Sitting of 7 July 1856

MINUTES.
PUBLIC BILLS.—1° Consolidated Fund (Appropriation); Criminal Justice; Unlawful Oaths (Ireland); Militia Pay; Grand Jury Cess (Mayo); Railways Act (Ireland) 1851, Continuance; Turnpike Acts Continuance (Ireland).
2° Appellate Jurisdiction (House of Lords).
3° Courts of Common Law (Ireland); Commons Inclosure (No. 2).

CORPORATION OF LONDON REFORM— QUESTION.
SIR JAMES DUKEasked the Secretary of State for the Home Department whether the Government would assist the corporation of the City of London in passing a Bill, during the present Session, to extend the right of voting in the election of Aldermen and members in the Common Council to all occupiers within the city who were on the Parliamentary register?
SIR GEORGE GREYsaid, that, as he understood, the Bill referred to, of which he had received a copy from the Recorder,

399
was limited to the object of amending the Act of 1849, having relation to the right of voting for the election of aldermen and sheriffs. This was a very desirable object, and was provided for in the measure for the amendment of the constitution of the Corporation which had lately been withdrawn; but he doubted the policy of introducing a Bill limited to that single object. Besides, the Bill of 1849 was a private Bill, and any Bill to amend it must of course be introduced in the same form; but the regulations of both Houses of Parliament would prevent a private Bill from passing at this period of the Session.

MR. JAMES SADLEIR AND THE TIPPE RARY BANK—QUESTION.
MR. G. H. MOORE MR. G. H. MOORE rose to ask the question of which he had given notice—whether it was true that Mr. James Sadleir had been permitted to leave Ireland without having been arrested; and whether any steps had been taken for the arrest and prosecution of the said James Sadleir by Her Majesty's Government? It was well known that John Sadleir, the late Member for Sligo had been involved in commercial frauds which had no parallel in the criminal history of this country. Who were his confederates and accomplices in these frauds was not yet made public, though the proceedings in the Irish Court of Exchequer pointed to his brother, James Sadleir, as one of the parties. It was also well known that John Sadleir was engaged in a political conspiracy, his associates in which were not doubtful. Relatively to the character of the transactions in which he had been engaged they were regarded by public opinion in Ireland—
MR. SPEAKERcalled the hon. Member to order. He was to confine himself strictly to the facts in the petition, and such statements as were necessary to make those facts intelligible; and he was not to go beyond them, or make any comment.
MR. G. H. MOOREproceeded. About a month ago the Master of the Rolls in Ireland delivered a charge on the case of the Tipperary Bank, in which he expressed great surprise that the Irish Government had not instituted proceedings for fraudulent conspiracy against James Sadleir, and he went so far even as to say that he should not be suprised if the public held them accountable for his frauds in the event of his escape. The Attorney General for Ireland had on a former occasion told the House that he had gone to Dublin,
400
and taken all the steps necessary to put the powers of the law in force in the case. That was about a month ago. He (Mr. Moore) therefore wished the right hon. Gentleman to state also what were the steps which he had taken to put the law in force, as well as to answer the question of which he had given notice.
THE ATTORNEY GENERAL FOR IRELAND (MB. J. D. FITZGERALD)said, he would not follow the hon. Member's example, but would confine himself to the question put on the paper, and avoid extraneous matter. He had already stated the facts in reply to a question put to him on Friday night, or rather Saturday morning. It was quite true that about a month ago, in the early part of June, the Master of the Rolls, in making observations on a case before him, did use expressions tantamount to what was stated by the hon. Member for Mayo, or rather, more strictly speaking, to the effect that, if the Government did not prosecute some person, whom he did not, however, name, the public would consider them guilty of complicity with his crime. In other words, he charged the law officers of the Crown with a dereliction of their duty in not having already instituted a prosecution against that individual. The answer he (Mr. FitzGerald) gave to this was a statement of the fact that the case had been before another Judge previous to the Master of the Rolls making these observations; and that this Judge, Master Murphy, in whose department the case was, had not only accused no one of fraud, but had acquitted the parties who were before him of all implication in it. He (Mr. FitzGerald) had further stated, that until he had read these observations of the Master of the Rolls he was wholly unaware of the facts of the case, inasmuch as no one had complained of fraud in connection with the parties in question, and no one had called upon the Government to commence a prosecution against them. But that, when these observations were made, he had felt it to be his duty to pay them the attention which was due to them; that he had proceeded to Dublin accordingly; and that he had not been able to find within the reach of the Crown a single fact, a single document, or a single witness, which would enable him to take any steps in a prosecution. The Master of the Rolls was to deliver his judgment in a few days, but he deferred it till the 22nd of June; and when he delivered it the Court was attended

401
by an officer on his (Mr. FitzGerald's) part, or rather on the part of the Crown, in the hope that the evidence on which the judgment was founded would he placed in the hands of the Crown Solicitor to be submitted to the law officers of the Crown. The Master of the Rolls delivered a lengthened judgment on the occasion, but he did not give the documents in question; though he (Mr. FitzGerald) was bound to state, in justice to that learned Judge, that subsequently he received every assistance which he could afford him. The steps since taken by the Crown in the case were of the promptest character. Considerable difficulty was experienced, as the persons expected to be witnesses were either in communication with the parties implicated or in the employment of Mr. James Sadleir, and evidence was moreover to be sought from this country. He had stated on Friday night that he did not consider it for the advantage of the public to press him to answer the question put by the hon. and learned Member for Youghal. He would, however, say, that the most active steps had been taken in the case, and warrants had been issued for the arrest of Mr. James Sadleir, both in this country and Ireland, on some day in the early part of last week, certainly before Friday. The hon. Member for Mayo had asked if Mr. James Sadleir had been permitted to leave Ireland? Knowing from the former course of the hon. Member what the meaning was that he put on that question, and that he intended to convey the imputation that if Mr. James Sadleir had escaped it was with the connivance of the Government, he (Mr. FitzGerald) had only one answer to give to that question—it was not the fact. He would add, that from the earliest moment the question was brought under his cognisance he had taken the most active steps to prevent Mr. James Sadleir leaving Ireland; and the report of the officers appointed for the purpose was, that he had not left since the 17th or 18th June. If he left before that time, therefore, it was in consequence of the irregular observations of the Master of the Rolls, and not through any fault of the law officers of the Crown.

ARCTIC EXPEDITION—QUESTION.
MR. W. BROWNasked the First Lord of the Admiralty, whether he had any official information of an event that had occurred in the United States touching the British vessel of war Resolute, which had
402
been abandoned in the ice, and was met by a whaler floating about, and which was carried into the United States? The American Government paid the salvage to the whaler, and the American Senate had passed an unanimous Resolution, in which the President and the Secretary of State concurred, that the vessel should be fitted out and restored to Great Britain.
SIR CHARLES WOODsaid, that the circumstances mentioned by the hon. Gentleman, if accurate, were certainly very creditable to the Government of the United States; but no official report on the subject had been received by Her Majesty's Government. The vessel referred to was, no doubt, one of the Arctic discovery ships that was abandoned a few years ago, and subsequently found adrift in the ice by an American whaler, which put a crew on board of her and took her to the United States. Her Majesty's Government had been asked, whether they would claim her, and they answered in the negative, thinking that those who picked her up after she had been abandoned were entitled to retain her.

HER MAJESTY'S SHIP "TERMAGANT"— QUESTION.
ADMIRAL WALCOTTwished to ask the First Lord of the Admiralty, whether it be correct that a malignant fever has for a second time broken out on board Her Majesty's ship Termagant on the West India station; and, whether, if this be so, the Board of Admiralty has given orders, or propose to give them, for the immediate removal of that ship from a station apparently so ill adapted, from her imperfect means of ventilation, to insure the health of her officers and crew.
SIR CHARLES WOODbelieved that the vessel alluded to by the hon. and gallant Member was the Termagant. It was not correct that there was malignant fever on board, although, as was not uncommon in the West Indies, some cases of yellow fever had certainly occurred in her, and she had therefore been sent to the northward, which it was well known was one of the best specifics for that malady.

VACCINATION BILL—QUESTION.
MR. T. DUNCOMBEasked the right hon. the President of the Board of Health, if he could fix any time when the Vaccination Bill would be brought on?
MR. COWPERsaid, the Bill was one in which Members did not take any great interest.

403
It was one of that class of Bills which was usually taken at a late period of the evening, and he hoped the hon. Member would not object to its being taken at the same time as other Bills similarly situated.
MR. T. DUNCOMBE, referring to the answer given by the hon. Member for Hertford (Mr. Cowper), asked whether it was the intention of the Government to persevere in pressing this Bill through the House. The hon. Member had, to a similar question with respect to the Medical Profession Bill, immediately surrendered it; but to those on this side of the House, he said few Members cared for this Vaccination Bill. He (Mr. Duncombe) would say that, if hon. Members did not care for this Bill, they did great injustice to the people, because it was a compulsory Bill. Besides, 200 petitions had been presented against the Bill, and only one, namely, that from the Royal Vaccine Establishment, in its favour. The Bill, if passed, would be put into work by the Board of Health; but that Board would expire next year, unless the House should to-morrow consent to continue it. A more arrant job than this Bill he never knew, and he hoped an opportunity would be given to oppose it.
MR. COWPERsaid, he did not mean to say the Bill was of no importance, because it was intended to check the ravages of a disease which killed thousands every year. This Bill was one of greater importance than many which were passed, and which did no good to anybody. What he intended to say was, that the opposition which his hon. Friend made to this Bill was not generally shared in by other hon. Members. His hon. Friend said, the Bill would make vaccination compulsory; but the present law did that. This Bill was merely for the purpose of consolidating and improving the law. His hon. Friend opposed this Bill; but it would be much fairer for him to bring in a Bill to repeal the existing law than to do so. He would not bring it on after twelve o'clock at night.

THE MASTER OF THE ROLLS AND THE ATTORNEY GENERAL FOR IRELAND— EXPLANATION.
COLONEL FRENCHwished to take the present opportunity of expressing his regret at the observations which had fallen from the right hon. Gentleman the Attorney General for Ireland, on a former evening relative to the Irish Master of the
404
Rolls. He regretted that such observations should have fallen from one in the position of the right hon. Gentleman, and he begged to say that there was not in England or Ireland a person of higher honour or of greater legal attainments, or a Judge in whom the public had more confidence, than the present Master of the Rolls in Ireland.
MR. J. D. FITZGERALDexpressed his entire concurrence in what had fallen from the hon. and gallant Member, as to the character and legal acquirements and high honour of the Master of the Rolls in Ireland; but he had stated, that he thought the observations of the learned Judge, on the case referred to, were irregular; and that, if a person charged with crime had left the country, his doing so had been brought about by those observations.
MR. NAPIERsaid, in consequence of the observations of the Attorney General the other evening, he had written to Ireland to ascertain the true state of the facts in this case.

WAYS AND MEANS.
SIR HENRY WILLOUGHBYthen said, he had given notice of calling attention to a most important matter. The Resolutions before the House passed at one o'clock in the morning, and the House bad been entirely deprived of the opportunity of judging of the state of the finances of the kindom in consequence of the total absence of the accounts relating to the past expenditure. The House knew nothing of the financial transactions of the country up to the end of March last. The papers were laid upon the table so late as to be of no use to hon. Members during the Session. This year the papers were presented to the House on the 10th of June, but not in time to prevent the House voting money without any knowledge of the previous expenditure. Last year the papers were laid on the table in July, but were not printed and sent to hon. Members until the 6th of October, so that, in point of fact, the House decided questions without having accurate information. The delay which occurred in laying the accounts on the table of the House was productive of serious inconvenience, and gave rise to a most anomalous state of things; hon. Gentlemen voted away millions of money without knowing in what manner it was expended. He called upon Her Majesty's Government so to arrange matters, as to have the accounts printed earlier, and in

405
the hands of Members before they left town for different parts of the country.
THE CHANCELLOR OF THE EXCHEQUERsaid, if the hon. Gentleman meant that they should return to the old system of financial accounts, he would be still further than now from getting the information he desired, for the accounts were then made up to the 5th of January, whereas the financial year did not end till the 5th of April. With regard to the production of the accounts, he might state that the whole of them were in the hands of the printers on the 4th of June with the exception of those of the Land Revenue Department. The Department of Land Revenue had to call in the accounts of the various Crown estates, a duty which was attended with delay and difficulty; and the Commissioners had not yet succeeded in making up their accounts. When they were completed, however, he could assure the House that no delay would take place in having the whole laid on the table.
MR. W. WILLIAMSmust say, that the public accounts were in a most unsatisfactory state—in such a state as to render it necessary for that House to take measures for providing a remedy. He had endeavoured, time after time, to ascertain what had become of the enormous amount voted for the militia in 1855—a sum amounting to £3,800,000. Not more than 65,000 militia had been embodied—a number coming very far short of what had been voted by Parliament, and yet nobody could inform him what had become of the money granted by the House. It was high time for the House to take steps towards securing the necessary information as to the expenditure of the public money.
MR. DISRAELIthought that what the right hon. Gentleman the Chancellor of the Exchequer had stated, with regard to the importance of the finance accounts terminating at the end of the financial year was quite unanswerable. Any other mode of making up the accounts would be most unsatisfactory; but at the same time it did not appear to him that the other portions or the right hon. Gentleman's statement were quite so much to the point. What he should like to know was, why the accounts, if they were ready for the printer on the 4th of June, were not yet on the table? They might have been printed in a week. What the right hon. Gentleman said as to the Land Revenue Department not being prepared with
406
their accounts was by no means satisfactory, because the question still remained, why were they not prepared? The right hon. Gentleman had ample power in this matter, and he should have issued orders to have these accounts forwarded in due time. At all events, the House might have had before it other accounts which were of much greater importance than these connected with the Land Revenue Department. It was exceedingly important that they should have in their hands the various accounts in the form in which they were drawn up, and it was the duty of the Government to see that these were regularly laid before them, as every one must feel that the present state of matters was highly unsatisfactory. It would be out of the question to think of returning to the old system, as that would give them no information whatever, but there was no reason why in two months' time, after the closing of the financial year, the whole of the accounts should not be laid on the table.
SIR FRANCIS BARINGagreed with the Chancellor of the Exchequer, that to make up the accounts to the end of January would not afford the explanation which was asked for; but, at the same time, the present system was full of inconvenience. Last year the accounts were not produced till after the close of the Session, and this year the whole of the Supply had been granted, and the accounts were not yet on the table. This subject had not escaped the attention of the Committee for which he had moved, and he trusted they would be able to make some valuable suggestions on this subject.
SIR H. WILLOUGHBYexplained that he had been misunderstood by the Chancellor of the Exchequer. He did not want to go back to the old system of finance accounts; but he thought the statesmen of the reign of George III. were wiser than the statesmen of the present day, for they always got their financial accounts by the month of May.
THE CHANCELLOR OF THE EXCHEQUERsaid, it was a mistake to suppose that the Government had any wish to withhold accounts and information from the House. Nothing, indeed, could be further from the truth. The Government were anxious to lay the accounts on the table at the earliest possible moment, but it was necessary to wait until they were completed. There was one important account—that of Land Revenue—which it

407
had not hitherto been in the power of the heads of departments to exhibit in a complete form. When it had been finished the other accounts would be presented to the House.
Resolutions agreed to.

APPELLATE JURISDICTION (HOUSE OF LORDS) BILL.
Order for Second Reading read.
THE ATTORNEY GENERAL THE ATTORNEY GENERAL moved the second reading of this Bill, and said it was one that had come to them from the House of Lords, where it was introduced upon the Report of a Committee appointed to inquire into the exercise of the appellate jurisdiction of that House, with the view of seeing whether any Amendments might be suggested. That Committee, after receiving a great deal of very important evidence, made a Report to the House of Lords, which in substance declared that the appellate jurisdiction of the Upper House as now exercised was not satisfactory, and that the time had arrived for making certain improvements which they recommended, and the principle of which were embodied in the present measure. There could be no doubt of the great importance of the subject. The House of Lords, as they all knew, exercised in all suits, both at common law and in equity, a jurisdiction as a Court of Appeal in the last resort, and by its decisions all such suits were finally settled and determined. Now, it was perfectly notorious, and he thought could not be contradicted, that for some time past great dissatisfaction on the part of the suitors and of the legal profession had existed with respect to the manner in which the appellate jurisdiction had been exercised. Hon. Members were aware that, although the appellate jurisdiction was vested, according to the theory of the constitution, in the House of Lords, yet practically it was not exercised by the whole body of the Members of that House, but was left in the hands of those Members only who were holding or had held high judicial office. With the exception of the Lord Chancellor for the time being, and the Lord Chief Justice of the Queen's Bench—who was, and generally had been, a Member of the House of Lords—the Judges of the Court had consisted of those who had formerly held the office of Chancellor, with the occasional but very rare exception of other Members of the House who had belonged to the legal profession. A body of Judges so composed was open to
408
several inconveniences. It was quite clear that the number of such Judges—that was to say, Judges not exercising actual judicial functions—must depend more or less upon accident. Sometimes the number of ex-Chancellors had been considerable; at others it had been comparatively small. A long Administration, during which the Chancellorship remained in the same hands, would have a tendency to limit the number; while, on the other hand, frequent changes of Government would increase the number of those who had held the Great Seal. Again, the circumstances of age and infirmity must be taken into account as exercising an influence with respect to the attendance of those who hold seats in the House of Lords under the designation of "law Lords." But, lastly, supposing that there was a sufficient number of law Lords to furnish a requisite body of persons to act as Judges on appeals in the House of Lords, there was nothing, except in the case of a person holding a judicial office like the Lord Chancellor, to make it obligatory on them to attend. Their attendance was purely voluntary. Considerations of personal convenience or other occupations might make the number who attended extremely small. The result had been, that for some time past the number of law Lords attending on hearing of appeals had been reduced below the point which was at all satisfactory either to the suitors or the public. It had frequently happened that not more than two Judges had sat on very important appeals, and not unfrequently the number had been reduced even to one. Now this was a state of things which must be deemed unsatisfactory, when it was considered that the House of Lords was the appellate tribunal in the last resort from Courts of Error, also courts of high authority, and that in cases which came before them they might have to adjudicate on matters theretofore decided on by two of the Courts of common law, perhaps confirming the decision of a third, or, in equity, cases which had been decided by the Lords Justices, confirming, perhaps, in like manner, the judgment of the Master of the Rolls or one of the Vice Chancellors, or, lastly, on cases which had come up from the Court of Session in Scotland, which consisted of a number of Judges who were surely better acquainted with the principles and rules of Scotch jurisprudence than any English Judge or Judges, however eminent, could possibly be. In all these cases the decision in the highest and last

409
Court of Appeal might be the decision of a single law Lord. But, again, in many instances, where two Judges sat in the House of Lords, the evil was, if possible, greater. Nothing had been more frequent of late than to see the two Judges in the House of Lords divided in opinion; the effect of which was that the judgment of the inferior Court could not be reversed, and was held to be affirmed. That occurred several time when the Lord Chancellor and Lord St. Leonards sat together as Judges, being the only law Lords present; and the effect had necessarily been to cause a feeling of great dissatisfaction. In a case mentioned in the evidence there had been conflicting decisions given by the Court of Exchequer and the Master of the Rolls. There was an appeal from the judgment of the latter, and it was heard before two law Lords; they differed, and the result was that the judgment of the Master of the Rolls was confirmed, notwithstanding the conflicting decision of the Court of Exchequer. Meantime there were several other suits in Chancery standing over to await the result of the appeal which had thus proved abortive. If it happened that the Lord Chancellor was sitting alone, he might confirm by his own judgment a decision which he had given in the Court of Chancery in opposition to that of an inferior Court—a state of things which must strike every one as the reverse of what was desirable in a Court of final appeal. But not only was the composition of the House as an appellate tribunal unsatisfactory, there was another inconvenience which nothing but the interference of Parliament could remedy. The sitting of the House of Lords as a Court of final appeal could only be coextensive in time with its sittings as a branch of the Legislature; so that from the prorogation of Parliament until the Parliament met again all appeals were necessarily in abeyance, Nothing could be more inconvenient than this delay, especially where the appeals were in matters of injunction or specific performance; and, according to the evidence given before the Committee of the House of Lords, it led to this further inconvenience, that the shortest period within which an appeal could be brought to hearing was at least two years. All these matters were subjects of grave and serious consideration. He had omitted to notice other topics brought forward in evidence before the Lords—the want of the externals of judicial office, the absence
410
of a specific dress—the want of a common combination as regards sitting, enabling the Judges to hear one another and hold communications together, so necessary for the due administration of the judicial office; and the grievous expense of which parties complained, arising from the proceedings in the House of Lords; because these were matters which did not require the interposition of the Legislature, as they might easily be corrected by arrangements made by the House of Lords itself. The matters, however, to which the present Bill related could not be corrected except by the interposition of the Legislature. An efficient number of the Judges could not be secured, their attendance could not be compelled, and the sittings of the Court of Appeal could not be made like the sittings of any other Court, extending over the whole judicial year, except by passing an Act of Parliament; and hence it was that the present Bill was necessary. He was well aware that very strong objections had been urged to this Bill from various quarters, arising, perhaps, from different considerations; but the question for the House to consider dispassionately was, whether, when the evidence taken before the Lords' Committee demonstrated that the administration of justice by the House of Lords, as an appellate tribunal, was glaringly unsatisfactory to the suitors and the public, it was not necessary to do something to meet the evils complained of, and to improve the character of the House of Lords as a judicial tribunal in the last resort; and whether the present Bill did not offer the best practical remedy, and, indeed, under the circumstances, the only remedy that could be devised? He knew that many persons thought that the simple and shorter course would be to withdraw from the House of Lords the appellate jurisdiction. [Cheers.] He found by that cheer that he was not wrong in anticipating that that argument would be urged; but to such a course were there not very serious, if not insuperable, difficulties? Even if such an object could be accomplished at all, it was likely that great delay would take place before it was attained, and in the meantime the unhappy suitors would be left in the same position as they stood in at present. Many persons conceived that to deprive the Lords of their judicial functions would be to strip them of one of the chief elements of their importance and dignity. He owned he could not bring

411
himself to look on the matter in that light. He did not see the necessary connection between the functions of the House of Lords, as an integral portion of the constitution and Legislature, and the exercise of judicial functions, which, after all, were not exercised by the House itself, but only by the law Members, a few lay Lords being present to constitute the House; but, as far as judicial proceedings were concerned, acting only the part of mutes. He could not help thinking that the dignity and influence of the House of Lords was rather impaired than otherwise by its appellate jurisdiction, so long as the administration of that jurisdiction was the subject of just complaint and was regarded as a grievance; but, on the other hand, there were persons who thought otherwise, and who would resist to the utmost any proposition to divest the House of Lords of its judicial functions. The grave difficulties in the way of withdrawing the judicial functions from the House of Lords must not be overlooked. To what tribunal could they be transferred? He thought it would be impossible to constitute a tribunal in the last resort other than the House of Lords without recasting and reconstructing the whole judicature of the country. There would be great difficulty in creating a Court which should decide in the last resort appeals brought up from all the Superior Courts of common law and the Courts of Equity. If it were proposed to form such a tribunal from the Judges at the present sitting in those Courts, then of course they must be withdrawn from the important duties which they had to discharge in their proper Courts. It had been argued that the Judicial Committee of the Privy Council should be made the last Court of Appeal. He was perfectly ready to admit that it was impossible to conceive a Court the functions of which were discharged more admirably; but, on the other hand, they must not overlook the difficulties which would stand in the way of transferring the whole appellate jurisdiction of the country to that Court. At the present moment the Judicial Committee consisted of Members of the Privy Council, who, with one or two exceptions, either held, or had formerly held, judicial offices. There was one splendid exception—a Member of that tribunal, a shining light of justice, who must add dignity, lustre, and efficiency to any Court in which he sat—he meant Mr. Pemberton Leigh— in respect of whom, if there was ever a
412
matter of surprise and regret, it was that he had never filled a judicial office, worthy as he was to have filled the highest of all. The Committee, then, consisted generally of two classes—those he were actually Judges of Courts, and those who had been, but who had ceased to be, such Judges. With respect to those Members of the Judicial Committee who had ceased to hold judicial offices, it must be remembered that they had already earned an honourable retirement by the discharge of important judicial duties, and that the country had no right to call upon them now to undertake the whole appellate business of the country. It would be impossible to make their attendance compulsory, and if they attended at all it must be as volunteers. With regard to those Members of the Committee who were Judges of Courts, they were enabled to attend the Committee because the amount of its business was comparatively small and its sittings were occasional. Those Judges were the Lord Chief Justice, the Lords Justices, and other Members of the Superior Courts, the Judge of the Admiralty, and the Judge of the Prerogative Court. They were at present able to attend; but if the whole appellate business of the country was thrown upon the Judicial Committee, it would render it impossible for them to devote as much of their time as was due to their own Courts, and at the same time to serve as Members of the Privy Council. If the Judicial Committee, therefore, were to be made the sole tribunal of appeal in the last resort, it would be necessary to recast it. There was a still greater difficulty in the way, which, perhaps, he ought to have put first. The House of Lords could not be divested of this appellate jurisdiction without its own consent, and, so far as he could gather from all that had passed on the subject, the last thing which the House of Lords dreamt of was the surrender of their prerogative. Unless, therefore, the House of Lords could be persuaded to give up their appellate jurisdiction, all that was left was to endeavour to improve it, and to make it what it was not now—an efficient and satisfactory tribunal in the last resort. Attempts had already been made to do this without legislative interference. Hon. Members who had heard the petition of Lord Wensleydale read were quite aware what had passed with respect to the elevation to a life peerage of that eminent personage, of whom, as he was present, he

