§ Order of the Day for the Second Reading read.
§ VISCOUNT SANKEY
My Lords, I beg to move that this Bill be now read a second time, and first will your Lordships' House allow me to apologise for the delay in bringing this matter forward. I am very sorry that the noble Lord, Lord Middleton, has put down a Motion for 592 the rejection, but I hope that neither he nor any other member of your Lordships' House has been inconvenienced by the postponement. At the beginning of February, and after a long and interesting debate, this House passed a Resolution that the "trial of Peers by Peers had outlived its usefulness." As a consequence your Lordships granted leave for the introduction of a Bill to carry out the purpose of the Resolution, and gave it a First Reading. In these circumstances, it would not be becoming to trespass upon your Lordships' time or patience by a prolonged speech, or by tracing the history of the procedure, or by referring in detail to the events of the recent trial of Lord de Clifford. Permit me, however, to state in summary form the arguments which have already been placed before your Lordships.
The House is well aware of the reasons for this procedure. The bureaucratic and judicial reforms of Henry II and Edward I rendered necessary the creation of a number of royal officials in order that the jurisdiction of the King's Courts might be extended. The great Barons of the realm not unnaturally were apprehensive of the powers of this new class of official, and they insisted upon reserving to themselves the trial of any one of their number accused of treason or felony. But those reasons no longer exist. Your Lordships do not now run the risk of an unfair trial before men opposed to you. Then again under the old Common Law the consequences of a conviction for treason or felony led to results which were very disastrous to the hereditary system, both with regard to property and the succession to property, by reason of the doctrines of attainder and corruption of blood. But these consequences no longer exist because they have been put an end to by the Forfeiture Act of 1870.
No criticism was made of the argument—because no criticism could be made of the argument—which pointed out the many disadvantages, even to noble Lords themselves, from this procedure. It was clear that a Peer could not waive his privilege of being tried by Peers. It was clear that the same facts might point to either the commission of a felony or the commission of a misdemeanour, and even if a noble Lord were acquitted on the charge of felony in this House he might have to stand his trial on the charge of misdemeanour either at the 593 Central Criminal Court or at one of the Assizes. It was clear that the distinction between felony and misdemeanour was nowadays an arbitrary one. For example, if a noble Lord stole a silver matchbox worth, say, 15s., that would be a felony, for which he would be liable to be tried in this House. On the other hand, supposing in connection with companies he swindled the public out of hundreds of thousands of pounds, that would be a misdemeanour for which he would be liable to be tried at the Central Criminal Court. No criticism was made—because no criticism could be made—of the statement that the trial of a Peer for felony at the Central Criminal Court would be equally as fair as the trial of a Peer for a misdemeanour at the same Court. Further, it was pointed out that there was the additional safeguard in a trial at the Central Criminal Court that there was a right of appeal to the Court of Criminal Appeal from that Court. And those who criticised that right of appeal must for the moment have forgotten the reasons for the establishment of the Court of Criminal Appeal, and the very great satisfaction which it has given.
Let me now turn to the lessons of the last trial. There was no dispute as to the disadvantage arising from the great number of Peers who might take part in such a trial. On the last occasion some eighty-five Peers sat to hear the ease, but there is nothing to prevent between 700 and 800 Peers assembling to; form a Court. The great number of Peers now existing places this procedure on an entirely different footing from that which it occupied in mediæval times when only about fifty were summoned to your Lordships' House. As the noble and learned Lord, Lord Atkin, said, the objection from a judicial point of view to this tribunal is that it consists of a large and fluctuating body of persons, to the number of over 700. Nobody supposes—nobody can suppose—that all the Peers would attend in any one case, but nobody knows what Peers will attend or how many will attend. If a trial appealed to a particular class of person it might well be that you would find that feeling reflected both in the number and in the persons of those who attended.
It was pointed out also by the noble and learned Viscount on the Woolsack that an accused Peer is under a disadvantage. 594 In a trial for felony before the ordinary Courts of the realm the prisoner has a peremptory right of challenge to anybody who is summoned or called to serve on the jury. He can absolutely prevent such a person being a member of the jury. There is no such right of challenge in this House. Up till now the reasons which have been placed before your Lordships, or the arguments which have been placed before you, are, as it were, of a private character. An endeavour has been made to show that the reasons for the procedure no longer exists and that an accused Peer is at this disadvantage—he does not get the rights either of challenge or of appeal which a fellow subject who is not a Peer obtains when charged in the ordinary Courts of the realm.
With regard to the last trial, first let me draw your Lordships' attention to the great expenditure, one might almost say the great waste, of judicial time that this procedure entails. On December 12, the date of Lord de Clifford's trial, there were hundreds and hundreds of our fellow subjects waiting for their eases to come on in this, that or the other Court. Some of them had waited for months. As the noble and learned Viscount on the Woolsack pointed out, in this particular instance the administration of justice was largely paralysed for one day only, but it might have been for weeks if the trial had lasted longer. On this December 12, when so many of our fellow subjects were waiting for their cases to come on, fourteen Judges were taken from their ordinary work to come and try this case in this House—the Lord Chancellor, the Lord Chief Justice, five Judges of the King's Bench Division and seven Law Lords. Was that expenditure of judicial time justified? One is almost tempted to ask: Was it fair on our fellow subjects who had been waiting for so long for their cases to come on at the Courts?
Now let me turn to the expenditure of public money. Was this expenditure of £700 justifiable when the trial might have been conducted for £35? I am aware that there has been some criticism of the £700, but I do not agree with it. On the contrary, in my view, the thanks of your Lordships are due to the officials who prepared the setting for this trial and who exercised a wholly admirable 595 discretion. Then, again, some criticism was made of the use of the Royal Gallery for this trial, but in this case also I prefer to trust to the officials. Besides, let me ask this: Supposing in future you have 500 or 600 Peers assembled to hear a case, where do you propose to have the trial, and what then will be the expenditure? What was the only argument advanced in favour of this form of procedure? It came from those who said, "Oh, do not abolish an ancient privilege." But, my Lords, consider a moment. Is it really a privilege? Are you giving up very much by passing this Bill? Are there not, as has been pointed out, counter-balancing advantages in a trial before the ordinary Courts of the realm? And, even if you are surrendering something, ought you not to do so in the interests of saving judicial time and in the interests of saving public money?
I was very sorry to hear one noble Lord speak of this Bill as undermining the privileges of the House. Nothing was further from my intention. But does that noble Lord really think that the removal of a privilege so doubtful or so seldom exercised will affect the structure and the stability of this House? It is impossible to conceive of such a thing. Someone might say: "But, oh, if you pull out one brick you may bring down the whole edifice." That depends upon what the brick is, and whether it has ceased to be a support and has become what may very well be a potential danger. Besides, if we are to indulge in metaphors, let us adopt another from building operations. This House is an ancient and picturesque structure. It has stood the storms and stresses of centuries and, in the opinion of many, it has afforded shelter for policies which have eventually turned out to be right and proper in the interests of the country. But does this House differ from any other old building? Does it not want repairs from time to time? Do not let us talk about this Bill undermining the privileges of this House. Rather let those who think this House is of service to the country do their best to underpin this House and make it more secure. I can appreciate the views of those noble Lords who say they do not like a piecemeal reform of the constitution of this House, but this Bill has nothing in the wide world to do with reforming the constitution of this House. The whole object of this Bill is to improve 596 the administration of justice, to simplify it and render it more even.
