§ LORD CARSON
My Lords, I would ask the indulgence of your Lordships to allow me to make a personal statement, having regard to criticisms passed upon my conduct by the noble Viscount on the Woolsack with reference to a speech that I made at Burton-on-Trent on Saturday last. In the first place, I must express my great regret that I was unable to be here on Monday last, having regard to the fact that it was I who, on Thursday, asked your Lordships to adjourn until that date, which you were kind enough to do. We are all subject to these occasional afflictions of colds, and I plead to having suffered from a very heavy one.
With the criticism passed by the Lord Chancellor I propose to deal as briefly as I can, and may I say that I hope to do so without the least heat and without in any way attempting to get into any personal conflict with the Lord Chancellor who is, of course, as I recognise, the Leader of the Tribunal of which I am one of the Judges. The noble and learned Viscount has thought fit to raise a question which I admit is of extreme importance, though I think, when I come to deal with it, of a much wider and more general aspect than the noble Viscount has seen fit to give it. I can assure your Lordships, and I know you will believe me, that the only one object I have, or can have, in view is to explain that I do not believe I have broken, consciously or unconsciously, any rule or any tradition of your Lordships' House. That is the matter with which I am most concerned. The other general question as to what ought to be the relations of various judicial persons to Party politics is, as you will see in a moment, one of a very wide character which raises many more questions than the alleged breach of conduct upon my part.
I practised at the Bar for forty-four years, and I do not believe I exaggerate when I say that in the whole of that long career there was no advocate more jealous of the pure administration of justice than I was. As I understood his speech, the Lord Chancellor laid this down—at least 932 this is what I took to be his general proposition—that any one acting as a Judge should not take an active part in politics, because his taking an active part in politics might react at least upon the contemplation of him in the eyes of the public as a Judge. If any such rule as that had ever been laid down, or should be laid down, I should obey it of course; but no such rule has ever been laid down, and I will show your Lordships how far away we are from it when I deal with the actual facts.
I shall quote two only of many examples, because they are two of whom I am very proud, and both of whom were Irishmen. Lord Cairns had been Attorney-General in Mr. Disraeli's Government, in the House of Commons. He was promoted to the Bench as a Lord Justice—mark you, not as a Judge in this House, but as a Judge in His Majesty's Court, as a Lord Justice. He had been so useful to Mr. Disraeli that while he was a Lord Justice be was made a Peer with a seat in this House. For what purpose? In order that, while he still held the post of Lord Justice, he might help Mr. Disraeli to pass his great Reform Act, one of the most controversial political matters of the day. And whilst he was still a Judge of the High Court—not a Lord of Appeal, if my recollection is right—he made about fifty-five speeches upon that subject in this House. Does anyone make the imputation about Lord Cairns that he either sullied his own reputation, or did anything to interfere with the due administration of the law, or to bring discredit upon justice, by taking so prominent a part in Party politics while he was a Judge of the High Court? I pass from Lord Cairns. He is probably the lawyer of whom we who come from Ireland are most proud. He left a most unsullied reputation and, I believe, did more to advance English Jurisprudence and bring it up to date in in his own time than any man of that era.
The other example is Lord Macnaghten. I do not know whether anybody questions the uprightness or the honesty of Lord Macnaghten, but I have heard him, over and over again in this House when he was a Lord of Appeal, as I am, taking part in Irish Bills which were probably the most controversial of all the Bills that came before the House of Commons for many years. What is more, Lord Macnaghten felt it his duty, as I did, when he thought danger and calamities were threatening his native land—for he also was an Irish- 933 man—to come forward when he was a Lord of Appeal and sign the Covenant for resistance to Home Rule if any attempt was made to put it into force against that portion of the country from which he came. I never heard any attack upon Lord Macnaghten for any of his actions, although he also was a Judge, acted as such in the House of Lords, and was in exactly the same position as I am.
It may he said that there is some difference between speaking in this House and speaking on a platform in the country. I cannot see the difference. What you say here would be probably even more widely read in the country than what you say on a platform. But you will always have to get back, if you are going to criticise the matter at all, to the one question which was put by the Lord Chancellor—namely, that anyone acting as a Judge should not take an active part in politics. Whether you take that part in this House or elsewhere, the result is exactly the same, and you prevent it with the same object.
Your Lordships may not be aware of the different noble Lords who hear appeals in this House—appeals on questions of law mainly—who are never brought into contact with juries or witnesses, the importance of which will be shown in a few moments. There are four categories. There is, in the first place, the Lord Chancellor himself. In the second place, there are ex-Lord Chancellors; at the present moment I think there are four of them. In the third place, there are certain noble Lords who have Peerages in this House, and who have legal experience which entitles them to sit at the Tribunals. Fourthly, there are what are called Lords of Appeal in Ordinary, such as I am myself. Where I come in conflict with the principle attempted to be laid down by the Lord Chancellor is in this respect. According to him the first three classes do not in any wise taint the administration of justice by taking political action, although they do exactly the same thing in the administration of justice as the fourth class; and that while those three first classes have a right to take an active part in controversial and public politics, the Lords of Appeal in Ordinary are in a different category. I decline to accept that proposition. If any of us who hear legal appeals in this House is tainted, or is bringing taint upon the administration 934 of justice by taking part in politics, then it must be each and every one of us who does it, for the same principle must be applicable to each.
Let me examine these four classes. There is, first, the Lord Chancellor. He is the head of us all. He comes and presides, when politics give him time, over the hearing of appeals in your Lordships' House. Does he taint justice? He is the most political one of all, and, what is more, he is engaged in working out policies. He is one of those engaged in working out the policy of the particular Government in power. He is one of those who, if there were anything to be said, would be bound to try to see that a particular policy prevails. I do not think anyone would deny that the noble and learned Viscount on the Woolsack has had more political work thrown upon him than any Lord Chancellor, certainly in my time. Every day he is engaged nearly the whole of the day in the duties of politics, and in the duties of the Cabinet, and in this House, as anyone must have remarked—at least I have done so in the short time that I have been here— almost the whole of the political business is thrown upon the Lord Chancellor. Is it to be said, and, if so, why, that he can come and preside at the Appeal Tribunal here and be the head of it—and a very brilliant head he is, if I may be allowed to say so—and go straight away afterwards to take part in the most controversial political matters, whether on the platform or at dinners or luncheons or anywhere else, without in the slightest degree, in doing so, detracting from the dignity of the law?
What, then, is the reason why I detract from it? Is it to be laid down that because you hold a particular office your character is one that can be more trusted? If a man cannot be trusted faithfully to administer law then he ought not to be in any judicial capacity. He has no right to be there. If you are going to abuse your position as a Judge you can do so whether you talk in public or whether you do not. You can always allow your political feelings to get the better of you, though I am bound to say, in the long years that I have been at the Bar as a practising barrister, I have never found, amongst the multitude of Judges before whom I have practised, both in Ireland and in this country, the least difference whether I was practising before a Judge whom I knew to hold 935 Radical opinions, or Conservative opinions, or any other opinions. I have found them all honourable men, brought up in the study of the law, and not caring one farthing about results that might ensue so long as they faithfully administered the trust given to them by His Majesty.
Then there are the ex-Lord Chancellors. Is a different position claimed for them; and, if so, why? I sit every day with ex-Lord Chancellors, hearing appeals. Some of them do not agree with me in politics. Does any one imagine that because of that the administration of justice suffers in any way? So far as I know, I am on the best terms with them. Nobody has ever laid down the proposition that ex-Lord Chancellors were not entitled to go and make speeches in the country. They do so, in fact, every week, and only the other day one of them—one of the most honoured, and most respected and ablest I have sat under—went off to take part in the Cambridgeshire election. And why not? If he were able to do that, and come back and rejoin me in trying a case, what is the difference between that noble Lord and myself? You cannot condemn me, unless you hold that I have a different standard of honour from that which he has. I am perfectly sure that he would not claim to come under any higher standard than I lay down for myself. No, the truth of the matter is that it is sought to lay down an artificial line to which I, at all events, will not agree, until it is laid down by some other authority who cannot be questioned. If it is so laid down, I shall, of course, obey.
There is the third class of noble Lords who try appeals, and they are Lords of Parliament who have held judicial office, or have high legal qualifications. I will take two of them. There is the noble and learned Lord, Lord Parmoor. He claims to have a perfect right to take part in politics, and to go where he likes and speak where he likes on politics. He sits with me in the Courts. We have sat together harmoniously, without any political squabbles, in all the patent and other cases that we have tried. Why are these noble Lords to be allowed to take part in politics? What is the difference? Is it because they are not paid? I have failed to see how the rule laid down by the noble and learned Viscount on the Woolsack is to be applied to one class unless you 936 apply it to all. We are all Judges. If politics taint any one of us then they taint all equally so far as the administration of justice is concerned.
Let us go just a little further. Let us see what the rule is that you are proposing to lay down. The rule that you are attempting to lay down as regards my humble self is of little importance so far as I am concerned. In the House of Commons there are a number of Judges and Recorders who try prisoners and important criminal cases. Are they to be restricted? If not, why are they not restricted? There was an instance in the last few days. I think it was the Recorder of Nottingham, Sir Ernest Wild. He has been there as the Leader of the Central Party, fighting for the Central Party, entertaining those who were in favour of a Central Party; and within the last few days he has been appointed Recorder of London. He still retains a seat in the House of Commons; and has all the powers of a Judge as Recorder of London. Why is he not tainting justice if I am? I know of no way in which you can argue this unless you lay down a general rule that any one who is dealing with the administration of justice is no longer to take part in public life as it concerns politics.