413
could not say all that he might otherwise have wished—[Lord Wensleydale occupied a seat in the Peers' box];—this much, however, he might state, namely, that no individual could have been selected more fitted for the performance of any duties that could be entrusted to him. The noble Lord was selected by Her Majesty to discharge judicial functions in the House of Lords; but that attempt, as they were all aware, had failed. It failed because, although many eminent persons, whose opinions were entitled to the greatest weight—and the authority of the noble Baron himself was second to none in such matters—considered that Her Majesty had done no more than exercise Her undoubted prerogative in conferring upon him a peerage for life, the House of Lords had been practically enabled to frustrate Her Majesty's writ, the constitution having placed it in its power to determine upon the validity of any writ of summons which might be presented at its bar. Under these circumstances Lord Wensleydale had not been able to take his place in the House of Lords. The question, then, arose, what was to be done? They might undoubtedly elevate a sufficient number of eminent judicial persons to the dignity of the peerage; but there would be considerable difficulty in carrying a plan like that into effect. There were now few lawyers who could afford, with any due regard to themselves or their families, to take upon themselves the dignity of a peerage. Things were not as they used to be, and fortunes were not now to be easily earned at the bar. The number of the Courts had of late been greatly increased. Formerly there were few Queen's Counsel; now there were a great number; and many changes had been made in the administration of justice, which were beneficial, no doubt, to suitors, to the public, and to the profession, but which rendered it very difficult to amass such fortunes as would justify a man imposing upon his family the onerous burden of a peerage. They were thus in this dilemma. The House of Lords would not admit life Peers, and they could not obtain a sufficient number of lawyers to accept hereditary peerages; they would not part with their appellate jurisdiction, and it was admitted on all hands—themselves included—that the exercise of that jurisdiction was in a most unsatisfactory condition. What, then, was to be done? Would they enter upon a conflict with the House of Lords? But how long would that conflict
414
last, and what was to become in the meantime of the unfortunate suitors? Besides, even if the House of Lords were disposed to admit Peers created for life, they would still have to resort to legislation for the purpose of making the sittings of the appellate tribunal coextensive with the legal year. What, then, was the objection to the Bill? It would give efficiency to the House of Lords as a judicial body, and it would also enable Her Majesty to supply a defect which had long been regarded as a grievance, and even as a scandal. He did not believe there was any desire to have a Scotch Court of Appeal; but it was desired (and the wish seemed to him not unreasonable) that there should be a Scotch Judge introduced into the House of Lords, who might assist his learned brethren with his knowledge and experience of Scottish law and procedure, whenever appeals from the northern part of the island came before the House for final decision. Was not that a simple, and at the same time an efficient course to pursue? He was perfectly aware of the objections to the Bill. He could only put it to the House in this way—they had a most grievous evil to overcome, and this was the only practical means of doing it. But then it would be said that they were surrendering the Royal prerogative. It would be said that, whereas the Crown had, by virtue of its prerogative, in the opinion of many of the most eminent constitutional lawyers of the day, the right to create life Peers, the Government were abandoning that right, as indeed was suggested by the petition of Lord Wensleydale. In answer to that, he could only say that although they really asserted the Royal prerogative, and he was quite prepared to assert it, and as far in him lay to support it whenever the opportunity arose—still, practically, to stand up for that prerogative in the face of circumstances which rendered improvement imperatively necessary, would be to make that prerogative stand in the way of such an improvement. He could only present this Bill as a mode of getting out of the difficulty. [Laughter.] Hon. Gentlemen might laugh; but he did not for a single moment disguise that there were difficulties which beset this question. The evil they had to overcome was a vast and a fearful one; for what could be worse than an inefficient administration of justice, and a sense of wrong entertained by suitors? Therefore the House ought to apply itself with earnestness and with its best ability

415
and power to overcome that difficulty. He submitted that the proposition involved in this Bill did meet and overcome the difficulty. Better courses might possibly be suggested. The question was, could they be carried into practical operation? Unless it could be shown to the satisfaction of the House that some other scheme was practicable which would effect the object of establishing an appellate tribunal in the last resort, at once efficient and satisfactory to the suitors and the country—he hoped that the House would not lightly or inconsiderately reject a proposition which at all events held out a prospect of effecting that great improvement so loudly demanded.
Motion made and Question proposed, "That the Bill be now read a second time."
MR. BOWYER MR. BOWYER rose, pursuant to notice, to move that the Bill be read a second time that day six months. Early in the present Session, when the question of the appellate jurisdiction of the House of Lords was first mooted, he had said that that House ought not to remain a stranger to the discussion of a matter so deeply affecting the rights and interests of their constituents. It then appeared to him that the opinions of the most eminent persons in that House ought to be elicited, and go forth to the country; so that public opinion might exercise a salutary influence on the decision of this great question. Entertaining as he did the profoundest respect for the House of Lords, he thought that there was danger of the question being considered with too much reference to local feelings and prepossessions, and rather with reference to the dignity and privileges of that House, than with reference to the necessity of providing a large and thoroughly satisfactory measure for the reform of that great branch of the administration of justice and the public service. It was true their Lordships had disclaimed any such influence, and professed themselves ready to give up the appellate jurisdiction altogether, if it could be shown that the satisfactory administration of justice required the renunciation of their privileges. He believed their Lordships were sincere, but it seemed the Attorney General did not think so; for he said that nothing remained but to accept the House of Lords as the court of supreme judicature, and to submit to the course now proposed as the only mode of solving the difficulty. The Bill now before the House showed that his (Mr. Bowyer's)
416
fears were not groundless. He considered the Bill altogether inadequate to satisfy the just expectations of the country and the exigencies of the public service. It was more like an expedient to stop a clamour, than a well-considered and well-digested measure for the reform and reconstruction of the tribunal of ultimate appeal. He need not enter into any arguments to prove the necessity of a reform of that tribunal; that had been already proved by the Attorney General, and it had been admitted in the Report of the Committee of the House of Lords, that their House was not adequate to the discharge of the judicial duties with which it was invested by the constitution. The statements in that Report, however, fell very far short of the real evils which attended the appellate jurisdiction of the House of Lords as it now stood. These evils, as stated in the Report, were—uncertainty as to the number of law Lords, besides the Chancellor, who heard appeals; that the House sat during only six months of each year; and that the administration of Scotch law had been at times unsatisfactory. He would take these evils in the order in which they stood in the Report. Not only was there uncertainty in the number of law Lords, besides the Chancellor, who sat to hear appeals, but there was a manifest want of strength of law Lords. It often happened that the Chancellor sat alone and heard appeals, either from himself or from the two Lords Justices in Chancery. If only one law Lord sat with him, and they differed in opinion, there was no judgment, and of such cases five occurred during the last Session of Parliament. In cases of appeal from the Courts of Error, opinions pronounced by nine common law Judges were perhaps set aside by men who had never held a brief in their lives in a common law Court. Even when the Judges were called in, the case was not much better, because they were not allowed to ask a single question of counsel, nor to take any part in the proceedings. That the appellate tribunal sat only during six months of the year was not only an inconvenience, but an absolute denial of justice and a constitutional absurdity. It ought to sit during the whole of the judicial year. The Lords' Committee reported that the administration of Scotch appeals had at times been unsatisfactory. Now, he (Mr. Bowyer) had no hesitation in saying, that the administration of Scotch law was not only "at times," but always

417
unsatisfactory; and, as the tribunal of appeal was at present constituted, it must necessarily be so. The appeal was from the fifteen Judges of Scotland—men of the greatest dignity and experience—to two or three English Judges who knew nothing of Scotch law. At the present time, it happened that the Lord Chief Justice was a Scotchman and acquainted with Scotch law, but he was detained elsewhere often by the pressure of other duties. Lord Brougham, too, was well acquainted with Scotch law, but could not now be expected to attend regularly to dispose of appeals. It was said that Lord Erskine, a Scotchman, had been Lord Chancellor; but that was an accidental circumstance, which should not prevent the Legislature from dealing with this important subject, and Lord Erskine was more an orator than a lawyer. Having shown how inadequately the Report had dealt with the evils which were stated upon its face, he would proceed to consider the provisions of the Bill, and how far they were likely to cure those evils. The proposal was to create two Deputy Speakers to assist the Lord Chancellor in the hearing of appeals, giving to such Deputy Speakers salaries in order to secure their regular attendance. The Bill also contained a limitation of the power of creating life Peers to the extent of four. It was also provided that no writ to sit in the House of Lords should issue to a life Peer, except he were one of the Deputy Speakers, or held the office of Lord Chancellor. The chief feature of the Bill was, that which operated on the right of creating Peers for life. Without entering upon the constitutional question as to the prerogative of the Crown to create such Peers, he would only observe that the Bill before the House did not settle that point. It, however, did something which was very important—it sanctioned the creation of Peers for life without seats in the House of Lords—a perfectly new order of nobility. Upon that point some very grave constitutional considerations would arise. One question was, what would be the status of those Peers for life? By the constitutional laws of the country every man not a Peer was a commoner, and every Peer was either entitled to sit in the House of Lords, or, as in the case of the Scotch and Irish Peers, was represented in that body by Peers whom they selected. The Bill would sanction the creation of Peers who would neither have seats in the House of Lords nor be represented there. What, then, would be
418
the rights and privileges of such persons? Would they have a right to claim a trial by their Peers? Would they be eligible to be elected to seats in the House of Commons? But the creation of those titular peerages must lead to serious results. Admirals and generals who had greatly served their country, judges and statesmen of great distinction, might be created life; Peers, and public opinion would not long permit the exclusion of such persons from the House of Lords. There would then occur a great change in the constitution of the House of Lords, for there would be two classes of Peers who would never amalgamate and would never be upon an equality. Such a subject was one which merited the most mature and deliberate consideration of Parliament, and should not be dealt with indirectly. The Bill, by its title, appeared to relate entirely to the administration of justice, but under cover of that Bill, a most vital change in the constitution of Parliament might be brought about. A further inspection of the Bill had led him to discover many anomalies and absurdities. He would first call their attention to the title of Deputy Speaker. A Speaker was a president or prolocutor, and a Deputy Speaker was a person to act in that capacity when the Speaker was absent. In the case provided for by the Bill, the Speaker and the Deputy Speakers were to sit together. Then, again, the Speaker and the Deputy Speakers were practically to sit without a House. The Bill, certainly, did not provide that the lay Lords should not take any part in appeals, but the understanding was, that they would abdicate their functions. If so the House would consist of a, Speaker and two Deputy Speakers. Could anything be more absurd? Another and most important anomaly was, that the House of Lords was to be empowered to sit during a prorogation of Parliament. That was a proposal which he thought should be regarded with great constitutional jealousy, for it was almost unprecedented in our history. It was true that in the reign of Edward III. an Act was passed which enabled certain Lords and Bishops to sit when Parliament was not sitting; but the powers of that Committee were limited to reception of complaints of delays in the inferior Courts, and, moreover, the period was a revolutionary one and could form no precedent for our times. But, even if that were a precedent, the course proposed would be opposed to the fundamental principles of

419
the constitution. The appellate jurisdiction of the House of Lords was exercised by the Queen in Parliament, and Hale had shown that from the most ancient times writs of error were brought before the King in Parliament. At one time that (the Commons) House claimed a right to participate in the exercise of the appellate jurisdiction of the House of Lords, upon the ground that it formed one branch of the High Court of Parliament. By the principles of the constitution Parliament could not be divided by time, and all its three branches must be in existence at the same moment, and though one House might adjourn for a few days while the other continued to meet, both Houses must be prorogued at the same time. But by this Bill it was now proposed that the Queen and the House of Lords should sit in Parliament while the House of Commons was not sitting. Clause 5, enabling the House of Lords to dispose of appeals and writs of error during the prorogation, ended with the proviso that no other business than the determination of appeals "and matters connected therewith" should be transacted by the Upper House under such circumstances. What was the meaning of the words "matters connected therewith?" Encroachments on constitutional principles had before now taken place under cover of language far less vague and indefinite than this; and, although there might be no immediate danger of an invasion of the privileges of that House, it behoved them to guard with jealous care against the least loophole for a departure from the fundamental principles of the constitution. A further question was, who were to be the Judges of this Court of Appeal? The Lord Chancellor and four Peers for life. Practically, however, there would be the Lord Chancellor and only two life Peers, because there was nothing to compel the other life Peers, who would be unpaid, to attend. It was said that one of the Deputy Speakers was to be a Scotch Judge, and it was certainly impossible for the hearing of appeals from Scotland to be improved without some such arrangement. It was also stated that the Scotch Judge was to be unpaid; but it would doubtless be found that Scotch jurists were men far too shrewd and practical to come to London to discharge such functions without receiving proper remuneration. The Judge of the Admiralty Court and the Judge of the Prerogative Court were also to be Deputy Speakers; but the branches of the
420
law which the House of Lords had to administer being totally different from that dealt with in either of those Courts, where could be the sense of this provision? Let the House pause and consider how the proposed tribunal of last resort was likely to work. First, there would be the appeals from the Courts of Equity. These would go up from the Lord Chancellor to the same high judicial personage, assisted by two Deputy Speakers, one of whom would be a Scotch Judge wholly ignorant of English law, and the other a common law Judge, who, perhaps, had never held a brief in a Court of Equity. The same unsatisfactory tribunal would determine appeals from the two Lords Justices—Judges of the highest rank and the greatest experience. The result would be still more anomalous if the Deputy Speakers were the Judges of the Admiralty and the Prerogative Courts, because then the appeal would practically be from the Lords Justices to the Lord Chancellor alone, and he would be really one equity Judge sitting to determine on the decisions of two equity Judges of the highest rank. Next, there was the jurisdiction upon writs of error from England and Ireland. Those writs proceeded from the Court of Exchequer Chamber, consisting of ten Judges, the case before reaching that Court having been heard in one of the three Superior Courts. Yet they would go to the Lord Chancellor in most instances an equity Judge who had probably never practised at common law, assisted by a Scotch Judge knowing nothing of English law, and an English Judge who might be either an equity Judge or a common law Judge. The appeal would, therefore, practically lie from ten common law Judges to one common law Judge. A stronger reduction ad absurdum than this it was impossible to conceive. There still remained the appeals from Scotland, which would go up from fifteen Judges of the highest rank and experience sitting in the Court of Session, to the Lord Chancellor, who had no knowledge of Scotch law, assisted by one Scotch Judge and one English Judge of common law or of equity. Such would be the operation of this Bill, which surely could not deserve the sanction of the House. But the measure had another fault of a radical nature; it did not deal with the great constitutional defects of our judicial system. There were now two supreme Courts of Appeal in this country—the Judicial Committee of the Privy

421
Council and the House of Lords. These two Courts might take quite different views of the construction of the same statute and administer the law quite differently. Such a system could not be defended; and a Bill which professed to deal with the supreme appellate jurisdiction of the country, and which did not remedy the existing evil, must be regarded as inadequate and unsatisfactory. The defects of such a system were even greater in this country than they would be in most other countries in Europe. In most continental States the decisions of Judges were founded upon established codes or upon the civil law, or on both combined. But here the case was different. The greater part of the decisions of our Courts were founded on reported cases; and though it was true that the Courts decided according to law, yet the law was what the Courts had decided, which was a vicious circle. There were, moreover, a great many important questions still in doubt, and which Judges might decide just as they pleased. The amount of doubt connected with the law of this country was, he believed, unexampled in any other country, and if it were not for the high character of our Judges our legal system would be so arbitrary as to be absolutely intolerable. The law of this country was now in a state of transition; the boundaries between law and equity were not so decidedly marked as was formerly the case; and the tendency of the Judges was to unite the two as much as possible. Under such circumstances, he thought the establishment of a single supreme Court, permanent and independent, was absolutely necessary for the development of our jurisprudence. He would venture to say that without the institution of the Court of Cassation in France the Code Napoléon would have been almost inoperative; and even now complaints were made of the quantity of uncertain and undefined law which, had grown up, like a sort of jungle, about that code. The question was then, what remedy ought to be applied? The Attorney General had defied any one to suggest a better measure than that now under consideration, and the hon. and learned Gentleman asked to whom, if the House of Lords were deprived of their appellate jurisdiction, that jurisdiction was to be transferred? He (Mr. Bowyer) would suggest the remedy which common sense pointed out—the establishment of a supreme Court, to consist of not less than five Judges, selected from the best men on
422
the bench or at the bar, and he would transfer to such Court the jurisdiction of the House of Lords and that of the Judicial Committee of the Privy Council. The members of the Court should be persons bred and trained to different branches of the law, and should have nothing but the appeal business to attend to. He proposed that that Court should sit during the whole of the judicial year, and that it should be composed of Judges acquainted with the various laws prevailing in this empire. Those Judges would not only be enabled to hear appeals without unnecessary delay, and consequently without causing undue expense to the suitors, but, from being in frequent communication and from constantly sitting together, they would doubtless, in course of time, form a series of decisions which would go far to fix and to develope the jurisprudence of this country. The only objection to the plan he suggested was its expense. The County Courts had already diminished very materially the business of the Superior Courts of common law, and as the County Courts received an accession of jurisdiction the effect on the business of the Superior Courts would doubtless be still more considerable. The Court of Exchequer and the Court of Common Pleas had not at present sufficient employment, and the expense of the supreme Court he proposed to establish might be partially met by reducing the number of Judges in those Courts. This Court would answer another purpose—it could be made a Court of Criminal Appeal. In this country, if a man had a judgment given against him for a small sum of money he had an appeal to other Courts; but if he was sentenced to be hanged he had no appeal except ex gratiâ, and that appeal, he believed, was never given, or by a point being reserved, which remedy depended on the discretion of the Judge. A writ of error was his only remedy, and that could only be for an error apparent on the record; but there might be no error on the face of the record, and yet the man be substantially innocent; or there might be error on the face of the record and the man be substantially guilty. In point of fact, the carrying or not carrying out of the sentence lay practically with the Home Secretary, and he could conceive nothing more unconstitutional than to repose such a power in that functionary. If, however, there was a Court of Appeal in criminal cases, with the power of granting a new

423
trial, it would remedy this great defect; and such a Court would be found in the tribunal which he had taken the liberty to suggest. He trusted he had said enough to show that this Bill would be inadequate for the purpose for which it was intended, that it was replete with absurdities, and that its operation would scarcely be more satisfactory than the working of the jurisdiction which it was intended to amend. He objected to the Bill being accepted as an experiment, because what might be called bit-by-bit improvements always stood in the way of effectual reforms. The hon. and learned Gentleman then moved that the Bill be read a second time that day six months.
MR. ROBERT PHILLIMORE, in seconding the Amendment, observed, that the Attorney General had asked what could be worse than the present state of the Supreme Appellate Jurisdiction; he (Mr. R. Phillimore) knew what would be worse—to render that state of things permanent, as they were invited to do by the measure now before them. He then objected to the passing of a measure so novel and so important at so late a period of the Session. It was in the second week of July that the House of Lords thought fit to invoke the aid of the House of Commons for the maintenance of what the House of Lords had hitherto considered their most dearly cherished prerogative, and which they had guarded with religious scrupulosity from the profane hands of the House of Commons. How had this strange event come to pass? Who had assailed their privilege? It was not the democracy, or the overweening ambition of the House of Commons, that had driven the House of Lords to take this extraordinary step. The enemy was not without, but within, the walls. The conduct of the House of Lords had forced the House of Commons to examine the whole question—one which most deeply concerned the welfare of the whole country—Ought the House of Lords to retain the supreme appellate jurisdiction over the property, and, in some measure, over the liberties of the subjects of Her Majesty? The state of the appellate jurisdiction of the House of Lords had been painted in such colours by the Attorney General as to require no additional touches from those who spoke after him; and yet it was proposed, by means of this ill-considered Bill, to render permanent, through this House, and the money of the people voted by this House, the state of things so described. The Bill had two objects
424
of paramount importance. In the first place, it provided for the enactment of life peerages, and those of a peculiar character, being limited to the profession of the law, and founded on arguments which could not recommend themselves to those who maturely and deliberately considered the subject. The House of Commons ought not to conceal from itself that the effect of this measure, as respected life peerages, was a practical limitation of the peerage, and on that account alone the House ought to look upon the Bill with great jealousy. It would be remembered that, in 1719, an attempt was made by the House of Lords to limit creations of the peerage within a certain number, and he need not remind hon. Members how resolutely that measure was opposed by Sir R. Walpole, and thrown out by the House of Commons. It was true the present Bill was not precisely the same as the Bill of 1719, but its practical effect was the same—it was a Bill for the limitation of the peerage—a Bill in derogation of the rights of the Crown, and of the Commons. It was his deliberate opinion that it was the fact of the House of Lords being accessible not only to birth and to wealth, but to the industry and ability of every man and every profession in the land, which had been the cause of its surviving, almost alone, similar institutions in other countries. He repeated that with regard to that part of the Bill which had reference to the appellate jurisdiction, the Lords had obliged them to examine into the foundations of the whole question, for the Bill contained a practical confession that the House of Lords was unable to discharge the great trust which the constitution had confided to it. Before, however, they proceeded to build the new edifice upon the plan now recommended to them, they were bound to look a little at the materials within their reach, and to pause before they sanctioned the patchwork which had originated in a strange compromise of political parties; it was their duty to look closely and examine severely every provision of the measure. Was it founded upon sound and wise principles, or was it a wretched temporary expedient? Now, what did he find on the threshold, so to speak, of this measure? Why, the Bill before them left untouched the great practical defect, that of having two tribunals equally supreme, and of co-ordinate jurisdiction; there were the House of Lords and the Judicial Committee of the Privy Council, both exercising

425
over different subjects supreme jurisdiction in the last resort. The latter was indeed the creature of little more than twenty years existence. But it could not be denied that of those two supreme judicatures, one had gradually won while the other had gradually lost the confidence and esteem of the public. One question was, how had tins happened? Another question for consideration was, could these two adjudicatures be amalgamated and made to work together, or must the House of Commons be obliged to vote £10,000 a year for two Deputy Speakers, in order that the House of Lords might continue to exercise its appellate jurisdiction, their present administration of which the Attorney General had so severely censured this night? Hon. Members were aware that the jurisdiction of the House of Lords with respect to common law was of immemorial antiquity. The case was not so with regard to the other portions of the judicature. It was only in 1675, after a long struggle, and under peculiar circumstances, that the House of Lords obtained its jurisdiction in matters of equity. At the same time it endeavoured to procure jurisdiction in appeals from the Ecclesiastical, Testamentary, and Admiralty Courts, but was foiled in the attempt. Its jurisdiction was at first surrounded by checks and limitations. There was the highest authority for saying that up to 1700 the jurisdiction of the House of Lords was exercised with the concurrence of the Judges as assistants, and at an earlier period with the concurrence of the Privy Council. It was true that the Judges did not vote in the House of Peers; but Lord Hale maintained that they had a right to do so, and Lord Somers regarded the Judges as ancillary to the jurisdiction of the House, the two subsisting together. The present Bill proceeded upon a totally different principle. It said in effect, though not in express terms, that lay Peers should not vote upon judicial questions, and, while abandoning altogether the principle of the hereditary jurisdiction of the House of Lords, it set up a different, an inferior, a bad court, under the name of the House of Lords. As late as 1786 the lay Peers voted upon a judicial question of the greatest importance—namely, the case of the "Bishop of London against Fitch," respecting the validity or non-validity of general resignation bonds. On that occasion nineteen voted on one side and eighteen on the other, Lord Thurlow carrying the
426
question with the aid of the lay Peers against the authority of Lord Mansfield. Since that time the lay Peers, he believed, had not voted, and for 150 years the practice of the Judges attending as the regular assistants of the House of Lords had been discontinued, those learned persons being now called in by way of exception, and not as formerly, as a matter of general practice. An abortive attempt had been made to remedy that evil. Lawyers, according to the Attorney General, had ceased to make large fortunes; the House of Lords could no longer be recruited with hereditary Peers from the Bar. That was a point upon which different opinions might be entertained; but assuredly the example cited by the Attorney General did not bear out his statement. Was it meant to be said that Baron Wensleydale was so poor that he could not with propriety be made an hereditary Peer, and that the Government were driven by necessity to the experiment of a life peerage—the greatest experiment, he might add, tried upon the constitution for the last 300 years? It was well known that his noble Friend Baron Wensleydale was a rich man, that he had no son to inherit his dignity, and that there was no necessity in his case to resort to the experiment of a life peerage. Nor was the possibility of finding other competent and able lawyers sufficiently rich to endure the honours of the hereditary peerage so entirely impossible as the Attorney General seemed to suppose. But the attention of the House might now be usefully called to the practical working of the other supreme tribunal—namely, the Judicial Committee of the Privy Council—and to the consideration of the question how it had come to pass that this Court had engrossed to itself the confidence of the public. The Judicial Committee was in itself a creation of modern times; but the jurisdiction of the Privy Council, apart from the Judicial Committee, was of great antiquity. From the beginning of Henry V. to the end of James I., owing to the frequent intermission and non-holding of Parliament, and the consequently rare exercise of either civil or criminal jurisdiction by the Lords, it was found necessary to establish a judicature connected with the Privy Council, which was afterwards greatly strengthened, and which, notwithstanding the resumption of Parliaments, continued with great fidelity to exercise its functions up to the time of the constitution of the Judicial