Let me for a moment come to the Bill itself. The distinguished legal gentleman who drafted it for me has produced a Bill which is a model of what such Bills should be. It consists of two clauses only, both of which are of the simplest possible character. I shall only refer to Clause 1:Privilege of Peerage in relation to criminal proceedings is hereby abolished.The object of subsection (2) of Clause 1 is to make sure that the privilege goes whether it is a territorial privilege or whether it is a privilege which is personal to the Peer himself. Let me turn to the Schedule. The Schedule looks very formidable, but as a matter of fact it is of the simplest possible character. All it does is to repeal in various Acts of Parliament certain things which are consequent upon the abolition of the privilege. May I give one example only? If your Lordships will turn to page 2, the first page of the Schedule, "Enactments Repealed," you will see mention of "I Elizabeth, Chapter 2 "—I give that as a type—which is "an Act for the Uniformity of Common Prayer and Divine Service in the Church, and the administration of the Sacraments." That was an Act of Parliament of a somewhat peculiar character. It was passed in the first year of the reign of Queen Elizabeth, and it imposed a penalty upon persons depraving the Book of Common Prayer by plays, songs, or rhymes. For the first offence the fine was 100 marks; for the second offence the fine was 400 marks; and for the third offence one was liable to the forfeiture of all one's goods and to imprisonment for life. Section 9 of the Act says that for the third offence—that is, one involving imprisonment for life and the loss of all one's goods—a Peer shall be tried by his Peers. There are similar other Acts where these words have been repealed, but I do not think I should be justified, unless anybody wishes it, in going through the Schedule at greater length. I beg to move.
§ Moved, That the Bill be now read 2a.—(Viscount Sankey.)
§ LORD MIDDLETON, who had given Notice that on the Motion for the Second Reading he would move, That the Bill 597 be read 2a this day six months, said: My Lords, before I say a word upon this Bill, may I be permitted to say that it is a matter of great satisfaction to see the noble and learned Viscount back in his place? I trust that the vigour with which he has moved the Second Reading of this Bill is evidence that he has recovered his health. May I also express the hope, with great respect, that his recovery is complete and permanent? Your Lordships will appreciate that I have put down the Motion for the rejection of this Bill with a little trepidation, not by any means because I am conscious of any weakness in my case, but because I, a very humble Back-Bencher and layman, will find myself in opposition to noble and learned Lords who have attained to the highest positions that the legal profession has to offer. Furthermore, I know that your Lordships always give closest attention to those who speak with intimate and professional knowledge of subjects under discussion.
§ The circumstances would seem to be favourable to the noble and learned Viscount and the noble and learned Lords who will support him; but, on the other hand, I see no reasons to be apologetic. The deliberations that your Lordships are engaged on this afternoon are dealing with a matter which may affect any member of your Lordships' House, except the Lords Spiritual, and may also affect their ladies. With great respect I contend that laymen, and the backest of Back-Benchers, have a perfect right to opinions on this matter and a right to express their views. If I had had the advantage of conversation with the noble and learned Viscount before this debate—if we had talked these things over—I think that perhaps his speech might have been cast on rather different lines, and I hope I may convince both him and your Lordships that I am an ardent reformer. I have not the slightest wish that the anomalies which exist to-day in regard to trials by Peers should be perpetuated.
§ Perhaps I may now reply to the criticisms that he has made and to the arguments that he has used to-day and in the previous debate. It seems to me that the arguments against trials by Peers fall quite naturally into two headings; first of all arguments with reference to the anomalies that have arisen from attempting to use obsolete machinery; 598 and, secondly, arguments with reference to the public demand for the abolition of these trials and so on. I would like to deal as briefly as I can with the first category. The noble and learned Viscount this afternoon, and on February 4, when ho moved his Resolution, dealt with the composition of the Court, which he criticised severely, and he gave figures showing the numbers of noble Lords of various orders who can sit in judgment on Peers—over 700. The figures are most imposing—I think he used the word "astronomical" in the last debate. I, for one, certainly do not quarrel with that description. Actually eighty-five Peers attended at the last trial; but I agree that it is preposterous that it should be possible for there to be a most unwieldy Court. I cannot see why the suggestion that my noble friend Lord Mansfield made in the last debate should not, be adopted, so that there might be a panel of Peers to try a Peer—a panel either elected by noble Lords entitled to sit or else nominated by the Lord High Steward. If this were done, is there any reason why there should not be the right of challenge? It seems to me that there should be. It struck me at the last trial that, supposing there had been a very close vote, supposing the noble Lord, Lord de Clifford, had been convicted by a very small majority, that might have been very unfortunate. There would have been a gross injustice, for example, if he had been convicted by the votes of noble Lords who, through age and infirmity, had been able to hear very little of the evidence. Therefore, if there were a right of challenge, I think that probably those who were known not to be able to hear very well would be eliminated.
§ Much has been made of the expense involved by these trials. I do not want to dwell on that point very long, but surely there could be a drastic pruning without in any way destroying the dignity or efficiency of the Court. Indeed, if there were a reduction to a panel that in itself would bring a great economy, though perhaps some loss to the tailors. And surely it is not really necessary to provide accommodation for many hundreds of spectators. Then the fact has been mentioned by the noble and learned Viscount of the attendance of four Puisne Judges to advise the Court on points of law. It is quite obvious, and I think it was very well brought out in the last 599 debate, that their attendance is unnecessary. Could we not reform the composition of the Court and leave them out? In the last debate the noble and learned Viscount gave us the names of members of your Lordships' House, who are also Judges, who sat on the Court, and presumably the work in the Courts in which they usually sit was delayed. Well, if there were a panel—this is another advantage—surely the number of Lords who are also Judges could be so regulated as to reduce to a minimum the dislocation of work in the Courts.
§ Then it has been mentioned that there is considerable delay before a Peer is brought to trial, but I do not think it has been established that there need be much, if any, more delay in the case of the trial of a Peer than of anyone else. The Long Vacation frequently causes delay in the trials of other persons, and there may be a delay in the trial of a Peer if Parliament is not in session. But it is laid down that the Court of the Lord High Steward may be constituted in such circumstances, though the noble and learned Viscount on the Woolsack preferred not to resort to this expedient in the trial of Lord de Clifford. Several other arguments have been advanced, but I think I need mention only one which is worthy of your Lordships' consideration now, and that relates to the anomalous definitions of misdemeanours and felonies. Much has been made of the absurdities that exist, and the noble and learned Viscount mentioned one again this afternoon, which showed that for comparatively minor offences a Peer must be tried by his Peers but by another Court for offences that would seem to be far more serious. Of course this is all wrong, and the easy way out is to abolish these Courts altogether, because it would save a great deal of trouble. But those of us who would retain this form of trial are unconvinced that it is either impossible or undesirable to reclassify offences. Would it be impossible to introduce elasticity so that the necessity for two trials taking place could be avoided, supposing that a noble Lord were acquitted of a felony but from the evidence he appeared to be chargeable with a misdemeanour? I am told that that would be perfectly feasible.
§ May I turn now for a moment to the other category of arguments? Here I 600 shall take up very little of your Lordships' time, because they do not amount to very much. The noble and learned Viscount on the Woolsack endeavoured to convince us in the debate in February that the public demanded the abolition of this form of trial, and he mentioned numerous letters he had received, largely anonymous he admitted, which pointed the way of public opinion. He told us that both he and the noble Lord, Lord de Clifford, had been violently abused for waste of public money and time. I read a good many comments in the Press at the time on trials of Peers, and if my memory serves me aright nearly all the criticisms were based on those anomalies which I have suggested could be remedied. In regard to the waste of money, I was amazed when we were told in the last debate that the cost of the trial amounted to between £700 and £800. It had been freely stated that the cost would amount to between £10,000 and £12,000, and no wonder the public blinked. Quite candidly, I do not think the public cares in the least whether this form of trial is abolished or perpetuated. I believe that football matches and the domestic affairs of film artists are of far greater interest to the public. I am convinced that there is a cast-iron case for reform, and I for one, while most whole-heartedly supporting any measure brought in to sweep away cobwebs that have accumulated through the ages, would like to see the principle remain with the machinery repaired and brought up-to-date.
§ I wonder whether the noble and learned Viscount entertains any hope that this Bill, if it survives Second Reading, will reach the Statute Book unamended. I am quite sure that a good many noble Lords may vote for the Second Reading but at the Committee stage will insist upon the Bill being made inapplicable to charges of treason. If that is so, I wonder what the noble and learned Viscount and his friends will do about it. Will they countenance trials for treason taking place encumbered by all the anomalies that exist, or will they institute reforms? If they do institute reforms and if all the absurdities and anachronisms are dealt with faithfully, then I submit with all humility that nearly all the reasons for abolishing this form of trial for other 601 crimes will have disappeared. Nearly all the arguments that have been advanced so far in favour of this Bill have been arguments against obsolete machinery. Any other arguments have been very few and painfully weak. I hope, my Lords, that you will not give this Bill a Second Beading. I have said nothing about my reasons for wishing to retain this system duly amended, because I have already taken up too much of your Lordships' time, and in any case I know that at least one other noble Lord who will follow me will deal with that matter. If it seems necessary for me to add anything I believe I have the right of reply, and if I do reply I can assure your Lordships that I shall do so with exemplary brevity. I beg to move the Amendment standing in my name.