But your Lordships will not rest even there. What about Chairmen of Quarter Sessions, Licensing Justices? Is it to be laid down that no Chairman of Quarter Sessions is to go on a public platform? Is he not a Judge? Is he not brought a great deal more in contact with the people and the administration of criminal law, with juries and witnesses and all that goes to make up a trial, than I am, reading a dull book at the desk there and having no contact with them at all? Are they to be debarred from going on public platforms? But you cannot even rest there. What about Justices of the Peace who conic in direct contact with the people every day, in every district? Very often the Justices of the Peace are active politicians in their own districts. They are often popular because they are Justices of the Peace. Are you going to lay it down that no Justice of the Peace, who has to adjudicate on matters arising out of strikes or Income Tax collection, and a Thousand other things, is ever to take part in politics?
If not, I ask you why is my honour to be besmirched any more than the honour 937 of a Justice of the Peace? What have I ever done in my long career to give the right to any man to point the finger of scorn at me in such conditions as these? I have put before you something of the whole case with which you have to deal. I do not object to an inquiry, nor do I object to a change in the law, but it must embrace every one from the Lord Chancellor down to the humblest justice who administers justice as best he can, very often under difficult conditions. So far as I am concerned, I took every precaution that a man could take under very trying and difficult circumstances, as your Lordships will appreciate in a moment.
I was not only a Lord of Appeal, but I had for many years been the Leader of the Ulster Party in the House of Commons, and I had entered into a solemn Covenant. When was first welcomed to your Lordships' House by the noble Marquess the Leader of the House he did me the kindness to express a wish that I should take part in all the proceedings of the House, or in any of the proceedings in which I desired to take part. I saw no disinclination on his part to warn me that as a Law Lord I was a suspected Judge if I dared to say a word on a political subject, and I am sure the noble Marquess has not in the slightest degree repented of his expressed wish, because of the fact that I have been unable to concur in the policy which he has advocated in relation to Ireland.
But that was not all. Before I ever spoke in this House—and I had been here for some seven or eight months before I spoke, as I had hoped I never would speak again, for Heaven knows that in my long experience in the House of Commons and at the Bar I have had quite enough—I asked the Lord Chancellor to see me, and I told him this. I said to him: "I am at the same time a Law Lord and a Judge, but I am also a Covenanter." I said that nothing on earth would induce me to break my Covenant, and that if I was not free to do all I could for Ulster, baying regard to the way she has trusted me for years, and having regard to the deep feelings I have for her welfare in the future, I would be quite willing to resign. The Lord Chancellor assured me that there was no reason for that, and I understood I had the fullest liberty, as had any other Peer, to take part in the political controversy relating to Ulster.
938 I am now willing to resign if I have done anything that is wrong; if your Lordships say I have done anything that is wrong. What do you think I care for my office, or salary, as compared with my honour? No, it is as nothing to me, much as I value being in your Lordships' House. But if the time comes when there arises a controversy as to whether my honour or my salary can be kept, I need not tell your Lordships that I prefer my honour to the salary. Therefore, I place these facts before you. If you condemn my action condemn it on solid ground. Draw in your own mind the distinction, if it is to be drawn, between myself and others who are carrying on the law, but believe me that as long as I hold my present office—I am sure it is hardly necessary to say it—like all the other noble and learned Lords who so frequently take part in your Lordships' House in a useful capacity, you may remain perfectly sure that the honour of justice will remain untarnished.
§ THE LORD CHANCELLOR (VISCOUNT BIRKENHEAD)
My Lords. I shall attempt to imitate the tone and the temper of the observations which have fallen from the noble and learned Lord, and I shall equally attempt, step by step, to meet and deal with the argumentative case which the noble and learned Lord has made. Before I address myself to that task in detail I will attempt to clear away one or two points. In the first place, let me tell the noble and learned Lord that no observation has fallen from my lips, here or elsewhere, which could directly or indirectly be construed as a reflection upon the honour of the noble and learned Lord, or upon the integrity with which he discharges his functions as a Judge. I have, as, I know, has the noble and learned Lord, a deep respect for the Judiciary of this country, though we differ profoundly upon the topic which now engages our discussion. I have far too high a respect for it ever to have permitted myself, outside this House and before a public audience, to make a single disparaging allusion to one who was my colleague in the supreme Appellate. Court of this Empire. I have never cherished in my mind one ill-natured thought about the noble and learned Lord; even in the heat of political debate in this House, I think I have hardly or not at all uttered one ill-natured word about the noble and learned Lord; and I make it plain that I had and have, whether he values it or 939 whether he does not value it, a high admiration for the consistency of his public career and the devotion with which he has given expression to the convictions of a lifetime.
These are not the issues which I raise to-day. Those issues are graver ones, and, in dealing step by step with the argumentative case which the noble and learned Lord has made, I will omit, so far as my memory supports me, no illustration and no argument with which the noble and learned Lord has reinforced his speech. He has told your Lordships of the case of Lord Cairns, who was made a Peer in the year 1868 and who, before he was Lord Chancellor, took part in the debates on the Reform Bill. The most recent and the most authoritative biography of the Victorian Lord Chancellors, in discussing this question, said of the part played by Lord Cairns in the years which followed 1868, that "Lord Cairns, in accepting this Peerage under these circumstances, imitated the doubtful example of Lord Lyndhurst."
The noble and learned Lord instanced the ease of Lord Macnaghten, than whom no Law Lord was more respected in this House. He administered the law with distinguished learning for many years, and for all those years he sat in this House as a Law Lord. What were the illustrations of the political activities of Lord Macnaghten during this long period which the noble and learned Lord presented to your Lordships? He said that Lord Macnaghten took part in the debates upon the Irish Land Acts. He did. A pattern of reticence and of learning among the present Law Lords, Lord Atkinson, has taken part—I think the only part he has played in the long years that he has spent as a Law Lord—in our debates upon the Irish Land Act, and I tan conceive of no topic, in view of the technical and difficult problems which present themselves in those discussions, upon which a Law Lord could contribute more. The only other illustration which, from those long years, the noble and learned Lord was able to give of the political activities of Lord Macnaghten, in this House or out of this House, was that at the close of his life—not that he made a speech here, or a speech upon the platform, but that he signed the Covenant. I cannot think that a very valuable or striking illustration upon the topic with which we are concerned to deal is afforded by the case of Lord Macnaghten.
940 The instance of Lord Macnaghten is, however, more valuable than any case which could be founded upon the case of Lord Cairns, for this reason, and for this reason only, that in the year 1876, nearly fifty years ago, a change was made in the circumstances and in the constitutional position of those who take part in judicial decisions in this House. Then, for the first time, the Law Lords were introduced. They were given life Peerages. They are members of this House, according to the practice of this House, and by the theory, as I understand it, of their position as Peers they are entitled to the same freedom of debate—so run the terms of their patents—as any other Peer. I nevertheless commend this proposition to your Lordships, that taking the long period of time, almost fifty years, since this completely new stage in the history of Judges in the House of Lords was introduced, there has grown up a tradition, only twice, so far as I know, in any serious case violated, that those who sit in this House be cause they are Judges, those who are elevated to this House only in order that they may discharge judicial duties, shall not take part in what all of us understand to be purely Party debates.
I know of one case, and of one only in very recent days, in which that rule was violated. It was an instance cited and relied upon by one of the noble and learned Lords who took part recently in our debates—the case of Lord Robertson. Lord Robertson made a speech in this House as a Law Lord upon the subject of Tariff Reform, and I remember to this day, though then a young practising member of the Bar, the criticism and the reprobation which the attitude of Lord Robertson in that debate excited, not only at the Bar, but generally, as I recollect it, in political circles. If I put on one side the speech made by Lord Robertson, and equally the signing of the Covenant by Lord Macnaghten, I am in the memory of old members of this House when I lay it down that, with the exception of those who have preceded me—and of them I shall say something in a moment—it has, been for fifty years the unbroken practice of the Law Lords who sit in this House to observe that convention of the Constitution that they shall not interpose in Party or partisan debates.
The noble and learned Lord then proceeded to establish a series of classifications in which he placed his colleagues, 941 and first of all, he took the case of the Lord Chancellor. Let me deal with the case, as your Lordships will expect at my hands, both fully and frankly. The decision of our ancestors in relation to the office which I hold may have been a wise one or it may have been an unwise one. I am not concerned to argue that point to-day, although at the proper time I shall be found fully prepared to argue it. It is sufficient for me to soy that for centuries our Constitutional Law has tolerated an admitted anomaly in the office of the Lord Chancellor. It is an anomaly, a violation of that constitutional theory of the separation of powers, insisted upon by Montesquieu, and has been a commonplace among writers on Common Law. The motive which animated them, whether right or wrong, is not the subject of either ambiguity or controversy. It. was that they took the view that in the interests alike of the Executive and of the Judiciary themselves it was convenient and desirable that there should be a connecting link—that there should be, in other words, a high judicial personate who was not divorced from membership of the Cabinet, and who was able to impress his political colleagues with tie views of the Judiciary and of the legal profession generally, while at the same time he was able to keep his judicial colleagues in contact not, with Party issues with those public considerations from which, as they thought, it was not wise completely to divorce the Judicial Bench.