427
Committee. It took cognisance of all questions from abroad, of all appeals from the Ecclesiastical, Admiralty, and Testamentary Courts, and, what was still more singular, of petitions in matters of lunacy from the Court of Chancery. When Lord Brougham was Chancellor, among his other eminent services to the country, he established the present Judicial Committee, founding it so wisely, making its constitution so flexible, composing it of such distinguished Judges that it gradually attracted the attention of the public, and engrossed to itself the confidence which the other coordinate tribunal had lost. In 1834 a Bill was introduced into the House of Lords that never got beyond the first reading, in which Lord Brougham proposed to amend the appellate jurisdiction of the House by giving the House the power of referring certain cases to the Judicial Committee, that tribunal being empowered to send for the Lord Chief Justices and the other Judges and to improve its machinery generally, and required to make a report to the House of Lords on the questions submitted to its judgment. There were two advantages connected with that scheme—first, the advantage of having one supreme tribunal for all cases; secondly, the advantage of concentrating in it all the judicial learning and talent of the country. Contrast such a scheme as this with the present miserable proposal of two Deputy Speakers, with £5,000 a year each—the salary of a puisne Judge—to sit with the Lord Chancellor to overrule the decisions of the Exchequer Chamber—that was to say, of all the common law Judges—and to continue all the abuses which the Attorney General had so justly and so indignantly described in his opening speech. Surely the House of Commons ought not to be forced, at the weary end of the Session, into the passing of a measure which continued every abuse of the present system, and created new places and fresh patronage to no inconsiderable amount. The only argument which the Attorney General urged for passing the measure now was, that the suitors before the House of Lords would suffer by delay. He had great compassion for these unfortunate people, but he denied that it became the House of Commons to pass a bad measure respecting so important a subject as the court of last resort for all the property and, indirectly, the rights and liberties of Her Majesty's subjects, because certain unfortunate suitors
428
might suffer for a year or two longer. He was prepared to admit that it was very doubtful indeed what course ought to be adopted by Parliament. It was very desirable that a supreme Court of Appeal should exist, containing men of the highest talent and the most varied learning; and, as to the question of money, he was well convinced that the House would not grudge any sum in order to insure a court of last resort in which justice might be expeditiously done, and in a manner to command the confidence of the people of this country. But if it were doubtful what course that House ought to adopt with regard to the general question, it was by no means doubtful what course it ought to adopt with regard to the present Bill. There could be no doubt that the Bill did not remedy one-third of the evils at present complained of, and that it only skinned over the disease without curing it; and therefore, if the second reading were—which he trusted would not be the case—to pass, it would be most expedient to send the measure to a Select Committee, for the evidence before the Committee had by no means exhausted the subject. It was for the House of Commons to consider well the position in which it was now for the first time placed. The House of Peers had sent them down a Bill in order to supply a defect which they for the first time acknowledged to exist, and which Bill admitted that they could not without assistance discharge the trust confided to them by the constitution. How, then, would that House be able to answer to the country and to posterity, if, on this great occasion, when they had the opportunity of conferring a real benefit of inestimable value to the people—namely, the constitution of a good court of ultimate appeal over the most important interests of the subject—if, because there had been a compromise between certain parties in the House of Lords, or because some suitors might suffer from delay—they consented to permanently establish that which would be the greatest curse, a court of judicature in the last resort alienated from the sympathy, and which did not command the confidence of the country?
Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."
Question proposed, "That the word 'now' stand part of the Question."
MR.WHITESIDE: Sir, the two hon. and learned Gentlemen who spoke last have contented themselves with urging all manner of objections to the Bill, from the first word in the preamble to the last in the clauses. Surely, if the subject is full of difficulty, a gentleman so eminent for his legal ability as the hon. and learned Gentleman opposite (Mr. R. Phillimore) might have suggested some mode of removing those difficulties; and if it is the duty of the House of Commons to strike out some practical mode of redressing the grievances admitted, who more fit to do so than the hon. and learned Member for Dundalk? [Mr. BOWYER: I did so.] The hon. and learned Member amused, and perhaps instructed the House by a reference to the French laws, and the practice of the French courts; but with all respect to him, I should not wish to see either those laws or that practice introduced into this country. What the hon. and learned Gentleman did was to suggest a number of difficulties and objections to the Bill, but he sat down without having applied his abilities to solve in any way the difficulties which he raised. Now, I am not here to discuss the question of criminal law, or appeals from criminal law—I am not here to offer an opinion as to whether the Attorney General for Ireland ought to be empowered to grant a writ of error or not, but am occupied with an entirely different question—a question which is quite enough to engross the whole attention of this House, and one to which the hon. and learned Gentleman would have done well to have applied his mind. The hon. and learned Gentleman, among other things, spoke of the low scale of salaries to be given under this Bill; but that seemed to me no argument against the principle of the measure. If the hon. and learned Gentleman was seized with a fit of liberality, he might have proposed to increase those salaries in Committee; and perhaps he would have prevailed upon the Chancellor of the Exchequer to do so, if he could persuade him that by so doing he could procure a greater amount of ability in the persons to be appointed. But the salaries proposed in the House of Lords had been already reduced because it was thought they would not meet the views of some of the political economists in the House of Commons, so there was little chance of success in that direction. The hon. and learned Gentleman also spoke in high terms of the eligibility of the Judicial
430
Committee of Privy Council as an appellate Court. I fully admit that that is an excellent Court, that it has discharged its duties faithfully, and is worthy of the confidence which the public place in it; while at the same time its members are cautious enough to suppress any difference of opinion which may arise between them, so that its decisions appear to have the stamp of unanimity, whilst that is not always the case. But I am surprised that a Gentleman possessing that profound knowledge of the constitution which the hon. and learned Gentleman possesses should have approved the suggestion that the Judicial Committee should be constituted the ultimate Court of Appeal in all cases. The hon. and learned Gentleman did not condescend to inform the House that the Judges of the Committee of Privy Council are entirely dependent upon the pleasure of the Sovereign; he did not tell us that everyone of those Judges might be struck out of the list to-morrow. If such a Court as that is to be made an ultimate Court of Appeal, it would indeed be the most unconstitutional tribunal that could well be imagined. It does not follow that because a number of gentlemen, eminent indeed for their great abilities and extensive learning, are acquainted with Dutch law, with Spanish law, with Indian law—if there be any such—they should be the best tribunal to discuss and decide questions of criminal law—political cases—great cases of equity. The hon. and learned Gentleman assumed, but he did not prove, that the two Courts of the House of Lords and the Judicial Committee of Privy Council were co-ordinate tribunals. When was that fact discovered? It is true that they both take cognisance of cases in which personal property is the subject of dispute; but it is a strong assumption that, because they both decide a certain class of cases, their jurisdiction is co-ordinate. Nor is it the fact that there is any danger of the Committee of Privy Council conflicting in opinion with the House of Lords; for that very question was inquired into in the House of Lords, and I find it stated by a very eminent authority that when there was the least danger or the least chance of their coming into conflict in consequence of similar cases being before the House of Lords and the Judicial Committee of Privy Council, the latter Court stayed all proceedings until the House of Lords had pronounced an opinion on the case, and they then took

431
the law as affirmed by that tribunal. It is therefore entirely an assumption that the Committee owe a great deal to the circumstance of some of its members being Judges of other Courts, because I have shown that they decide in conformity with the opinion of the House of Lords. I now come to the practical question—and I give the House of Commons credit for not indulging in abstractions, but at all times attempting to solve difficulties in a practical manner—what are we to do in the present instance? Now, I must say, it seems to me that there has been a want of generosity in the way in which my hon. and learned Friends have spoken of the House of Lords. They have represented the jurisdiction of that House as having failed for many years. What is the fact? All the seventeen witnesses examined before the Lords' Committee, and among them were the foremost men in this country, declared that never was there a tribunal which commanded more perfectly the respect of the Bar and the confidence of the country. It has given laws to half the civilised world. American lawyers and writers have passed the highest eulogiums upon it; and it was asserted by all the witnesses that at the time when Lord Cottenham, Lord Brougham, Lord Campbell, and Lord Lyndhurst sat together under the Chancellorship of the first named noble and learned Lord, no tribunal was ever more distinguished for dispatch of business, for ability, or for learning. They discharged their duty to the country with a grasp of intellect, a power of language, and a display of legal acumen, admirable to behold. Is it just, then, that because one of those learned men can no longer attend, and another is obliged to absent himself in consequence of illness, you are to say, "this tribunal is no longer what it was, it is unworthy therefore to exist." Every gentleman who was examined before the Committee has stated that until the last two or three years that tribunal was one of unequalled excellence. An inconvenience has arisen—and it has arisen from the conduct of the Government in attempting to confer a peerage in an irregular form upon an individual whose learning and ability must have been found of great advantage in the other House of Parliament. But however that may be, we have no power of dealing with it here—in this House we must deal with the matter as we find it. But with what justice can the hon. and learned Gentleman
432
say that it is proposed to appoint two miserable persons to preside in a miserable court, and dispose of causes in a miserable manner, at a miserable rate of remuneration. If I held that opinion I certainly would vote, not for referring this measure to a, Select Committee, but for relinquishing it altogether. But the fact is, that it is not proposed to do anything of the sort. The principal argument made use of by the hon. and learned Gentlemen who have opposed this measure is, that the cases will be decided by three persons. But what becomes of that argument when we find that, during the period of which all the witnesses spoke as being a period when the House of Lords was considered a tribunal of unexampled excellence, seldom more than three attended; and no one will deny that when Lord Campbell attended, before he was Chief Justice, Scotch appeals were admirably disposed of. Still but three persons attended. Well, an Act of Parliament passed to constitute the Judicial Committee of Privy Council—which tribunal, because it was new, was cried up against the House of Lords because it was old. What did that Act do? It made three Judges a quorum. If, then, the cases in the popular court of the Judicial Committee of Privy Council were decided by three Judges, and if the cases in the House of Lords, when that tribunal was one of acknowledged excellence, were decided by three Judges, where is the objection to the cases brought before the new court contemplated by this Bill being decided by three Judges? Some of the witnesses have pronounced an opinion in favour of five instead of three being the quorum. I have no objection to that. A great point in a Court of last appeal should be to have an unequal number, so that in case of difference of opinion there should be a casting vote; and if such a gentleman as Mr. Pemberton Leigh could be induced to enter the other House for that purpose, he would doubtless be a great addition to the learning and ability of that tribunal. But the number of Judges is a question of detail and not of principle, and this Bill, which is one of the strictest moderation, has only proposed two. To the principle of the Bill I see no objection. Indeed, I can speak from my own experience, with reference to cases which have come from Ireland, as to the feeling in that quarter in favour of the House of Lords being the Court of final appeal. Those

433
cases have been political, equitable, and criminal—they have involved the highest interests and questions of the deepest importance; but the fruit of my experience is, that nothing should induce me to give up the right of appeal to that House. It would ill become me to speak of O'Connell's case, because in that I was counsel; but I appeal to the great case of the Presbyterian Marriages, which affected the interests or the feelings of thousands of persons, and I ask whether in that and similar cases the greatest confidence was not felt by the public in the House of Lords as a court of appellate jurisdiction? The House of Lords has always had a right to call in the assistance of the Judges of the land, and the Bill does not deprive them of that right. The assumption of the hon. and learned Member is, that the noble Lord at the head of the Government, instead of searching for men of the first ability and greatest eminence to place in the high offices created by this Bill, will look out for men of inferior ability, and be influenced by other considerations. I do not believe in that assumption. I would also mention that the Court of the Lords Justices really consists of three, because, although only two Justices are appointed, in case of difference of opinion the Lord Chancellor is called in and assists them. Now on this point I will just refer to the evidence given by the hon. and learned Member for Wallingford (Mr. Malins) before the Lords' Committee. He says:—
"An appeal to the Lord Chancellor sitting alone is not satisfactory; an appeal to the Lords Justices is not quite satisfactory. It is not because I think the decision is not correct, but because I study the way in which the public look at the matter. I think there ought to be four or five Judges; five would be a convenient number, but four would do."
And in another place my hon. and learned Friend stated his opinion that three would be satisfactory. The hon. and learned Gentleman the Member for Dundalk (Mr. Bowyer) expressed an opinion that there ought to be, at least, one Scotch Judge among the number. I do not object to that; but I confess I was surprised at the candour of the Scotch witnesses, who, instead of asserting their right to have a Scotchman in the House of Lords as one of the Judges of Appeals, expressed an opinion that the decisions on Scotch questions were very much better without them; and gentlemen of such eminence as Mr. Hope and Mr. Bellenden Ker expressed an opinion in favour of leaving the
434
appellate jurisdiction with the House of Lords. The Writers to the Signet state—
"That this society fully recognises the great benefits which have resulted to the law of Scotland from the exercise of the appellate jurisdiction of the House of Lords; and would deprecate any alteration by which its judicial functions would be vested in any other body. That, in the determination of appeals from the Scotch Courts, it is of great importance to maintain the benefit derived from the application of the English judicial mind, and also to obtain the assistance of an eminent lawyer, thoroughly acquainted with the whole range of Scotch law and practice."
They therefore suggested the propriety of having a Scotch Judge in the Court of Appeal, and I should be sorry to say anything in favour of the exclusion of learned individuals of the Scotch nation from this Court of Appeal; but, at all events, the practical grievance resulting from the absence of a Scotch Judge is very little, according to the testimony of the witnesses. What do those who object to the present measure rely on? The hon. and learned Member for Plymouth, and almost all the able and learned men examined before the Committee, expressed their anxiety that the appellate jurisdiction should be retained by the House of Lords. I also am anxious to retain it in the House of Lords for the very best possible reason, because it possesses it, and that is a good Conservative argument. The House of Lords has had an appellate jurisdiction for a long period of time, and if there are any defects it is our duty to improve but not to destroy it. If, at any time, in consequence of infirmity or length of years, three Judges are not able to attend in the Judicial Committee of the Privy Council, it is our duty to replace them, and such is the principle upon which this Bill is framed. The hon. and learned Member says that his objection to the House of Lords being a permanent tribunal of appeal in the last resort is, because it depends entirely on the volition of individual Lords whether they will attend or not. That is to be cured by the appointment of two learned persons as assistants to the Lord Chancellor, to attend constantly to hear and determine cases. But, it is alleged, that in public opinion, such a tribunal will not carry the weight and authority of the House of Lords. I believe it will, for I believe that the Members composing the House of Peers will always have such an influence over the Judges constituting that Court as to impart to their decisions the dignity of the whole House, while they

435
will always be able to check any approach to irregularity. It is of the greatest consequence that the appellate jurisdiction of the House should be vested in, and discharged by, the whole body, which it will be in the persons of these Judges. Surely the hon. and learned Gentleman does not expect to get more perfect, more brilliant, more luminous judgments than had been delivered in that House during the last half century, when Lord Redesdale and Lord Eldon sat there? Is the House of opinion it will get better men? I think not. Nor will they be miserable Judges because they are moderately remunerated for devoting their talents to the country. So far from objecting to the Bill, I think that the hon. and learned Gentleman should vote for its second reading, and show us in Committee how it can be improved. It is said that life peerages would be created. That is true; but you hear the opinion of eminent authorities, that if limited in number the adoption of that principle may be beneficial; there is no likelihood that the House of Lords will be deluged with life peerages. You must give way to the exigencies of the time. You have reformed the Court of Chancery—you have created the Judicial Committee of Privy Council—you have established the Court of the Lords Justices; and I think there is no ground either for surprise or alarm in this proposition. By adopting it you will get eminent men, who will not only increase the judicial strength of the House of Lords, but who will suggest good laws, and more, correct those laws sent up to them by this House. Considering that almost all the amendments of the law which we have had of late years originated in the House of Lords, I am the more confirmed in my opinion that I am right in giving support to this measure.
SIR JAMES GRAHAM: Sir, I always listen with the greatest respect to gentlemen of the long robe, but, as the House has been addressed by four learned Gentlemen in succession, I hope, conscious as I am of my own incompetency, that they will allow one not learned in the law to address them upon a question of the greatest gravity, and, I must add, of the greatest constitutional importance, which has been discussed in this House for a long time. The hon. and learned Gentleman who has just sat down has passed a glowing eulogium upon the House of Lords, which, I presume, he meant to apply to it in its judicial capacity as a Court of ultimate
436
appeal. He has referred to great names, to Eldon and to Lyndhurst, not going further back, however, as he might have done, to times when there were giants in the law. I shall not differ from him with respect to earlier times; but I ask him, if, indeed, the House of Lords be so strong in its legal powers and in its efficiency to deal with great questions in the last resort which are brought before it, whence arises this Bill sent down to us from the other House? Is the House of Lords, I would ask, of the same opinion as the hon. and learned Gentleman that, as at present constituted, it is a tribunal which is satisfactory or such as to inspire the public with confidence? The Attorney General, who proposed the second reading of this Bill, if I mistake not, told us that the defects of that tribunal were glaring, and that it was on account of those defects that the Government proposed this Bill. I am bound to add that there were several observations made by the Attorney General which filled me with amazement and fear. The hon. and learned Gentleman told us that the defects of this tribunal were glaring; that a better course might possibly be adopted than that proposed by this Bill; and he added, as a reason for passing this Bill, that the House of Lords would not surrender its appellate jurisdiction. I said some of the hon. and learned Gentleman's observations filled me with fear and amazement. Have we arrived at that point that we, the Commons of England, if we shall be satisfied with the judgment of the House of Lords itself as to the inefficient mode in which it now exercises its judicial functions, are to be told, when called upon to supply a remedy, that, though a co-ordinate branch of the Legislature, we are not to exercise our own right of decision with respect to the remedy, and that we are to be coerced by the assertion of Her Majesty's Attorney General that the House of Lords will not surrender its appellate jurisdiction, and consent that a new tribunal shall be erected which, it was admitted, is not one that will fulfil all the requirements of such a Court? Have we arrived at such a pitch of degradation? What is the meaning of that assertion of the Attorney General that this is not the best measure which can be proposed? A noble Friend of mine (the late Lord Melbourne) said he could well understand not proposing any change in cases of doubt, and he could well understand also changes being proposed greater than he might think safe, and greater

437
than he might be ready to assent to; but he was always filled with apprehension when it was said that "something" must be done—an indefinite change must be made, not supported by reason, but pressed on as being cogent from necessity, without any distinct idea of what the change should be. Yet I heard from the Attorney General this evening that the defects in the appellate tribunal are glaring; that the best remedy was not the remedy proposed by this Bill; that the House of Lords would not surrender its appellate jurisdiction—and yet that something must be done. The hon. and learned Gentleman opposite says that it is our duty if we reject this Bill, to propose a better one. It may be possible for us to do so; but before we do so, as the House of Lords has inquired, is it very unreasonable that the House of Commons should ask for a little time to inquire likewise? I turn now, however, Sir, from that which has been said by those who have preceded me to the view which I myself am disposed to take upon the subject. The Bill presents itself to us under a double aspect. It seeks to dispose of a controversy as to peerages for life, and it seeks also to remedy the deficiencies in the appellate jurisdiction of the House of Lords. With regard to the first, a compromise was a matter of necessity. Her Majesty's Government found themselves unexpectedly involved in a difficulty with respect to the creation of peers for life, from which they sought to retreat, and their opponents in the House of Lords, having the command of a majority, found themselves also in a great difficulty, inasmuch as, having given a vote against peerages for life, they were involved in and embarrassed by a struggle with the Crown on a question of prerogative. A compromise, under such circumstances, between the two contending parties was natural and inevitable. The compromise in this case has been admitted by the noble Lord at the head of the Government. It is the nature of this compromise to release the Government from their difficulty as to the peerages for life, and to release the Opposition from their difficulty in respect of their struggle with the Crown. But is there nothing extraordinary in this state of affairs? The unanimity with which this Bill has been sent down to us, in my opinion, ought to excite the jealousy of the House of Commons. In these matters the graves principum amicitiœ are more formidable than the array of hostile parties,
438
and I think the House of Commons ought to view with jealousy a compromise based on the mutual convenience of contending parties. There is nothing new in this. My hon. and learned Friend who seconded the Amendment referred to the last occasion on which the question of peerages was discussed in this House. It was in the year 1719. Then, also, a Bill came down to this House which had received very general support in the House of Lords. It was moved by the Government, and it was supported by their opponents. It was met in the House of Commons by Sir Robert Walpole, who found himself on this question united with his oldest opponents, and opposed to his warmest partisans, with signal success, both in this House and out of it. He published a memorable pamphlet upon that occasion, in which there is a passage which I will road to the House, as it is an admirable illustration of the present state of affairs with respect to this Bill. He says—
"Amid all the numerous objections to this worthy scheme, I am free to own that there is one thing in it which deserves commendation, for it has produced a never-before-known unanimity among our great men. It has yoked the lion with the lamb."—[I don't know whether we may not say the same of this Bill after the speeches of the hon. and learned Member for Enniskillen and the hon. and learned Attorney General—which is the lion and which is the lamb it may be difficult to say]—"the Whigs with the Tories, men in power with those they have turned out of it." [The hon. Member for Enniskillen sees some analogy already, I imagine.] "Ministers of State are become patriots, and join with their professed enemies in lessening that prerogative they have so often occasion for."
I am almost ashamed to quote a passage from another pamphlet, because it is not a pamphlet of Walpole, but of Sir Richard Steele, who took part in that great struggle, and who wrote a pamphlet called The Plebeian. He mentions a suspicion that certain great influences were afloat to carry the Bill, which had come down as a compromise from the other House, and he describes some nameless Member under the designation of Esau, whom he denounces as—
"The greatest traitor to civil society that ever yet appeared, who shall contend for such a Bill in the Commons with the assurance in his pocket of being a Peer as soon as the Bill passes."
I know not whether that passage is at all applicable to the present case, but there are suspicions which will, of course, be afloat on all such occasions, and it is