§ Amendment moved—
§ Leave out (" now ") and at the end of the Motion insert (" this day six months ").—(Lord Middleton.)
§ LORD CORNWALLIS
My Lords, this is the first occasion on which I have had the honour of addressing your Lordships' House. I can assure your Lordships that it is with very considerable trepidation that I rise to address you on this very difficult and intricate subject, and I know that your Lordships will extend to me the courtesy and forbearance always accorded to inexperienced beginners when they take part in your Lordships' debates. I should not have ventured to speak to-day if I had not a very deep conviction that not only a great principle in the administration of our English justice but also something which is a tradition in our English life is in danger of being swept away. I hope that your Lordships will not think that I wish to defend the principle of trial of a Peer by his Peers because in the year 1678 one of my most illustrious ancestors was tried at the Court of the Lord High Steward. He was tried for murder and was acquitted, and I think the wisdom of their Lordships' judgment was corroborated by the fact that he was afterwards made a Privy Councillor and became First Lord of the Admiralty. I am not, my Lords, looking for favours to come!
I had not the honour of hearing the debate on February 4, but I have carefully studied the Report of that debate 602 and it seems to me, as a complete layman, that the question then was taken to be really a matter for lawyers. With every and all possible humility I may say that I do not think it is anything of the sort. It is a vital principle which is at stake, not merely a question of legal technicalities. It is obvious that a man's right to be tried by his peers, in whatever station of life, is a most desirable principle, and I believe it has been assumed to be part of our legal system. Yet, my Lords, we are now to be asked to say that a Peer of the Realm must be distinguished from his fellow subjects and must not be tried by his peers at all. Perhaps we may be told by the noble Lords who are supporting this Bill whether trial by peers no longer exists amongst us and that the right of an ordinary subject to be tried by his peers has ceased. If so, the application of that most excellent principle if allowed for Peers of the Realm might seem to constitute a privilege. If this is so, is it not now your Lordships' duty to consider how you can extend it again to the rest of His Majesty's subjects rather than abolish it altogether?
The noble Lord, Lord Middleton, in a previous debate, explained the real basis of trial by peers and showed how it has been largely abolished. I do not think any of the distinguished lawyers who spoke on the Motion in February dealt with that very important aspect of the matter. It seems to me to be the crux of the whole issue before us. In the previous debate the noble and learned Lord, Lord Atkin, is reported to have made this statement:I think nobody can deny that the privilege that Peers enjoy, if it be a privilege, which I very much doubt, is in fact a violation of the ordinary principle that all men are deemed to be equal in the eyes of the law.Let us accept for the moment his statement that all men are equal in the eyes of the law. This, of course, does not mean that all men are deemed to be equal. If it did the law would indeed be an ass. The statement surely means that the same law applies to all. Surely, trial by peers is no violation of that principle. Are the usual middle-class jury the only set of individuals capable of giving a correct decision? Are grocers and shopkeepers the only persons to be allowed the privilege of being tried by 603 their peers? Must everyone be tried by grocers to ensure "equality in the eyes of the law "? It surely does not violate that equality to say that the persons qualified to hear the evidence, ascertain the facts, and then to decide whether a man is guilty or not guilty should be drawn from that man's own class. Peers of the Realm are surely no less capable, but probably more so, of giving an honest decision. The inequality that the noble Lord suggested really does not seem to exist.
May I go further and suggest that equality in the eyes of the law has nothing to do with the Court in which a man may be tried. A small man asserting his rights against another for a sum of less than £100 goes to a County Court, and if there is a jury it is one of eight people. Yet, on exactly the same facts, if the sum is over £100 the claim goes to the High Court, where a more highly paid and probably more experienced Judge and a jury of twelve try it. Surely, nobody suggests that this contrast violates the principle of equality in the eyes of the law. We certainly do not mean that, to achieve equality in the eyes of the law, every man must be tried before the same tribunal or that every case must be litigated in the same sort of Court.
Some noble and learned Lords, if I read the Report of the last debate correctly, seemed to imply that the right of trial by Peers was not a privilege. Do they regard a privilege as mere benefit to oneself, regardless of responsibility, function or service? The right of immunity beyond the common advantages of other people connotes, of course, observance of special duties. An office must have privileges in order that the holder may perform his duties. It is a sad sign of the age if the essential relation of privilege to service has been forgotten. Many noble Lords have had to perform in the past, and may have to perform in the future, duties outside this House which call for courage and independence, and which may bring them unpopularity and perhaps necessitate their protection. It is also quite within the bounds of possibility that the time may come when the people will look to the Peerage as their only saviour. Some despotic Government may seek to make treasonable that very duty of the Peers to protect the people. If Peers are to carry out their duties, their right of trial 604 by Peers in cases of treason is absolutely essential. Surely, what we should assert is the right of trial by his peers for every Englishman. If some noble Lords are of opinion that this right does not exist to-day, then, so far from agreeing to abolish our own right, Peers should seek to protect it as the right of all, to preserve it amongst ourselves and to extend it throughout the realm. I trust I am not in any way presuming if I remind your Lordships that you yourselves, and not only lawyers, are the custodians of the traditions and the essential principles on which our society must be based.
It has been stated by noble Lords—and the noble Lord who has moved this Motion for the rejection of the Bill referred to the statement—that "public opinion" has criticised this question of privilege. The noble Lord referred to the noble and learned Viscount who sits on the Woolsack as having received anonymous and ignorant letters. Those letters were in the last debate—somewhat surprisingly, I think—referred to as expressing public opinion. I had the honour to serve with the noble and learned Viscount, the Lord Chancellor, when he presided so extremely ably over the governing body of the cricketing world, and I am sure he will remember that no very great weight could be attached to some of the sensational attacks made on that body. May I assure him too—and he knows it—that he is not the only target for anonymous letters? When I used, very indifferently, to perform on the cricket field, I received many anonymous letters, sometimes extremely libellous ones, from disgruntled followers of the game who had objected to things I had done. These libellous and anonymous letters no more represented the feelings of the cricketing public than the letters which the noble Viscount received represent public opinion on the matter before us. It is a serious reason for fear if to-day our most valuable possessions should be liable to destruction at the hands of anonymous letter-writers who do not represent public opinion, and of those who are perhaps making capital out of the expenditure of a few hundred pounds in the recent trial. Is it at such mercy that our priceless possessions have been placed?
605 May I thank your Lordships for your patience and forbearance while I have tried to place my feelings before you? May I crave your indulgence for one moment more while I refer again to the trial of my noble ancestor? The noble and learned Viscount, Lord Sankey, who is sponsoring this Bill, informed us during the last debate that Lord Nottingham was the Lord High Steward at that trial, and described him as "a great master of equity." May I quote the words of that great master of equity, which the noble Viscount did not quote on the last occasion? In his address as Lord High Steward at that trial, Lord Nottingham used the following very wonderful words:The privilege of this kind of trial and judicature is a part of the true greatness of the English nobility; it is an eminent and illustrious privilege; it is a solid point of honour and dignity. It is a privilege that no neighbour nation ever had, and a privilege this nation never was without ….But, my Lords, as this is a privilege as ancient as monarchy, so we have found by many old experiences that it cannot be taken away without the dissolution of that Government. Therefore this is one of those many ties by which the interest of the nobility, as well as their duty, has obliged them to the service of the King.Those words are surely just as true to-day as they were in 1678. May I express the hope that your Lordships will remember them to-day when you cast your votes, and that you will not lightly part, in some cases with your birthright, and in other cases with your right of ennoblement? I beg to support the Motion for rejection.