I am not arguing whether 300 or 400 years ago, or in the later period in which the controversy became even more acute, in the days of Lord Selborne, our ancestors were right or wrong in tolerating an admitted anomaly, but, I am arguing this: that it having become a commonplace among writers upon these topics whether the decision was right or wrong, that there was that one anomalous case, that. to reason from the position which I occupy as Lord Chancellor, and which was occupied by illustrious men for centuries in this country, that you are to release the whole of the Bench in this country to undertake such partisan activities as in their choice and discretion they decide, is indeed to found an amazing doctrine upon a narrow foundation.
The noble and learned Lord then dealt with the case of the ex-Lord Chancellors. Let me make my point upon their position equally clear. When a man becomes Lord 942 Chancellor it almost invariably happens that he sacrifices a very much larger income at the Bar in order that he may undertake that office. The decision of our ancestors was that in order to secure, so far as possible, that men of first-class professional attainments should be anxious to attain to the high dignity of the office which I unworthily fill, they should be given a pension of £5,000 a year when they cease to occupy the position of Lord Chancellor; and indeed, and even more under existing conditions, where a man possessing gifts which are in the least likely to bring him to the Woolsack can command a professional income of £20,000 or £30,000 or even £40,000 a year, if it. is an important purpose of public policy that the ablest men in the country should sit upon the Woolsack, it would not, I think, among reasonable people, be counted an unreasonable thing that a pension should be given to anyone who disables himself, according to admitted practice, from further competition at the Bar.
Therefore, within a day or two after a man becomes Lord Chancellor steps are taken, whether he renders judicial service or not, to secure him in the possession of a pension of £5,000 a year; and it has been laid down, over and over again, by the highest legal authorities in this country, that the pension which is so given to a Lord chancellor is not, even in morality or in honour, dependent upon the continued discharge of any judicial duty whatsoever. In those circumstances those who have formerly held the office of Lord Chancellor have been accustomed, again throughout the centuries, to regard themselves, and to be regarded, as indeed they are, as men who have combined, in the anomalous circumstances which I have already considered, political and judicial functions and as potential political Ministers, and as men who, according to the example and practice of men as illustrious as Lyndhurst, Cairns, Brougham and Selborne, and a dozen others I could name, have, without a word of public criticism, continued to take part alike in political and judicial functions.
The noble and learned Lord asked: "Does it make a difference in this question that a man is paid a salary?" Let inn answer that question in the same practice that I am attempting to employ in the whole of this difficult matter. The noble Viscount, Lord Cave, made an observation 943 in the course of our recent discussions which seemed to me to throw an illuminating light upon the matter. He had taken some part in the Irish discussions. I pointed out that rapidly it was becoming impossible to constitute a Court to deal with Irish Appeals, because almost every available Lord had taken, or was threatening to take, some part in the debate, to which Lord Cave replied: "I should not think of sitting on an Irish Appeal, having regard to the fact that I have taken part in an Irish debate." What does that mean? It means that because noble Lords have not observed what I have defined as a clear convention of the Constitution, they have prevented themselves, by speaking in political debate, from discharging those judicial functions which they are paid to perform, and which they were put in this House that they might perform, and I say it does make an immense and whether or not the noble and learned Lord in question is discharging those functions because he chooses to do so, being under no compulsion or any obligation to do so, and being a man who may be made Lord Chancellor again, as were Lyndhurst and Brougham, within two months of the period when they left that office.
The noble and learned Lord then took a third class—namely, the class of Judges who, after long service in the lower Courts, are given Peerages and come to this House clothed with the same rank, and theoretically, and perhaps actually, armed with the same privileges as any one of your Lordships. I have many members of that class in my mind. In the more than three years that I have sat upon the Woolsack I have carefully observed the part which has been played by those colleagues of mine in the final Court of Appeal. Lord Phillimore, Lord Wrenbury, and Lord Parmoor are names which have occurred to the minds of all of you. I say plainly that I have observed in the case of all those noble and learned Lords a degree of reticence, when subjects of Party discussion have arisen, which could not be exaggerated. Many of those noble and learned Lords sit upon the cross benches. I have never heard one of them in this House, or out of this House, say one word which could be construed as the expression or the argument of what could fairly be described as a political partisan. And I think they have realised, most thoroughly realised, the exceptional position 944 in which they conceive themselves to stand, and I think they have most fully obeyed and followed the convention of the Constitution which I believe to have grown up during the course of the last fifty years.
Now, following step by step the argument of the noble and learned Lord, I approach the case of the class of Judges to which he himself belongs, the Law Lords; and, before I make the observations which I shall ask leave to make upon that subject, I have this to point out. So far from attempting—and, indeed, it would have been a vain and impossible attempt—to distinguish the case of the Law Lords from that of the Judges of the Court of Appeal, or of the Judges sitting at Nisi Prius, or of the County Court Judges, the argument of the noble and learned Lord, if it possesses—as I am sure it did possess—consistency at all, goes this length, that, just as he claims for himself and for his colleagues, the other Law Lords, the right of intervening when they choose, and how they choose, in subjects of Party discussion in this House; just as he claims for himself and for his colleagues, the other Law Lords, that they may go upon any platform in the country and assail with invective the Government of the day, or, if they choose, shelter the Government of the day by the protection of their rhetoric, so equally he claims that it is the desirable system, nay, that it is the system which, in fact, prevails at this moment in this country, that every Judge of the Court of Appeal can go to Burton, if he shares the views of the noble and learned Lord, and can deliver on the platform there such a speech, scathing and vehement in conception and expression, as that which the noble and learned Lord thought proper to deliver a few days ago.
Let us pause to contemplate the disastrous consequences of a doctrine as novel as I proclaim it to be revolutionary. What are the consequences? Are Prime Ministers and Cabinets, and the Lord Chancellors who advise them, when, on a vacancy in the final Court of Appeal of the British Empire, they ask from what source are they to derive the great Judges who are to inherit and carry on the traditions of what is still the greatest and the proudest Court in the world—are Prime Ministers and Cabinets to ask what are the politics of the Law Lord who is to be appointed here? Are they to ask whether he is a man who will support the Government of the day, who, by the possession of apt 945 and subtle political gifts, will lend his help and his eloquence to a tottering Ministry? Or are they to ask whether he is a man learned and deeply studied in the law, and able by his erudition to contribute fresh lustre to the judgment seat?
Carry the matter a little further. We have received to-day—introduced, fitly enough, by the noble and learned Lord who himself for many years occupied the position of a Law Officer in this country —we have received to-day, and we welcome him here, the Lord Chief Justice of England. We have had a long succession of distinguished men, members of this House, who have occupied the position of Lord Chief Justice. Would it be a welcome innovation, logically involved as it is in every sentence of the argument of the noble and learned Lord, that the Lord Chief Justice should sit behind my noble friend who leads the House, or should sit behind the Leader of the Opposition on the other side and take part in every Party debate that arises, or should go down—according to the doctrine laid down by the noble and learned Lord—and intervene at the by-election which at this moment is taking place in Leicester?
Let us carry it still further. If this doctrine be an accepted one, is a Law Lord qualified to be Leader of the Opposition? If not, why not? A Law Lord is very likely to possess knowledge—is, indeed, certain to possess knowledge— and very certain, as your Lordships know, to possess argumentative gifts, and the power of expression. Supposing that a Law Lord develops those gifts and brings them to a high pitch of Parliamentary proficiency, so that he is undoubtedly the ablest speaker who sits in your Lordships' House—outside, it may be for the moment, the ranks of the Government—is the proposal gravely brought forward that a Law Lord, a Judge of the final Court of Appeal, is to sit on that bench day after day and night after night, assailing and attacking the political policy of His Majesty's Government? And if not, on the theory of the noble and learned Lord, why not? And as I pointed out a few days ago, is the Master of the Rolls, who is also a Peer, and a member of this House, to come and add his contribution to the cheerful judicial hurly-burly which we are promised in the circumstances indicated by the noble and learned Lord?
And what will be the example spread by this doctrine disseminated in high places 946 upon the Judges of Nisi Prius and the Judges in the Court of Appeal? No one could have failed to notice in the course of the last twenty years the immense increase of judicial credit and reputation in the country, taken as a whole. Sixty years ago looser methods were adopted and were tolerated. Sixty years ago it was not uncommon to find Judges sitting in the House of Commons. Gradually evolving a policy which I thought, until recent times, had become the subject of universal admission, those who were interested in our constitutional practice found that the only road alike of sanity and of safety was to exclude our Judges from all, even the slightest, participation in political affairs. And now all this is threatened, and we are told, indeed, that the security upon which all depends had already been undermined and almost destroyed.