439
certainly suspicious to see such unnatural unanimity. I only put it as an instance of there being nothing new under the sun. Even if it were admitted that it was not a compromise, every line of the Bill which we are now discussing is marked by feebleness, obscurity, and that impotent indecision which is inherent in middle measures. The principle upon which the Bill is framed is clear. If the House will permit me to read it, I have a, passage here from the speech of Lord Derby, which in the plainest and most explicit manner gives you a clue to the labyrinth, and shows you the precise basis on which the Bill rests. The noble Lord said—
"Can we frame the Bill in such a manner as not to call upon the Ministry to pronounce a condemnation of the policy they have upheld; and, on the other hand, not commit the body of the Peers to a proceeding inconsistent with the stand made by them in defence of the hereditary character of the peerage?"
That is a most frank and open avowal of the principle on which this measure is framed, and it leaves no doubt, not only as to the existence, but as to the object of this compromise, and as to the mode in which it is worked out in this Bill. Either the prerogative of the Crown is compromised by the limitation which this Bill contains, and by the appeal to legislative sanction for the issuing of a writ of summons to a Peer for life to sit in the House of Lords; or, if there be no such limitation, the precedent of peerages not of inheritance is established by the Bill now before the House. What is most remarkable is that such is the ambiguity and obscurity of this Bill, such is the care with which it has been framed with words in collocation bearing a double meaning, that we have reason to know that on the third reading it was viewed in an opposite sense by each of the two sets of authors from whom it emanated. The Lord Chancellor and the Lord President of the Council declared that they would never have given their consent to the Bill if it had limited the prerogative with respect to the creation of Peers for life; while the Lord Chief Justice of England and Lord St. Leonards declared that they would not have consented to it if it had contained a recognition of the prerogative of the Crown to create such peerages. Of two things one—either the majority of the House of Lords is deceived with respect to this measure, or Her Majesty's servants who have advised it have unintentionally betrayed the prerogative,
440
of which they are the guardians. It is a dilemma from which there is no escape. For us there is an escape, and that is by the rejection of the Bill, and by giving time for the framing of a measure on this important subject which shall not be ambiguous, but of which the meaning shall, on the contrary, be clear and patent. I have said that the measure is studiously obscure. Let any hon. Member turn to the fourth clause, which I have myself repeatedly read. The uninitiated would certainly say that it conceded to the Crown the absolute power of creating four peerages for life. It commences by giving the Crown power to grant peerages for life to two Deputy Speakers, and by providing that a writ of summons shall, with the consent of Parliament, be issued to them; but the words at the end of the clause go much further. They provide that there shall not be more than four persons holding peerages for life at the same time. The plain meaning of that would be that it would be quite open to the Crown to make two Deputy Speakers and to fill up two other peerages, the holders of which should be chosen, not from the legal profession, but from any other class from which the Sovereign should be advised to make the selection. But I believe that the right construction is, that it is in the first instance strictly limited to two Deputy Speakers, and the provision for the existence of four life Peers is made that these Deputy Speakers may retire and fresh ones may be appointed with the same rank, the gross number of Peers for life at no time exceeding four. But, then, what is the position of Lord Wensleydale? Unless he shall be selected by the Crown to fill one of the Deputy Speakerships, he being and remaining a Peer for life, his position will be most ambiguous and most anomalous. The petition which he has presented to the House this evening cannot fail to receive our attentive consideration. He understands the precise bearing of this clause, for the ambiguity of which he is not responsible, and he says that it will seriously damage his case in regard to that legal claim which he seeks to urge to its greatest possible extent. I think that, out of deference to that noble Lord, who has every claim upon our consideration, we ought not to decide without referring the question to a Committee, or else summarily rejecting a Bill which prejudices his claim. It is a strange inconsistency that the champions of the peerage by inheritance only are now, as it were, the authors of

441
this proposal of peerages for life. If the prerogative be limited, it is contrary to the sense of duty of the Queen's advisers, as is avowed by Her Majesty's Government, that henceforth no Peer for life, not a Deputy Speaker, can be created without the consent of Parliament. If it be unlimited, then it is open to abuse for party purposes, and dangerous to the independence of the House of Lords. This Bill has one remarkable characteristic. In this assembly there are, I dare say, very conflicting opinions with respect to the general policy of the creation of peerages for life; now, this Bill is so framed that there ought to be a general concurrence of those who favour and those who are opposed to the creation of such peerages to reject it, because it leaves in uncertainty that great branch of the prerogative. I, for one, entertain the gravest doubts with respect to the policy of the creation of peerages for life. I look at the colonial senates, and see there the nominees of the Crown holding their appointments in the Upper Chamber, which are quasi peerages, for life. Nothing could have been more injurious to the colonies generally than this system of nominees. Speaking broadly, I should say that an hereditary peerage—an independent peerage—and I would use these terms as almost synonymous—an hereditary and independent peerage is the characteristic of the mixed kingly form of government. And there is no alternative. If you have not an independent hereditary peerage, you must come to elective members of the Second Chamber, which is the mark and designation of the republican form of government. Now, what is the evil alleged? The alleged evil which this Bill seeks to counteract is, that there is in the House of Lords too much of a law origin; and that the sons of great lawyers inheriting peerages are without adequate means of sustaining their dignity. The cure suggested by this Bill is the most extraordinary one that I ever saw. Instead of running the risk of a comparative want of means on the part of the sons of law Peers created with inheritance, it seeks to introduce the Peers themselves into the House for life, before they shall in their noble profession have earned means sufficient to sustain the independence and the dignity of their station. Poverty is for the first time avowedly to be one of the ingredients in the qualifications for life peerages. What will be the effect? Poverty is to be one of the
442
ingredients, and it will be a brand of dependence and a mark of inferiority. It will engender in the mind of a Peer for life, who feels himself, as it were, degraded, the constant hope of working out his own independence and obtaining from the Minister of the day the more honourable station of an hereditary Peer. It will have another effect. What is the title of Peers? The very title of Peers, "Pares," implies equality. But here will be a degraded class, unequal in its position, looked down upon by the hereditary Peers on that very ground, on account of their poverty, as well as of their inequality. What has the law done to deserve this indignity? I cannot conceive any position to be worse than one in which favour is to follow fawning, and where they are to hang upon the skirts of a Minister to obtain a more independent station, and to become really equal, pares, with that body into which they have been so unworthily introduced. If this Bill should pass, no Chancellor will ever obtain an hereditary peerage—he will never reach the position which was filled by Clarendon, by Hardwicke, by Camden, by Eldon, and by others whose names it is needless to particularise, but whose descendants are among the most revered and most respected members of the House of Peers, because they owe their origin to men who in their day rose to pre-eminent station by pre-eminent talent. The only chance that a Lord Chancellor will have of obtaining an hereditary peerage will be, not that he is pre-eminent in his profession, but that he is rich and childless. Lord Somers has been mentioned. Lord Somers was a poor man when he had become a most eminent one, and such was his noble spirit that he was content to sit as Chancellor in the House of Lords virtually deciding causes by his learning and his influence, yet really without a vote, because in his early days he had not acquired that independent fortune which he thought necessary to entitle him to take an hereditary peerage. Did he ever dream of a peerage for life? He never thought of such a thing. He never dreamed of it. Together with his preeminence he earned an independent fortune; he was raised to the peerage, and his heir still adorns that noble assembly. The Attorney General said—
"This is an efficient remedy to cure the evil: it is not the best measure that we could hope to carry if the House of Lords would yield to reason; but that House will not part with its jurisdiction;

443
you must take this, and, upon the whole, it is a very good thing."
By this Bill you limit the number of peerages for life to four. From the nature of the choice the Deputy Speakers must be aged men who have long occupied a prominent station. Age and infirmity will tell upon them, and it is possible that from age and infirmity they may cease to be able to perform their judicial functions; yet they will remain peers for life, though no longer Deputy Speakers, and, unless you legislate again, you will be reduced to the precise position in which you stand at this moment. Your remedy fails; your measure is useless. I feel satisfied that you cannot stop here—that you will find it indispensably necessary, if this precedent is established, to go on and extend the creation of peerages for life not only to the law, but to the army, the navy, and to politicians. I am sorry to say that poverty is not confined to the law; on the contrary, I believe the law to be a much more lucrative profession than that of arms. Your admirals, your generals, usually do not make £10,000, £15,000, or £20,000 a year; and I must be permitted to say I very much doubt whether the leaders of the bar at this moment are not in receipt of a larger income than their predecessors enjoyed at any period of the history of the profession. Their talent is pre-eminently great. I need only look on both sides of this House to be justified in saying that the Bar was never more distinguished. I doubt whether at any period were the receipts of the Bar greater than they are now. If, then, they are prudent and able, like their great exemplars in an earlier history of our free constitution, in a profession which is the safeguard of that free constitution—if employing their talents fully they have that self-command, that thrift combined with industry which leads to the accumulation of ample means, then, I say, they have no need of this paltry measure, limiting the enjoyment of the great reward of their exertions and their great fame to the short and narrow limits of their own lives. But if this Bill be necessary for the profession of the law, then, à fortiori, it is applicable to other professions, and you are establishing a precedent that will not stop where you profess to limit it. Then, I say, you touch the mainspring, the noble mainspring of human action. All our highest aspirations in everything that is really worthy of genius are connected with a longing for immortality,
444
and a desire to immortalise and perpetuate our name. Let me say in passing-—
"——ipsos quamvis angusti terminus ævi Excipiat
At genus immortale manet, multosque per annos Stat fortuna domus, et avi numerantur avorum."
That is the motive which actuates the noblest spirits, and animates their hopes and their exertions. Then take the case of politicians: I say a life peerage in the House of Lords may be regarded as a shadow from the heat, as a refuge from the storm; but it is a miserable thing for a man who has occupied a prominent position in the House of Commons, as history has taught us by examples. Look at the very period to which I have referred, to the case of Mr. Walpole and Mr. Pulteney. At that time Mr. Pulteney had an opportunity, having overthrown Sir Robert Walpole, to form an Administration, but he shrunk from the responsibility and would not accept the highest office, but asked for an earldom. Walpole, whom he had humbled, had great influence with the Crown—the King was unwilling to grant the earldom; but Walpole out of office had sufficient influence to obtain the grant for his opponent from his reluctant Sovereign, and, having succeeded, Horace Walpole records that when he went home he used this expression—suiting the action to the words—"I have turned the key of the closet upon that Gentleman." Lord Chesterfield, commenting upon the transaction, says of Pulteney, that "he sank into the insignificance of an earldom." And Walpole himself having, after twenty years of triumphant power, been raised to the peerage by the title of Earl of Orford, we are told that when he entered the House of Peers he went up to the Earl of Bath, his old rival, and taking him by the hand said, "now here we are, the two most insignificant fellows in all England." Yet those were hereditary peerages. Consider, then, what will be the effects of this retreat into the House of Lords for decrepit politicians, by means of peerages for life. How miserable and degraded will be their position! And I tell the House that if it passes this Bill, many years will not elapse before the precedent will extend from lawyers to admirals, to generals, to politicians; and the most serious consequences of all will be, that we shall find our veteran statesmen standing in the marketplace, like the labourers in the parable, crying at the eleventh hour of the day—

445
"No man will hire us !" Political degeneration and turpitude will be extreme. I therefore entreat the House to pause before it passes this Bill. There is one reflection which I wish to make in passing: hereditary peerages, from the abstinence of the Crown in respect to new creations, are rapidly diminishing, and if you come to granting peerages for life the independence of the House of Lords will he incurably swamped. I have here an account of the state of the peerage at the beginning of Sir Robert Peel's Administration in 1841. Since then, I find that twenty-nine peerages have become extinct, and up to January of the present year only fourteen new creations had been made. Since January, I believe, there have been two new peerages created, making sixteen in all; but still leaving a diminution of thirteen since 1841. The independence of the body, unless you tamper in this way with it, is sustained both by the course of nature and the constitutional forbearance of the Ministers of the Crown from unduly augmenting the number of hereditary Peers; but if you break ground in that direction, I am satisfied that for a very paltry object—paltry in respect to the object you have in view—you will inflict a great blow, and run the greatest risk of seriously impairing the value of a co-ordinate branch of the Legislature. Turning, however, from this point to that which is of the greatest importance—the court of appeal and the jurisdiction of the House of Lords—I find that there is a fiction and a reality. The fiction is as to the jurisdiction being in the House of Lords. The reality is, that that jurisdiction is in the Lord Chancellor, chosen with the fluctuations of party, partly on account of his abilities, but still more on account of his activity as a partisan, and in three or four other ex-Chancellors, who have been chosen in the same way in their own day. What is the description given of that House by the Queen's Attorney General? He said—I do not know that he used the expression "dummies," but he said they were ciphers, or mutes and ciphers. Now, the fiction is that these mutes and ciphers exercise the jurisdiction, while, in fact, I believe the tribunal, which at last to its honour has avowed its incompetency, consists at the present time of the Lord Chancellor sitting alone. I admit there have been times when, as I have said, "there were giants," the Lord Chancellor sitting alone was the best possible tribunal; but we have passed
446
from the days of giants to those of pigmies. I cannot think that one Judge, unaided, yet reversing the decisions of the highest tribunals throughout the United Kingdom, can be regarded as adequate to the performance of his high duties. There were such things at the common law bar as sham pleas, but those fictions have now been discarded as worse than useless. Shall a delusion be maintained in the highest tribunal itself, when all such worthless fictions are abolished in the lowest Courts? What were the objections admitted in the Lords' Report? The principal objections were two—first, that the tribunal was uncertain, sometimes the Lord Chancellor sitting alone, sometimes sitting with one, two, or three ex-Chancellors; but the client never knew until the morning his case was opened what was the tribunal he was to appear before and who was to constitute it; and, secondly, that the Scotch appeals were not satisfactorily heard. Now, what are the remedies which are proposed to meet these evils? Two Deputy Speakers are to be appointed, but still the objection remains to the uncertainty of the tribunal. This Bill contains no ouster of the jurisdiction of the ex-Chancellors. There are three or four of them floating about in the House of Lords, sometimes present, sometimes absent; but, if they should all think fit to attend, I believe there are three ex-Chancellors and the Lord Chief Justice who can do so. I remember, too, the time when my noble Friend Lord Devon was held to be a law Lord, and I believe the great case of "Small and Atwood" was decided during his attendance. Then, there is an Emeritus Master in Chancery in that House, and he, too, may be regarded as a law Lord. There is no ouster against them, and they may safely claim the privilege of voting as law Lords, and the vote of each will be equal with that of one of the two Deputy Speakers, whom you are now invited to appoint at salaries of £5,000 or £6,000 a year each. A sham, whatever care may be taken to conceal it, is always transparent at last; and the fiction which confides the appellate jurisdiction to the House is so flagrant that it escapes through all disguise, even in this very measure. The Bill admits it to be indispensable that this tribunal, reconstituted as proposed, should sit during prorogations. What is the meaning of such a provision? It means that the House of Lords will delegate certain powers from themselves as an integral

447
part of the Legislature to three Peers, or to three Peers and the law Lords when Parliament is not sitting. And it appears that four Ministers of the Crown voted in the Committee that these powers should be delegated during dissolutions as well as during prorogations—a proposition which was only defeated by the independent voices of Members of the House of Lords not connected with the Government. Again, it turns out that pay has become necessary to ensure the discharge of these judicial duties. Now, while the House of Lords maintained their dignity by exercising their judicial powers without receiving salaries, I could understand that the continuance of this jurisdiction might strengthen the position of the learned body to whom they intend to entrust it; but when you tell me that they are to be hired journeymen, paid for their work by the House of Commons, I cannot say that there is either dignity or honour in such a position, and the strength of the position of the House itself will not be the same as it was when they performed their old hereditary office in the old hereditary way, to the satisfaction of the people, without fear, without favour, and without pay. In the Judicial Committee of the Privy Council—which you all agree in commending—you have unpaid Judges, performing with dignity the duties confided to them, to the entire satisfaction both of the profession and of the country. I will now make a few comments upon the second clause. Observe that by the limitation in that clause the Crown is confined in its selection of these new Judges within a very narrow space. The qualification is having held certain judicial offices for a specified time. In 1840, when the Judicial Committee of the Privy Council was appointed, and when, if ever a measure of this kind ought to have been proposed, the right moment for its introduction had arrived, this limitation would have excluded Lord Campbell, Lord St. Leonards, Dr. Lushington, and Lord Rutherford; even at the present moment it will exclude one, I believe, of the Vice Chancellors, Sir W. P. Wood; Mr. Pemberton Leigh, on whom such deserved encomiums have been bestowed; the present law officers of the Crown, and the law officers of Lord Derby's Government—men equal in character, in learning, in independence, and in ability to any gentlemen who ever adorned the legal profession. And this is the Bill which we are asked to
448
pass without inquiry, because the House of Lords will accept nothing else; because they will take no other means of satisfying the expectations of the people; because, if it is not passed, they will allow things to remain as they are! Again, by the common consent of all the witnesses of authority examined by the Committee, three is an inadequate number of Judges for the new tribunal; yet three is the number named in this Bill! I will not trouble you with the evidence upon this point; it is sufficient to observe that the Solicitor-General, Sir Fitzroy Kelly, Mr. Roundell Palmer, the Dean of the Faculty, Mr. Napier, and the Lord Justice General of Scotland concur in the opinion that five is the smallest number of which the Court of Appeal ought to be composed. Then, if you wish to make these Judges in the last resort, small in number but pre-eminent in power, adequate to the discharge of their duties, you ought to hold out some inducement in the shape of salary larger than that of the puisne Judges; yet the salary it is proposed to give them is £5,000, exactly that of a puisne Judge. I am now about to touch upon a point which, considering the number of gentlemen of the legal profession who are present, will, I am afraid, he unpleasant to the House; but my love of truth compels me not to pass it over. This Bill, if it passes, will, in my humble judgment, debauch both the Bench and the Bar. Puisne Judges are now very rarely indeed promoted to be the chiefs of their Courts. There is an old saying, that the Common Pleas is the pillow on which the Attorney-General reposes; it is his natural promotion, and no doubt, generally speaking, it is better that the chief of the Common Law Courts should be selected from the Bar than from the Bench. What will be the effect of this Bill? Why, the Crown will have the power of looking along the row of puisne Judges, and holding out to them the appointment of Deputy Speaker, a peerage for life, probably the expectation of an hereditary peerage in reversion; the tenure upon which they hold office, quamdiùbene se gesserint, will be very well understood, and if a Deputy Speaker is complaisant, a good voter in the House of Lords, always with the majority, and in favour of the Minister of the day, he may hope to obtain an hereditary peerage. The Government will then give the vacant place to some elderly gentleman of the bench, who will not occupy it very long,

449
but will make room for an eligible successor, also taken from the bench. I repeat that the effect of placing such patronage in the hands of the Executive Government will be to debauch the bench of Judges. What will be the effect upon the Bar? It will not be so direct, but it will not be less palpable. The vacant places on the bench will be filled by leaders, the business of those leaders will either be engrossed by a few persons, or divided among the Bar, whose interest it will therefore be that the leaders should be promoted. The measure will thus, I think, operate unduly and unfairly, both on the dignity and honour of the Bench and on the independence of the Bar. I have made this observation, I hope, without giving offence. No man living honours more than I do the independence, the learning, the character of the Bar; they have heretofore been, as they are at present, the champions of liberty, and I regard with pride and gratification their honourable and fair promotion in the career of just competition; but when attempts are made to throw temptations in their way inconsistent with their honour, I think these attempts ought to be resisted by the House. Now, let us see what is the business which will be transacted by the new tribunal to be constituted at this great cost. We have before us a return moved for by the hon. and learned Member for Devonport (Sir Erskine Perry), from which it appears that the causes taken before the Court of ultimate appeal in the course of a year do not average more than seventy, and do not occupy more than four months of the year in their consideration and decision. Now, I think it would be wise, before you constitute a new tribunal as a Court of ultimate resort, to consider whether additional business ought not to be transferred to it. A grave question arises with regard to the Lords Justices, a still graver question with regard to the Committee of Privy Council. I doubt whether the arrangement of a concurrent appeal or a double appeal, if your tribunal in the last resort is really satisfactory, ought to be maintained. These are grave considerations, not to be decided in the middle of July, and by a declaration of the House of Lords that they will take this measure or nothing. If there is the least spirit in the House of Commons, they will reject the proposition and take their own time and their opportunity to consider the important questions it involves. In the next place, has the appellate business
450
for a considerable time been satisfactorily transacted, by the House of Lords as at present constituted? Upon this point we have the authority of Lord Brougham, of Lord Cottenham, of Lord St. Leonards, of Lord Campbell, and of Lord Langdale, who at different periods have all recorded their strong and deliberate, opinions against the jurisdiction of the House as now exercised. Most of these learned Lords, too, have proposed remedies for the evils they have pointed out, any one of which is, in my humble judgment, preferable to the measure we are now discussing. Observe, this was at first a usurped jurisdiction on the part of the House of Lords, and it was so characterised by Lord Hale and by Lord Nottingham. And let mo also say, in passing, that it was not by the House of Lords that it was originally exercised, but by the King in the Great Council of State, His Majesty, by writ, summoning his Privy Councillors to attend him, and then, under their advice, deciding the causes in the presence of the Lords, but not through the Lords. I should be wandering far beyond my proper sphere if in any detail I sketched what should be done; but of this I feel certain, that, of two things, one must be done—either the House of Lords, without legislation, and proprio vigore, must endeavour to amend their jurisdiction; or, failing that, let them frankly, openly, nobly, and with a single eye to the public good, entirely abandon a duty which they cannot satisfactorily discharge. This is no suggestion of mine; it has been made by some of the high authorities whom I have enumerated. It is quite competent for the other House, without our intervention, to amend their jurisdiction. I believe they have the power of summoning to their aid, not only the common law Judges, but the equity Judges and the members of the Judicial Committee of Privy Council. Why, at the commencement of each session, should not all the causes entered for hearing be classified by the Lord Chancellor, the common law appeals be sent to a committee of common law Judges and certain Privy Councillors, the equity causes to the equity Judges and also certain Privy Councillors, the Scotch appeals distributed to certain Judges and the Lord Justice General and the Lord Justice Clerk, both of whom are now Privy Councillors? and even two more of the Scotch Judges might with great propriety be made Privy Councillors. The delegation must be outside the House of Lords

451
—in the Painted Chamber, for instance—the Lord Chancellor always presiding, and a certain number of Judges hearing the causes and having voices. Lord St. Leonards says that nothing can be more derogatory to the science of the law than debates upon the law itself, in public, between the Judges, What takes place in the Painted Chamber in regard to the report need not be known except from the report itself and the conclusion come to; it should be reported to the House from the woolsack as the judgment of the Court of Appeal, and when adopted by the House it would stand the final judgment of the House of Peers. Some such measure as I have thus faintly shadowed out is within the competence of the House of Lords without new legislation. If that is not sufficient, I know of no remedy within themselves likely to lead to a more satisfactory solution, and nothing therefore will remain for them but, as I have said, to surrender their jurisdiction. Of this, however, I am sure, this matter cannot continue to go on as it does now—the public, the profession will not allow it. The House of Lords is an assembly of politicians, and your Lord Chancellor and ex-Chancellors come together every evening to debate, and that, too, sometimes with great bitterness; your keen law Lords are often as keen politicians; and it would be really curious to see how they meet each other, after an angry debate in the House of Lords, to agree the following morning on their legal judgments. We know how they agree—they have come together to debate their judicial decisions in the presence of the public. Even Lord St. Leonards—who in his most able work on real property gives it as his opinion that to the science of the law nothing is so injurious as open debates among Judges on the law—was the first to break through his own rule in a learned argument which he himself conducted in the House of Lords with singular ability and remarkable astuteness. I cannot consistently with my duty forbear to mention certain prominent cases, although some of them have already been alluded to, wherein the action of political influences was quite apparent. There was the celebrated O'Connell case, to which the hon. and learned Member for Enniskillen referred, having himself been counsel in it for Mr. O'Connell. The opinion of nine of the common law Judges was taken on that case. Seven were in favour of a conviction, two were against it. The question came to be decided by the law Lords
452
alone. I do not see the hon. and learned Member for Suffolk (Sir F. Kelly) in his place, but he was also counsel for Mr. O'Connell. I will not trouble the House by reading the evidence he gave before the Committee of the House of Lords. He gave it as his deliberate and confident opinion that, if that case had been the case of any ordinary individual—an operative mechanic, for example—judgment would have been pronounced the other way. Vice-Chancellor Stuart, in his evidence, also stated the opinion of my late lamented and sincere Friend, Sir William Follett, who once expressed his conviction that the House of Lords had impaired their jurisdiction to a degree which could never be restored, by the law Lords failing on that occasion to put aside every political bias which might have existed in their minds, and to do what he believed was their duty—namely, to sustain the decision of the majority of the Judges. Another remarkable case was that of the Irish mixed marriages. It was argued in Ireland, and ten out of twelve of the Judges pronounced their opinion. It was brought to the House of Lords; the English Judges were called in, and they unanimously coucurred with their ten Irish brethren. What happened in that case? By a mere chance—a pure accident—that judgment, so sustained by the concurrence of the English and Irish Judges, was upheld indeed by the decision of the House of Lords; but how upheld? There was an equality of voices on each side, among the law Lords, and no judgment was delivered at all. So that literally that decision was a matter of chance. A more recent example was the decision in the Bridgewater will case, which was heard before the Lord Chancellor. Eleven of the Judges were called in to hear the appeal, nine of whom agreed with the Lord Chancellor; yet the judgment which that noble and learned Lord, the head of the law, delivered in his own court, although it was supported by a most able argument and backed by such an array of judicial authorities as I have named, was ultimately reversed by the voice of four ex-Chancellors. The Scotch cases are more remarkable still. And this Bill does not profess to provide any remedy whatever for them. An hon. Friend of mine has presumed that a Scotch Judge will be elevated—if elevation it can be called—to a life peerage, and made one of the Deputy Speakers. But, if you are reduced to that necessity,