§ LORD SNELL
My Lords, my first duty is, I am sure on behalf of the whole House, to congratulate the noble Lord who has just spoken on a most successful maiden speech and to express the hope that on many future occasions he will take part in the debates in your Lordships' House. I had not intended to speak in this debate, but it is perhaps right that those of us who represent the Labour Party should, in a very few words, try to express our attitude towards the Motion which the noble Viscount has introduced. We regard the Peer, of whatever grade, as a citizen, not less and not more. We believe that in matters of the administration of justice he is entitled to no consideration beyond that which is appropriate to any other subject of His Majesty the King. We feel that many reasons, many arguments may be 606 extended to confuse the issue between a misdemeanour and a felony, and I quite expect to hear the lawyers this afternoon have a field-day of enjoyment on those issues. It is not a matter on which I can venture to express an opinion, though I believe that Snell on Equity has some claim, at least, to be heard!
Our claim on equity is just that, as citizens of this country, we all have equal rights and equal duties. Our view is that no man, whatever he may be, ought to claim to be put in a special position. I cannot help feeling astonished that in your Lordships' House this afternoon it should be seriously argued that the Judges of His Majesty's Courts are not good enough to try any of your Lordships who may offend against the law. Let me say that, so far as we are concerned, if any of us come under the review of the law—which is not an impossible thing—we should require for ourselves no greater right than to appear before one of His Majesty's Judges, in whose experience and whose desire to administer the law we should have complete satisfaction and trust. As to the noble Lord who has just spoken, I hesitate; to say a word of criticism on a maiden speech, but I do not share personally his terror of being judged by a grocer. I really think that a grocer might know generally the issues between right and wrong just as clearly as any member of your Lordships' House. So I rise to say just these few words and, on behalf of my colleagues, to add that we shall support the Motion of the noble Viscount who has introduced the Bill.
THE EARL OF CORK AND ORRERY
My Lords, this is the first occasion upon which I have ventured to address your House. I might perhaps explain that this is not entirely due to my modesty but to the fact that, being still on the active list of the Navy, I am debarred from taking part in the debates on subjects which are most interesting to me, such as defence and foreign affairs. In the circumstances I crave the indulgence which I have noticed is always extended to one who addresses your Lordships' House for the first time, and I rather feel I may need it. At first sight it may appear somewhat presumptuous in one who has so recently taken his seat in this House to get up and criticise one of the most ancient privileges, if it is a 607 privilege, which members of this House still enjoy, but it is just because I am a new-comer that I hope there may be some slight value attaching to the remarks which I shall make.
Having sat through the last debate, and listened to it, and having refreshed my memory of it, I felt at the end that the ordinary man's view of this question had never been expressed in this House. We have heard legal luminaries on the subject, and also historians, but the ordinary man's view, as I see it, has not been expressed. Therefore I am going to try to say how it appeared to me as an ordinary man, fresh from outside, watching the trial of Lord de Clifford. I watched it with very great attention, and also the opening ceremonies. I had no preconceived ideas. I had possibly, or probably, a natural bias towards a ceremony which I thought might add to the prestige and dignity of an Assembly of which I had just had the honour of becoming a member. At the end I felt very disappointed. I do not think that the proceedings added either to the prestige or the dignity of your Lordships' House. I rather thought they detracted from both, and I had a sort of feeling that I had seen an exhibition of a steam hammer taken to crush a walnut, that the end was an anti-climax, and that there had been much ado about nothing.
With the point which was made in the former debate by a noble Lord, on the value of ceremony, pageantry and tradition, I was fully in agreement, and I felt that it was a very great point to make in defence of such ceremonies as occur at the opening of Parliament and the opening of the Law Courts, and the installation of civic functionaries. There can be no doubt of the value of these ceremonies in certain functions. They have their psychological value. In my own service the holding of a Court-Martial is attended with a considerable amount of pomp, but there is this about it, that the same ritual is observed whether the offender is an ordinary seaman or an admiral. There is to my mind all the difference between paying homage by these ceremonies to the opening of Law Courts for the administration of the law for all and sundry, and the doing so in the case of a particular form of Court, summoned to try, in the particular instance, a young man charged with an 608 ordinary motoring offence—attended, unfortunately, in the particular case, with loss of life—with which the ordinary Law Courts are quite capable of dealing rapidly and effectively every day of the week.
If this pageantry were reserved for the opening of a Court of this House which was to try a member of this House on such a grave charge as treason, and if that Court could administer punishment in excess of what could be administered by the ordinary Courts of Law, then I should support the Amendment; but I am informed that a Court of this House has no power to award greater punishment than the ordinary Court of Law can award. Therefore it seems to me that the forming of this special Court does not help in the administration of justice but rather detracts from the ordinary Courts of Law, which have cases with which they are competent to deal removed from their jurisdiction. I very much doubt whether ceremonies such as that at the trial of Lord de Clifford are in the interests of justice. To me the atmosphere of that Court seemed to be all wrong, and to stand up before that large company must have been a very difficult trial for the witnesses, especially for the two young women, one of whom had seen her brother and the other her fiancé killed. I rather doubt whether they were at their best as witnesses in the circumstances. So, my Lords, having as a result of my experience come to the conclusion, as also I believe have other people outside this House, that the trial was not in the interests of justice and did not add to the dignity or prestige of this House, I propose to vote against the Amendment and to support the Second Reading of the Bill.
THE EARL OF LIVERPOOL
My Lords, I am going to be very brief in addressing the House, but in the first place may I be allowed to address the noble and gallant Earl who has just spoken, I believe for the first time in this House? It gives me great gratification, because he is the son of my first commanding officer, and though I could not say anything against my commanding officer I entirely disagree with the arguments of his son. There is one point which has not been mentioned in the House this afternoon, and that is with reference to the 1901 trial. I well recollect—my father 609 was in this House at the time—being told that the leaders on each side of the House, Lord Salisbury, I believe, and Lord Kimberley, gave the advice, when these points were raised on that occasion, as they have been raised now, to "leave well alone." Nothing was done then, and there was no Resolution in the House. My feeling is that the same holds good to-day, and that that principle should remain. I am afraid that I do not agree entirely with the noble Lord who moved against the Bill, because I think that if once you start doing anything against the structure of this ancient edifice you will bring it down wholesale, and I think the suggestion of the noble Viscount is a brick which will go out of the foundation of this House. I am quite aware that many of my associates on these Benches disagree with me, but it has always been a Liberal principle, I believe, that a man should state his own views irrespective of what other Liberals might think.
The noble and learned Viscount suggests that great expense has been incurred. Surely no expense ought to have been incurred if we had sat in this Chamber. Although a great point has been made that 720—or is it 722?—Peers could have sat, there is not the slightest doubt that not a seventh of them would have come. I saw only the other day that the average attendance at your Lordships' House does not exceed 84. Therefore it is most unlikely that more than 100 Peers would have come on any such occasion. Furthermore, I do not know whether the noble and learned Viscount suggests that the Peers at the present day are less well behaved than our forefathers. Does he suggest that we are likely to have a plethora of these trials in the future? If so, there might be something to be said for his Bill; but it is a fact, I believe, that there have been only three such trials in the last hundred years, and we know that the four Judges of the High Court all said that this particular trial should never have taken place at all.
I have risen really for one other reason. I believe that the noble and learned Viscount would have done an enormous amount of good to the community if he had gone to the bed-rock, and pointed out what causes this class of trial. I sit as Chairman of a local bench, and very much the same difficulty arose a year ago from a coroner's 610 jury bringing in a verdict of manslaughter. If the noble and learned Viscount had done something to alter the law as regards coroners and their juries, I am sure he would have done a great benefit to the community at large. On the occasion I refer to, when a verdict of manslaughter had been brought in, I could not alter the charge. I knew perfectly well how a Judge at the Assizes would deal with it when it went before him: he did not even hear the case, he dismissed it. It is the same with the case of Lord de Clifford. Lord de Clifford ought never to have come before your Lordships' House. I know some of your Lordships have voted for Resolutions for the reform of this House, but if you start reforming you are going to knock the whole place down, and I do not think you will create anything as good as you have at the present time. For that reason I am going into the Lobby with the noble Lord opposite.