And what are the illustrations that are used to establish this conclusion? We are told that the Recorder of London still occupies a seat in the House of Commons. I am not aware of the facts of this particular case, but I know that the policy of the City of London has in recent times been to impose it as a condition upon the appointment of all their judicial officers that they shall cease to be members of the House of Commons. I should be astonished, indeed, to learn that the recent appointment of Sir Ernest Wild to be the Recorder of the City of London had not been accompanied by a condition of that kind, to be either immediately operative or operative in the near future. Nor can I pretend to be impressed by the illustrations drawn by the noble and learned Lord from the cases of Recorders in the House of Commons, of Chairmen of Quarter Sessions and of Justices of the Peace. All those persons discharge functions which, while they are important, are nevertheless, in comparison with the responsibility of the duties discharged by that purely professional class to whom the high judicial business of this country is committed, negligible. You could not exclude that large class from a share in politics without almost paralysing the power of large sections of our fellow countrymen to take the part that naturally and necessarily falls to them in public affairs.
We are confronted here, and so far as I know for the first time in our history, with a wider claim. That claim is no less than this—that every Judge in this country should be entitled to fling himself into that 947 Party strife from which the progress of generations has secluded him. In the observations which I have felt bound to make I have abstained from a single word which would legitimately affront the sensibility of the noble and learned Lord. I have made it plain, as far as I can make it plain, that I regard the suggestion as ludicrous that he would be diverted from the strictest and highest conception of judicial duty which I know him to entertain, by any political view which he formed or which he expressed. The view I am putting before your Lordships is not that his judicial independence would be impaired or tainted. It is that it is necessary that the public should be under no delusion upon this point. It is necessary that there should be no ground of suspicion as to the motives which could operate upon the mind of a Judge.
The noble and learned Lord has said that he would be prepared, if a rule was laid down to which he found himself unable to assent, to resign his office. In this connection the noble and learned Lord has recalled a conversation which he had with me some weeks ago and, inasmuch as my recollection of that which took place, though it corresponds, as might be expected, upon almost all points with that given by the noble and learned Lord, does not precisely and at all points correspond, I think it my duty to suggest for his reconsideration that what actually took place between us can quite accurately be described in the language which I now employ. The noble and learned Lord was good enough to come and consult me, as head of the Bench, as to my conception of his position in case he found himself compelled to attack the Irish policy of the Government. I told the noble and learned Lord what I have told your Lordships since—that in my view a convention had grown up and was generally accepted in this House under which extreme Party views were not expressed in debate by Law Lords. But I told him then, as I have since told your Lordships, that I was convinced that, the convention being a convention, the overwhelming majority of your Lordships' House would feel that it would neither he reasonable nor possible to ask him, who had played so great a part in these controversies, to refrain from expressing and making plain his view upon them in the debates which would follow. I also said, and the reception which your Lordships gave to my observations in the 948 same sense a few nights ago have confirmed me in my view that I was right, that your Lordships would wish to treat this case as an exception to what I conceived to be the practice which had been almost universally observed now for many years.
But I most earnestly hope that it has not escaped the recollection of the noble and learned Lord that he most pointedly asked me the question whether the opinion which I was expressing to him would cover the case of speeches made against the Government and the Irish policy of the Government in the country, and I most plainly told the noble and learned Lord that in my judgment the two cases were wholly dissimilar and I did not think that he would be held to be protected from legitimate criticism if he carried his campaign into the country.
§ LORD CARSON
I do not want to interrupt the noble and learned Viscount, but may I say, as he is giving an account of the conversation, that it was never put to me—I am speaking from recollection, of course, and I do not want to make flat contradictions—that I should be undertaking any exceptional course. I was told that I had the same rights as any other Peer. I informed the Lord Chancellor that I must keep my Covenant. Nothing was said about the country at all, and I assumed from what he had said that, as I had given that information that I had to keep my Covenant, what he was stating covered the whole case. I may have been wrong.
§ THE LORD CHANCELLOR
Nothing will induce me to enter into any conflict of recollection between the noble and learned Lord and myself as to what took place many weeks ago. I have my recollection, and the noble and learned Lord has his. I should never have touched upon this subject in any circumstances if the noble and learned Lord had not already given his account of the conversation as he recollected it. I pursue it no further. I make it plain that there is a distinction, and the distinction is elementary. It is this, that the only possible excuse that can be made for a Law Lord dealing with subjects of acute political controversy is that he is exercising in this House his rights as a Peer of Parliament. If he has not that excuse, it comes into plain collision with the universally accepted rule that the salaried Judges of this country 949 are neither expected nor allowed to take part in political controversy.
I have said what I had to say upon this subject. It is more distasteful to me than I can describe that I should be drawn into a public disputation on a subject so delicate with a colleague who sits with me in Court. I have dealt as far as I can with the arguments as he has advanced them, and I would, in conclusion, most earnestly press upon your Lordships that it is a possible view that the Woolsack as we have known it for centuries should be modified. If and when it is brought forward I should be prepared to consider that proposal upon its merits. The noble and learned Lord has cheered that suggestion. What is involved in his approval of the suggestion that the one solitary anomaly should be swept away? Surely there is involved that conclusion to which the common sense and the judicial experience of the noble and learned Lord must compel him—that if, in the one case where substantial compensating advantages have been shown by experience to exist, in spite of all those advantages, in the opinion of the noble and learned Lord that anomaly possibly should be abolished and swept away in the case of the Woolsack, how can it be argued that our Judiciary, the pride and the example of the world, should be contaminated and made suspect by daily and weekly contact with acute political problems?
§ LORD DUNEDIN
I ask your Lordships to bear with a few words from a Law Lord who has not only never made a political speech, but has never made a speech at all, in this House. Although I have had the honour of being in your Lordships' House for seventeen years I have never opened my mouth in it, except to answer a question, until to-night. I hope your Lordships will believe me when I say that the last thing in the world I wish is to pose as a judge or even as a critic of what my noble and learned friends who are my colleagues have done in the past or propose to do in the future. May I be so egotistical as to remind your Lordships of one fact about myself, that before I came here, I sat for over fourteen years in the House of Commons, for eleven of which I sat on the Government Bench. I see many of my old colleagues around me now. It is certainly the fact that both in the House of Commons and on the platform I did have the opportunity of making many 950 political speeches. I had the honour of getting a seat in your Lordships' House in 1905, associated at the same time with a judicial appointment. In 1913 I was made a Lord of Appeal.
As I have said, I never have made a political speech, and I have refrained of set purpose. I wish to tell your Lordships, why. It has always seemed to me that the end that a Judge ought to have before him—I have set it before myself, with what success it is not for me to say—was first of all to decide the cases upon which he has to adjudicate rightly, but secondly (and this is almost as important as the first) to secure that after he has decided the case, the litigant who has not succeeded should go away feeling that he has had a fair hearing, and that that feeling should be communicated by litigants to the general public. If you are to have a fair hearing, a Judge must have two qualities. He must be absolutely impartial, and he must have the capacity to be convinced.
As to impartiality, if one had nothing to think about except what opinion your Lordships in this House would have of one, I should think it quite possible to take part in every political debate. It is not, of course, a question of honour. There is something more. Persons like your Lordships know quite well that by practice we, who are in the profession, do manage to get a certain detachedness of mind which makes it perfectly possible for a man, however keenly he feels on any question, when he comes to deal with the same question it may be, or something that fringes upon it, to deal with it in a judicial spirit and not to be affected by any views which he may hold, however strongly. But I have always thought not about people like your Lordships, but the man in the street, and I cannot help thinking that the man in the street will not have the same complete confidence in one's impartiality if one mixes oneself up in political questions. For that reason, and that reason alone, I have carried out the course of conduct which I have indicated.
§ VISCOUNT FINLAY
My Lords, we have heard a great deal which, I think, bears rather on the question of what the law ought to be than on what the law is. There may be very good reasons for applying the prohibition against political life in the case of all Judges. If such a prohibition is to be applied, I should think that there is just as strong a case—perhaps 951 a stronger case—for applying it to such Judges as Recorders, who come into contact with the daily life of the people to a very great extent, as there is for applying it only to those who sit on a more exalted Tribunal. We are not engaged, however, in a discussion of what the law ought to be, but in a discussion as to what the law is. In some comments that have been made upon the remarks made by the Lord Chancellor last Monday, whose speech I heard in this House, it has been assumed that he had given a ruling upon the point, That he had laid down the law, and that that was the law which for the future would have to be observed.
§ VISCOUNT FINLAY
The Lord Chancellor did not say so, but certainly some comments in the Press show that it was taken as a ruling, and some expressions which the Lord Chancellor used came, I think, very near a declaration—
§ THE LORD CHANCELLOR
Of my opinion. I chose my language most carefully, and I plainly said that it was my opinion, and if the noble and learned Viscount will read what I said he will find that I was expressing only my own opinion.
§ VISCOUNT FINLAY
At the same time I think the Lord Chancellor will find that a good many people have thought that any expression of opinion proceeding from the Woolsack amounted to a rule. I am not saying that the Lord Chancellor laid it down as a rule. I am sure he would be the first to acknowledge that he has no authority whatever to make any rule in that matter, and he never attempted to do so. The opinion, therefore, of any member of your Lordships' House may be given, and he will not be in the least fettered in giving it by the circumstance that the Lord Chancellor has expressed a contrary opinion. I am certain that the Lord Chancellor would admit that. It is really elementary that it is for the House itself and not for any member of the House, however exalted, to give a ruling on any point of order or law affecting the House. I therefore feel myself at perfect liberty to criticise very shortly what was said by the Lord Chancellor on Monday and to-night on this point. In everything I say I hope I shall be speaking with the perfect respect 952 which is due to the high and commanding position which the Lord Chancellor occupies in this House and must always occupy.