453
what will English and Irish suitors say to this Scotch-law deputy, trained in a law other than that which he will have to administer, deciding, with a voice equal to one-third of the highest Court of Appeal, on the law of England touching property, and touching property, too, in its most sensitive parts, and in the last resort? This Bill leaves it open for the Crown to appoint a Scotch lawyer; but with that single and, I must say, doubtful exception, it wholly passes by the question as to Scotch appeals. What, then, is the mode in which justice is administered in regard to Scotch cases? It is well known that Lord Erskine, in his place in the House of Lords, and from the woolsack, when he had been elevated to the great seal, frankly and openly avowed before the assembled Peers, and in the face of the country, that he knew about as much of the law of Scotland as he did of the law of Mexico. I do not believe a more honest, upright man, ever filled the seat of justice than the late Lord Truro. He possessed that quality—more precious even than learning in a Judge—the strongest possible love of justice. He was not ashamed to do what few men had the moral courage to do—namely, to own his imperfect knowledge of certain branches of the Law, when justice was at stake. He sat alone, by a sad compulsion, for a whole Session to hear Scotch appeals; and it is recorded of him, that when he first sat to hear a question relating to Scotch entails he wished to take home an elementary treatise to inform his mind on the branch of the law on which he was called upon to decide, having practised all his life at common law. [An hon. MEMBER: It was an Irish, not a Scotch case.] Even if that were so, the argument to be drawn from it was much the same. Lord Truro was sitting in equity, and all his life he had been a common lawyer. Lord Truro for an entire Session heard all the Scotch appeals, and such was his sense of justice that he never pronounced a single judgment. What is the bearing of this on the administration of justice in this class of cases? The Lord Justice General—the highest authority—says that the appeals mainly rest on speculation as to the chances of the tribunal at the particular time. The Lord Advocate told the House of Lords' Committee that he had heard stated at the bar of that House, as being the law of Scotland, that which would never have been uttered by the youngest
454
counsel at the Scottish Bar; and the Dean of Faculty says, that when he is consulted by Scotch clients on the propriety of an appeal to the House of Lords, he does not look in the least to the merits of the case, but speculates on the light in which it will be viewed by English lawyers. Rabelais relates that there was a certain Chancellor who for twenty years pronounced judgments to the entire satisfaction of the people, which were regarded as perfectly consistent with justice and redundant with learning—that he kept his own counsel, however, about the peculiarity of his procedure; but the mode in which he had administered justice at length transpired, when it was found that, having always retired to his closet before delivering his decisions, he there fixed arbitrarily upon two numbers to correspond with each view of the case, and then, taking a dice-box into his hand, he would cast the die and give his judgment according to the numbers that he turned up. This is the mode in which appeals have been virtually conducted in the House of Lords, and which we are this day asked to sanction. They certainly do not decide appeals by lot, but a tribunal in which chance or party feeling thus prevails, in these days is disgraceful to the country in which we live. I am ashamed of the extent to which I have occupied the time of the House. Hitherto the inquiry has been instituted by the House of Lords alone, but I am one of those who think that a reformatory process can seldom be safely intrusted to those who have to reform themselves. The case is one in which the intervention of a second body will be most useful, and I do think that inquiry into the appellate jurisdiction in the last resort will most profitably employ our attention. What evil can result from the rejection of this Bill? The Session is drawing to a close, and this jurisdiction will not be exercised until we meet again. There is, therefore, ample time for further consideration. I have not only resisted the measure, but I have presumed, not on my own authority, but on the authority of those by whom I think I have been well advised, to sketch a mode by which the House of Lords themselves may, without the intervention of this House, improve their appellate jurisdiction. But again I say, if legislation is necessary let us begin de novo, and carefully investigate how an efficient and satisfactory tribunal can be constituted. Either for rejection or delay I cannot hesitate to

455
give my vote. If I am driven to such a course I shall vote against the second reading; but perhaps it will be better, on the whole, to support the Motion for a Committee of Inquiry.
MR. ROUNDELL PALMERsaid, that if he required anything to convince him of the difficulties of this question, the course which this debate had taken would have had that effect. The Bill had been introduced by the Attorney General, whose speech in its behalf had quite as strong a tendency to persuade him to vote against the Bill as any of the arguments of its professed opponents. He was not assuredly under the impression that the present was a Bill which, nolentes, volentes, the House were bound to accept—whether it were good, bad, or indifferent—because it was the only measure to which the House of Lords would consent; nor did he think that things were in such a desperate state that, for the sake of the miserable suitors, it was necessary to legislate improvidently, rather than not legislate at all, during the present Session. But he believed that the deliberate consideration of this subject by the Legislature was desirable, and could not be long postponed; and, surrounded as the question was by difficulties, he recognised in the principle of this Bill a mode of overcoming these difficulties less objectionable, upon the whole, than any other he had heard proposed. The details appeared to him weak and unsatisfactory, but were not beyond the reach of remedy in Committee; and, for these reasons (although the subject was one on which he was quite open to a change of opinion), yet, if the House were to divide upon the principle of the Bill, he should record his vote in its favour. He certainly could not agree with the exaggerated tone in which the defects of the Appellate Jurisdiction, as now exercised by the House of Lords, had been spoken of. There were defects, in his opinion, which could be and ought to be remedied. But he did not think either that those defects were of very recent origin, or that they had materially increased in the present, as compared with former times; nor could he admit that the giants of former times had degenerated into pigmies in the present. The fact was, that the judicial business of the country had greatly increased, and great reforms and improvements had been made in all the lower branches of the judicial system, from the Court of Chancery downwards. The effect of such an increase of power, in the
456
lower jurisdictions, had been to alter the relative position and authority of the House of Lords, which remained stationary, and had caused the defects of that tribunal to be more felt and more observed than formerly. It was natural, therefore, that public opinion should force this question upon their attention; and, in approaching it, the House must recollect that they had to consider mainly, not any question of privilege or prerogative, but the interests of justice and the necessity of having a final court of appeal, which should be satisfactory to the public and to the suitors, and which should maintain the dignity and independence of the judicial system on a solid foundation, while, at the same time, it contained within itself a sufficient amount of judicial knowledge to enable that court to be practically, as well as theoretically, the supreme judicature of the kingdom. Any price, which was necessary for that purpose, they must eventually pay, whether that price was the removal of appeals from the House of Lords to some other final tribunal, or the constitution of fixed and permanent officers, Members of the House of Lords, with adequate salaries, such as this Bill proposed. Although he was far from thinking it a matter of trifling importance whether they made that change in a mode tending to exalt the authority and dignity of the House of Lords, or to detract from that dignity, he contended that their first duty was to consider the effect on the administration of justice. In that point of view he approached the question, and he did not think the alternative which his right hon. Friend (Sir James Graham) proposed would bear serious examination. His right hon. Friend proposed that, at the beginning of each Session, they should classify the appeal business of the House of Lords, designating it as Scotch, Irish, Common Law, Equity, and so forth, and then call in the aid of a committee or commission suitable to each branch; delegating, in fact, practically the appellate jurisdiction to the same body of judges from the decision of one or more of whose members the parties appealed. But if that were all that need be done, there was no necessity for any supreme court of appeal at all, because such tribunals of appeal already existed in England, Ireland, and Scotland. They had the Exchequer Chamber with an appellate jurisdiction. They had already an appellate jurisdiction in Chancery. In Scotland they had the same. That principle, therefore,

457
was one which evaded the difficulty, and cut the knot by saying they wanted no final court of appeal at all; and to pretend that the decision of Judges, not members of the House of Lords, was the decision of the House of Lords would he a greater fiction than anything which now existed, or would exist under the present Bill. Such an alternative, he apprehended, was entirely out of the question. Then there remained the alternative of removing the jurisdiction to the Judicial Committee of Privy Council. There was something plausible about that at first sight, but the more it was considered the more it would be found that the difficulties were great both in a constitutional and in a practical point of view. In a constitutional point of view they were met by the obstacle pointed out by the hon. and learned Member for Enniskilien—namely, that if anything were of the essence of the prerogative of the Crown, it was that the Crown had power to determine who should be the members of its Privy Council. No members were appointed or remained members of the Privy Council except at the pleasure of the Crown. The Judges, therefore, to whom they resorted as the Court of ultimate appeal, would necessarily be removable at the pleasure of the Crown; so that, while all the lower stops of the judicature of the country were made independent of the Crown, removable only in case they did not behave rightly, on an Address from both Houses, that protection would be wanting with respect to the final Court of Appeal. That was a most grave objection, and it was not diminished by the consideration that, after all, the judgments were not the judgments of the Judicial Committee, but, as a constitutional principle, on report made, the judgments of the Crown, which the Crown was theoretically at liberty to pass or not, according to the Royal pleasure. It might be said, that these were objections of form, yet he was very far from being sure that they could safely reject objections of constitutional form in matters of such grave importance. No man could conceive what matters might arise in the future course of politics to turn those questions of form into questions of grave practical importance, and to make it most desirable that the final judicial authority should be vested in hands which no abuse of the prerogative could possibly touch or control. That might be only a consideration of a theoretical character, yet in matters of this nature theory was very near to practice
458
But there were also practical objections. They must practically destroy or remodel the Judicial Committee in order to adapt it to its new functions, and they could not be so certain that some, at all events, of the merits of that tribunal, by which it had maintained so large a share of public estimation, might not disappear in the process of change. Unquestionably it could no longer be a tribunal carried on by the voluntary attendance of the Judges. They must constitute Judges at least as numerous and as highly salaried, as any required under the principle of this Bill, and, having constituted those Judges, they would no longer be able to vary that tribunal to meet the exigencies of the different classes of cases by summoning those out of an aggregate of members giving voluntary attendance, who were best acquainted with the particular law requiring to be administered. It must be a fixed tribunal of permanent Judges. That was, of course, a difficulty which might he overcome by legislation, but by legislation which would not adopt, but would annihilate, an institution which now worked well, and would constitute simply a new court, exercising an entirely new jurisdiction. Neither must they forget the serious constitutional difficulties they might have to encounter if by an act of the Imperial Legislature they constituted a new court of appeal, not the Queen's Judicial Committee of Privy Council, for all the colonial dependencies of the empire. When the Judicial Committee of the Privy Council was constituted, few, if any, of the Colonies were placed under that system of self-government which now almost universally prevailed. There was then nothing contrary to constitutional usage in the appointment of a tribunal which should receive appeals from the Colonies by the authority of the Imperial Parliament, and the Crown was ever regarded as the proper repository of appellate jurisdiction; but if they now created a new court, by the authority of the Imperial Parliament, to entertain colonial appeals, he was strongly apprehensive that they might find themselves agitating a series of constitutional questions with respect to the independence and self-government of the Colonies. For all these considerations he entertained strong objections against the project for removing the jurisdiction of the House of Lords to the Privy Council, or constituting a new tribunal, consolidating in fact the two. But then he was tempted to ask, after all,

459
was the traditional respect in which the jurisdiction of the House of Lords was held so utterly baseless that, no advantage whatever was to be derived in the administration of justice from the high dignity with which it was associated by being united to one great branch of the Legislature? Did the independence of the judicial system gain nothing by having its root and fountain-head in the House of Lords, where unquestionably it was unassailable by corruption or by the influence of the Crown, and where it was brought into immediate and close contact with the legislative power, so that the same Judges who administered justice in the House of Lords, might also suggest acts of the Legislature to correct any defects or errors in the law? He confessed he could not divest himself of the notion that the administration of justice did gain something in dignity, independence, and stability from its association with the House of Lords; and he believed, also, that the opinion which had so long prevailed was not unfounded, which supposed that the House of Lords gained something of dignity, honour, independence, and stability from its association with the administration of justice. And, without pressing that consideration for one moment to a point which would make it interfere with the due administration of justice, he was unable to prevail on himself so far to disregard it as to avoid asking this question. If it be possible to establish a satisfactory court of final appeal in the House of Lords, consistently with constitutional principle and the interests of the country, would it not be as well—would it not be better—to do so, rather than to annihilate all the prestige of centuries and all the traditional respect which the country had been accustomed to feel for the jurisdiction so exercised, for the sake of attempting some new experiment the success of which no one could foretell? He thought it better to try improvement in the House of Lords, rather than venture on a course of mere experiment without any necessity which he was able to perceive. His right hon. Friend (Sir J. Graham) had addressed the House in a very powerful speech, full of topics calculated to affect its decision. He was not quite sure that all those topics were equally germane to the essential merits of the question. His right hon. Friend had urged objections to details, many of which were well founded; but he thought it was not necessary to refer to them upon the question of giving this
460
Bill a second reading. His right hon. Friend objected, in the first place, to the manner in which the question of life peerages was dealt with by this Bill; and, in the second place, he objected to the measure as giving a legislative recognition to the fiction involved in the present jurisdiction of the House of Lords. Some hon. Gentlemen had objected that the prerogative of the Crown, with regard to the creation of life peerages, would be invaded by the Bill, while others maintained that the measure would open the door to the creation and extension of such peerages. The right hon. Baronet had, for the purposes of his argument, used both these objections, but he seemed to throw his own opinion into the scale in favour of the second. He (Mr. R. Palmer) had not been persuaded by anything which had occurred in the House of Lords or elsewhere to entertain a doubt that the Crown did possess the prerogative of creating life peerages. Indeed, until the recent discussion of the question in the House of Lords, he was not aware that any doubt on the subject had been expressed by any high legal authority, but numerous writers of authority, both ancient and modern, had affirmed that the Crown possessed such a power; while as for the distinction of a peer with, and a peer without, a right to take his seat and vote in the House of Lords (no personal disability being in question), such an anomaly was never heard of before the case of the creation of Lord Wensleydale. One noble Lord, whose voice had not been least loud in the debate against the creation of Lord Wensleydale, had, when exercising a function which he (Mr. Palmer) supposed he ought to call judicial, in the case of the Devon Peerage, affirmed with the most undoubting and decided conviction that the Crown had the power of creating life peerages, and he went on to say that there was great reason for believing that the Crown had the power to create a peer during another man's life. That noble Lord had unquestionably changed his opinion; but down to the time when the Crown was advised to exercise the prerogative in the case of Lord Wensleydale, he (Mr. R. Palmer) was not aware that either the noble Lord to whom he referred, or any other legal authority of eminence, had ever entertained any serious doubt upon the subject. There was great doubt whether the passage which had been referred to, as expressing the opinion of Mr. Hargrave, did embody the views of

461
that gentleman; but, at all events, much higher authorities had affirmed without hesitation the existence of the prerogative. He thought it was impossible for any one who had studied the history of the prerogative of the Crown, with regard to peerages, to arrive at the conclusion that the Crown did not possess the power of creating life peerages. The late Marquess of Londonderry sat in the House of Lords as Earl Vane, and what was the nature of his title? It was an earldom, limited to him for his life, with remainder not to his eldest son, not to heirs male of his body, but to heirs male of his second marriage; and if the present dowager Marchioness had died during Lord Londonderry's life, without leaving male issue, Lord Londonderry would either have been excluded from the House of Lords upon the principle which had lately been laid down, or he would have been an instance of a person holding a peerage for life which could not by possibility devolve upon any of his descendants. That was not the only example of the same kind. Whatever might have been the policy or prudence of the advice given to the Crown in the case of the Wensleydale Peerage, he thought no one could doubt that the Lord Chancellor, in giving his advice, had I been influenced solely by a desire to apply a remedy to the very evil which this Bill was intended to meet. He (Mr. R. Palmer) might be asked whether he did not object to this measure on the ground that the prerogative of the Crown was invaded by the limitation which the Bill by implication, though perhaps not expressly, placed upon the exercise of that prerogative. He did not think that, because a prerogative existed, it should not be in the power of Parliament to limit that prerogative, or that it might not be wise on the part of the Crown to consent to such limitation, when the measure might be deemed politic, or for the public advantage. The difference of opinion which had arisen upon this subject, and the absence of any known legal remedy which the Crown could apply to assert its prerogative against the decision of the House of Lords, seemed to him to reduce the practical question to this—whether, if there were any substantial objects, beneficial to the public, for which the prerogative ought, within certain limits, to be supported and maintained, and if both Houses of Parliament could concur in maintaining that prerogative within such limits, there was any valid reason why the Crown
462
should be advised to object to the limitation of its prerogative. The very novelty of the question, and the doubts which existed on the subject, were reasons why the limitation of the prerogative might advantageously and expediently he declared by Parliament. No one who maintained the existence of this prerogative on the part of the Crown had, so far as ho was aware, thought that it would be for the public advantage to exercise it in such a manner as to invade, to subvert, and to undermine the hereditary character of the peerage. The Crown had been advised to exercise the prerogative, with the view of meeting a practical difficulty, and it was only on that account that any importance was attached to the question. When the union between Great Britain and Ireland took place, the prerogative of the Crown with regard to the creation of Irish peers was limited by Act of Parliament, and that was also the case when Scotland was united with this country. The law with respect to the right of Bishops to sit in the House of Lords had, of late years, been altered, and Bishops who, formerly, when they were appointed by the Crown, could, by virtue of their appointment and consecration, take their seats in that assembly, were, by an Act of Parliament, deprived of the privilege. There was, therefore, nothing unconstitutional in dealing with a question of this nature by act of Parliament. If the House considered that the practical value of the prerogative was to enable the Crown to supply the House of Lords with an adequate amount of judicial power, while it was not desirable that the prerogative should be exercised in such a manner as to destroy or undermine the principle of an hereditary peerage, he thought it would be wise and salutary to uphold the prerogative within some such limits as those contemplated by this Bill, and to put an end to all further dispute by restraining the prerogative for the future within those regulated limits. Such a course seemed to him to meet the objection of the right hon. Baronet (Sir James Graham)—that the Bill would tend to undermine the hereditary character of the peerage, and to introduce the novel practice of creating life peerages. The right hon. Baronet said, that when lawyers were created life peers an onward movement would take place, and that naval and military officers and politicians would be elevated to a similar dignity. He (Mr. R.

463
Palmer) thought that the right hon. Baronet was not justified in assuming that this Bill which limited, regulated, and restricted the prerogative, preventing its assertion except in the case of persons called to the House of Lords to fill certain judicial offices, and which they were told would confer an unenviable honour upon men, at whom the finger of scorn would consequently be pointed, would induce persons who might attain distinction in the army, in the navy, or as statesmen, to desire the position of peers for life. He (Mr. R. Palmer) believed there was no cause for alarm on that ground. If there was any danger that life peerages would be extensively created this Bill was a most salutary measure, for it restricted the exercise of the prerogative. It was his conviction that no persons would accept life peerages except upon the ground that such peerages were more desirable for themselves than hereditary peerages. He thought no man—whether a lawyer or a person in any other position—was justified in accepting an hereditary peerage merely because it was the object of his ambition to "build up an immortal name," if with that name he could not transmit to his children and descendants adequate means for supporting its dignity and honour. Unless those means existed the descendants of such a man would not look back with gratitude or respect to the founder of their family, but they would wish that his ambition had been more moderate, and that he had been content with honours which he might himself have supported with becoming splendour, but which they were unable properly to sustain. A court of appeal must be composed substantially of lawyers, and if that court was to be in the House of Lords, as he thought it should be, then means must be taken to remove every impediment to the supply of lawyers of adequate attainments and numbers. But did experience warrant them in believing that they could always command the adequate number of lawyers in a condition to accept hereditary peerages? He agreed with his right hon. Friend that it was probably not true that the legitimate emoluments of the profession were less in the present day than in former times. The habits and tastes of society now were perhaps more expensive than formerly, and therefore there were not the same chances of accumulation; but one reason why enormous fortunes were made in former times and were not likely to be made now was, that in other days
464
they were not solely made by the legitimate emoluments of the profession. Those were the days of large and extraordinary emoluments, when Lord Chancellors and other high judicial officers enjoyed very great salaries, and when immense fortunes were made in a short time in very irregular ways. All these irregular ways were cut off now, and all that was done must be by the regular road of honest labour. This was an improvement of our times, but one consequence of the improvement was that we did not find many professional men building up fortunes adequate enough to sustain the expenses and dignity of the hereditary peerage. If there were cases of persons with sufficient means there was I no reason against giving them hereditary peerages; but who could count up the number of legal peerages that had been created during the last sixty or seventy years, and say that there were adequate fortunes in connection with them? Who could fail to see that it would have been a better thing for many of those families if their ancestors had not been raised to the hereditary peerage, and that it was no advantage to the hereditary peerage to have such members among them? In very recent times only one colossal fortune had been made by a lawyer—he meant that of Lord Eldon. The result was that wise and moderate men, who acted best for themselves and their posterity, though they might be possessed of means ample enough to support their personal dignity in their lifetime, and who might be the ornaments of their profession, would always be found, in such a state of things, reluctant (if they were likely to leave successors behind them) to accept the hereditary peerage. If we were to have the choice of the best men in the profession, some means must be found of obviating this difficulty; and that was the reason why a remedy was lately sought. But he took the liberty of saying that the remedy, even if Lord Wensleydale's creation had been accepted by the House of Lords, must have been imperfect, because we wanted not only the presence in that House of a greater number of persons conversant with the law, but also persons who would be bound to give a constant, regular, formal, official attendance in the House of Lords for the performance of the required duties. That could not be done unless the principle of salary was adopted, and that was included in the principle of the measure before the House. The Bill he regarded as

465
defective in its details. For instance, the number of the fixed judicial body appeared to him too small, and their salaries inadequate. He thought if they were going to do the thing at all, it should be done well. They should not have a petty measure that would make it necessary to come to Parliament again. He did not hesitate to say that if the Bill passed with only two Judges, whose salaries were not to exceed those of puisne Judges, it would run a great risk of proving a miserable failure. He supported the second reading on this ground—that the Bill went on the principle of forming in the House of Lords, and as an integral part of that House, and therefore no fiction (or not more a fiction than the existing jurisdiction), a tribunal which should be found sufficient to perform all the duties of a final Court of Appeal. That was the principle in which he concurred, but he objected to some of the details. Those who framed it thought, and he did not, that two Judges would he enough. They thought, and he did not, that salaries of£5,000 would be enough; but these were points to be considered in Committee either in the present or in another Session, and therefore this was not the time to enter minutely upon those points. He took the main principle of the Bill to be that they should retain, and improve, and provide for the efficiency of, the Court of Appeal in the House of Lords; and on that ground alone he gave it his support.
MR. COLLIERsaid, until there was a responsible Minister, and Government came forward with a definite policy of law reform, by which they would be willing to stand or fall, it would be in vain to expect any measures of law reform that would be perfectly satisfactory. The opposers of the Bill had shown themselves remark ably barren of suggestions of improvement. None of the opponents appeared to be agreed as to what ought to be done. They admitted that matters were intolerable, but they totally disagreed as to the fitting remedy. The proposition of the hon. and learned Member for Dundalk (Mr. Bowyer) was quite untenable, as he proposed to take Common Pleas and Exchequer Judges, and with their aid to form a Court of Appeal. The hon. and learned Member for Tavistock (Mr. R. Phillimore), was too sagacious to adopt such a scheme, and he contented himself with saying that the House of Lords ought to reform itself; but he did not state how. That was the
466
whole case of the opposition. Here, however, in the Bill was a practical remedy for an admitted grievance. At present they had an uncertain tribunal, and one that could not be depended upon. This Bill constituted three Judges, whose attendance should he regular, and whose attendance might he depended upon by suitors—an improvement of the greatest practical importance. The Bill proposed that the Jurisdiction of the House of Lords should be co-extensive in duration with the sittings of the courts from which the appeals were made—that was also another most important improvement. He quite admitted that the Bill was capable of still further improvement, and if the Solicitor General's opinion had been attended to, the Bill would have been made more perfect. The Solicitor General's suggestions before the Committee ought to be embodied in the Bill, and if no one else made the proposition, he should propose that those suggestions be embodied in it in Committee. It was not too late to embody the suggestions of the Solicitor General with reference to a permanent Committee, and to the power of summoning all the Judges of law and equity, in case of need. The Solicitor General had grappled with all the difficulties, and had shown it was possible to deal with business transacted not only by the House of Lords but by the Privy Council. If these suggestions were adopted the Bill would work well, and be found a practical remedy for existing grievances. He should support the second reading of the Bill, and propose Amendments in Committee.
MR. J. G. PHILLIMOREsaid, he considered the Bill to be both dangerous and unconstitutional, and containing a compromise which rather eluded than met admitted evils. If there was one argument stronger than another against the Bill it was the necessity of separating the judicial and legislative functions; but this union had been put forward by one hon. Member as the strongest argument in favour of this Bill. This power of exercising an appellate jurisdiction was a mere usurpation on the part of the House of Lords. In the time of Charles I. the House of Lords made a desperate attempt to acquire the judicial function in the case of "Skinner against the East India Company," but in that attempt they were defeated. In the time of Charles II. the power of appeal to the House of Lords was resisted, and by no man more earnestly than by Lord