§ THE MARQUESS OF SALISBURY
My Lords, I do not wish on the present occasion to give a silent vote. It does not seem to me to be becoming to do so, and I therefore ask your Lordships' leave-to say in a very few words why I think on the whole it would be wiser to pass this Bill than to reject it. I was very glad that a noble Lord called attention to the fact, which is indeed quite evident, that the occasion of the use of this privilege has been very rare indeed for a hundred years. It is not a matter therefore of the greatest importance. An occasion which has only occurred, I think, three times in the last hundred years cannot be said to carry with it any very great importance. And the only matter of interest is to show that at any rate noble Lords are not inclined to come in contact with the law against felony. That is all that you can judge from that consideration. Well, it is a rare thing to occur and the question is whether it is worth preserving. If it had been possible to carry on the old institution, the trial of a noble Lord by his Peers, well, I think it would have been a pity to have disturbed it. But it is conceded that it cannot be allowed to continue in its old form.
I need not repeat what the noble and learned Viscount has said—the difference in the constitution of your Lordships' House from what it was hundreds of years 611 ago is apparent. You cannot have a trial by 600 or 700 Peers; it is not very easy to have a trial by eighty-five. I was present during all the proceedings in the case of Lord de Clifford, and though I do not think that trial lacked at all in dignity or in justice, yet it was a rather cumbrous procedure, as your Lordships will remember. On the point of law which arose we were not too able to decide in the Chamber in which we sat; we had to proceed to this House where we had to discuss it; and of course it might have been in a trial that had to be adjourned over and over again, and it would have presented very great difficulty. I feel sure that matters cannot be left exactly as they stand. Indeed my noble friend, to whom I listened with the greatest interest, in moving the rejection of the Bill said so himself. My noble friend, as you would expect him to do, most frankly and candidly admitted that the present state of things as it stands is not defensible. There were anomalies, there were anachronisms that must be dealt with. That makes a great difference.
If you could have gone on in the way that tradition had handed down, and no noble Lord could be put in peril except by the general consent of the whole body of the Peerage—that was the old theory—that was certainly a protection of a very important kind. But it is admitted that that is impossible. All my noble friends admit that. And I admired the ingenuity of my noble friend in suggesting modifications of the law so as to make it possible. He suggested, for instance, that there should be a re-classification of crimes, so that we should henceforth get rid of this anomaly that felonies are to be triable but a misdemeanour is not to be triable. I do not know whether my noble friend has gone into that subject with care, or whether much more learned Lords than myself have considered it, but I should think that it would be a matter of very great difficulty indeed to distinguish between those things which ought to be triable and those things which ought not. Of course there is a great difference in heinousness between one crime and another, but to say that some categories of crime are to be triable by one Court and the others not seems to me extremely difficult.
612 Then there is this question of numbers to which I have already referred. My noble friend said we could get over that by having a panel; that is, by having what we know as a Committee of your Lordships' House to act for us. I confess that would be a change which would almost rob the whole procedure of its merits. There is a great deal to be said for the whole body of the Peerage trying an issue, but it is another matter to have that issue tried by a select body, say, of nine noble Lords who are to be the Court. On what principle are they to be picked? Not like a Committee of your Lordships' House is ordinarily picked, by the intervention of those ubiquitous gentlemen whom we call the Whips. Are they to be picked according to age, or experience, or rank? On what principle can they be picked? I think I know how they would be selected if such a form were introduced. People would say: "It is noble Lords learned in the law who must be the panel." I am not suggesting that my noble friend would say so, but I think that is how it would work out. The Lords of Appeal in Ordinary would be the panel. I have the most profound respect for the Lords of Appeal, but if I did commit a felony—and I earnestly hope I shall not!—I do not know that I should prefer to be tried by the Lords of Appeal in Ordinary rather than by the ordinary Judges of the land. I do not see a tremendous distinction there between the one and the other.
It does seem to me, once you begin to touch this structure and try to adjust it to modern conditions, that you are launching into an almost chartless sea of difficulty. If you could leave it alone, well and good; but if you cannot leave it alone and that is admitted—I note dissent from one of my noble friends, but I think the great majority of your Lordships will agree that we could not go on exactly as we have gone up to now. If that is so, I think it is very difficult to go on with the system at all. Let me say one final word as to the interests of the prisoner. I confess that if I were a prisoner, I think on the whole I should be likely to obtain more lenient treatment from the ordinary Courts than I should receive from such a body as we are contemplating. I do not say it ought to be so, but I have a strong feeling that whoever it may be of your Lordships 613 who served on the panel, they would feel: "We must take care of one thing—we must not treat one of our colleagues on the side of clemency; we must give him the full measure of justice." I think we should say: "It would be very wrong of us to err on the side of leniency when we are trying one of our own colleagues."
§ THE MARQUESS OF SALISBURY
I am entirely for justice, and no one who tried the case would be essentially unjust, but we should, if anything, lean upon the severe side rather than the lenient side. Therefore, in the interests of the prisoner—for the noble Lord would be a prisoner in that case—I think he is likely to get the treatment which he would wish in the ordinary Courts rather than before such a panel as has been suggested. Do not let us use exaggerated language about this. I heard a noble Lord say just now that if we abandon this right to be tried by our Peers, if we commit a felony, we are sacrificing our birthright. Good Heavens, my Lords! Is that really our birthright—if we commit a felony we are to be tried in a particular way? Does your Lordships' House really depend upon that as its foundation and its defence? We are here for great public functions. These matters which occur three times in a century do not belong to what is most important. Although it is with the greatest reluctance that I differ from my noble friend, and although I am the last man in your Lordships' House to wish to injure anything which has come down to us by tradition, yet on the whole, as things stand, I am afraid I must record my vote for the noble Viscount.
LORD BALFOUR OF BURLEIGH
My Lords, I think the speech which has just fallen from the noble Marquess has done a great deal to reduce this matter to its proper proportions. After listening to the eloquent speeches which were delivered by the noble Lord who moved the rejection, and by the noble Lord, Lord Cornwallis, I had begun to wonder whether this matter was not very much greater than I had supposed before coming down to the House. I should hesitate to inflict even a few minutes' speech on the House after what has fallen from the noble Marquess if it were not 614 that I consider this is a matter in which Back-Benchers are well justified in expressing their opinions to the House. There has been a certain amount of discussion in the course of this debate as to whether or not this privilege is an advantage or a disadvantage to the Peer. I do not think it really matters which it is, because I cannot see that the retention of this privilege is justified whether it is an advantage or a disadvantage.
The noble Lord, Lord Snell, has said—and I think it is difficult to disagree with him—that before the law every man is a citizen and has equal rights and equal duties. If that be so, you cannot possibly maintain that your Lordships are entitled to an advantage should you commit a felony. If, on the other hand, it is, as I believe it to be, a disadvantage not to be able to waive your privilege, I see no greater reason for maintaining it. I cannot sec why we should have to maintain what may be a picturesque anachronism if it is to the personal disadvantage of the noble Lord concerned. But, to cut it short, surely the real thing at stake is the position and influence of your Lordships' House. References have been made to the possibility that, if this privilege is withdrawn, you are taking from the structure a brick which might result in grave damage to the fabric. I am quite certain that is not a well-founded point of view. Your Lordships will agree that the maintenance of the influence of your Lordships' House in the country is one of the most important things we all of us have to strive after to-day. I am perfectly certain that the popular idea that a Peer has a privilege in the circumstances in question is one that may be harmful to your Lordships' House.
The noble and learned Viscount, in moving his Bill, was at pains to assure your Lordships that this matter has nothing to do with the reform of the constitution of your Lordships' House. That may be so in a technical and legal sense. I regard it from a popular point of view, and the reason why I shall support the Second Reading of this Bill is that my own profound conviction with regard to the reform of this House is that we ought to seek it by a piecemeal process as we have failed to get it by a wholesale process. We are all agreed in this House that this House requires reform. What we have 615 failed to agree upon is the method. We have had several attempts to do it at one sweep and they have all come to nothing. Here is a very small beginning that will be properly regarded as an improvement to your Lordships' House, and for that reason I think it is one which we ought to support. The noble Lord in moving the rejection of the Bill argued very ably that the machinery could be improved, but I think at least two of the improvements in machinery which he suggested—namely, the question of the panel and the question of the differentiation of the different kinds of offences—would be such as to require legislation. I speak subject to correction, but I do not see how you could introduce changes of that sort without legislation. Does the noble Lord really and seriously suggest that we should pass legislation through both Houses of Parliament in order to maintain a privileged position for Peers who have committed a felony? Really that is not a tenable proposition, and for that reason and for the other reasons I have given to your Lordships I am perfectly certain that your Lordships' proper course is to vote for the Second Reading of this Bill.