I believe that the principle on which the Lord Chancellor based the views he expressed on Monday is erroneous. He proceeded upon the analogy of the Judicial Bench—the Common Law Bench and Judges of Equity. It is perfectly clear, with regard to those Judges, that there is a long and unbroken tradition that they should not take part in political life. I have never heard but of one exception, and that was in a case of the Master of the Rolls. I dare say many of your Lordships may have read the most brilliant speech delivered by Lord Macaulay in opposition to the proposal to exclude the Master of the Rolls from the House of Commons. That speech did what very few speeches have done—it changed the votes of the House, and the measure was thrown out. However, after a few years, when Lord Macaulay's speech had been forgotten, the decision was reversed. That was the one exception to the rule that Judges—I am speaking of Common Law or Equity Judges—should not take part in politics.
In these circumstances the rule with regard to them is inflexible. There are the very best reasons for that rule, particularly with regard to the Common Law Judges, because to them is entrusted the supreme control of the administration of the Criminal Law. To the great mass of the people of this country the law is the Criminal Law. They regard that as the law which it is most important for the country to have administered with perfect firmness, but at the same time with perfect impartiality. In the case of the Common Law Judges they, of course, are the guardians of the honour of the country in the administration of the Criminal Law. In their case there can be no doubt whatever of the wisdom of the rule which excludes them from taking part in the politics of the day, as it might lead to some doubt as to their perfect impartiality wherever a case had anything of a political complexion.
I listened with the greatest interest to Lord Dunedin, and with his general principles I entirely agree. But with regard to the practice he has pursued since he has been in this House I can only say that that is a matter which every Law Lord must decide according to his own views of what is right and proper in his own case. It is entirely for him to decide. 953 What I am concerned with is this. There is no such convention, no such rule, as has been assumed by the Lord Chancellor to exist. The Lord Chancellor takes the case of the ordinary Judges. He says that there is a well-established rule with regard to them. They are Judges, and the Lords of Appeal here are also Judges. Therefore, if the Common Law Judges are excluded from politics it follows that the Lords of Appeal here, being Judges, are also to be excluded. That is not the way in which the Law of England has been built up. Every one admits that it does not apply to all Judges. It does not apply to Recorders; and the question we are concerned with is, whether the rule, as the Lord Chancellor conceives it, is one which has any foundation in the law of Parliament, or in those conventions which have been accepted by members of the Judicial Tribunal. Surely there is all the difference in the world between the two cases.
The administration of justice on appeal in the House of Lords was for a long time, down to 1874, vested in the House of Lords, and in practice it was administered by the. Lord Chancellor of the day and the ex-Lord Chancellors. I am speaking now only of recent times. If you go back no further than the eighteenth century you will find that many cases were decided by the votes of Peers who had no pretensions to have studied the law or to have held any judicial office. In one very notable case the House of Lords acted, and some nineteen Peers voted with Lord Thurlow in opposition to the judgment that was appealed from, and the matter was carried by their votes, if I am not mistaken, in opposition to the opinion of some of the other lawyers who were in the House.
But what I wish to point out is this, that the House of Lords, in the administration of law on appeal, acted through the Lord Chancellor and ex-Lord Chancellors in the recent times with which I was dealing, and that every one engaged in the administration of law in this House was perfectly free to take part in politics, and did take part in politics. Then it was felt that the House, for the purpose of appeals, wanted strengthening, and the Lords of Appeal were added in 1874. Suggestions had been made—they are familiar to many of your Lordships—that the House of Lords should be replaced by a Court of 954 Appeal of a more strictly professional character. That suggestion broke down, and one reason why it broke down was that Scotland insisted that Scottish appeals should be taken only in the House of Lords; and it is to the House of Lords-that appeals conic from Scotland and England.
Then the Lords of Appeal were appointed for the purpose of strengthening the House, and they were, for this purpose, appointed members of the House. They came in and took part in the continuing traditions of the House of Lords, to help those who had hitherto administered the law, who took an active part in politics and whose right to take part no man denied. I say, therefore, that there is every presumption that these Lords of Appeal came in on exactly the same terms, as to the right to take part in polities, if they so pleased, as the Lord Chancellor and the ex-Lord Chancellors who had preceded them, and who, by themselves, had discharged the duties of the appellate jurisdiction of this House. There is no, trace of any condition restricting the Law Lords from a right to take part in debates, and I think our debates might have been a good deal poorer if there had been any such rule. Those who have listened— I am sorry to say I did not have that privilege, front an unavoidable cause—to the remarks made by Lord Sumner in the course of a highly contentious measure lately before your Lordships, will agree that the debates would have been poorer if there had been any law which excluded a Peer, because he was a Lord of Appeal, from taking part in debates of a political character.
Where is it that this convention, to which the Lord Chancellor has repeatedly referred, is found? I think he said there was a clear convention. I say there is no, such convention. There is no trace of it. The whole history of the House of Lords is against the idea that there was any such convention when it was deliberately decided that the House of Lords should go on—with the reinforcement of a certain number of Lords of Appeal. The whole argument of the Lord Chancellor was really based upon the view that because Judges of the High Court are debarred from taking part in politics therefore the Lords of Appeal should also be debarred. I say they came here to strengthen this House. They succeeded to all its traditions and to all the rights of Peers. If there had been any intention to limit their rights and put 955 them on a different platform as regards freedom of discussion from other Peers, it would have been signified at the time. It was never heard of, and the idea that in some way or other Lords of Appeal are -on a different footing from other members of your Lordships' House who take part in the proceedings of this House is, I submit, one that has no solid foundation.
Reference has been made to some very distinguished Lords of Appeal who took part in the proceedings of this House in matters which were strictly political. The truth is that each Lord of Appeal must decide for himself whether the occasion is -one which calls for his intervention, and what the nature and character of that intervention should be. I protest against the idea that there is any rule excluding any members of your Lordships' House from taking part in your debates and exercising the full privileges which other Peers possess. I understood in one case, from -what the Lord Chancellor then said, that he conceded this as regards debates in your Lordships' House. I may have been mistaken.
§ THE LORD CHANCELLOR
The noble and learned Lord was mistaken. I did not say I conceded it; I said that, founding myself upon fifty years' unbroken practice, as I read the history of those fifty years, I claimed that a convention had arisen and existed. I said that the case of the noble and learned Lord would, in my view, be treated in the House as a whole as a sufficiently individual one to encourage them to waive the convention which in my clear view existed.
§ VISCOUNT FINLAY
I certainly supposed that he based his speech the other day upon the noble and learned Lord's appearance upon a public platform. The question with which I am dealing is the right to take part in debates, even of a political character, in this House.
§ THE LORD CHANCELLOR
If the noble and learned Lord wants to know exactly what I said, he can read the OFFICIAL REPORT. I said that undoubtedly there was the theoretic right, and that it was for your Lordships, and for your Lordships alone, to decide upon its scope and applicability; but that in my view, founded upon fifty years' unbroken practice, the convention had arisen that Law Lords should not take part in our debates of a political character.
§ VISCOUNT FINLAY
I think that if the Lord Chancellor will re-read what he said, he will find that it is open to the assumption that what he was objecting to was the noble and learned Lord's appearance upon a public platform, but I now perfectly understand that the Lord Chancellor is consistent, and that he contends that a Lord of Appeal ought not to take part in a political debate in this House. I can only say that the rule is one that has no authority. He says there is a convention. Who are the parties to the convention, and when was it made? It has been very much honoured in the breach, and, indeed, I do not believe that there is any such convention. Many Lords of Appeal may have followed the practice which Lord Dunedin has said has been his own, but I contend that the action or inaction of certain Lords of Appeal cannot bind other members of the House who happen to belong to that category, and that to put the Lords of Appeal, because they are Judges, on the same footing as the Judges of the High Court, with regard to whom there is an unbroken tradition of centuries that they do not take part in politics, is to misconceive the real character of the case.
The doctrine which the Lord Chancellor has enunciated as regards there not being a perfect right and freedom to take part in political debates is a novel one, and to my mind it is, in point of law, erroneous. It is for each Lord of Appeal to decide for himself how far he ought to go in dealing with politics. As regards any supposed distinction between speeches in the House, covered by the privilege of Parliament, and speeches outside the House, not covered by any such privilege, I cannot imagine that any such distinction could be maintained. It is, I suggest, as open to a Peer who happens to be a Lord of Appeal to express his views on politics outside the House as it is open to him to express them in the House. It must be left to his own good feeling, and to his own sense of what is proper, to decide how far he should go and what he should say.