467
Hale, and it was not finally established till his death. The way in which the power of appeal became vested in the House of Lords was this:—After the death of Lord Hale the Crown issued a writ to certain members of the House of Lords—members of the Privy Council—authorising them to decide upon certain cases. The jealousy of the House of Commons was thereby aroused, and, rather than that the King should have the power of appointing a Court of Appeal, they acquiesced in what was undoubtedly a usurpation on the part of the House of Lords. The same objection had been made in the reign of Queen Anne. Sir W. Temple said that he had not heard any part of the British constitution so much complained of as the judicial functions exercised by the House of Lords. The same power was complained of by Sir Edward Sugden (the present Lord St. Leonards) in 1841; and now it was even complained of by the House of Lords themselves, who had reported that they were inadequate to the discharge of their functions. In his opinion, the only effectual remedy would be to remove the appellate jurisdiction from the House of Lords, and to constitute a supreme court of appellate jurisdiction, composed of the most consummate lawyers, which would command the respect and confidence of the country. To show that there was no peculiar sanctity in the claim of the House of Lords, he would refer to the opinion of Mr. Hallam, which directly negatived the claim of the House of Peers. They had a measure before them adequate for its purpose, and if the House of Lords neglected its functions, it was no reason why the House of Commons should neglect theirs. The House of Commons, though willing to give any sum of money for an efficient tribunal, objected to spend money for an inefficient object. If you took away the functions from lay Lords which they did not really possess, they would only be taking away that which they could not properly exercise. It was the duty of the House to constitute a tribunal that should be efficient, not for a few years, but for all time. With regard to the power of the Crown to create life peerages, he did not consider that to be the proper time for discussing the question. He would, however, observe that if James II., in his time, had asserted the power of creating life peerages, in all probability the House of Lords would have been swamped and his crown would have
468
been saved; but notwithstanding the arbitrary power generally exercised by that monarch, he never assumed the prerogative of creating life peerages. He thought it most impolitic and unwise to empower the same men to exercise both the judicial and political functions—for it must be remembered that these life Peers were also to vote in the legislative chamber—and he said it was a dangerous temptation to hold out to Judges, thus to mix up the judicial and legislative functions.
LORD JOHN RUSSELL: I confess I could have wished to hear from the Solicitor General some other reasons in support of this Bill than those which I have as yet heard. Indeed, it appears to me that two very great authorities who have spoken in favour of the Bill have, by their speeches, rather tended to increase the doubts of those who are unfavourable to the measure than to confirm those who are anxious to hear reasons in favour of it. My learned Friend the Attorney General almost made an apology for introducing the Bill. He said it was not what it ought to be, and that what he desired was a Bill which would erect a tribunal of appeal quite independent of the House of Lords. The hon. and learned Gentleman pointed out how much better such a tribunal would be than that devised by the present Bill, and he did not state to the House any reason against such a measure, except that the House of Lords were determined to go against reason, to overbear all the motives of justice and expediency, and to stand by their appellate jurisdiction, however mischievously it might work to the country. I must confess that would give one a very bad notion of the House of Lords, and I cannot but think it would give the country a bad notion of the House of Commons if, acknowledging the measure to be bad—knowing that it has been recommended to us as a bad measure—we were, nevertheless, to accept and adopt it in its present shape. Then we were told by the hon. and learned Member for Plymouth (Mr. Collier)—and I was glad to hear his remarks, because they coincided with the opinion which I had myself formed—that if the proposed tribunal were to be created, not only would £5,000 a year be an inadequate salary for the Judges to be appointed, but more than two Deputy Speakers should sit in the House of Lords; and he added, that unless the salary was larger, and unless two more members were added to the tribunal,

469
the Bill before us would be a miserable failure. But we must take the Bill as we find it, and it does not propose to give either larger salaries or to appoint a larger staff than that which the hon. and learned Gentleman deprecates as insufficient. The hon. and learned Gentleman, however, wishes to amend the Bill in Committee; but I know not that the Government would be prepared to adopt the alterations which he proposes. I am told, however, that the Bill is the result of a bargain—that the two sides of the House of Lords have agreed to the Bill, and that the House of Commons has nothing to do but to assent to it. Now, I must own that that argument does not at all incline me to acquiesce humbly in the Bill. It gives me some suspicion of the measure to be told that it is a compromise between the opposite parties. In the first place, in spite of the learned authorities which have been quoted before the Committee, I have considerable doubt whether the proposed remedy is absolutely required. I am told that the House of Lords is unfit to exercise the functions of a Court of Appeal, because very frequently the Lord Chancellor sits alone; because at all times the attendance of the law Lords is uncertain; because there may be present two ex-Chancellors, or only one, or none at all; and, because the members of the Court do not appear in judicial costume. Why, Sir, the greater part of these allegations refers to a state of things which has always existed, even when the country was most satisfied with the constitution of the House of Lords as an appellate tribunal. We have heard the names of Lords Hardwicke, Mansfield, and Eldon, more recently of Lord Cottenham, as well as of Lords Lyndhurst and Brougham, who are still alive; and I think no one can say that there has not been, from Lord Hardwicke downwards, almost a perpetual succession of periods in which men of great intellect, of very powerful understanding, and with vast treasures of acquired legal knowledge, have presided in the House of Lords. If that has been the case, I am disposed to think, when you are told by competent witnesses—men, too, who complain of the existing system—that when Lord Lyndhurst presided in the House of Lords and Lords Cottenham, Campbell, and Brougham attended, it was a most powerful tribunal, and one satisfactory to the country, you are endeavouring to provide a permanent remedy for a temporary evil; that those
470
disadvantages which you are informed exist in 1856 may in two or three years hence utterly disappear; and that the tribunal may then be as much an object of veneration and confidence as it has hitherto been. I agree with the hon. and learned Gentleman who spoke last, that in the days of Charles II. the House of Lords in its judicial capacity was a new tribunal, and that Lord Hale was opposed to its appellate jurisdiction; but, when so much time has passed since the beginning of the reign of that monarch, I must be content to take things as they are now, and unless that appellate tribunal is quite unsatisfactory—unless I am forced to look for a remedy—I must endeavour to be satisfied with its constitution as it exists at the present moment. At the same time, it appears to me that there is great force in what is stated by several of the witnesses with regard to the Lord Chancellor sitting alone; but I think, with the Lord Justice Cleric in Scotland and the Master of the Rolls in England, that an accomplished and able man giving his full attention to a case, even though it may not relate to the particular law with which he has been most conversant, is likely to come to a better decision than a tribunal composed of inferior men, though they may be more conversant with the precise question in hand. The instance which has been quoted by the right hon. Member for the University of Dublin (Mr. Napier) is rather a proof than the reverse of the truth of that observation. Examine it for a moment. The right hon. Gentleman says that Lord Truro, coming to sit in the House of Lords, was so ignorant with respect to a particular Act of Parliament referring to Ireland—the Irish Registry Act—that he asked for a common text book to take home with him, in order that he might learn the A B C with regard to that law bearing on the case. But the right hon. Gentleman does not stop there, for he goes on to say that Lord Truro, having mastered the case, having made himself perfectly acquainted with that Act of Parliament, came down to the House of Lords and delivered a most luminous and satisfactory judgment. Therefore, Sir, it appears to me that if that were the case, your practice of selecting the ablest man in the legal profession who belongs to the party which happens to be in power, of placing him at the head of the House of Lords, and of confiding to him the appellate jurisdiction, is not so utterly a failure or so entirely disgraceful an arrangements

471
as some hon. and learned Gentlemen at the present day seem to imagine. I admit that there are many things with respect to which we might blame both the Lord Chancellor and some of the ex-Chancellors who sit with him; but they are matters of arrangement which, with a little more care and attention, and with a little more respect to the public, the noble and learned Lords themselves can manage. Thus in the instance of a case of which we have been told instead of two noble Lords delivering an elaborate judgment, and a third saying that he was not aware the case was coming on that day, and was not prepared to give his decision, I think it would have been respectful to the public and decorous to the parties whose interests were to be adjudicated upon if the case had been adjourned to another day. Again, Sir, great fault is found with respect to some defects of manner, in some of the noble and learned Lords—for instance, a noble and learned Lord, whose qualifications as a Judge no one will question—Lord St. Leonards—is much blamed because he has been seen to slap the table with his hand. Now really, Sir, are we going to alter the whole jurisdiction of the court of last resort because one of the Judges slaps with his hand upon the table? These are matters which should be remedied by the noble and learned Lords themselves. They should agree to sit together, and wear an official costume, if necessary; they should do some things far more essential than those to which I have adverted; they should, above all, very much diminish the expense of those printed copies and of all those preparatory proceedings which are now necessary before a case can come into the House of Lords. Why, Sir, these are vestiges of the time when lay Lords gave their opinions in the House, and I have no doubt that three-fourths of the expense might be saved. There is another point, to which the right hon. Baronet the Member for Carlisle has adverted, and which I know engaged the attention of Lord Cottenham. The noble and learned Lord thought of recommending that a Judicial Committee of the House of Lords should sit during the recess of Parliament; that at the opening of the Session they should make a report upon the several cases they had heard; and that then the House of Lords should be moved to confirm their report and deliver judgment accordingly. Why, Sir, that would remedy a great part of the evil complained of. It is complained
472
that, during a period of two or three months, most useful for judicial purposes in other courts, the House of Lords does not sit. I have shown how that might be remedied without any such alteration as that proposed by the Bill now before the House. But, Sir, if I were disposed to yield to the learned authorities which have been quoted in favour of a change, I should still remain of opinion that the proposed remedy must result in making the tribunal worse than that which now exists. The Attorney General spoke of the mischief and impropriety of a Lord Chancellor sitting alone in the House of Lords and overruling decisions which the Superior Courts at Westminster, or the Lords Justices, or any other tribunals, much respected in the country, have arrived at. Let us suppose another case. Let us suppose the Lord Chancellor, a very eminent man, thoroughly qualified for the duties entrusted to his charge, sitting in the House of Lords with two puisne Judges, or persons holding the rank and receiving the pay of puisne Judges, and those two individuals overruling the decisions of the Superior Courts of common law, and of the Lord Chancellor into the bargain. It appears to me, Sir, that such a tribunal, instead of being an improvement, would be worse than the one now in existence. I can well conceive the advantages of a Court such as that which the hon. and learned Member for Suffolk (Sir Fitzroy Kelly) has proposed—a tribunal of five persons—the Lord Chancellor presiding at its head, and four Judges receiving £6,000 or £7,000 a year each. Such a position being made an object of ambition to men learned in the law, I can understand that we might have a better Court of Appeal than that which we possess at present. If a change is to be made, I should be in favour of such a change; but what I say is, either leave the Lords' appellate tribunal as it is—either leave that Court of justice to make some improvement in its own constitution and procedure—or, if you have a remedy to propose, let us have a complete and efficient remedy. Let us have a Lord Chancellor, with four of the ablest men you can have, sitting as an appellate tribunal. If you can secure such a tribunal, trustworthy and efficient, I am ready, for one, to vote the necessary funds, and I might go along with the proposal of the hon. and learned Member for Suffolk if a change is to be made. But, I say, do not fall between the two; do not have a tribunal

473
which is neither the House of Lords nor a good appellate tribunal chosen from the best men who can be found, but a hybrid creation which partakes of both and does not satisfy any of the conditions which the country desires. The tribunal which is to be formed is to sit in the House of Lords; and that appears to me to be the only thing in which it can be said to be the House of Lords deciding appeals. The House of Lords, as the Attorney General said, are very anxious to retain their appellate jurisdiction; but what is it they are wishing to retain? We all know that eighty years ago the lay Lords assisted in the judgments of the Court of Appeal. On the famous Douglas case some lay Peers sat on the twelve days during which the case was heard, and they gave their votes upon it. Indeed, I happened to stumble the other day upon a speech of the Duke of Chandos, in which he claims merit to himself for having attended the legal as well as the political business of the House of Lords. At that time, then, the Court of Appeal was either a good or a bad tribunal, but it was, at least, a reality; it was really the House of Lords presided over by such men as Lord Camden or Lord Mansfield, and therefore could not be said to be uninstructed, with regard to the law, in deciding on these cases. So matters went on until the time of Lord Eldon; but then, all on a sudden, the House declared that two lay Lords should attend, day by day, in order to make a quorum. Two Lords, therefore, often attended at the beginning of a case, two more at the middle, and two more, who had not heard either the beginning or the middle, attended at the end. Why, then the mystery was unveiled—the arcanum imperii was at once discovered. Nobody could then pretend that these were lay Lords, hearing and deciding appeals; it was obvious that no one but the Lord Chancellor and the law Lords gave their opinions on such subjects. Well, then, having got over this, the Upper House propose to go a step further, and they say, "Leave these lay Lords out altogether; let only the ex-Chancellors attend; let the Lord Chancellor sit with two other persons," who are not to be, as the ancient Peers were, Judges because they are Peers, but Peers because they are Judges. Why, that completely alters the nature of the tribunal. The Lord Chancellor sits in one room with two Lords Justices, and that is the appellate tribunal of the Court of Chancery.
474
He sits in another room with two learned Lords as Deputy Speakers, and, because he sits in the same room in which the House of Lords sits in the evening to discuss political matters, that is to be called maintaining the appellate jurisdiction of the Lords. Sir, I hope the House will not give its sanction to such a sham. I really think the House of Lords, if they had not been intent upon this bargain—this compromise, of which the Bill is the result—they would themselves have been ashamed of proposing such a scheme as this, calling it the preservation of their appellate jurisdiction. I have mentioned that there is another question concerned in this Bill, and it is a question upon which I am sorry to touch at all; but it is impossible to avoid it, because the House of Lords have sent down a Bill in which that subject is touched upon. I mean the creation of Peers for life. Well, that is a very grave question, and I own that I very much regret the course which both the Government and the House of Lords have taken. The learned Personage in question might have been made a Peer in the ordinary manner, and he would have had the respect of everybody as an hereditary Peer. I say I am sorry that so unnecessary a step was taken for the purpose, as it were, of trying the question, and I am very sorry that the Lords immediately caught at it as a matter of dispute, and decided in a Committee of Privileges that the noble Lord so created could not take his seat. Sir, I do not think we yet see the end of that decision. We know very well that in the time of Charles II., as the hon. and learned Gentleman who spoke last reminded us, there was a decision of the House of Lords—in fact, several resolutions were passed—to the effect that they possessed original jurisdiction. That they have long since entirely given up. We also know this House decided, and decided upon full authority, that Mr. Wilkes had no right to a seat; and in spite of an immense majority of the freeholders of Middlesex the House of Commons persisted in giving the seat to a gentleman who had a minority of votes upon the poll. These resolutions, however, after being stoutly maintained, were, as we all know, expunged from the Journals of the House, and are now universally acknowledged to be a precedent that ought never to be followed; indeed, when a case afterwards occurred something like it, we pursued a directly opposite course. So I trust that that Resolution of the House of Lords

475
upon the Report of their Committee of Privileges in respect to Lord Wensleydale will some years hence be rescinded. There is, indeed, a decision by them upon a peerage question, with regard to which such a course has been pursued. They decided, soon after the Union, that a Scotch Peer could not sit in the House of Lords by virtue of an English peerage; but after the lapse of some sixty or seventy years they found they were mistaken in the law; they reversed their decision, and admitted to take his seat another noble Lord who was a Scotch Peer, and had no more claim than the one they had formerly refused to admit. In the same way I trust this decision on the subject of life peerages will not be permanently retained on the Journals of the upper House. The question is a grave one, and has been decided, as I venture humbly to think, without sufficient argument. Everybody knows the doctrine held by Lord Coke, that the Crown possessed the prerogative of making Peers for life; the same doctrine is stated by Judge Doddridge as one which did not admit of doubt; it has been stated over and over again by various text writers, who have all copied this dictum of Lord Coke and Judge Doddridge. It so happened, in a case solemnly heard before the House of Lords, that Lord Brougham, when Chancellor, having occasion to refer to the assertion of Judge Doddridge, went on to dispute another dictum of this Judge upon peerage Jaw, but he did not notice as a subject for dispute that the Crown might create Peers for life. Lord Wynford followed the Lord Chancellor, and stated he should be very sorry to see the King make Peers for life, as he thought it would do great injury to the constitution; but neither Lord Brougham, nor Lord Wynford, nor anybody who ever mentioned the subject—except Mr. Butler, in a law work—ever positively, and with any authority, contradicted the opinion of Lord Coke. I do not say that that opinion is to be accepted without dispute; but what I do say is, that when the House of Lords had to consider the subject they should have made some further inquiry, and should have heard at their bar some persons to defend the exercise of the prerogative of the Crown. I own I was somewhat surprised that the learned Attorney General did not appear at the bar of the House of Lords in order to defend the Crown in that exercise of its prerogative. But let us see the position in which the question now remains. Contrary to the
476
authority of Lord Redesdale, the House of Lords have refused to allow Lord Wensleydale to take his seat. Do they mean that the Crown is to be deprived of that power which Lord Coke and many great authorities have declared it possesses? They find themselves, as my right hon. Friend (Sir J. Graham) says, in some embarrassment at setting themselves so positively against the prerogative of the Crown. What, then, have they done? They have agreed that a certain number of persons, not more than four, shall hold peerages for life; they have mixed up that important subject of life peerages with the appellate jurisdiction, with which it has nothing whatever to do; and they have laid down that no more than four Peers of this kind shall sit in the House of Lords. Do they intend in this way to take away or circumscribe the prerogative?—a question you may well ask. My Lord St. Leonards, the Lord Chief Justice, and some other Peers, said, that it did take it away; Lord Lansdowne said that it did not. A noble Peer proposed to insert words which would make it clear. But that would have left no subject of dispute in the House, and neither side would adopt it. Then, the House of Lords sent the Bill down here, and we are asked to accept it with its ambiguous phraseology, and to make an Act of Parliament for the convenience of these two parties in the upper Chamber. I will venture to say that, whatever different opinions persons may entertain with regard to the prerogative of the Crown in the creation of Peers for life—and my own views upon that subject may not coincide with those of my right hon. Friend the Member for Carlisle—a more indecent measure, or a more unfit mode for Parliament to deal with the prerogative of the Crown, has never been brought forward. Well, Sir, I will now state, and I will state very briefly, my own opinion upon the subject of the creation of life Peers, as my right hon. Friend has so fully stated his. My own opinion is, that there are so many authorities in favour of the ancient prerogative of the Crown to create life Peers, that, as it, is stated over and over again, by the very highest authorities, that Peers have been created with very great limitations, and, among others, with a limitation for life, there can be no doubt as to the ancient prerogative of the Crown. That prerogative, however, not having been exercised for so long a period—not having been exercised during the good times of

477
the constitution—not having been exercised since the Revolution with regard to any person who has taken his seat in the House of Lords, I am willing to admit that I think that, if such a prerogative were now to be exercised, it would be fitting to lay down, by an Act of Parliament, the exact limits within which it might be exercised. But, then, I think that the question is a very serious one, and one which ought to be dealt with by a Bill relating to that subject alone—a Bill which would require the most mature consideration. I believe that, if we are to have Peers for life, it would be advantageous not to confine those peerages to the profession of the law. There may be gallant admirals and gallant generals whose services are deserving of the approbation and admiration of their country, although they may not be so brilliant as those of Wellington or of Nelson; and such men might, I think, be very fitly placed in the House of Lords as Peers for life. I think, likewise, that if the number of life Peers were fixed at a certain limit, we should not be introducing any anomaly into the constitution, because at the present moment there are in the House of Lords more than seventy Peers who sit for life, or for a term less than life. There are the Irish Peers, who are elected for life; the Scotch Peers, who are elected only for the Parliament; and the Bishops, who hold their seats for life; and I believe that the creation of another set of life Peers, limited in number, selected from men of eminence at the bar, in the naval and military professions, and in statesmanship, would not only not tend to diminish the authority of the House of Lords, but would, on the contrary, tend to give it strength, and would be in conformity with the general spirit of the times, I may be told that there is no necessity for such a course at the present moment. Well, I dare say not; but it is true with regard to the naval and military professions, more so than with regard to the law, that there are not the same means which used to exist for members of that profession to obtain fortunes sufficient to enable them to sustain the dignity of an hereditary peerage. They have no longer those means by which a general in Flanders, or an admiral in the East or West Indies, or in the Pacific, might obtain a fortune sufficient for that purpose; but still we cannot wish to exclude those men from honours which Wellington and Nelson were proud to gain, and upon them we might confer a peerage for life. I think, therefore, that
478
we should derive great advantage from the creation of life peerages; but I must say that, to confine such creations to four persons in the profession of the law, to say that they shall be life Peers, and that no others shall be admitted to that distinction, would be to place those persons in a most invidious position;—I will not say in a degrading position, but still in a position which many men who are eminent at the bar would not wish to occupy. I come now to my last objection to the Bill, and that is, that I think that its tendency is to offer to the puisne Judges a temptation which ought not to be placed in their way. When once placed on the bench they do not expect promotion, and they are rarely raised to the head of their courts, whatever changes may be made; therefore, practically, there is no temptation in their case. But by this Bill a temptation is held out, especially to the puisne Judges; they are told that they will have easy work, and that instead of being employed the whole year they will, if they obtain one of these seats in the House of Lords, be employed for only a small period of it, and at the same time they will suffer no diminution in their salary. Well, Sir, I say that that is a considerable temptation, and will, I think, tend to deteriorate the constitution of our Courts. It is a great merit, with regard to our courts of justice, that the puisne Judges do not look any further than to the retiring pension to which, after many years' labour, they are entitled. Upon the whole, I have come to the conclusion that, although I see no immediate or pressing urgency, however much I may differ from others in that opinion, for any great reform in the appellate jurisdiction of the House of Lords—for I believe that the House of Lords could themselves make such changes as would render their Court of Appeal satisfactory to the country; still, if a change is to be made, I say, let us have a change which takes away the tribunal of appeal from the House of Lords altogether; and let us establish a tribunal which shall be complete in itself, and which shall consist not of the puisne Judges, but of the most eminent men that can be found in the profession. If it be necessary to introduce a Judge from Scotland, although I must confess that I have never been convinced of the advantage of so doing, then lot one be introduced; but, at all events, let us make the tribunal complete—let us provide an effectual remedy for the defects that exist; but, above all, do not, while

479
you are amending the tribunal of last resort introduce another very grave and serious subject into the Bill; do not at the game time attempt to fetter the prerogative of the Crown in a manner which may be injurious to that prerogative, and which may at the same time be mischievous to the country. If we were at an early period of the Session I might perhaps be content to say, let us send the Bill to a Select Committee; but it is quite obvious that to send it to a Select Committee in the month of July would perhaps be a more polite but not a less effectual mode of getting rid of the Bill during the present Session than by directly negativing it. For my own part, I approve the more direct manner of getting rid of it, and I shall, therefore, give my decided vote against the second reading.
THE SOLICITOR GENERALsaid, he would trespass very shortly upon the time of the House, but he could not help expressing the regret and pain with which he had observed the tone which the debate had taken. It would be impossible to adequately express the pain which every one who was anxious to amend the judicial institutions of the country must have felt in listening to the aspersions and criticisms of the right hon. Member for Carlisle. The House of Lords, the Bench, and the Bar, had been equally disparaged, and dirt had been thrown upon them by the right hon. Gentleman. He was sorry also to say that he could not concur in many of the observations of the noble Lord, from whom he should have expected much sounder and more constitutional doctrines. He had not been surprised at the observations of the right hon. Baronet, because that right hon. Gentleman acted up to the maxim sibi constat; but ho had certainly been much amazed at the observations of the noble Lord. He would beg the attention of the House while he addressed to them a few remarks with regard to the manner in which the House of Lords obtained and exercised their appellate jurisdiction. The House had been told that the authority of the House of Lords as an appellate tribunal was a mere usurpation. Now, it was impossible to imagine a greater mistake. There was not a greater mistake in point of history which could be committed by any hon. or right hon. Gentleman in that House. The House of Lords had always possessed a jurisdiction upon writs of error, and it had certainly been a Court of last appeal in all questions of law carried up from the courts of common law at
480
Westminster. It was undoubtedly true that, after the jurisdiction of the Court of Equity was fully established, a difficulty had been felt with regard to an ultimate appeal from the Lord Chancellor sitting in the Court of Chancery; but ever since 1685 it had been settled, without any question whatever, that the House of Lords was the depository of that appellate power, and had the right to exercise it, and that right had been conceded to them ever since. In Queen Anne's time the right was not questioned, though there was some dispute between the Commons and the Lords, but it never proceeded further than a few words. Now, he asked the noble Lord the Member for London whether he was not content with the constitutional character of an authority which had been exercised, without dispute, from the time of the Revolution? Unquestionably the noble Lord was; but what was meant, then, by challenging the authority of the House of Lords in judicial matters, and by the revolutionary doctrine that the admitted privileges of that House should be called in question? He should like to ask what opinion would have been entertained by that great man by whose side the right hon. Baronet the Member for Carlisle sat so long on the Ministerial bench if he had heard the opinions now broached by the right hon. Baronet? He thought, therefore, that he might call on the calm and considerate portion of the House of Commons to address their attention to the consideration of the Bill, with an acknowledgment of the unquestionable constitutional right of the House of Lords, and with the conviction that it would be doing something revolutionary if it interfered with that right, and remembering that the best security they could have for their own privileges was to respect the privileges of the Other branches of the State. Such, then, being the right of the House of Lords, all that the House of Commons had to consider was, whether any assistance should be given to the Lords in the exercise of their appellate jurisdiction. It was unquestionably the character of the people of this country to endure sufferings very long; and it was unfortunately the temper of a great number of Gentlemen in the House of Commons, when a remedy was proposed for some acknowledged evil, immediately to quarrel with the remedy, not remembering that they could not have any unmixed good, and consequently the grievance for a long period remained

