matter is for the determination absolutely of the Attorney General. That is a position which I cannot acquiesce in. Trial at Bar may have some advantages, but it appears to me to have, on the other hand, great disadvantages. We thought it right to call attention to one very great objection which there is to it—namely, that the most important matters of law arising may be determined by a majority of the Judges. Of course, the whole of the Judges might sit, but that would have other inconveniences. It would be very unfortunate if important questions of law should be finally and conclusively determined by a small tribunal possibly differing among themselves.
§ THE PRIME MINISTER (THE MARQUESS OF SALISBURY)As the noble and learned Lord has referred to Her Majesty's Government, I am induced to say a word on this matter, which otherwise I should have considered strictly 519 legal. I understand the noble and learned Lord to lay down the doctrine, certainly new to me, that wherever Parliament has intrusted special functions, prerogatives, or powers of assent and dissent to the Attorney General, the Cabinet as a whole is responsible for all that he decides. I must enter my earnest protest against any such doctrine as that. It is entirely new, and entirely alters the character of the guarantee that Parliament desires to obtain, and, so far as I know it, has never been in the contemplation of Parliament when any such powers have been given to the Attorney General. I earnestly hope that the independent action of the Attorney General will be preserved by this House.
§ LORD HERSCHELLI do not think it is a Parliamentary power at all.
§ THE PRIME MINISTERIt does not matter whether it is common law or a Parliamentary power; it is still the power of the Attorney General.
THE EARL OF KIMBERLEYThat is by no means the same thing. The argument of the noble Marquess was that a certain power had been lodged in the Attorney General, which certainly implied, I thought, that it had been intrusted to him by Statute. If the Government, in grave cases of this kind, have no power whatever to see that the best form of trial is secured, I think it is a very unfortunate state of the law.
§ THE LORD CHANCELLORI think I ought to say that in my experience it has occurred that the Government has wished the Attorney General to do one thing, which he has refused to do on account of the independence of his office.