I shall not enter into any criticism of what the Lord Chancellor has said in regard to the speech of my noble and learned friend, Lord Carson, at Burton. I have not read anything except a very abridged report of that speech, and that only in a very cursory way, and if I were to go into 957 the speech I should certainly need to read it with greater attention and in a much fuller report. I remember one criticism made by the Lord Chancellor which struck me as rather an odd one. He said that the attack was not only bitter but dull. As to bitterness everyone must judge for himself, but I think everyone must make some allowance for the provocation which a loyal Irishman like my noble and learned friend has received from certain recent occurrences in that country. The other criticism was startling. The Lord Chancellor said that it was not only bitter but dull. I have heard many charges brought against my noble and learned friend, Lord Carson, but I never heard him accused of dullness, and the charge carries its condemnation on its face. He is never dull, and on this occasion Lord Carson was exercising the right which he supposed himself to possess of making a political speech, although outside Parliament. I regret that I find myself differing from the Lord Chancellor on a question of law of this kind, but entertaining the views that I do entertain, I have thought it right to put them before the House.
§ EARL BEAUCHAMP
My Lords, if I venture to intervene for a few moments in this discussion, it is because I think it is a matter which concerns not only the Law Lords who are members of your Lordships' House but also your Lordships as a whole. And, if I may make a personal remark, it is that the melancholy fact is borne upon me as I look along these benches that there is hardly any member of your Lordships' House who has had so long a time in it as I have myself, and I therefore have a considerable experience of debates as they are conducted in this House. Of course, my noble friend—I do not see him here—who leads the Opposition has been a member of this House longer than myself, and the noble Marquess, Lord Lansdowne, has also been a member longer than I have, but, if I remember aright, he was not present at those great debates to which I would venture to ask your Lordships' attention for one moment, the debates of 1893. I think at that time the noble Marquess was serving his country either in Canada or in India. I remember perfectly well those great debates concerning the same great constitutional question as that which has been before your Lordships' House during the last few weeks. I came up to the House and attended these 958 debates, being all the time only too much under the influence of the eloquence of my noble and learned friend on the Woolsack and of my noble and learned friend, Lord Crawford. I listened to all those debates, and I heard speeches which remain among the greatest examples of oratory to which, I suppose, I shall ever have the privilege of listening.
I would venture to say that there never was so clear a breach of the conventions and customs of this House as that which has been committed by the noble and learned Lord, Lord Carson, during the last few days. From that time to this I would venture to say that the custom has been well observed. There was one instance, referred to by the noble and learned Viscount on the Woolsack, that of Lord Robertson, who made a speech on Free Trade. I confess that that speech appealed to me from beginning to end, and I heartily applauded it, but I also remember that there was a general sense amongst men of all Parties in your Lordships' House that it would have been better if he had not made it. Since that time there has been one other example. The noble and learned Lord whom I see sitting by the table made, if he will allow me to say so, an unfortunate impression upon a great many people with the speech which he made upon India last year, or the year before, and I would venture to ask the noble and learned Lord whether he thinks that since he made that speech he is so acceptable to the people of India in the case of Indian appeals which come before your Lordships' House.
§ EARL BEAUCHAMP
I will not say that the noble and learned Lord is alone in his opinion, but it is certainly not shared by the vast majority of the people of India, and that seems to me to be of even greater consequence. The fact of the matter is that it is well-known that it is exceedingly rare, almost unknown, for members of your Lordships' House who are Law Lords to take part in political debates. If your Lordships will allow another personal reminiscence, for ten years I had the privilege of listening to all the debates which took place in this House from the time when the Liberal Government came into office in 1905, until 1915. Great subjects were debated, and both sides brought up their greatest 959 orators, but on no occasion was there intervention on the part of any Law Lord comparable to that made by Lord Carson. I would even venture to appeal to a negative argument in this case—the argument that we were dealing with Irish questions, that there were Irish Lords of Appeal sitting in this House at that time, and that they did not take part in the discussions, although, according to the doctrine laid down by the noble and learned Viscount, they would have been perfectly well able to do so.
§ THE EARL OF MIDLETON
I hope the noble Earl will forgive me if I remind him that Lord Atkinson took repeated part in the Irish debates at that time. I think that should be placed on record.
§ EARL BEAUCHAMP
The noble and learned Lord, as has been referred to in the course of this debate, did make speeches, especially I think on the Irish land question, but it is perfectly obvious that there is more than one way of intervening in these debates. It is possible, even on a question of acute political controversy, to make a speech so judicial in tone as in no way likely to affect a subsequent decision when delivered by a noble Lord sitting in a different capacity in this House. It is, I think, quite clear, too, that there is a very real distinction between making an attack upon the Government in this House and making it upon a political platform in the country. A party political platform in the country is where the noble and learned Lord made that speech of which we complain most deeply, and I regret it particularly from the point of view of the future of your Lordships' House. There are difficult times ahead, and there will be grave questions raised as to the reform of your Lordships' House. It seems to me most important that we should keep distinct the legislative and the judicial aspects of the House.
§ EARL BEAUCHAMP
I am, of course, quite prepared to deal with that question, though it will make my speech longer than I had meant it to be. The position of the noble Viscount on the Woolsack is perfectly well known to the Constitution. He always has been a political officer. No doubt the noble Marquess has read the 960 Report issued by Lord Bruce's Committee, and will remember that in that Report there are definite recommendations that the office of the Lord Chancellor should be divided, so that the functions which he administers as a Minister of Justice should be separated from those which he administers as a member of the Cabinet. I think it is upon those lines that the thought of the country is proceeding at the present time, but in any case it is well known to every body that the position of the Lord Chancellor always has been entirely different from that of the Law Lords, who occupy judicial seats in this House. I remember that great complaint was made at one time against those belonging to my own Party, that they did create, or were supposed to create, a prejudice against your Lordships' House as a legislative body, because it had given certain judicial decisions which were contrary to the welfare of certain classes in this country Accusations of that kind, whether well founded or not, are far more likely to be made in the future if the unfortunate example of Lord Carson is followed.
§ THE MARQUESS CURZON OF KEDLESTON
My Lords, I think your Lordships will expect me to say a word or two before this very interesting debate comes to a close. With one observation of the noble and learned Lord, Lord Carson, who opened the discussion, I am sure we shall be in agreement, and that was when he remarked, in his opening sentences, that no personal flavour whatsoever attached to this discussion. It was true not only of his speech but of the speeches of all those who followed, and a debate more free from any such complexion, or argued upon a higher level of political expediency and historical precedent, I think your Lordships can seldom have listened to.
It may be thought that there is small place in a discussion like this for anyone who is not a lawyer or a Judge, or who is destitute of judicial experience, to intervene, and undoubtedly it is the case that this debate has, naturally enough, been almost entirely in the hands of those who have either been Law Lords, or who are Law Lords, or of those who have occupied the most distinguished position which the House offers to a public man—namely, the tenancy of the Woolsack. It is not, therefore, for a moment, from that point of view that I would presume to have any 961 right to address you at all, but I think that in the position which I happen to occupy I am entitled to look at this matter from the point of view from which those of us who are not lawyers and not Law Lords probably do regard it—namely, the point of view of the traditions, customs, dignity and honour of this House. It is from that point of view, and that point only, that I venture, in a few remarks, to deal with the matter.
The noble and learned Lord, Lord Carson, said that there is no rule dealing with this case, and the same remark was repeated later on by Lord Finlay. That is quite true. It is really remarkable how small a part of the traditional and conventional observance of your Lordships' House rests upon written or printed rule. If you take the Standing Orders of the House, this little book which I hold in my hand is so concise in character, and suggests so many apparent omissions, that the commentary written upon it and published in the same form occupies double the length of the Rules themselves, and unquestionably in these Rules these is nothing which has any relation at all to the problem we are here discussing. But everybody knows that outside these printed Rules there has grown up, in the passage of time, and there does exist, and we all observe, a great unwritten code of traditional observance, based on custom, and based on more than custom—based on a sense of expediency and right, and consecrated by the almost unbroken observance not of years but of generations.
Does this present convention (because it is as a convention that I am arguing it) fall within the class of these unwritten rules? I think it does, my Lords, and I am astonished to find anybody in your Lordships' House, and most of all anybody occupying the position of an ex-Lord Chancellor, seriously advancing the opposite contention. This convention that Law Lords and Lords of Appeal should not ordinarily take part in our political discussions and should dissociate themselves from any evidence of partiality or political partisanship, I have always understood to be the counterpart of the convention, also unwritten, by which all of your Lordships who are Peers of Parliament refrain from taking part in the proceedings of this House when it sits in a Judicial capacity. I believe that any of your Lordships are entitled to come into this 962 House in the morning when the House is sitting in its judicial capacity and take your seats among noble and learned Lords ranged on those benches, and are not only entitled to take your seats there but are entitled, I believe, to participate in the judgment, and to vote, if they choose to do so, if it is a question of voting.
§ THE MARQUESS CURZON OF KEDLESTON
The whole House is so entitled. And that this is the case is shown most emphatically by the printed Order Paper of your Lordships' House, I take the record of yesterday, when the House sat for Judicial business and I see that it begins as follows—The Lord Buckmaster—Sat Speaker.That is to say, the House assembled, and he for the moment occupied that position. Prayers then took place. Then follows the list of the Judicial business that was undertaken. And finally we conic to the words—House adjourned during pleasure;—not "Court adjourned during pleasure," but—House adjourned during pleasure; and resumed by the Lord Chancellor"—indicating that any one of its, had we chosen to do so, might have participated in that session, although we refrained from doing so. I do not know what Lord Finlay would say, but that is not found in any Rule. On the contrary, if you look at the Rules the reverse is, if not stated, at any rate implied. But it is the most striking illustration of art unwritten convention, by which we all hold ourselves bound honourably to abide.