§ THE EARL OF HALSBURY
My Lords, I addressed the House in the debate on February 4, and therefore I do not intend to detain your Lordships very long this afternoon. I have heard nothing more than I did then to alter my view that this is a very unfortunate Bill to have brought in, and I certainly shall record my vote against the Second Reading. An argument which has been put forward this afternoon, and which was also put forward in the earlier debate, is that there was an unnecessary expenditure both of money and of judicial time upon these trials. With regard to money, as the noble Earl, Lord Liverpool, suggested, why on earth did not the trial take place in this Chamber instead of fitting up another one? The previous trials used to take place in this Chamber, though I agree that in Lord Russell's time the trial did not take place in this Chamber. I do not know why; and why the extra expenditure should have been gone to in the case of the trial of Lord de Clifford no one has ever been able to suggest. Apart from that expenditure, it would not have cost a penny more than it would have cost at the Old Bailey. Then it is suggested that there 616 was a waste of judicial time. The only Judges who were asked to attend were four of His Majesty's Judges in order that their advice might be given to your Lordships upon any point of law. What would have happened if there had been a trial at the Old Bailey? There would have been one Judge who would have given his time at that trial, and if there had been a conviction, it is almost certain in these days that there would have been an appeal to the Court of Criminal Appeal, where at least three other Judges would have given another day to the hearing of the appeal. That being so, where is the waste of time by having four Judges here to give their advice?
When you come down to the real question, what is the reason for this Bill? Does anybody suggest that these trials have not worked well? I have not heard that suggestion made by anyone. They have worked well; therefore why do away with them? It is said: "Your Lordships ought not to be troubled with a trial of this kind, mounted with all this panoply, in order to deal with small and rather unimportant cases." I quite agree. I quite agree that the last case which is quoted as an example is one which, as the noble Earl, Lord Liverpool, said, never ought to have been sent for trial at all. That was the verdict of your Lordships' House. It never ought to have come to trial either before your Lordships or before any other Court. That being so, you cannot really draw very much argument from it. What is the real answer to the point that this form of trial ought not to be used for small cases? It comes down to the old question. Times have altered, yet you have still got the old distinction between felonies and misdemeanours under an entirely wrong classification, and, as has been said here, you get certain crimes which are felonies that are really not very grave, and other crimes which are misdemeanours that are of the greatest gravity. That ought to have been looked at, and to bring in this Bill before having looked at that matter is putting the cart before the horse.
What ought to be done is to have a reclassification of felonies and misdemeanours, to decide what you are going to make felonies to-day and what you are going to make misdemeanours. I agree that that will require the careful 617 diligence which the noble and learned Viscount is so very well able to give. It will take time to make that reclassification. I am not suggesting that it could be done easily, merely by a stroke of the pen. The reclassification will require careful diligence, but it is not impossible. Once you have got that reclassification, with the really serious crimes classified as felonies and the minor crimes as misdemeanours, there will not be any argument left with regard to bringing the serious crimes before your Lordships' House, because it will be the felonies that are the serious crimes and it is only the felonies which come before your Lordships' House. That seems to me, if I may make the suggestion, the first matter that must be dealt with before your Lordships are asked to deal with the question raised by this Bill. At the present time we are dealing with a lot of matters which many of us must think are neither suitable for trial here nor for trial in any Court. These very serious crimes have no right of challenge because they are misdemeanours, and the smaller crimes, some of which are felonies, have this right of challenge. Surely, before we know what the reclassification is to be, we are being asked to abolish something without knowing what the law is to be and what the law must be.
I do not think I shall find that there will be any contradiction amongst noble and learned Lords who may follow me, seeing that this question of reclassification of felonies and misdemeanours has been under grave consideration for a great number of years. It has been felt for a long time that the present state of affairs in that respect ought to receive careful attention. Once this is done, why should not this form of trial of Peers by Peers remain as it is to-day for felony? I feel that if that had been done first then we should know very much better how to vote on this particular question, but at present I can only describe this as a very slovenly attempt to alter matters and one that should be rejected. We should wait, if anything is to be done at all, until we know what the true classification of felonies and misdemeanours ought to be." Until that has been done we should not seek to do away with something which I say has worked very well throughout the centuries and, therefore, should be left as it 618 is. For these reasons I certainly intend to record my vote against the Second Reading of the Bill.
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
My Lords, on the last occasion on which this matter was debated, on February 4, it was my responsibility to state to your Lordships' House the view taken by His Majesty's Government on the Motion which was then brought forward for decision, and to-day, again, I am asking your Lordships to bear with me for a few minutes when I define what His Majesty's Government are going to do about this Bill, and also when I say a few words, I hope not repeating what I said last time, in regard to the view which I at any rate take as to the merits of the Bill. On the last occasion the Government, through myself, explained to your Lordships' House that this question of the privilege or responsibility, whatever you call it, this right and obligation of the Peers to be tried by the Peerage in cases of felony or treason, was a matter which ought to be decided by the free and unbiased opinion of this House itself and that it was undesirable that the Government as such should take sides in a controversy of that character, and that on that ground we had made up our minds that so far as the Government were concerned no member of the Government would vote upon the Motion which was before the House. We would leave it for the House itself to decide as it thought in its wisdom best to do. As a result of that debate your Lordships' House decided by a majority of roughly two to one that this Bill should be introduced and should be supported.
The Government therefore to-day is faced with a different situation from that which arose in February. Your Lordships have decided that this Bill is a desirable Bill. It is an old tradition of your Lordships' House that not lightly will your Lordships reverse a decision reached after full deliberation and discussion during an earlier period in the same Session. Accordingly, the view which the Government take is that since your Lordships have decided already that this Bill is desirable, such votes as are cast at all by members of the Government in this Second Reading debate should be cast in favour of the Bill. One or two members of the Government who are also members of your Lordships' 619 House have, I think, a lingering regret and doubt as to whether it is necessary to give up this ancient privilege, but I believe I speak for us all when I say that we think that the decision freely reached ought to be accepted. Therefore, so far as the Government are concerned, we propose to support the Second Heading if, and so far as, we choose to vote.
I have been asked, not in debate but privately, by more than one member of your Lordships' House, whether if this Bill is desirable it ought not to have been introduced by the Government and not left to a private member, however distinguished. I appreciate the force of that suggestion, and I will tell your Lordships why we have not thought it right to take that course. If a Bill is introduced by the Government as a Government measure the Government Whips are necessarily put on in its support, and such appeal as loyalty to the National Government may make has its effect in inducing I hope at any rate some members of your Lordships' House who might otherwise hesitate to support the Bill. That is not what we desire or what we think right. Since this is a matter for the House of Lords itself to determine as it sees fit, it seemed to us far better that the Bill, even after the Resolution of last February, should be introduced by a private member so that no member of your Lordships' House would feel under an obligation to vote for it, if he thinks it otherwise of doubtful utility, merely because of its being a Government Bill. It is not a Government Bill and it was introduced on that account by a private member. I cannot at this crowded stage of the Session give any pledge as to what may be done in another place if your Lordships should think fit finally to pass this Bill. I know that the Government will consider whether it is possible to find time for it, and I myself will certainly do my best to give such advocacy as lies in my power with my colleagues in another place to induce them to find time in the programme provided it appears not likely to occupy too much Parliamentary time.