481
un-redressed. The House of Lords had been recognised for the greater part of the time during which it had exercised this jurisdiction as a high judicial authority; it had had the confidence of the people in the wisdom of its decrees and judgments, which were unimpeached and unimpeachable; but with respect to the mode in which the jurisdiction was exercised there were great inconveniences. One objection was, that the Lord Chancellor was frequently the only Judge in the House of Lords, and as he had sometimes to attend the Cabinet meetings, and sometimes was occupied in other official duties, the result was that, in consequence of the Lord Chancellor's absence, a less portion of the day was devoted to the hearing of a cause in the House of Lords than otherwise would be appropriated to that purpose. Appeals too to the House of Lords came there upon every variety of subject and from every inferior Court of judicature, and it could not be expected that the Lord Chancellor, or any one, or any two men, could with propriety be trusted with pronouncing sentences having reference to the decisions of other Courts, or to a state of law of which they had neither knowledge nor experience, but which, like the laws of the Medes and Persians were irreversible? Was it wise to commit to any one or two individuals this absolute power? Let the House take the analogy of the common law tribunals. In the Court of Queen's Bench four Judges were always sitting in banco; the same was the case in the Courts of Common Pleas and Exchequer; and in all, plurality of voices was recognised as the leading characteristic. Now it was proposed to adopt the same rule with regard to the Court of Appeal in the last resort. Undoubtedly, up to the present time this want had not been felt; but that had arisen from accident. He agreed in the eulogies pronounced on the administration of justice in the House of Lords at the time when Lord Lyndhurst, Lord Brougham, Lord Cottenham, and Lord Campbell were in daily attendance at that house, and combined to administer justice there. At that time there was no necessity or call for altering the tribunal; but circumstances altered, and now the advantage of the attendance of more than one or two law Lords could not be obtained. This evil had been felt in former times. It was complained of when Lord Eldon sat alone, though that noble and learned Lord was always most
482
anxious to have Lord Redesdale constantly with him. In like manner, in the time of Lord Hardwicke, Lord Mansfield frequently acted as his assessor, But the evil had never been felt so strongly as during the last year, and the House of Lords, at the present time, failed to give satisfaction as the great Court of appellate jurisdiction; and all the judicial institutions of the country must be in an unsatisfactory condition when the appellate tribunal—the keystone of the arch—was not constituted so as to give satisfaction. The necessity of a change was therefore obvious: but were they to alter the system by pulling down the authority of the House of Lords, or should they not rather try to provide a remedy for the defects that had been pointed out? Deputy Speakers used, in former days, to be appointed from time to time to supply any deficiency in the judicial strength of the Upper House, and it was now desired to make that perpetual which had been previously resorted to only on a few occasions; and what was it that those who wished to pull down the present tribunal intended to set up instead? The House had had a most impossible and most absurd sketch presented to it by the right hon. Baronet the Member for Carlisle, and the noble Lord the Member for London eulogised the time when lay Lords—namely, those Peers who had not devoted themselves to the study of the law—were invited, solicited, and induced to take a part in the determinations of the judicial tribunal of the House of Lords. Was not the noble Lord aware of the scandal created by the practice? Does the noble Lord never remember reading that in those times persons who were parties to appeals who had handsome wives or daughters, used to send them to present petitions to Peers, in order to enlist their favour, and obtain a favourable judgment? The House was now asked to reject the present Bill, in order that it might pave the way for the introduction of some revolutionary measure. Was the House prepared to do that? Some hon. Gentlemen, who had not properly attended to the subject, said that the appellate jurisdiction of the House of Lords might be transferred to the Judicial Committee of the Privy Council. But the Judicial Committee of the Privy Council was open to the same objections as the House of Lords; and it was a tribunal gathered from all quarters at great inconvenience to the Courts whose Judges were taken way to sit in it. At the present

483
moment the Court of Appeal in Chancery was shut, and had been for the last eight or nine days, to the great inconvenience of all the suitors, because the Lords Justices were sitting with the Committee of the Privy Council; there was the same inconvenience felt in the Privy Council as in the House of Lords; the suitors never knew of whom the tribunal would consist, they never knew when it would sit, nor was it certain that all the Judges would remain collected together until the business before them was disposed of. These were evils which would only be augmented by transferring the appellate jurisdiction of the House of Lords to the Privy Council. There would be merely the satisfaction of putting down an ancient tribunal—an old established right existing in the House of Lords—in order to transfer it, for the sake of change, to a tribunal of yesterday; and which it would be necessary to reconstruct in the same manner as they were now desired to reconstruct an old-established institution. Surely, it was better to improve, than to pull down merely for the sake of change. Some hon. Members had spoken of the Bill as being a miserable measure. That was the complimentary language applied to it by the right hon. Baronet the Member for Carlisle and by the hon. Member for Tavistock. If objection were taken to any of the details, to the number of the tribunal and the remuneration to be given to its members, no Gentleman who voted for the second reading of the Bill would be prevented from discussing any improvements in the Bill in Committee. Speaking for himself, he should be very glad if the basis of the tribunal could be enlarged, and if, in point of emolument, it could be rendered a greater object of ambition for the members of the law. With regard to the injurious allusion made by the right hon. Baronet the Member for Carlisle, that this Bill was promoted by members of the Bar from some idea of advantage to themselves, it seemed to be forgotten that the Bill carefully provided that no one should be transferred to the judicial tribunal of the House of Lords who had not already filled some judicial office; and members of the Bar, therefore, who were Members of that House, might discuss the Bill without being open to any such imputation. In fixing the number of the tribunal the House of Lords seemed to contemplate that they might always expect in their body one or more ex-Chancellors, who
484
would attend to hear appeals; but he was not quite so certain that that expectation would always be realised, and therefore it was that he should be glad to see the constitution of the tribunal enlarged. From the observations which had been made in the course of the debate on the question of prerogative—which, however, had no real connection with the Bill—it was clear to him that there was a great deal of confusion upon that point. Nobody questioned, or ever had questioned, the prerogative of the Crown to create Peers for life. The question simply was, whether Peers for life were entitled to sit and vote in the House of Lords; and, therefore, what the noble Lord the Member for London referred to—the dictum of Coke and of those who repeated it after him—might be taken as an assertion of the acknowledged right of the Crown to create Peers for life, without any reference to the constitutional right of a Peer so created to take his seat in the House of Lords. It was the constitutional right of the House of Lords to determine who was entitled to take his seat in that House. That was recognised by a proceeding with which they were all familiar. Upon the death of every Peer, and upon the transmission of every Peerage, the House of Lords sat in judgment as a judicial tribunal—in the form of a Committee of Privileges—and determined whether the claimant had proved his constitutional right to take his seat as a member of that body. This Bill, though it might be open, he confessed, to a difference of construction in some points, did not affect the question of prerogative at all, except where, in a manner perfectly constitutional, it put a limit, for the purposes of the Bill, on the number of persons to be created Peers for life, with the right of becoming members of the House of Lords. To put such a limitation upon the prerogative was not unconstitutional. The prerogative had been limited already in the Act of Union with Scotland and in the Act of Union with Ireland; and if matters had come to this predicament that there was a question between the Crown and the House of Lords upon which those who conceived that the Crown had an unbounded prerogative were met by those who held, on the contrary, that the prerogative was limited, was it wrong that there should be some expressions of limitation of the prerogative in a Bill of this description? The noble Lord the Member for London and the right hon. Baronet the Member for

485
Carlisle urged the House of Commons to pronounce that upon this question they were right, and the House of Lords, who were by the constitution the proper exponents of the prerogative right upon this subject, were wrong; and because it contained this limitation clause to reject the Bill altogether. Such a course would be rash beyond all measure. Was the House in a situation to pronounce an opinion upon this question? Were they to reject a measure which would be of such service to the appellate tribunal in the last resort because it contained a limitation of the prerogative which the House of Lords believed to be perfectly legal and constitutional, and to which the assent of the Crown must be given before it could pass into law? Was the House of Commons to prevent this concord between the House of Lords and the Crown, and to re-open this question, which was now about to be settled? This was a course which he thought the House of Commons would shrink from. They would not, he thought, feel themselves called on to refuse this Bill, which was the result of an agreement between the Crown and the House of Lords, simply because it contained a clause which limited the prerogative in a perfectly legal manner. The unanimous testimony of those who had for the last fifteen or twenty years practised in the House of Lords was that this would be a great boon and a great advantage to the people of England. He hoped that their evidence, which was perfectly disinterested, would have some weight with the House of Commons, and that that House would not signalise the last days of its present Session by the rejection of this amendment of the law, which came from the other House of Parliament, which was sanctioned by the Crown, which would unquestionably remove a great and longstanding grievance, and to which there was no rival, because no intelligible and rational scheme had been brought forward in competion with it.
Question put.
The House divided:—Ayes 191; Noes 142: Majority 49.

List of the AYES.

Agnew, Sir A.

Ball, J.

Annesley, Earl of

Baring, H.B.

Antrobus, E.

Barrington, Visct.

Archdall, Capt. M.

Beckett, W.

Atherton, W.

Bective, Earl of

Baines, rt. hon. M. T.

Bentinck, G. W. P.

Baird, J.

Berkeley, F. W. F.

Ball, E.

Bethell, Sir R.

486

Biddulph, R. M.

Hughes, W. B.

Blandford, Marq. of

Johnstone, J.

Boldero, Col.

Jolliffe, Sir W. G. H.

Bouverie, rt. hn. E. P.

Jolliffe, H. H.

Bramley-Moore, J.

Jones, Admiral

Brand, hon. H.

King, J. K.

Bruce, Lord E.

Kingscote, R. N. F.

Buckley, Gen.

Knatchbull, W. F.

Buller, Sir J. Y.

Knight, F. W.

Burrowes, R.

Knightley, R.

Campbell, Sir A. I.

Labouchere, rt. hon. H.

Carnac, Sir J. R.

Laslett, W.

Cayley, E. S.

Lemon, Sir C.

Cecil, Lord R.

Lennox, Lord A. F.

Chambers, T.

Leslie, C. P.

Chelsea, Visct.

Lewis, rt. hn. Sir G. C.

Christy, S.

Liddel, hon. H. G.

Clive, hon. R. W.

Lindsay, hon. Col.

Cockburn, Sir A. J. E.

Littleton, hon. E. R.

Cole, hon. H. A.

Lockhart, W.

Coles, H. B.

Lovaine, Lord

Collier, R. P.

Lowe, rt. hon. R.

Conolly, T.

Lowther, hon. Col.

Corry, rt. hon. H. L.

Luce, T.

Cowper, rt. hon. W. F.

Lushington, C. M.

Craufurd, E. H. J.

Macartney, G.

Dalkieth, Earl of

MacGregor, John

Davies, D. A. S.

Malins, R.

Deedes, W.

Mangles, R. D.

Deering, Sir E.

March, Earl of

Disraeli, rt. hon. B.

Massey, W. N.

Drumlanrig, Visct.

Matheson, Sir J.

Duncan, Visct.

Miles, W.

Dunlop, A. M.

Milner, Sir W. M. E.

Elmley, Visct.

Moffatt, G.

Esmonde, J.

Monck, Visct.

Farnham, E. B.

Moncrieff, rt. hon. J.

Feilden, Major

Morgan, O.

Fellowes, E.

Mostyn, hn. T. E. M. L.

Ferguson, Sir R.

Mowatt, F.

FitzGerald, rt. hon. J. D.

Mowbray, J. R.

Fitzwilliam, hon. G. W.

Mundy, W.

Follett, B. S.

Naas, Lord

Forester, rt. hon. Col.

Napier, rt. hon. J.

Freestun, Col.

Neeld, J.

Freshfield, J. W.

Newark, Visct.

Galway, Visct.

Newdegate, C. N.

Gilpin, Col.

Newport, Visct.

Goddard, A. L.

Norreys, Sir D. J.

Gooch, Sir E. S.

North, Col.

Graham, Lord M. W.

O'Connell, Capt. D.

Greene, T.

Oliveira, B.

Gregson, S.

Osborne, R.

Greville, Col. F.

Paget, Lord A.

Grey, rt. hon. Sir G.

Pakington, rt. hn. Sir J.

Grey, R. W.

Palmer, R.

Grogan, E.

Palmerston, Visct.

Hale, R. B.

Peel, Sir R.

Hall, rt. hon. Sir B.

Peel, Gen.

Hamilton, Lord C.

Pennant, hon. Col.

Hamilton, rt. hn. R. C. N.

Philipps, J. H.

Hardy, G.

Rolt, P.

Hayes, Sir E.

Russell, F. W.

Heard, J. I.

Rust, J.

Heathcote, hon. G. H.

Scully, V.

Heneage, G. F.

Seymer, H. K.

Henley, rt. hon. J. W.

Sibthorp, Maj.

Herbert, H. A.

Smith, rt. hon. R. V.

Herbert, Sir T.

Smith, A.

Higgins, Col. O.

Smyth, Col.

Hildyard, R. C.

Spooner, R.

Horsfall, T. B.

Stafford, A.

Horsman, rt. hon. E.

Stafford, Marq.

487

Stanhope, J. B.

Watkins, Col. L.

Stanley, Lord

Welby, Sir G. E.

Starkie, Le G. N.

Whatman, J.

Steel, J.

Whiteside, J.

Stracey, Sir H. J.

Whitmore, H.

Stewart, Sir M. R. S.

Wigram, L. T.

Sutton, J. H. M.

Willoughby, Sir H.

Taylor, Col.

Wilson, J.

Thesiger, Sir F.

Wood, rt. hon. Sir C.

Vance, J.

Wrightson, W. B.

Villiers, rt. hon. C. P.

Wyndham, H.

Waddington, D.

Wyndham, W.

Waddington, H. S.

Wynne, W. W. E.

Walpole, rt. hon. S. H.

TELLERS.

Walsh, Sir J. B.

Hayter, W. G.

Warren, S.

Mulgrave, Earl of

List of the NOES.

Adair, Col.

Grenfell, C. W.

Anderson, Sir J.

Gurney, J. H.

Baldock, E. H.

Hadfield, G.

Baring, rt. hn. Sir F. T.

Hamilton, J. H.

Barnes, T.

Hankey, T.

Baxter, W. E.

Harcourt, G. G.

Beaumont, W. B.

Hastie, Alex.

Biggs, J.

Headlam, T. E.

Black, A.

Heathcote, Sir W.

Blackburn, P.

Hogg, Sir J. W.

Bonham-Carter, J.

Holland, E.

Bramston, T. W.

Hotham, Lord

Brocklehurst, J.

Howard, hon. C. W. G.

Brotherton, J.

Hutchings, E. J.

Brown, W.

Ingram, H.

Bruce, H. A.

Kendall, N.

Butt, G. M.

Kennedy, T.

Byng, hon. G. H. C.

Kershaw, J.

Cardwell, rt. hon. E.

King, hon. P. J. L.

Cavendish, hon. G.

Kinnaird, hon. A. F.

Chambers, M.

Langston, J. H.

Cheetham, J.

Langton, H. G.

Clay, Sir W.

Lascelles, hon. E.

Cobbett, J. M.

Layard, A. H.

Colvile, C. R.

Lennox, Lord H. G.

Compton, H. C.

Locke, J.

Cowan, C.

MacEvoy, E.

Crossley, F.

M'Cann, J.

Currie, R.

MacGregor, James

Davie, Sir H. R. F.

Magan, W. H.

Denison, E.

Maguire, J. F.

Denison, J. E.

Milligan, R.

De Vere, S. E.

Milnes, R. M.

Dillwyn, L. L.

Michell, W.

Duncan, G.

Moore, G. H.

Duncombe, hon. Col.

Morris, D.

Duncombe, hon. W. E.

Napier, Sir C.

Egerton, W. T.

O'Brien, P.

Ewart, W.

Palk, L.

Ewart, J. C.

Paxton, Sir J.

Fenwick, H.

Peacocke, G. M. W.

Ferguson, Col.

Pechell, Sir G. B.

Ferguson, J.

Pellatt, A.

Fergusson, Sir J.

Perry, Sir T. E.

Fitzgerald, W. R. S.

Phillimore, J. G.

Foley, J. H. H.

Pigott, F.

Forster, C.

Pilkington, J.

Forster, J.

Portman, hn. W. H. B.

Gaskell, J. M.

Price, Sir R.

Gladstone, Capt.

Price, W. P.

Goderich, Visct.

Pritchard, J.

Gordon, Hon. A.

Ricardo, O.

Graham, rt. hon. Sir J.

Ricardo S.

Greene, J.

Rice, E. R.

488

Rich, H.

Tempest, Lord A. V.

Ridley, G.

Thompson, G.

Robartes, T. J. A.

Thornely, T.

Roebuck, J. A.

Thornhill, W. P.

Russell, Lord J.

Tottenham, C.

Russell, F. C. H.

Vernon, G. E. H.

Sawle, C. B. G.

Vivian, H. H.

Scrope, G. P.

Walmsley, Sir J.

Shafto, R. D.

Watson, W. H.

Shee, W.

Whitbread, S.

Shelley Sir J. V.

Wickham, H. W.

Smith J. B.

Wilkinson, W. A.

Smollett, A.

Williams, W.

Somerville, rt. hn. Sir W.

Wortley, rt. hon. J. S

Stirling, W.

Wyvill, M.

Strickland, Sir G.

Strutt, rt. hon. E.

TELLERS.

Stuart, Capt.

Bowyer, G.

Tancred, H. W.

Phillimore, R. J.

Main Question put, and agreed to.
Bill read 2°.

INCUMBERED ESTATES (IRELAND) BILL.
Order for Committee read; House in Committee.
MR. WHITESIDE MR. WHITESIDE moved the addition of a new clause, limiting the number of the Commissioners to two. The evidence given before the Select Committee had shown that it was quite impossible for the present Chief Commissioner of the Incumbered Estates Court to transact the business of that office without neglecting his duties as a Baron of the Exchequer. At present a great portion of the time of the Commissioners was taken up in listening to appeals from the decision of each other; and, as those appeals would, according to the terms of a Bill to be brought before the House to-morrow, be transferred to a new appellate court, two Commissioners would be sufficient to dispose of the business of the Incumbered Estates Court.
Clause brought up, and read 1°.
MR. J. D. FITZGERALDobjected to the clause as unwise and inexpedient. The Crown could now, if it chose, reduce the number of Commissioners to two without the aid of a new Act of Parliament. The Court had existed for seven years, had given great satisfaction, and it was desirable that it should be continued. Owing to the want of judicial strength arrears had accrued, and now the hon. and learned Gentleman proposed to reduce the judicial strength of the Court. He (Mr. FitzGerald) did not say that it was advisable to retain Mr. Baron Richards in the double capacity; but it was perfectly consistent with relieving that learned personage of the extra duties to continue the same number of Commissioners as there were at present.
MR. WHITE SIDEsaid, that no answer had been given to the case he put, because the Commissioners were doing less than nothing.
SIR JAMES GRAHAMregretted that they had to discuss the question in the absence of the Report of the Committee. He regretted that the Bill was only a continuing Bill for one year. Why should it not be a continuing Bill for a longer period? It had been discussed in Committee, whether the power of the Court should not be extended to unencumbered property, but no decision had been come to. The Real Property Commissioners were considering the whole question, and he thought it would be advisable to continue the powers of the Court for at least two years, and till the end of the next Session of Parliament. They were about to give an appeal from the Court itself to an independent Court, which he thought was most desirable. He thought that by increasing the staff of the Court, two of the Judges would be able to clear off all the arrears of business. He did not think that an inferior officer should be appointed. He was of opinion that Baron Richards should return to the Exchequer Court and circuit, and they had the opinion of the other two Judges of the Court that they would be able to transact double the amount of business with an increased staff.
MR. J. D. FITZGERALDsaid, he expressed in the Committee the opinion that it was desirable that Baron Richards should return to his Court and his circuit, and he believed the Government were of the same opinion. But whilst that was his opinion, he wished to say that Baron Richards was called on to undertake the duties of Chief Commissioner of the Incumbered Estates Court at a time of great pressure, that he performed his duties with great ability, and he believed he had no personal desire, but the contrary, to continue a Judge of the Incumbered Estates Court. For his own part, he should have no objection to increase the term of this Act to two years. He had, in fact, limited it to one to meet the objections of many members of the Committee which sat upon this subject.
MR. NAPIERsupported the Amendment.
MR. HENLEYsaid, that the evidence taken in the Committee proved that two Commissioners, with an adequate staff, would be sufficient to discharge all the duties of the Court, more especially as it
490
had been relieved from its appellate business.
MR. VINCENT SCULLYtrusted that, whatever arrangement was come to, no slight would be cast on Baron Richards.
MR. J. D. FITZGERALD, explained, in answer to Mr. Henley, that the Incumbered Estates Court would still have to exercise an appellate jurisdiction of considerable extent.
Motion made and Question put, "That the clause be now read a second time."
The Committee divided:— Ayes 48; Noes 83: Majority 35.
MR. WHITESIDEsaid, he should raise the same question on the third reading.
The House resumed.
Bill reported, without Amendment.
The House adjourned at a quarter after Two o'clock.

MINUTES.
PUBLIC BILLS.—1a Church Building Commission; Parochial Schools (Scotland); Militia Ballots Suspension; Deeds (Scotland); Charities.
2a Isle of Wight Steam Bridge and Approaches; Metropolitan Railway; Severn Navigation Improvement Commission; Drainage (Ireland); Distillation from Rice; Court of Exchequer (Scotland).
3a Small Debts Imprisonment Act Amendment (Scotland).
ROYAL ASSENT.—Industrial and Provident Societies; Seamen's Sayings Banks; Annuities Redemption; Stock-in-Trade Exemption.