Upon what does this convention rest? It rests, as I have always understood, upon the sound principle, as it appears to me to be, that our Judges generally should be free from any suspicion of holding views, or expressing views, of any political bias. And the only remark I would make upon that, which has been accepted by everyone in the debate, is that upon that principle rests the respect with which the Judiciary is regarded, and the immunity which it enjoys.
The question, then, assumes this form: Does this general canon of abstention, 963 which is imposed upon the Judges as a body, and which has not been disputed in this debate, apply to the Law Lords in particular and the Lords of Appeal who have seats in your Lordships' House? The noble and learned Viscount, Lord Finlay, just now said that he could find no authority for this convention. If he meant no written authority, no doubt, because it is the essence of these conventions that they are not written. But surely the authority that he seeks lies in the degree of continuity in the practice which has been observed and in the general sense of the vast majority of your Lordships' House. Can there be any doubt upon that point? The noble Earl who spoke last, Lord Beauchamp, referred to a length of experience which I hope he will not mind my saying that his appearance belies. I can only refer to an experience, I think of thirteen years, in your Lordships' House, but many years before I had the honour of a seat here I used to attend the proceedings of the House, and certainly during the whole of that time I have never heard it questioned by a single individual that this convention not only existed, but that only in one or two cases had it been broken, and that in cases where it had been broken there was a general sense that the offender was severely to blame.
I recall very well the case of Lord Robertson. I was a member of the House of Commons with Lord Robertson. I was a great personal friend of his, and often did I enjoy those extraordinarily powerful dialectical speeches which he delivered in that House. I heard the speech in question in this House, and I remember thinking how foreign it was from all the traditions which had always been mentioned to me of the practice that ought to prevail, and did prevail here. And that that was so is shown by the universal uneasiness which that speech excited. I use the word "uneasiness," rather than "reprehension," because, when a man, even in contravention of ordinary practice, makes a strong political speech, those who agree with his political opinions are very much pleased, whether he is acting in a conventional or an unconventional way. Those, on the other hand, who disagree with him are apt very severely to reprobate his conduct. But on that occasion Lord Robertson was, I believe, almost universally condemned by the sense of this House, as well as of the outside public.
964 Take other cases. I am not taking the cases of the other exceptions to which the noble and learned Lord, Lord Carson, referred. I need not deal with the case of Lord Cairns, because it was answered and sufficiently exposed in the reply of the Lord Chancellor. I need not deal with the case of Lord Macnaghten, which has already been dealt with. But I would like to take the inverse aspect of the case, and recall my own experience in connection with some of the Law Lords who have had seats in this House. On many occasions I have spoken to them and asked them why they did not take a greater part in our debates. By that I do not mean our political debates, but our debates generally. And they have invariably told me that the convention that no political remarks or speeches were allowed from them—a convention which they readily accepted—had an almost atrophying effect on their powers of speech in general, and that they became reluctant to address this House.
One case in particular I remember. There used to sit at the corner of that bench a noble and learned Lord, Lord Parker, who was an old friend of mine, with whom I had been associated from boyhood, and, knowing the remarkable intellect that he possessed, I was always urging him to take part in your Lordships' proceedings. He resolutely declined to do so, because he said the force of this convention was not only just in itself, but binding upon him. And the only occasion on which—and that after some persuasion from me—I ever succeeded in inducing that noble and learned Lord to take a very active part in an important debate was on an occasion about two years ago when we were discussing the League of Nations. Late in the evening, just after dinner, he made a most powerful contribution to that discussion. Well, I do not think anybody can say that was political. The subject, perhaps, had political consequences, but he addressed himself to it as a learned lawyer and as an impartial man, and I am certain that nothing would have induced him to depart from that canon of action. I recall many other Law Lords in this House, and one and all they observed, I believe, the rules which were so admirably expressed by Lord Dunedin at an earlier stage this afternoon.
And if the noble and learned Viscount, Lord Finlay, is right in saying that each one of those noble Lords is the custodian 965 of his own conscience, and is at liberty to act in the manner which he thinks fit—which, of course, cannot be disputed; in the last resort that liberty is enjoyed by every man—it is a remarkable thing how few of them have taken advantage of the particular liberty which has been claimed for them by my noble and learned friend.
Has this practice been observed quite as strictly in recent times as it used to be? I think not. I think that many of us have observed a certain—and a growing—deviation from the strict adherence to the old convention to which I have referred. I am a great admirer of my noble and learned friend, Lord Sumner—I do not know whether he is in the House at the moment. I have admired his speaking since we were undergraduates at Oxford together, and occupied the chair of the Union in that place in succession. But I own—I will not pursue the subject further, because he does not seem to be here—that I have listened to some of his speeches, never without admiration but with a growing feeling that he was setting an example inconsistent with the strictest observance of the convention to which I referred and which, wonderful and powerful as are his contributions to debate, was insensibly sapping the basis of our old orders.
Now, I come to the case, if I may, of my noble and learned friend, Lord Carson. He said just now in his speech that I had welcomed him, on the first occasion that I spoke after his appearance here, to your Lordships' House—that is true—and that I had not accompanied my welcome by any reminder of the obligations imposed on him by the judicial capacity—
§ LORD CARSON
Perhaps the noble Marquess will allow me to say what I did say. I said that on my being made a member of this House and a Law Lord, he had welcomed me and had expressed the hope that I would take part in the debates.
§ THE MARQUESS CURZON OF KEDLESTON
Yes, and nobody who knows the eloquence of the noble and learned Lord would fail to have extended such a welcome to one whose presence here is a great addition to our debating strength. But on the occasion to which I thought he referred, and which evidently he has not in mind—
§ THE MARQUESS CURZON OF KEDLESTON
—I did accompany my welcome to him by a reminder that he came here in a judicial capacity, and that reminder, I may recall to the House, he met with a wealth of invective and personal vituperation directed against myself to which I can only say that I bitterly regretted that the rules of the House did not enable me at the moment to make what I think would have been an effective and certainly a very strong reply.
§ THE MARQUESS CURZON OF KEDLESTON
However, the noble and learned Lord came here, and in coming here everybody recognised that he came not only as the powerful exponent of views held by a large number of his countrymen, but as the leader of a cause. He came here with powers of declamation nurtured in a long school of forensic practice, and, viewing the circumstances in which he came here, every one of your Lordships, whether they agreed with him or not, rejoiced, to use the words of the Lord Chancellor, that an exceptional measure of liberty (I do not use the word "toleration" because it might sound patronising) should be left to the noble and learned Lord. I am bound to confess that in my view he has interpreted that liberty with a considerable degree of latitude, importing into our proceedings a declamation and invective and methods of interruption in debate which are somewhat foreign to the ordinary proceedings of your Lordships' House. But even so, often as I have heard the matter discussed, no one here was anxious to take the matter up, everyone felt how deeply the sentiments and convictions of the noble and learned Lord were involved, and I think there was no one of us who did not feel that an exception to the convention, if we believed the latter to exist, existed, or at any rate admitted of some justification, in his case.
Then the noble and learned Lord went down to the country and made this speech at Burton-on-Trent. I have read the speech, and I confess that it filled me with even greater surprise than some of the speeches we have heard from the noble and learned Lord in this House. 967 The noble and learned Viscount on the Woolsack made it quite clear, I think, that a distinction could be drawn, and was drawn by him, between the speeches delivered by the noble and learned Lord in this House and speeches delivered in the country. And he made it clear that that distinction rested upon the fact that the noble and learned Lord speaking here speaks as a Lord of Parliament, and speaking in the country speaks either as a Judge or as a partisan. I do not draw quite the same distinction as the noble and learned Viscount on the Woolsack did between the two performances, holding, as I do, that a Law Lord acts unwisely if he uses the liberty that has been claimed for him in this House. But wrong as I think would be the use of that liberty here, I think the offence is undoubtedly aggravated if a speech of the character to which I am referring is made in the country.
Much has been made of the position of the Lord Chancellor, and I am astonished to hear that anybody attaches any validity to the argument that the Lord Chancellor, as the highest judicial officer in the country, is himself contravening this convention if he makes political speeches either in this House or outside it. As the noble and learned Viscount on the Woolsack said, it is an anomaly. But it is an anomaly inherent in our practice, and, I think, entirely justifiable in the circumstances of the case. To what does it actually amount? It means this—that it is thought well and right that in the Cabinet, which is the highest executive and administrative body in the country, you should have present the head of the Judiciary of England. Correspondingly, it is thought to be an advantage to the Judiciary that their highest officer should have a voice, and a powerful voice, in the administration of the Government of the day.