I pass from that description of the Government's attitude to say a few words with regard to the Bill itself. They shall only be a few, partly because I had the opportunity of speaking two months ago and partly also because I think that the Bill has been put in its true perspective 620 by my noble friend the Marquess of Salisbury as accurately and as well as could be done. The noble and learned Viscount who introduced the Bill pointed out the disadvantages under which this system places Peers. It is quite true that if it were merely a matter of picturesque anachronism that would not be sufficient ground for making any alteration. On the other hand, if it be a picturesque anachronism and if it also works real hardship and possibly injustice, then I think there is ground for making an alteration in the law. My noble and learned friend pointed out that so far as the individual accused Peer is concerned he is placed under very considerable disadvantages compared to the ordinary commoner charged with exactly the same offence. He loses his right of challenge, he loses his right of appeal, he is exposed to the risk of two trials instead of one, he finds his defence a very much more expensive and elaborate matter than he would at the Old Bailey or Assizes, and he sometimes, at any rate, is exposed to very considerable delay. Incidentally, also, while all trials must have publicity attached to them which must be intensely distasteful to anyone who has to suffer it, that must be far worse when there is the extra publicity and advertisement that a trial in your Lordships' House necessarily involves.
So far as your Lordships' House itself is concerned there are the objections of expense and of time wasted. The noble Earl who last spoke said that no time was wasted because only four Judges were involved for a day and that in the Court of Criminal Appeal there would have been three Judges, plus the one at the Old Bailey, so that it made no difference. But his arithmetic was wrong. There were not four Judges; there were fourteen. That makes a considerable difference to his calculations. It is true that four Judges not members of your Lordships' House were summoned to sit in order to give advice, but in addition to them there were all the Judges who are members of your Lordships' House who had to give up their time to join in the trial of this case when otherwise they would have been doing their ordinary judicial work. We had all these Judges who are members of your Lordships' House and members of the Judicial Committee of the Privy Council and the 621 four Judges who came to take part in the debate who are members of the King's Bench or the Court of Appeal. They all had to abandon their ordinary work so that the administration of justice was very nearly paralysed for that day. In the event of a serious trial, which might take weeks, you would find that would happen over a very long space of time.
§ THE EARL OF HALSBURY
They did not have to come. There was no obligation on any to appear except the four Judges who were summoned.
§ THE LORD CHANCELLOR
There was no obligation on any Peer to come, but I think there would have been a very grave ground of criticism if in fact those members of your Lordships' House who are peculiarly qualified to form an opinion on matters of law which might arise, and did arise in this case, had all absented themselves, and merely left your Lordships to rely on the advice of the four Judges specifically summoned.
LORD DARCY (DE KNAYTH)
Do I understand the noble and learned Viscount to suggest that the four learned Judges of the King's Bench Division were not fully qualified to give advice to your Lordships' House? If they were not, why were they summoned at all?
§ THE LORD CHANCELLOR
The four learned Judges were obviously proper persons to give advice to your Lordships' House, and the members of your Lordships' House who are Judges were peculiarly qualified and, I think, morally bound not only to give their advice to your Lordships' House, but also to come and take part, by their votes if necessary, in your deliberations. In fact, my noble friend Lord Middleton resorted, in a very skilful speech, if I may say so, to the best device of the obstructionist—I do not not use the word in any offensive sense, but only as meaning a person who desires to defeat a Motion. He admitted that the present plan was indefensible, but he proceeded to say that if there were a whole series of alterations made in the present scheme, alterations which of course could only be made by Act of Parliament, you might then concoct a fresh method of trial which would hold water and which would obviate some of the present disadvantages. He was wise enough to say, having suggested all these reforms—none 622 of which is at present the law or could become the law without legislation—that if they were all passed, then the old system, so altered that it would no longer be the old system or anything like it, would bear inspection and criticism. Therefore, for the obvious reasons (which he forebore to give us) why the old system was so important, he hoped that we should reject this practical scheme and wait until the Greek Kalends when all the suggested alterations could be made.
My noble friend Lord Cornwallis made a speech to which we all enjoyed listening. He and I, as he said, have taken part in other deliberations, and I can only say that I most heartily hope that he will very often come and share ours in this place. But he will forgive me if I say, not in any spirit of criticism, that I think he a little misplaced the importance which attaches to this present system and a little misunderstood some of the legal doctrines which he thought were jeopardised. He said that we were imperilling our most priceless possession, that we were shaking the foundations on which society rested. I cannot seriously think, and I do not think the noble Lord believes, that the right of a Peer charged with felony to be tried by your Lordships' House instead of by a jury is a priceless possession, or that the foundations of British society rest upon its continuance. He said that it was the right of trial of a man by his peers, and he challenged us to say whether that right still existed. In the sense in which he used the phrase I doubt whether it ever has existed, and it certainly has not existed for some hundreds of years.
There was a time in the days of Henry I when juries were chosen, not in order that they might decide according to the evidence, but that they might decide according to their knowledge of the person accused. The words of committal to the jury were, and perhaps still are, "to which indictment he has pleaded not guilty and has put himself upon his country, which country ye are; and ye are to say whether he is guilty or not guilty and to hearken to the evidence ": whereas, of course, the only thing they ought to do is to hearken to the evidence and decide upon that alone. So far from our looking for persons who know the accused person so that they may make up their minds on what 623 they know of him—the old system—for centuries past it has been the practice to have a jury composed of people who do not know the accused and to charge them to form their opinion on the evidence, unbiased by personal knowledge. If my noble friend suggests that trial by peers for members of this House means that members of this House are to be tried by members of this House, grocers are to be tried by grocers and, I suppose, miners by miners, and so on, that is certainly not the law and I hope it will never be the law in this country.
The fact is that there is no advantage, either to this House or to any member of this House, in a Peer being tried for felony by the whole body of this House rather than that he should be tried, as every other citizen is tried, by a Judge and jury of his equals—for we are all equal before the law, and nowadays there is no privilege of class which enables different people to be tried in different ways and by different tribunals. That no longer exists, and I am quite certain that a member of your Lordships' House has just as good a chance of being tried fairly by a jury in the Old Bailey as any other of His Majesty's subjects, and that his chance of fair trial there is no less when he is charged with a felony than when, as to-day, he is charged with a misdemeanour. I think, on the other hand, that the fact that this so-called privilege exists lays your Lordships open to every sort of suspicion, prejudice and attack by people who do not realise how it works in practice. I can imagine cases, for example, in which a Peer and a commoner are charged with committing the same felony jointly; the commoner may be accused and convicted at the Old Bailey and the Peer may be accused and acquitted up here. Both decisions may be quite right, but I can imagine the sort of criticism that would be aroused by a case of that kind if any public attention were drawn to it. On the other hand, if they were both tried together by the same jury at the Old Bailey and there were different verdicts, people would realise that this was so because the facts were different and not because of prejudice in the tribunal. I venture to think that in the interests of your Lordships' House it is far better that this anachronism should be swept away, and that the Bill which has been introduced by my noble and learned friend at the 624 invitation of your Lordships, as recorded in the Resolution of two months ago, is one which your Lordships will be well advised to pass into law.
LORD BELHAVEN AND STENTON
My Lords, I was surprised to hear from the noble and learned Viscount on the Woolsack that, because there was a large majority in favour of the Motion of the noble and learned Viscount, Lord Sankey, in February last, members of the Government had decided to cast their votes in favour of this Bill. The noble and learned Viscount on the Woolsack, as a member of the Government, called you all to your duty to the National Government. I am surprised. I was present myself in February when this Motion was brought forward by the noble and learned Viscount, but I did not vote, and the reason why I did not vote was that I had heard not a word of Scotland. I did not know how Scottish Peers would be affected by this abolition of the trial of Peers by Peers. It seemed to me that, if the abolition of trial in this House took place, we should be tried in Scotland by the High Court of Judiciary. Perhaps the noble and learned Viscount did not think it was necessary to urge the advantages to Scottish Peers of being tried in their own country, especially when he said:
" Let us just consider for a moment what might happen ten years hence. Assume a noble Lord is indicted for treason. I do not want to be a prophet, but it would probably be something in the nature of a political offence."
I quite agree that the offence most likely to be committed by a Scottish Peer would be of a political nature, and in that case it would be far healthier, and more conducive to longevity, for him to be tried in Edinburgh, as we have found by experience in the past, than in London.