NAWAB OF SURAT TREATY BILL.
On the Order of the Day for the Second Reading of the Bill,
THE MARQUESS OF CLANRICARDEsaid, that before moving that the Bill ho read a second time, he should be glad if the noble Duke (the Duke of Argyll) would inform the House what course the Government proposed to take with regard to the measure?
THE DUKE OF ARGYLLsaid, he was rather surprised at the question of his noble Friend, who, he understood, had taken upon himself the duty of moving the second reading of the Bill as a Private Bill. He was anxious, therefore, to hear what were the grounds upon which his noble Friend recommended their Lordships to adopt this course; and he should certainly wait until he had heard those reasons, and the Chairman of Committees had given his opinion upon the expediency of taking such a course, in reference to such a subject,
384
before he should be prepared to state the course which the Government meant to pursue.
THE EARL OF ELLENBOROUGHsaid, the Bill materially affected revenues which the East India Company only held as trustees for the Crown; he wished to know, therefore, if the noble Duke was prepared, with the approbation of the Government, to give the assent of the Crown to it?
THE DUKE OF ARGYLLagreed with the noble Earl that the Bill did affect the revenues of the Crown, and he was not empowered by the Government to give the assent of the Crown to it.
LORD REDESDALE,as Chairman of Committees, thought that this, being a Bill which affected the public revenue, ought not to be treated as an ordinary private Bill. It had come before him as an ordinary unopposed private Bill, and he could not take upon himself the responsibility of stopping it; but on every ground he felt that it was a measure which ought not to be treated as an ordinary Private Bill, and so strongly was he impressed with this conviction, that at the fitting opportunity he should move as an Amendment that it be read a second time that day six months.
THE MARQUESS OF CLANRICARDEhad as much reason to express surprise at the course the noble Duke had taken as the latter had to express surprise at the course he (the Marquess of Clanricarde) had taken. The noble Duke had himself volunteered on Friday to tell the House tonight what the Government intended to do with regard to the Bill.
THE DUKE OF ARGYLLexplained. He was entrusted with a petition for presentation to their Lordships on Friday night from the East India Company, praying to be heard by counsel at the bar against the Bill; and in presenting it, he merely stated that on Monday when the measure came before the House he should call their Lordships' attention to the subject matter of that petition. He stated nothing more, and certainly stated nothing as to the period of the evening when he should make the statement. When his noble Friend had moved the second reading, he should be quite ready to state the course which the Government were prepared to pursue with reference to the Bill.
THE MARQUESS OF CLANRICARDEthen proceeded to move the second reading of the Bill and said, that no doubt this Bill affected a portion of the revenues of the empire; but the Government did not

385
seem disposed to treat it as its importance demanded. He agreed with a noble and learned Lord (Lord Lyndhurst) that the Bill was one upon which the law officers of the Crown ought to have been consulted, and that the Government ought to not in accordance with their opinions. The Solicitor General, however, had spoken in favour of this Bill in the other House, and he had, therefore, a right to assume that, so far as the law officers of the Crown had been consulted, their opinion was favourable to this Bill. He asked the House merely to do justice. The President of the Board of Control had begged the other House to consider this matter judicially, and he made the same request to their Lordships. It was said that this Bill ought to be treated as a public measure. He was informed that the promoters of the Bill wished it to be treated as a public Bill, and he saw no reason why it should not have been so considered. But the Speaker of the House of Commons Lad objected to Mr. Pollock's Bill, and now to resort to this objection at the present stage of the Bill seemed to him to be an evasion of justice and a course unworthy of the Government and of the East India Directors. All that the parties interested wanted, and all that he asked on their behalf, was that the question should be sent before some tribunal capable of investigating the justice of the claims to which it related; and whether that tribunal were the Judicial Committee of the Privy Council or any other competent body was a matter upon which the promoters were indifferent. The Bill arose upon the construction of a treaty entered into by the Indian Government in the year 1800 with the Nawab of Surat. The whole matter of it turned upon the construction of the words of the treaty, and whether the Government were bound to pay to the heirs of the late Nawab the sum of £15,000 a year. The answer given to the claim by the Directors was a long story about matters which occurred in 1750, and a reference to the instructions given by Lord Wellesley to the political agent, as a commentary on the construction of the treaty; but you must look to the treaty itself, for it was by that you were bound, and not by anything which might have taken place before it was made. The meaning of the word "Nawab" was an officer employed under the Mogul empire, and when that empire fell into decline many of the Nawabs usurped the power which they
386
originally held by delegation. Such had been the case at Surat; and, so far from our establishing the first Nawab, we went there with the intention of putting another man in his place, but found that the Nawab in possession was too strong, and then, instead of disturbing, it was thought better to enter into treaty with him. The Nawabship was always considered hereditary, with this chance incidental to it—that a weak prince was very likely to be set aside by a strong one; but the Nawabs were not elected like the former kings of Poland or emperors of Germany, neither were they appointed by the English Government. They succeeded from father to son and to grandson by right of inheritance. It mattered nothing, however, what were his rights or lineage, because, if in 1800 the East India Company stipulated by treaty to pay a certain annuity to the heirs of the then Nawab of Surat so long as that race lasted, they were bound to pay it. It was contended on the other side that as the heirs male of that Nawab had failed in 1842, and he had no successor to the Nawabship, that the annuity had ceased. The question then arose whether the annuity was not granted not to his "successors" in the Nawabship, but to his heirs, which would include heiresses. On the death of the last Nawab, neither Sir George Arthur, Governor of Bombay, nor Mr. Elliot, Resident at Surat, who were directed to make inquiries, ever expressed any doubt as to the annuity being payable; the only question mooted was, to whom was it to be paid. It had been asked why had not the petitioner applied to a public tribunal in India; but the answer was that the petitioner could not do any such thing, as the questions in dispute would involve the construction of the terms of a treaty—a power which courts of justice in India did not possess. The petitioner could not apply to the Privy Council, as no Court in England had original jurisdiction in Indian cases; neither could he appeal to a court of law. Therefore he had adopted the only course open to him, and appealed to the high Court of Parliament—the tribunal to which every subject of Her Majesty had a right to come when they could not obtain justice in the ordinary courts of law. He (the Marquess of Clanricarde) quite agreed that it would have been desirable had this matter been settled out of that House, but the petitioner had no means of obtaining justice elsewhere. It was stated that

387
great constitutional questions were involved in this matter, and he (the Marquess of Clanricarde) admitted it; for what could be a greater constitutional question than the good government and administration of justice to an immense population? There was another and a distinct part of the Bill before the House, which related to the real and personal property of the late Nawab, respecting which a decision had been pronounced by the Governor of Bombay in Council, and against which all parties were anxious to appeal. They found, however, that they had no appeal to the Privy Council; for, upon making the experiment, the Privy Council declared itself incompetent to entertain the appeal, as it had not been referred to them by the Queen. Another plausible objection had been raised in the petition which had been laid upon their Lordships' table, that the Bill affected the rights of different parties who had received no notice and were resident in a distant country. The fact was, there was not one interested person who had not full notice of the Bill, and was not fully cognizant of its progress. Every party had appealed from the decision of the Governor of Bombay. The Bill itself was propounded last Session, and had been intended to be considered as a public Bill. But the highest authority in the other House—the Speaker—decided that it could not be introduced as a public Bill. The noble Lord, the Chairman of Committees, now said this was not a subject for a private Bill. The applicant did not care whether it came on in the shape of a private or of a public Bill, or whether any other remedy could be proposed for his grievance. It was because he (the Marquess of Clanricarde) was anxious to know whether the Government intended to propose any other remedy for an admitted wrong that he had ventured to ask the noble Duke (the Duke of Argyll) whether the Government had arrived at any conclusion upon the subject. The noble Duke could not deny that a wrong had been done. It had been admitted in the other House by the President of the Board of Control; it had been admitted by the Solicitor General, who voted for the Bill entirely upon grounds of justice. The Government could not venture to set aside a claim which was supported by such high authority. The Bill was referred to a Select Committee of the House of Commons, which was composed chiefly of lawyers eminent for their ability and knowledge of the law, among
388
whom was Mr. Butt and Mr. Napier, lately Her Majesty's Attorney General for Ireland; not one of whom but was not at the present moment qualified to take his seat on the judicial bench. These four lawyers were appointed to inquire into the subject, and the Committee was presided over by Mr. Cardwell; and would any man deny that that right hon. Gentleman, by his intellectual powers, attainments, and habits, was not as able to enter into a legal argument as any man in either House of Parliament? Thus, then, they had a tribunal fit to try any case, and that tribunal reported unanimously in favour of the Bill; but they at the same time stated that there were considerations of policy which might be involved in the question which they did not think it their duty to report upon. The Bill was passed by the House of Commons by a large majority, and was supported by every lawyer in the House, except one hon. and learned Gentleman, who, though undoubtedly not retained to speak against it, it could not be denied had been for many years one of the leading counsel of the East India Company. Every man who had examined into the facts of the case had said that injustice had been committed which required redress by Parliament. He did not ask their Lordships to decide the question upon his mere advocacy; but he did implore their Lordships not to shut the door against inquiry to a person who had brought a case before them so sustained. Let it not be said that there were wrongs that might be committed by a powerful corporation, and that Parliament would not attempt to remedy those wrongs. Were their Lordships to sanction such a principle, they would be taking one great step towards shaking the allegiance of the people of India and of endangering the whole of our Indian empire. All, therefore, that he entreated their Lordships to do was, not to send back to India these persons who asked for a hearing until their case had been heard and fairly and impartially decided. The noble Marquess then moved, that the Bill be now read 2a.
Amendment moved, to leave out ("now") and insert ("this Day Three Months").
THE DUKE OF ARGYLLsaid, he should support the Motion of his noble Friend the Chairman of Committees, that the Bill be read a second time that day three months. Undoubtedly his noble Friend made that Motion on a question of form; but, although in coming to that vote it might practically be one on a point of form, yet

389
he hoped to convince their Lordships that they would not be doing any injustice to the merits of the case. But before he proceeded to the question itself, he trusted he might be allowed to say a single word upon this point of form. Among the functions belonging to that House, there were few more important than those connected with the private Bill legislation of the country. Directed as those Bills professedly were to private ends, and the promotion of private interests—supported as they often were by an active personal canvass—they yet frequently affected the most important public principles. It was essential, therefore, for the interests of the country that the parties connected with those Bills should be required to observe the rules laid down by Parliament in respect to the passing of private Bills. Finding, then, the Chairman of Committees repudiating this Bill as a private Bill, he thought it was a strong presumption that the Bill was illegitimate in its nature, and that it dealt with its subject in a manner which ought not to be tolerated. The Bill had been referred to the Standing Orders Committee, and the Committee had reported that they had minutely inquired into this Bill; and they found that none of the standing orders which were applicable to private Bills previously to the second reading were applicable to this Bill. What did this mean? It meant that no such case was made out by the parties as was contemplated by the Committee when those orders were made. That the Bill affected the public interest was beyond question, for it dealt with the revenues of the Crown to the extent in capital of half a million sterling; and as regarded private rights, he must maintain, in spite of the argument of his noble Friend, that one part of the Bill would have a most injurious effect upon the private rights of several individuals who were totally un-represented in this country, and who, so far as they knew, had no knowledge of such a measure being in contemplation. Under these circumstances, it was not a mere matter of form that their Lordships should strictly adhere to their standing orders. He should be ashamed to make this appeal to their standing orders if he thought it would be a denial of substantial justice to the parties; but he maintained that no substantial injustice had been committed in this case. The Bill itself concerned mainly two questions—one a question respecting the disposal of a perpetual annuity,
390
given by treaty by the East India Company in the year 1800 to the person claiming to be the heir and successor of the late Nawab of Surat; and the other a question respecting the distribution of the private estate of that Nawab. He should confine himself mainly to the first question. In the year 1800 the late Nawab of Surat died. Lord Wellesley was at that time Governor General of India. The East India Company felt themselves entitled to take into their hands the Government of Surat; and Lord Wellesley accordingly sent down an agent with instructions not to allow the person claiming the Nawabship to assume the Government of Surat, except under the terms of a treaty to be entered into. He would read to their Lordships the terms of that treaty, on which the whole question depended. The preamble of the treaty ran thus:—"Articles of agreement between the East India Company and their successors and the Nawab of Surat, his heirs and successors." It was perfectly true that, in what might be called the enacting clauses of the treaty, the word "successors" was dropped, and the word "heirs" only was used; but it would presently be seen what interpretation this word was to bear. Immediately after the death of the Nawab, in 1842, upon whose death without male heirs this question had arisen, Sir George Arthur, then Governor of Bombay, drew up a Report upon the question, and said that on the whole he was inclined to come to the conclusion that the Company were bound to continue the annuity of £15,000 a year to the personal heirs and family of the Nawab of Surat. Governor Duncan, in his private diary, also spoke of the pension continuing until the Nawab's heirs became extinct; but from other parts of this diary, where it was declared that the Nawab and his family should be secured in constant succession to the Nawabship, he gathered that in the treaty, as well as when Governor Duncan spoke of the heirs becoming extinct, "heirs" were under-stood as meaning heirs to the Nawabship. The decision of the Governor of Bombay was in due course referred to his noble Friend opposite (the Earl of Ellenborough), then Governor General of India, who, having before him the minute of Sir George Arthur, the diary of Governor Duncan, and all the evidence which the claimant could bring before him, decided that with the title and office of Nawab expired all claim to the

391
money which the British Government engaged to pay annually by the treaty of 1800. That money, said his Lordship, was clearly to be paid as the surplus of the State revenue, after defraying all charges; it would be paid to the Nawab as Nawab; it was not made private property, to be severed from the State when the heads of the State failed. This was the decision, not of the Court of Directors (who, he feared, were at the present moment exceedingly obnoxious, and who had incurred a great deal of public odium in this matter), but it was the interpretation put upon the treaty by the then Governor-General of India, under the guidance and advice of the able men whom he had with him in Council at that time. This very minute was signed by Mr. Thomason, one of the very ablest men in the East India service, and whose administration as Governor of the North Western provinces had been the subject of such just eulogy. Surely the House would be satisfied with such authority. It was not usual for Parliament to interfere with the construction of treaties unless some injustice had evidently been done by the constituted authorities, and he called upon any independent Member of their Lordships' House to say whether there was such a primâ facie case of gross injustice as would justify Parliament in interfering in this question either by a private or a public Bill? As to the decision of Sir George Arthur, he strongly suspected that that decision was not so much founded upon a strict construction of the treaty as upon the opinion he entertained that it would be an act of liberality on the part of the East India Company, failing male heirs and failing the nawabship, nevertheless to continue the pension, as a matter of grace and favour, to the members of his family. He was very much confirmed in this impression by a minute drawn up by Mr. Anderson, then a member of Sir George Arthur's Council, who said he doubted if, at the time the treaty was entered into, the lapse of the nawabship was thought of; he believed the pension was intended for those who filled the nawabship. Mr. Anderson's opinion was that the annuity was to be tied up with the title, and in another minute Sir George Arthur said he was glad Mr. Anderson's opinion coincided with his own. He (the Duke of Argyll) thought, then, he was justified in assuming that Sir George's decision with regard to the pension was not founded upon the
392
legal merits of the case, but was merely a generous concession made upon a liberal consideration of all the circumstances of the case. The noble Marquess had endeavoured to cast odium upon the Government of India, as directed by the East India Company, with regard to this matter; but, in point of fact, he could only find that two documents had been sent by the Board of Directors bearing upon the case, and both were to the effect that larger pensions than had been awarded by the local Government should be granted to the family of the late Nawab. The Government of Bombay, acting upon the general instructions of the Board of Directors, had appointed an agent to inquire into and report upon the circumstances of the case and upon the pensions allotted to every member of the family of the late Nawab. The result of that report had been that the Board of Directors had informed the local Government that the pensions which had been allotted were not sufficiently large, and, in fact, £11,000 out of the £15,000 claimed was distributed among the family by their order. Was it, then, fair to take advantage of a passing feeling of hostility against the East India Company in order to bring charges of such a character against them? For his own part, he was prepared to maintain that the East India Company had behaved well towards the family of the late Nawab of Surat, and he hoped that the noble Marquess would not suspect them or the Government of wishing to behave shabbily towards that family. As regarded the course which Her Majesty's Government proposed to pursue, he was not prepared to say that the Government might not refer to the Judicial Committee of the Privy Council a question arising out of this case for their decision; but, even if they did, it was difficult to determine what course it would be expedient to pursue, whatever might be the decision of the Judicial Committee. But, notwithstanding that difficulty, he wished to impress upon their Lordships that the Government in rejecting the present Bill, and in calling upon the House to reject it, by no means precluded themselves from such reconsideration of the case as the circumstances of it might appear to require. Great odium had been cast upon the East India Company with regard to this transaction; but he would bring the attention of their Lordships to some of the facts of the case. Their Lordships were aware

393
that it was one of the privileges of high rank in India not to be subject to local jurisdiction, and there was a special agreement with the Nawab of Surat that he should be exempt from the jurisdiction of the ordinary courts of the country. When the late Nawab died a question arose as to the disposition of his property, and, on the suggestion of Mr. Arbuthnot, a special Act was passed to appoint an agent to inquire into and decide upon the subject, and providing that against that decision there should be no appeal, and to that Act the claimant, in the present case, was a consenting party; and not only was he a consenting party, but he objected that under the second clause of the Act, as it was originally drawn up, the agent was not entitled to deal as freely with the property as he ought to be, and he suggested a clause giving the agent fuller power; and that clause was the very one against which he now protested. It was preposterous that the claimant in the present case should now come before Parliament and represent that he was precluded from appeal when he had himself acquiesced in that exclusion. It would be impossible for the Government to consent to have the case re-opened as this Bill attempted to re-open it, when a number of persons, many of them comparatively poor, had for several years been in possession of this property, under the conviction that the matter had been finally decided. The Government were not taking advantage of a mere question of form. They denied the justice of this person's claim, and they thought it would be unjust to the Government of India and the parties concerned to reopen the question, either by a public or a private Bill.
THE EARL OF ALBEMARLEsaid, he coincided with what had fallen from the noble Marquess respecting the Government, for, on a question relating to India, there was the old juggle of a double Government—at one time it was the East India Company, at another the Board of Control—and the consequence was a mere jumble and confusion. As for the petition of the East India Company—what was the Company?—why for thirty-three years it had been a board subordinate to the Government—a part of the Executive—and he did not know what right they, as a subordinate part of the Government, had to be heard at the bar against the rest of the Government. The Treasury or the Admiralty might just as well apply to be heard against their superiors.
394
The petition stated that this was the first private Bill which had ever dealt with a subject of this kind. But in 1833, when a case of similar character occurred, the complainant, Mr. Hodges, obtained redress by means of a private Bill. As to the fourth paragraph of the petition, he said he never knew a greater number of statements not borne out by the truth disgrace any petition. The petition stated that the treaty of 1800 was negotiated by the Marquess of Wellesley; that the first of the family of the late Nawab had been raised to the musnud by the East India Company in 1759; and that the Company had always refused, up to 1800, to treat the dignity as hereditary. The facts, however, were that that treaty was concluded by Governor Duncan; that the first of the line of the late Nawab gained possession of the country in 1748, and kept it till he was turned out in 1758, but he became Nawab again the same year without the agency of the Company; and that, in 1798, which was before 1800, the claim of the then late Nawab's son was recognised as hereditary. There were two kinds of Nawabs—the one was a viceroy, the other possessed a merely titular dignity. Before 1800, the late Nawab was a viceroy, and afterwards was reduced to the dignity of the title—he became as it were a Nawab in partibus. But the noble Duke argued that, if there was a failure of male heirs, there must be a failure of the title. Why, John, Duke of Marlborough, received the manor of Woodstock and a pension of £5,000 a year; and did any one believe that, in case of a failure of male heirs in that family, the manor and the pension would be resumable? He, at all events, did not think they would. A member of a Dutch family—the De Ginkell—came over to this country with William III., and was created Earl of Athlone. The last male representative of that nobleman had lately died, and the title became extinct, but the estate was now enjoyed by his daughter. That was a case analogous to the present. Again, the Stanleys, Earls of Derby, had been the Kings of Man, and all their sovereign rights descended to a female. He had said enough to show that no reliance was to be placed upon the petition of the East India Company.
THE EARL OF ELLENBOROUGHthought that the noble Duke had gone so satisfactorily into this question that it was not necessary for him to detain their

395
Lordships at any length. He had been on many occasions compelled to differ from the Court of Directors of the East India Company, but he was satisfied that in the present case they had done their duty as representing the interests of the people of England and of India. The question now before their Lordships was not one between the promoters of this Bill and the East India Company, who had no personal interest in this matter; the question was one between the promoter of this Bill and the people of India, whose money he desired to take away for his private purposes, as he (the Earl of Ellenborough) believed wrongfully; and therefore he opposed the Bill. As far back as the year 1800 a negotiator had made a treaty, in which, like a recent diplomatist, he had not expressed himself with sufficient precision. He had no doubt that the idea of the continuation of the pension, guaranteed to the Nawab and his female descendants, never could have occurred to Governor Duncan as the possible construction of the treaty. He never could have supposed that the descendants could claim anything that was not part and parcel of the nawabship. The Government consulted with Mr. Thomason, who was, perhaps, more competent than any one else to give an opinion on this subject, and who was not only an able and thoroughly conscientious man, but intimately conversant with Eastern habits and Eastern customs and with Mahomedan law. The present question, indeed, seemed to him to be one, not so much for English as for Mahomedan law. The treaty was an Indian treaty, contracted between Indian potentates; while our lawyers had construed it as they would have construed an English deed, giving an annuity to the descendants of an English nobleman. The treaty came under the consideration of the Indian Government in 1843. The documents must have been in the possession of the President of the Board of Control (the Earl of Ripon) in November of that year, and it was for him, if he thought that an erroneous impression prevailed, to call for the opinion of the law officers of the Crown. He (the Earl of Ellenborough) had done that at the Board of Control whenever he had doubts as to the legality of any Indian decisions, so that the law might be corrected if it were erroneous. That decision had been adopted by two Indian Governments, and had been adhered to by three or four Presidents of the Board of Control. Would
396
their Lordships allow him to bring the question into Europe, and to place it more palpably before them than if it were an Indian question? Let him imagine the possibility that the Principalities of Moldavia and Wallachia, which now acknowledged the suzerainty of the Porte, and paid to it a certain sum, desired to relieve themselves from their nominal suzerainty, and that they were permitted to do so, upon the condition that they contracted to pay a certain annual sum to the Sultan and his heirs. Was there any man in that House or in Europe who would say that, if the dignity of the Sultan were extinguished the Principalities of Moldavia and Wallachia would continue after the decease of the Sultan to pay the money to the Pashas who had married his daughters? Why, such an interpretation would be repudiated by the common sense of mankind. In any public treaty it would be the common understanding of European nations that the annuity applied only to heirs male. In India there was no knowledge of heirs female, or of any suzerainty as attached to them. He could not attach great weight to the opinion of a purely English lawyer upon a matter of Mahomedan law; but, considering the knowledge of Eastern habits and Indian law possessed by Mr. Pemberton Leigh and the Judicial Committee of the Privy Council, he should feel satisfied if the true construction of the treaty were submitted to that body. What he desired was, to get the matter out of that House and out of Parliament. The Bill was a bad precedent. Already he knew of two or three similar cases, which were only awaiting the decision which their Lordships might come to; and he would caution their Lordships that if they took this first step they would find it very difficult to stop. He deeply regretted that it should have been necessary for the Privy Council to decline to entertain the appeal. It had been done, and there was no remedy; but the conclusion which would be most satisfactory to him would be for the promoters of the Bill to be placed exactly where they would have been if the Privy; Council had been able to entertain the appeal. He thought that, as regarded the most important points on which rested the claim of the petitioners, the view taken had not been that of a judicial mind, and that, most probably, the decision of the Judicial Committee of the Privy Council would reverse it. He earnestly desired to submit to that tribunal the question whether,

397
by the treaty of 1800 the annuity granted to the Nawab and his heirs was descendible to heirs general, or only to heirs male.
THE MARQUESS OF CLANRICARDEsaid, the noble Duke had been grossly misinformed with respect to the personal property of the late Nawab, as not one sixpence of it had, as yet, gone into the hands of his heirs, as the distribution of it was still sub lite. He had, however, such confidence in the noble Duke, that when he said the case should be placed before the Judicial Committee, and their decision carried into effect, he had no doubt justice would be done to all parties. But he trusted that when the matter had been thus inquired into, steps would be taken to carry the decision of the Privy Council into effect, even although a special Act should be required to enforce it. He had been accused of doing that which he had not done; but he would now earn some portion of that accusation by declaring his opinion that the conduct of the Court of Directors was very bad, very unwise, and open to great reproof, which reproof they had received for the litigation with which they persecuted the people of India; and they were now unpopular, because the people of this country thought that they were guily of great injustice to the Indian people.
After a few words from Lord DENMAN,
On Question, that ("now") stand part of the Motion, Resolved in the Negative; and Bill to be read 2a, on this Day Three Months.

CONVOCATION.
LORD REDESDALE presented a petition from certain Members of the Convocation of the Province of York, praying the House, before preceding with the Church Discipline Bill, or any measure specifically affecting the clergy, the same may be submitted to the clergy of both Provinces in their Convocations now lawfully in being under the Royal writs addressed to both Archbishops respectively. He thought it unjust that one set of proceedings should be adopted with regard to the Province of Canterbury, and another mode of proceeding with respect to the Province of York. He entertained a strong opinion that if the Convocation of the Province of York was put upon a proper footing much good might result from it. He thought the manner in which the proceedings in Convocation of the Province of Canterbury
398
were conducted showed that all those apprehensions which had been entertained by parties as to their dangerous character were altogether unfounded. Of course, in all public assemblies they must expect differences of opinion, and when discussions took place they were not always conducted in the manner in which it could be wished they should be; but because matters of difference might occur that was no argument against such assemblies altogether. It was very desirable that the Church should represent itself. At the present moment the Church was abused for many things for which it was really not responsible, and it was unjust that it should not be allowed to express its opinion as to what should be done in reference to such questions. At the same time, some improvement ought, he thought, to take place in the constitution of the bodies to which he was referring, and the first and most obvious improvement was the fusion of the two Provinces. Nothing, he was aware, could be done now beyond calling public attention to the matter, but he hoped some attention would be given to the subject of the petition, and that the same privileges would be given to the Convocation of one Province as were enjoyed by the other.
Petition to lie on the table.
House adjourned till To-morrow.