In practice, what does it mean here? It means, of course, that one of the most powerful spokesmen of the Government is always the man who sits upon the Woolsack. In my own recollection, I have heard Lord Herschell, certainly one of the most effective political speakers on behalf of the Government of his day when he was Lord Chancellor; I have heard Lord Loreburn, who concealed a fine power of partisanship under the most judicial demeanour and who impressed your Lordships' House with the latter rather than the former quality almost more than any- 968 body I have heard speak from that part of the House. I have heard other speakers. The noble and learned Viscount, Lord Haldane, when he was Lord Chancellor, rushed to the assistance of his Government more particularly when the military policy for which he had been responsible was assailed. And we none of us thought that was wrong. We were all of us delighted that a man of his brain and his experience should take charge of those matters. The same applies to the noble Lord, Lord Buckmaster. This House would be a dismal place if Lord Buckmaster were relegated to judicial subjects. His rising on any question is always a sign of crowded benches, and, if I may speak for myself, of personal delight to me. If these new canons are to be pushed so far that the mouths of these eminent men are to be shut, whether they are in the Government or in Opposition, this House will become an almost impossible place and would be in need of reform, for that if for no other reason. That, however, is trifling with the arguments based on the position of the Chancellor or ex-Chancellor.
My case, which can be put in a sentence, is this—that in spite of what the noble Viscount, Lord Finlay, has said, there does exist this convention. It is an unwritten convention and is not to be found repeated in any written or printed rules. It is a convention sound in itself, based upon long if not immemorial practice, seldom broken, and, when it has been broken, the infringement has been regarded with general disapprobation if not with open censure by your Lordships' House. I hope we shall adhere to that convention. I hope we shall not be forced to translate it into a written or printed formula. If once we begin to do that with our Rules it may carry us very far. This House has subsisted in the main upon the sort of instinctive recognition that we do observe certain rules, not merely of honour but of practice, and if those rules are continuously broken, of course we shall be driven to the alternative which the noble and learned Lord, Lord Carson, himself had in view. We shall be driven to draw up an actual Rule. We shall be driven to lay down that when a noble and learned Lord accepts an appointment he accepts certain obligations in doing so. It would be much better not to find ourselves driven to that point. It would be much better, while recognising the freedom of independent action which was claimed for 969 the learned Lords by Lord Finlay, to urge upon them in future to exercise that liberty in a manner which is consonant with what I bel1we the great majority of the House will regard as a sound, just as it is a very long, tradition.
§ THE MARQUESS OF SALISBURY
My Lords, I hope your Lordships will allow me to say one word lest the opinion should get abroad that your Lordships who are not lawyers agree with the noble Marquess in the remarks that he made just before resuming his seat. I do not regard this matter from the purely legal point of view, and upon that side of the question I think too much has been said already in the debate that has taken place. I am thinking of your Lordships' House in transacting the great legislative work which is an obligation upon you, and I say that the contributions of the noble and learned Lords of Appeal, like the contributions of Lord Chancellors and ex-Lord Chancellors, are of the greatest value to the House.
I would like, if I may, to take an instance. We have been engaged lately in a very controversial measure in regard to Ireland. How were the two Parties who were in controversy drawn up? There was on the one side His Majesty's Government, assisted, if I may say so, on this occasion more or less by the Liberal Party, and there was on the other side a remnant of the remains of the great Unionist Party. It was our business, as far as we could and to the extent of our abilities, to lay before your Lordships certain reasons why we thought provisions in that Bill required amendment. Let us suppose that the rule which the noble Marquess the Leader of the house and the noble and learned Viscount on the Woolsack have sought to lay down had prevailed. What would have been the result? In arguing the case, on one side there would have been arrayed not only the great lay talent I see in front of me, but an immense legal talent. There would have been the Lord Chancellor, a host in himself, a valiant man, not very impartial in our debates whatever his impartiality may be elsewhere. Then there would have been Lord Buckmaster, Lord Haldane, and all those noble and learned Lords to argue the legal points. I regret to say that because of his country's call, my noble and learned friend, Lord Finlay, was elsewhere.
There would have been nobody in your Lordships' House to put the necessary 970 legal points on behalf of those who criticised the Irish Free State Bill if the rule of the noble Marquess and of the noble and learned Viscount on the Woolsack had prevailed. That would have been a distinct loss to the debates of your Lordships' House. The issues would not have been properly presented to the House. The legal argument would all have been on one side. I do not mean to say that your Lordships are entirely governed by legal argument. I am glad to say that you are good enough, occasionally, to listen to lay Peers as well as to learned Lords. But we need not go further than that instance to prove that it is a good and salutary rule that the legal talent in your Lordships' House should place itself at the service of this House. I am not criticising for one moment my noble and learned friend of a very long date, Lord Dunedin, who does what he thinks right. Personally, I am exceedingly sorry that he does not take a greater part in the debates in this House. I am sure that it would have been for the benefit of the House if he had done so.
Speaking as a lay Peer, I should regret more than I can say if learned Lords did not take their proper share in the debates in this House. They are Peers; they are equals in all respects. It is the very nature of the House of Lords that we are all equals. We must not make these distinctions. We must not say that one noble Lord is to take part in debate on one class of subject, and that another Lord shall take part in debate on another class of subject. Suppose that were to apply to the Bishops, for example. Does any one suggest that the right rev. Prelates are only to talk about ecclesiastical matters? Were that so we should lose a very great deal that we derive from the contributions that are made to our debates from time to time by the most rev. Primate, the Archbishop of Canterbury. I do not believe that the suggestion made by the noble Marquess is really in accordance with the interests of the country and of your Lordships' House.
Let me say one word with regard to this matter of impartiality. It is said absolutely truly that all noble and learned Lords in the House are impartial when they sit judicially, but it is said further that people outside may suspect them of partiality, or of not being impartial. Let us consider the matter. Suppose I were an ignorant suitor who did not know the 971 great standard of impartiality which really prevails, and I had to consider which was more likely to be impartial, let us say the Lord Chancellor or Lord Sumner. How would the ordinary average man approach the subject? He would say: "Here is Lord Sumner, who has been engaged in the law all his life, who never was a member of the House of Commons, who never took part in Party politics until he became a Lord of Appeal, whose mind has been saturated with the law all his life, and with the impartial character which belongs to the law." Then he looks at the Lord Chancellor. He would find a most distinguished man—one of the most distinguished men in your Lordships' House. He has been a member of the other House of Parliament, and I am sure he will not mind my saying that he was in that House an extreme and most formidable partisan. He fought like a man there until he was promoted to the Woolsack. He has not ceased to be a partisan now. He takes part not merely in the debates in your Lordships' House, but is to be seen all over the country speaking, and—if I may use such an expression in your Lordships' House, with respect to a Lord Chancellor—even wire-pulling.
What would the outsider think when he compared my noble and learned friend, Lord Sumner, with the noble and learned Viscount on the Woolsack? Which of the two would he be likely to expect to be the more impartial when he came before him as a suitor, having those two records to guide him? I do not think there can be any doubt as to the answer. Of course he would be wrong. The Lord Chancellor, I am quite sure, is absolutely impartial when he sits upon the Woolsack. Still, having regard to all these circumstances, when I hear the Lord Chancellor solemnly reprove Lord Sumner, I confess it does make me feel that it is a pity the Lord Chancellor has not a more impartial record before he takes upon himself to criticise the noble and learned Lord, Lord Sumner.
A great deal has been said in your Lordships' House about tradition. I remember Lord Cairns, I remember Lord Selborne, I remember Lord Herschell, and though they were not more able than the Lord Chancellor, I must say that if they were alive to-day they would be surprised to see the sort of way in which a modern Lord Chancellor carries out the traditions of his office.
§ THE MARQUESS OF SALISBURY
In that case I apologise. He has been an extreme partisan, and the Lord Chancellors of the past did not take much part in Party polities.
§ THE LORD CHANCELLOR
Three days in close debate were occupied in discussing whether Lord Cairns or Mr. Disraeli should lead the Unionist Party. I could give him half a dozen more cases. The noble Marquess should refresh his memory of those familiar cases.
§ TIIE MARQUESS OF SALISBURY
I was not speaking of ex-Lord Chancellors. I was speaking of Lord Chancellors, and I was absolutely correct in what I said. Upon the point of ex-Lord Chancellors I entirely agree with the noble Marquess that we should lose enormously if we lost the assistance and contribution to our debates of the two noble and learned Lords who sit on this bench. That is perfectly true, but I am quite sure that you would not be able to satisfy any lay audience that it is right and proper to allow the Lord Chancellor, the noble and learned Viscount, Lord Haldane, and Lord Buck-master and Lord Loreburn, to take part in Party politics in your Lordships' House or upon the platform, while noble and learned Lords, who happen to be Lords of Appeal, are not to be allowed to do so. You would not be able to satisfy any lay audience that in one case the impartiality of your Lordships' House as a Judicial Court is not infringed, and that in the other case it is infringed. It is contrary to common sense.
If it should be thought better, as it may be, to separate the Judicial members of 973 your Lordships' House altogether from politics, then there would have to be a general Rule that no ex-Lord Chancellor should be allowed to take part in Party politics any more than any other Law Lord. It would be a profound mistake; but I am certain you would not be able to satisfy any ordinary body of laymen, or the public outside, that there is any real validity in the distinction between the two cases. I do not speak for a moment of salary; in this connection the question of salary is beneath contempt. The great point is that we know and believe that men of their distinction, whether they are Lord Chancellors or Law Lords, are above any possible suspicion that when they sit as Judges they are anything but impartial. I agree that there is a dignity which attaches to their office which they themselves will bear in mind, but I hope that the legal members of your Lordships' House will contribute, with all other Peers, to the counsels and decisions of your Lordships' House and add to the debates by which those decisions are reached.