We cannot forget what happened to our fellow-countrymen—it may seem a long time ago to you, but it does not seem long to us—William Wallace, and Charles Stuart, ci-devant King of England and King of Scots. We remember that, and I personally cannot forget the case of my own predecessor, probably a case quite unknown to your Lordships. During the passage of the Act of Union he was arrested in Scotland and committed to the Tower on a trumped-up charge of treason. As soon as the Act was passed he was released unconditionally; the only treason of which he had 625 been guilty was opposing the Government in carrying the Act of Union. Lord Sankey prophesied—and I hope to goodness his prophecy will not come true—that such a case is likely to occur within the next ten years. Be that as it may, I would like before this Bill is passed to see the Scottish side of the question properly looked into.
Let us now look at the Schedule of this Bill. The first five of the series are enactments of foreign and enemy Kings with whom our own Scottish Kings were at perpetual war, whether in defence of our own independence or on behalf of our French Allies. As for Magna Charta, which is the first mentioned in the Schedule, in that my country had neither lot nor scot. It is true that for a consideration, which was never implemented, our King Alexander II marched an army into England to help the revolted Barons to round up King John. But the point is that we are not interested in Magna Charta and we do not care if it is repealed or not. However, when we come to the Treaty and Act of Union it is another affair. There we are vitally concerned.
I have myself read the various Acts mentioned in the Schedule, but of course, being a mere layman, it is hard for me to make out what would be the actual result of the abolition of the trial of Peers at Westminster. I think, from the explanation given to me of the Act of George IV of 1825, the Trial of Peers (Scotland) Act, it would be certain that the High Court of Judiciary in Scotland would retain all those powers, whether in regard to treason, felony or anything else. In these circumstances one ought to be in favour of this Bill, and it may be asked why then should I not be in favour of it. The history of Scotland is now of very little interest to anyone—it is a back number in England at any rate—but the fact is that we feel that any alteration in the Act of Union is an interference with a sort of definition of our status in the Constitution of the United Kingdom. The mention of the word constitution reminds me that I looked up "British Constitution" in such a high authority as Whitaker's Almanack and I found the statement that it is founded upon nine Acts, beginning with Magna Charta, and ending with the Irish Free State (Agreement) Act and 626 The Statute of Westminster. Of those nine Acts two are to be altered by this Bill—Magna Charta, pro tanto, and also the Act of Union. As I have said, we do not like any alteration made in any particular in the Act of Union. For that reason I gave up any selfish feeling that I should be better off if this Bill were passed, I preferred to consider the feelings of people in Scotland when they hear of some alteration proposed to be made in the Act of Union. I therefore urge your Lordships to give time for the consideration of this Bill. In the last ten days, having nothing better to do, I got hold of all these Acts and went through them carefully. I can assure your Lordships that it is not a little thing but a very big thing, and that it requires a great deal of reading. Therefore I support the Amendment which has been moved, that this Bill should be read a second time this day six months.
§ LORD DARLING
My Lords, it appears to me that this Bill ought to be passed. I would remind your Lordships that the House has already deprived itself of the power of trying misdemeanours, although it has maintained the power of trying Peers for felony. The reason for that distinction is, perhaps, that felony involved the forfeiture of goods and misdemeanour did not. Now that the forfeiture of goods has been abolished, what possible reason is there for maintaining trial of a Peer by his Peers in cases of felony? It is looked upon by people outside as a privilege. In my opinion it is time that all people were tried by their peers. I have often been at the Old Bailey, and I say with confidence that you could not have a more courageous or fairer Court. There is no reason whatever for maintaining this privilege as it is. At present all Peers who here attend a trial for felony judge not only the facts but the law. It is notorious that they return a verdict upon the whole matter. Members of a jury in the ordinary Courts of Law are not allowed to do that. They can only return a verdict on the facts, and as to the law they must take the direction of the Judge. Moreover, not this House, but the committing magistrates (or, it maybe, merely their clerk) decide whether to commit an accused Peer for trial for a felony or for a misdemeanour. This Bill would abolish that choice. It maybe that trials of Peers on charges of 627 treason should still be reserved to this House: on that I say nothing.
THE EARL OF MANSFIELD
My Lords, in view of the lateness of the hour I intend to compress my remarks into the smallest possible compass. We have heard a number of speeches in support of this measure, but I venture to suggest to your Lordships that no adequate reason for its introduction has been forthcoming. Such reasons as have been brought forward in its support have usually cancelled each other out. We have been told that, as these trials take place perhaps three times in a hundred years, therefore they ought to be done away with because of their rarity. On the other hand we are told they should be abolished because of the number of occasions on which they are likely to occur. We are told that they should be abolished because they give a member of your Lordships' House an undue privilege; and we are told they should be abolished because they lay upon him an undue penalty. These arguments, I suggest, cancel each other out.
I submit that there is no reason at the present time why we should depart from the procedure which we have enjoyed so long. Various attempts have been made
§ especially by the noble and learned Viscount on the Woolsack, to make our flesh creep with the thought of what might happen if these trials became frequent and if they lasted for a very long time and the whole judicial system of this country were upset. I suggest that we should not legislate merely to meet remote contingencies which are unlikely to come to pass. This unfortunate trial took place simply because a coroner's jury brought in a verdict totally contrary to the evidence laid before them; and equally no evidence has been laid before your Lordships this evening to justify such a revolutionary change as this. I therefore hope that, although this is patently a Government Bill in a thin disguise, your Lordships will none the less reject it.
My Lords, I understand that noble Lords desire an early Division, and therefore I do not propose to exercise my right of reply.
§ On Question, Whether the word "now" shall stand part of the Motion?
§ Their Lordships divided: Contents, 62; Not-Contents, 37.629
|Hailsham, V. (L. Chancellor)||Ullswater, V.||Luke, L.|
|Halifax, V. (L. Privy Seal)||Marks, L.|
|Addington, L.||Maugham, L.|
|Bath, M.||Amulree, L.||Mildmay, of Flete, L.|
|Salisbury, M.||Arnold, L.||Mottistone, L.|
|Zetland, M.||Askwith, L.||Newton, L.|
|Atkin, L.||O'Hagan, L.|
|Bradford, E.||Ballfour of Burleigh, L.||Palmer, L.|
|Feversham, E.||Boston, L.||Ponsonby, L. (E. Bess borough).|
|Lucan, E.||Boyle, L. (E. Cork and Orrery.)|
|Malmesbury, E.||Rathereedan, L.|
|Midleton, E.||Clwyd, L.||Redesdale, L.|
|Munster, E.||Cottesloe, L.||Rennell, L.|
|Plymouth, E.||Darling, L.||Rhayader, L.|
|Rothes, E.||Desborough, L.||Sanderson, L.|
|Selborne, E.||Doverdale, L.||Stanmore, L.|
|Stanhope, E.||Eltisley, L.||Stonehaven, L.|
|Gainford, L.||Strabolgi, L. [Teller.]|
|Dunedin, V.||Greville, L.||Strathcona and Mount Royal, L.|
|Elibank, V.||Hampton, L.|
|Mersey, V.||Howard of Glossop, L.||Swinfen, L.|
|Sankey, V. [Teller.]||Kilmaine, L.||Templemore, L.|
|Swinton, V.||Kinnaird, L.||Wright, L.|
|Northumberland, D.||Halsbury, E. [Teller.]||Bertie of Thame, V.|
|Rutland, D.||Lindsay, E.||Chaplin, V.|
|Liverpool, E.||Esher, V.|
|Aberdeen and Temair, M.||Macclesfield, E.||FitzAlan of Derwent, V.|
|Mansfield, E.||Hereford, V.|
|Effingham, E.||Radnor, E.|
|Belhaven and Stenton, L.||Fairfax of Cameron, L.||Middleton, L. [Teller.]|
|Brocket, L.||Forester, L.||Monson, L.|
|Carnotk, L.||Glenravel, L.||Raglan, L.|
|Clanwilliam, L. (E. Clanwilliam.)||Harris, L.||Shute, L. (V. Barrington.)|
|Illingworth, L.||Strickland, L.|
|Cornwallis, L.||Jessel, L.||Sudeley, L.|
|Darcy (de Knayth), L.||Killanin, L.||Teynham, L.|
|Dunleath, L.||Lawrence, L.|
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.